Best Driver Resources

National Labor Relations Board - Board Decisions

Mar 13, 2001

333 N.L.R.B. 595 (N.L.R.B. 2001)

BEST DRIVER RESOURCES 595
Best Driver Resources and Samuel L. Collins. Case
12–CA–20556
March 13, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
WALSH
On September 29, 2000, Administrative Law Judge
William N. Cates issued the attached bench decision.
The General Counsel filed an exception to the judge’s
recommended Order and notice to employees and a sup-
porting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exception and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Best
Driver Resources, Hialeah, Florida, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
“(b) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful denial
of work of Carlos Alonso, Neal Collins, Sammie L.
Collins, Israel Morejon, and Juan Odery, and within 3
days thereafter notify these employees in writing that this
has been done, and that the unlawful denial of work will
not be used against them in any way.”
2. Substitute the attached notice (App. B) for that of
the administrative law judge.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

1 There are no exceptions to the judge’s unfair labor practice find-
ings. The General Counsel has excepted to the judge’s failure to in-
clude a provision in the recommended Order requiring that the Respon-
dent expunge from the personnel files of the named discriminatees any
reference to the Respondent’s unlawful denial of work to them. The
General Counsel asserts that an expunction requirement is necessary to
protect the discriminatees, who are employees on strike against their
employer, from further discrimination by the Respondent, a supplier of
temporary labor, or by other employers from whom the discriminatees
are likely to seek employment. We find merit in this unopposed excep-
tion and modify the Order and notice accordingly.

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

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT deny work to our employees because
they engage in union and/or concerted protected activi-
ties.
WE WILL NOT inform our employees that they were
denied work due to their affiliation, support, and activi-
ties on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make Carlos Alonso, Neal Collins, Sammie
L. Collins, Israel Morejon, and Juan Odery whole for any
loss of earnings and other benefits resulting from our
denial of work to them less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful de-
nial of work to Carlos Alonso, Neal Collins, Sammie L.
Collins, Israel Morejon, and Juan Odery, and WE WILL,
within 3 days thereafter, notify these employees in writ-
ing that this has been done, and that the unlawful denial
of work will not be used against them in any way.
BEST DRIVER RESOURCES
Karen M. Thornton Esq., for the General Counsel.
Charlie Gutierrez, Representative, for the Company.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a
denial of work case. At the close of trial in Miami, Florida, on
September 19, 2000, I rendered a Bench Decision in favor of
the General Counsel (Government) thereby finding a violation
of 29 U.S.C. § 158(a)(1) and (3). This certification of that
Bench Decision, along with the Order which appears below,
triggers the time for filing an appeal (Exceptions) to the Na-
tional Labor Relations Board (Board). I rendered the Bench
Decision pursuant to Section 102.35(a)(10) of the Board’s
Rules and Regulations.
For the reasons stated by me on the record at the close of
trial, and by virtue of the prima facie case established by the
Government, a case not credibly rebutted by Best Driver Re-
sources (Company), I found the Company violated Section
333 NLRB No. 72
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596
8(a)(1) of the National Labor Relations Act, (the Act), when on
December 6 and 7, 1999, it informed employees they were
being denied work due to their affiliation, support, and activi-
ties on behalf of the Freight Drivers, Warehousemen and Help-
ers, Local Union 390, affiliated with International Brotherhood
of Teamsters, AFL–CIO (Union). Additionally, I found the
Company violated Section 8(a)(3) and (1) of the Act when,
since on or about December 6, 1999, it denied work to employ-
ees Carlos Alonso, Neal Collins, Sammie Collins, Israel More-
jon, and Juan Odery because they assisted and supported the
Union and engaged in concerted activities, and to discourage its
employees from engaging in these activities. I rejected the
Company’s specific contention it removed Sammie Collins and
Neal Collins from the work project because of misstatements
on their employment applications regarding prior criminal con-
victions. I also rejected the Company’s contention that it was
not unlawfully motivated in its actions toward any of the five
named employees because such was not established by any
credible evidence. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
I certify the accuracy of the portion of the transcript, as cor-
rected,1 pages 209 to 235, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
Based on the record, I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act; that it violated the Act in the particulars and
for the reasons stated at trial and summarized above and that its
violations have affected and, unless permanently enjoined, will
continue to affect commerce within the meaning of Section 2(2)
and (6) of the Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. The Company having discriminatorily
denied work to employees Carlos Alonso, Neal Collins, Sam-
mie L. Collins, Israel Morejon, and Juan Odery I shall recom-
mend they, within 14 days from the date of this Order, be made
whole for any loss of earnings or other benefits suffered as a
result of the discrimination against them with interest. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), and interest shall be computed in accor-
dance with New Horizons for the Retarded, 283 NLRB 1173
(1987). I have not recommended the Company be ordered to
offer reinstatement or any other relief for the named individuals
because the Government stipulated the project, from which the

1 I have corrected the transcript pages containing my Bench Decision
and the corrections are as reflected in attached “Appendix C” [omitted
from publications].
named individuals were wrongfully denied work, was tempo-
rary in nature and for a fixed duration.2
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended
ORDER
The Company, Best Driver Resources, Hialeah, Florida, its
officers, agents, successors and assigns shall
1. Cease and desist from
(a) Denying work to its employees because they engaged in
union or concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and/or in order to
discourage employees from engaging in such union or con-
certed activities.
(b) Telling its employees they are being denied work due to
their affiliation, support, and activities on behalf of the Union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Carlos Alonso, Neal Collins, Sammie L. Collins,
Israel Morejon, and Juan Odery whole for any losses they may
have suffered by reason of the Company’s denying them work
in the manner described above in the Remedy section.
(b) Preserve, and within 14 days of a request, make available
to the Board or its agents, for its examination and copying, all
payroll records, Social Security payment records, time cards,
personnel records and reports, and all other records, including
an electronic copy of the records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Within 14 days after service by the Regional Director of
Region 12 of the National Labor Relations Board, post at its
Hialeah, Florida, facility copies of the attached notice marked
“Appendix B.”3 Copies of the Notice, on forms provided by the
Regional Director for Region 12 after being signed by the
Company’s authorized representative shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices are customarily
posted. Reasonable steps shall be taken to ensure that the no-
tices are not altered, defaced or covered by any other material.
In the event that during the pendency of these proceedings the
Company has gone out of business or closed the facility in-
volved in these proceedings, the Company shall duplicate and
mail, at its own expense, a copy of the Notice to Employees, to
all employees employed by the Company at any time since
December 6, 1999.
(d) Within 21 days after service by the Region, file with the
Regional Director for Region 12 of the National Labor Rela-
tions Board sworn certification of a responsible official on a
2 The parties stipulated the project (hauling mail) was for the holiday
season, specifically from December 5 to 23, 1999.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BEST DRIVER RESOURCES 597
form provided by the Region attesting to the steps the Company
has taken to comply

APPENDIX A
BENCH DECISION
209
JUDGE CATES: On the record.
First I wish to thank the parties for the presentation of the
evidence. If you reflect back over the trial, I have asked few
questions and when the Presiding Judge does not have to ask
many questions, that is an indication the parties have developed
the evidence as fully as they wish to have it considered. For
that I thank you.
Let me also state that it is a pleasure to be in Miami, Florida.
This is an unfair labor practice case prosecuted by the Na-
tional Labor Relations Board’s, hereinafter Board, General
Counsel acting through the Regional Director for Region 12 of
the Board, following an investigation by Region 12’s staff.
The Regional Director for Region 12 of the Board issued a
complaint and notice of hearing, hereinafter complaint, on
April 28 2000 against Best Driver Resources, hereinafter Com-
pany, based on an unfair labor practice charge filed on Decem-
ber 16, 1999 and amended on February 17, 2000, by Sammie L.
Collins, an individual, hereinafter Sammie Collins.
Specifically, it is alleged in the complaint that
210
on or about December 6 and 7, 1999, the Company, by its dis-
patch manager, Guillermo Morales, also known as Willie, here-
inafter referred to as Dispatch Manager Morales, telephonically
informed employees they were being denied work due to their
affiliation with Freight Drivers, Warehousemen and Helpers
Local Union 390, affiliated with the International Brotherhood
of Teamsters, AFL-CIO, hereinafter Union.
It is also alleged that since December 6, 1999 until Decem-
ber 23, 1999, the Company denied work to employees Carlos
Alonso, Neil Collins, Sammie L. Collins, Israel Morejon and
Juan Odery because they joined, supported or assisted the Un-
ion and engaged in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.
And in order to discourage employees from engaging in such
activities or other concerted activities, for the purpose of collec-
tive bargaining or other mutual aid or protection.
It is alleged the Company’s conduct violates Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended, here-
inafter Act.
It is stipulated that the time period involved herein is from
December 5 to December 23, 1999 inclusive.
211
In its answer to the complaint, as well as admissions and
stipulations made at trial, the Company admits the Board’s
jurisdiction is properly invoked and the Union is a labor or-
ganization within the meaning of the Act.
The Company, however, denies violating the Act in any
manner set forth in the complaint.
The Company is a corporation with an office and place of
business located at Hialeah, Florida, where it is engaged in the
business of providing drivers for enterprises engaged in the
transportation of goods and materials.
During the twelve month period preceding the issuance of
the complaint, a representative period, the Company, in con-
ducting its business operations just described, derived gross
revenues in excess of $50,000 for the transportation of freight
in interstate, under arrangements with and as agent for various
common carriers, including Emery Worldwide Airlines, Inc.,
which enterprises are directly engaged in interstate commerce
and which operate between various States of the United States.
Based on its operations, as I have just described, the Com-
pany functions as an essential link in the transportation of
freight in interstate commerce.
212
The evidence establishes, the parties stipulate and I find, the
Company is an Employer engage in commerce within the
meaning of Section 2(2)(6) and (7) of the Act.
The evidence establishes, the parties admit and I find the Un-
ion is a labor organization within the meaning of Section 2(5)
of the Act.
The parties admit and I find that Company President, Charles
Gutierrez, Jr., and Dispatch Manager Morales are supervisors
and agents of the Company within the meaning of Section
2(11) and 2(13) of the Act.
This is a case that is fact driven. I shall outline what I con-
sider the essential facts to be. In arriving at credibility resolu-
tions, I carefully observed the witnesses as they testified and I
have utilized such in arriving at the facts herein.
I have also considered each witness’ testimony in relation to
other witnesses testimony and in light of the exhibits presented
herein.
If there is any evidence that might seem to contradict the
credited facts I set forth, I have not ignored such evidence, but
rather have discredited or rejected it as not reliable or trustwor-
thy. I have considered the entire record in arriving at the facts
213
herein.
Having said that, some facts, especially the background facts
are undisputed, admitted or are clearly established with uncon-
tradicted evidence.
It is undisputed that truck drivers Alonso, Neil Collins,
Sammie Collins, Morejon and Odery were, and continue to
remain striking employees of Overnite Trucking. Each are
experienced drivers who have worked for Overnite for an ex-
tended time.
The truck driving employees of Overnite at its south Florida
location, where the five named individuals work, are repre-
sented by Teamster Local Union 390.
It is undisputed the represented truck driver employees of
Overnite went on strike in October 1999, and remain on strike
to the present.
The Overnite drivers on strike include the five employees
named in the complaint herein. Each of the five individuals
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598
named in the complaint herein, testified they needed to earn a
living while on strike against Overnite.
Therefore, they actively sought interim employment else-
where. It is in seeking this interim employment elsewhere that
the five individuals made their contacts with the Company
herein.
214
Neil Collins testified he saw a flyer put out by the Company
that they were seeking truck drivers. Neil Collins was the first
of the five named individuals to seek employment with the
Company herein.
Neil Collins testified he went to the Company’s offices and
applied for employment as a truck driver on October 29, 1999.
Neil Collins testified he spoke with Dispatch Manger
Morales. According to Neil Collins, Dispatch Manager Morales
told him the Company needed employees to work for Emery
Worldwide Airlines.
Morales told Neil Collins the job would pay $18 per hour
and specifically told him what they would be doing for Emery
Worldwide, which was mainly hauling mail for the United
States Postal Service during the December 1999 holiday sea-
son.
Neil Collins testified he filled out a Company application as
well as an application for the United States Postal Service.
According to Neil Collins, Dispatch Manager Morales told
him he also needed a drug test, verification of his United States
Department of Transportation physical, which Collins was to
and did obtain for the Company.
District Manager Morales also told Neil Collins he
215
needed a background check as well as a Florida motor vehicle
report on his United States Department of Transportation
driver’s license before his application could be complete.
According to Neil Collins, Dispatch Manager Morales said
he would do the background and motor vehicle registration
investigations himself. However, it was left up to Neil Collins
to obtain a drug test and verification of his medical condition.
Sammie Collins testified he applied for work with the Com-
pany as a truck driver on November 1, 1999. Sammie Collins
testified Dispatch Manager Morales told him the Company was
looking for drivers “for the reason to pull mail.”
Sammie Collins testified he told Dispatch Manager Morales
he was on strike at Overnite. Sammie Collins testified Dispatch
Manager Morales responded, okay, that the Company needed
drivers.
Sammie Collins testified to the same application process that
his brother, Neil Collins, testified to.
Alonso testified he applied for work as a truck driver at the
Company on November 3, 1999. Alonso testified he told Dis-
patch Manager Morales he was coming from Overnite and was
looking for temporary work.
216
Morales told Alonso, according to Alonso, that was okay,
they were looking for experienced drivers. Alonso testified he
filled out employment applications and was fingerprinted that
same day.
Odery testified he applied for work with the Company on
November 4, 1999, and was interviewed by Dispatch Manager
Morales.
Odery informed Morales he was on strike from Overnite.
Odery was told the Company was looking for employees to
haul mail for Emery Worldwide.
Morejon testified he applied for employment with the Com-
pany on November 9, 1999, and was interviewed by Dispatch
Manager Morales.
Morejon filled out the employment applications and was told
about the need for a drug test and other requirements.
Morejon testified he was told the pay would be $18 per hour,
hauling United States Postal Service mail at night for four to six
weeks.
It is undisputed the five individuals named in the complaint
were experienced truck drivers. It is also undisputed that
Alonso, Neil Collins, Sammie Collins, Morejon and Odery
were instructed to and attended a meeting at the Ameri Suites
Hotel, in or near Hialeah, Florida, on or about mid November,
1999.
217
The meeting was conducted by representatives of Emery
Worldwide.
The Company herein also had management representatives
present at the meeting, namely Dispatch Manager Morales and
Company President Gutierrez.
The Emery Worldwide representative explained to the driv-
ers what they would be doing and told the some forty-five to
sixty drivers present at the meeting, Emery wanted them to do a
good job.
The five named individuals, as well as others, were photo-
graphed that evening. The meeting lasted approximately an
hour and a half.
It is undisputed, and Alonso, Neil Collins, Sammie Collins,
Morejon and Odery each testified, they were notified by Dis-
patch Manager Morales on December 4th, 1999 they were to
report for work with Emery Worldwide on December 5, 1999 at
9:00 p.m.
Each of the five individuals reported to work as instructed.
The five were taken into the facility to the drivers room and
given instructions on what was expected of them by Emery
Worldwide supervisor Ted Suarez.
Emery supervisor Suarez told the five they were not to wear
jackets, caps, beepers and/or cell phones while at work.
218
Neil Collins, Alonso, Morejon, Odery and Sammie Collins
testified Dispatch Manager Morales had time cards for each of
them, which they utilized.
Alonso testified he wore a white tee shirt with Overnite
Freight written on it at the first day of work.
Morejon testified he wore a Local 390 Union tee shirt and
hat when he reported for work at Emery on December 5, 1999.
Odery testified he reported for work with Emery on Decem-
ber 5, 1999 wearing an Overnite jacket and cap, but after being
told no hats or jackets were allowed, he left his in the cafeteria
while he worked.
BEST DRIVER RESOURCES 599
Sammie Collins testified that during the first day of work on
December 5, 1999, Emery supervisor Suarez gave him a tele-
phone number to call the next day to see which warehouse he
would be working at.
Sammie Collins also testified the guy over the drivers in the
work room came to him and wanted to know specifically who
he, Sammie Collins, was.
Sammie Collins testified that later that work shift, after he
returned from hauling mail, Emery supervisor Suarez told him
not to call the number he had earlier given him, that Emery
would call him.
According to Sammie Collins, Emery never thereafter
219
called him.
Neil Collins testified he was told by the Emery supervisor on
the first day of work, to report to work the following day at
Emery’s annex building.
Later that day, he was told not to report at the annex build-
ing, that there had been some changes, to wait for a call from
Emery, which he said never came about.
Alonso testified Emery’s supervisor told him during the
work shift on the first day, on December 5, 1999, not to call in
the next day, just to show up for work. Alonso testified near
the end of the first day’s shift, he was told Emery would call
him.
Odery testified he was told he would be called in after the
first day, but he said no one called him.
Neil Collins testified that he waited until approximately 3:00
p.m. on December 5, 1999 for a call about his reporting time
and place for the next day.
Neil Collins testified he never heard from Emery, so he tele-
phoned Dispatch Manager Morales. According to Neil Collins,
Dispatch Manager Morales said, the big guy over at Emery
Worldwide did not want the Overnite guys in there any more,
that Emery did not want it to seem like it was helping the Over-
nite drivers out.
Sammie Collins testified Dispatch Manager Morales
220
told him, the big guy over at Emery Worldwide heard you guys
from Overnite talking about a Union and strike, and Emery
didn’t want drivers from Overnite there.
According to Sammie Collins, Morales told him whatever
the customer wanted, that was what the customer got, so they
would not be working at Emery.
Alonso, who is the shop steward for the Overnite drivers at
Overnite, testified Dispatch Manager Morales called him at
about 5:00 p.m. on December 5 or 6, 1999 and told him, “You
guys can’t go to Emery no more. You tell the rest of the peo-
ple.”
Alonso testified Morales said they could not go back because
the big guy from Emery didn’t want anybody from Overnite
and part of the Union.
Morejon testified Dispatch Manager Morales called him and
said they could not go back to Emery because they messed up
wearing Union attire.
Morejon testified Morales told him Emery had been through
two Union elections and didn’t want them wearing Union stuff.
Odery testified he went back to work, but made sure no one
from management saw him or recognized he was one of the
five Overnite employees.
Odery testified he worked in that manner for two weeks after
the December 5, 1999 first day and
221
thereafter quit because he couldn’t take it any more. He said he
was afraid he would be discovered and Emery would, “throw
me out.”
Alonso testified that after Odery returned to work that he,
Alonso, waited two days and went back to work at the Com-
pany, but at a different location.
Alonso testified the day that he went back, he spoke with
Dispatch Manager Morales on the telephone and Morales told
him, don’t say you’re from Overnite.
According to Alonso, they discussed that Odery was doing
the same thing and Morales said, don’t say you’re from Over-
nite.
Dispatch Manager Morales testified he was responsible for
all the things that go into hiring employees. Morales explained
that his Company provided drivers to various freight hauling
companies.
Morales explained he processed all applications, obtained
background reports and motor vehicle driving reports, as well
as reviewing and processing medical examination records to
see that such were timely and current and to ensure that drug
tests were taken.
Morales testified he tried to review all records and make sure
any employee sent to any Employer, such as Emery World-
wide, were clean.
Dispatch Manager Morales testified his Company was
222
looking for as many good drivers as they could find in October
and November 1999.
Morales explained drivers were needed to work for Emery
Worldwide, which had a contract with the United States Postal
Service, to haul mail during the holiday season.
Morales explained it was temporary work during December,
but it paid $18 per hour, whereas his Company normally only
paid drivers $10 per hour.
Morales testified he told each of the five drivers at issue
herein, as well as all other driver applicants, that his Company
had ongoing work other than the Emery work, but that it only
paid $10 per hour.
Dispatch Manager Morales testified he was responsible for,
among other things, keeping the time and attendance cards for
the employees of his Company.
Dispatch Manager Morales testified he did not, in the Emery
Worldwide case, supply the time cards directly to the employ-
ees working at Emery, but rather, gave the time cards to Emery
supervisor Suarez to hand out.
Dispatch Manager Morales testified he was never told by
Emery Worldwide that they did not want any employees wear-
ing Union attire.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600
223
Morales testified he did not have an opportunity to review
Neil Collins and/or Sammie Collins background records until
Monday, December 6th, 1999. Morales testified he noticed
problems in their background at that time.
Morales testified he had to let Sammie Collins go from em-
ployment with Emery, because Sammie Collins had indicated
on his application he had no prior criminal convictions when, in
fact, that wasn’t true.
Dispatch Manager Morales testified he telephoned Sammie
Collins that date and left a message on his answering machine
that he needed to see him, that there was a problem with his
background records.
Dispatch Manager Morales testified he spoke with Sammie
Collins the next day and told him they could not have him back
on the Emery job because of his background.
Morales testified Sammie Collins became belligerent on the
telephone and hung up. Sammie Collins testified on rebuttal
that no such conversation or message ever took place or hap-
pened.
Dispatch Manager Morales testified he attempted to call and
later spoke with Neil Collins. Morales explained he told Neil
Collins he needed to speak with him, but because of the nature
of the problem with his
224
background information, he did not want to talk with him over
the telephone.
Neil Collins testified on rebuttal that no such conversation
took place.
Dispatch Manager Morales testified he spoke with Morejon
and Morejon told him he couldn’t work at Emery Worldwide
any more, that he was working for his uncle at the Miami Air-
port operating a Super Shuttle, and was making good money
from tips.
On rebuttal, Morejon denied telling Morales what Morales
attributed to him.
Dispatch Manager Morales testified it made no difference
whether the drivers wore Union attire or were for a Union, that
the Company simply needed experienced drivers with a clean
background.
Morals testified the wearing of Union apparel and/or being
Union played no part in any action taken in this case.
As is clear from the record, there is some credibility resolu-
tions that need be made. In that regard, I credit the drivers
because they gave, for the greater part, mutually corroborative
testimony. They impressed me as attempting to tell the truth as
best they could recall it.
In addition to demeanor, there are a number of
225
factors with respect to Dispatch Manager Morales’ testimony
that caused me to question it and look closer at it.
For example, Dispatch Manager Morales testified he tried to
do a good and conscientious job in processing all applications.
That testimony runs in conflict with the documentation pre-
sented herein.
For example, it appears that the background reports on each
of the individuals in question, were run within a day or so of
the individual making application for employment.
Yet, Morales would have it believed that he did not have an
opportunity to review such reports until, for example, the
Collins’ brothers had already been sent to work for Emery
Worldwide.
I’m persuaded that Dispatch Manager Morales is a conscien-
tious employee in management for the Company herein.
With that in mind, I’m persuaded he reviewed the applica-
tions, including the background material earlier than he is will-
ing to admit doing and that he found no information in the
background reports, specifically on the Collins’ brothers, that
would have precluded them from working for the Company in
any of their clients, specifically the United States Postal Ser-
vice.
226
Furthermore, it appears a conscientious review of Neil
Collins background report would reflect that he was never con-
victed of any crime.
Sammie Collins’ conviction, for which he was placed on
probation for petty larceny, occurred in October 1974.
I note the security clearance screening instructions provided
to the Company herein, which were used by Dispatch Manager
Morales in considering applications for drivers for the United
States Postal Service, only asked about convictions in the past
five years.
I’m persuaded that when Dispatch Manager Morales re-
viewed Sammie Collins’ conviction, he noted that the convic-
tion took place some twenty-five years ago.
I conclude simply that Dispatch Manager Morales found
nothing in Sammie Collins’ background that would preclude
his employment.
Thus, I find for Morales to testify otherwise is not being
forthright on his part. I am persuaded that the five drivers’
testimony was reasonable and truthful and I shall rely on it.
With that in mind, did the Company, as alleged in the com-
plaint, violate Section 8(a)(1) of the Act on or about December
6 and 7, through Dispatch Manager
227
Morales? I am persuaded such violation occurred.
Neil Collins testified, for example, that Morales told him, the
big guy over at Emery Worldwide did not want the Overnite
guys in there any more, that Emery did not want it to seem like
it was helping the Overnite drivers out.
Furthermore, Dispatch Manager Morales told Alonso, you
guys can’t go to Emery any more, and that Emery didn’t want
anybody from Overnite and part of the Union.
Furthermore, Morejon testified Dispatch Manager Morales
told him the five could not go back to Emery because they
messed up wearing Union attire.
Morejon testified Morales told him Emery had been through
two Union elections and didn’t want them wearing Union stuff.
I am fully persuaded those comments by Dispatch Manager
Morales to the employees indicated constitutes a violation of
Section 8(a)(1) of the Act, as alleged in the complaint, in that
BEST DRIVER RESOURCES 601
Dispatch Manager Morales was telling the employees they
were being denied work due to their affiliation with the Union.
There are certain legal principles that must be applied in de-
termining whether the Company violated the Act when it de-
nied work to the five individuals named
228
in the complaint.
In Wright Line, 25 NLRB 1083 (1980) enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in
NLRB v. Transportation Management Corp. 462 U.S. 3939
(1983), the Board set forth its causation test for cases alleging
violations of the Act that turn, as does the case herein, on Em-
ployer motivation.
First, the Government must persuade the Board that anti Un-
ion sentiment was a substantial or motivating factor in the chal-
lenged Employer conduct.
Once this is established, the burden then shifts to the Em-
ployer to prove its affirmative defense that it would have taken
the same action, even if its employees had not engaged in pro-
tected activity. See Manno Electric, Inc. 321 NLRB 278 fn. 12
(1996).
How does the Government establish it’s burden? Govern-
ment counsel must demonstrate by a preponderance of evi-
dence:
One, that the employees were engaged in protected activity.
Two, the Employer was aware of that activity.
Three, that the activity or the worker’s Union affiliation was
a substantial or motivating reason for the Employer’s action.
And four, there was a causal connection between the
229
Employer’s animus and its denial of work decision.
The Government may meet its Wright Line burden with evi-
dence short of direct evidence of motivation. That is, inferen-
tial evidence arising from a variety of circumstances such as
Union animus, timing or pretext may sustain the Government’s
burden.
Furthermore, it may be found that where an Employer’s
proffered, non discriminatory motivational explanation is false,
even in the absence of direct evidence of motivation, the trier of
fact may infer unlawful motivation.
Shattuck Denn Mining Corp v. NLRB 362 F. 2d 466, at 470
(9th Cir. 1966).
Fluor Daniel, Inc. 304 NLRB 970 (1991).
Motivation of Union animus may be inferred from the record
as a whole where an Employer’s proffered explanation is im-
plausible or a combination of factors circumstantially support
such an inference.
Union-Tribune Pub. Co. v. NLRB 1 F.3d 486, 490–492 (7th
Cir. 1993).
Direct evidence of Union animus is not required to support
such an inference.
NLRB v. So-White Freight Lines, Inc. 969 F.2d 401 (7th Cir.
1992.)
Did the Government in this case establish a showing
230
that the Company’s actions were motivated, at least in part, by
the protected conduct of the employees at issue herein? I’m
persuaded the Government met its initial burden.
Did the employees herein have Union activity? The answer
is yes. The employees were on strike at Overnite. That fact
was made known to the Company herein and that was learned
by and known to Emery Worldwide.
How did the Company herein know of the Union affiliation
and activity of the employees? At least three of them testified
they told Dispatch Manager Morales of their being on strike at
Overnite.
Morales acknowledged that they were on strike at Overnite
and responded that his Company was looking for good and
experienced drivers, and they would fill that requirement.
How did Emery Worldwide know that the employees were
affiliated with the Union and, in particular, with Overnite?
Because of the apparel of certain of the individuals who re-
ported for work.
Also, as a result of a conversation between the Emery
Worldwide supervisor and Sammie Collins in which it was
specifically asked what Collins’ name was.
One of the five individuals wore a
231
Union tee shirt and cap. Another wore a jacket and cap from
Overnite.
Did the activity of these five employees on behalf of the Un-
ion constitute a substantial or motivating reason for the action
that was taken against them?
Again, the answer is yes because, as Dispatch Manager
Morales told at least three of the individuals, Emery Worldwide
did not want it to appear that their Company was supporting the
drivers of Overnite, who were on strike.
As Morales also told one of the five employees, Emery
Worldwide had been through two Union elections and they did
not want the Overnite drivers in there talking about the Union
and that stuff.
Is there animus present in this case? Yes, the animus comes
from the statements that I have found to violate Section 8(a)(1)
of the Act, that Dispatch Manager Morales made to certain of
the five employees herein.
There is clearly a causal connection between the Employer’s
animus and its denial of work decision. The Company herein
may have felt that it was caught between the rock and a hard
place, that Emery did not want these individuals and did not
want them for an unlawful reason.
232
But the Company herein acquiesced in the request of Emery
Worldwide and removed or denied work to the five individuals
named.
Did the Company establish that it would have taken the same
action it did in the absence of any protected conduct on the part
of the five individuals at issue herein?
First the Company says that it withdrew Sammie Collins
from the project because he had misstated information on his
application, and that he had a prior criminal record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602
I find that the Company’s reliance on that, to the extent that
it could rely on it, to be pretextural. The Company was operat-
ing under specific guidelines provided to it that the Postal Ser-
vice was interested in a thorough evaluation of any employees
that might be driving trucks hauling United States mail.
The United States Postal Service indicated it was interested
only in any criminal records during the previous five years.
Sammie Collins’ criminal record was approximately twenty-
five years old. Therefore, it did not fall under the exclusion
category that the United States Postal Service had established.
Furthermore, I’m fully persuaded that Dispatch
233
Manager Morales thoroughly investigated these employee ap-
plicants, and that he knew of the background information on the
employees, specifically Sammie Collins, and that he knew that
it was not a disqualifying impediment to his employment.
Therefore, I’m persuaded the Company simply seized upon
that after the fact.
With respect to Neil Collins, the background check on Neil
Collins indicates that he had no criminal conviction. Therefore,
reliance could not have been placed on his criminal background
to preclude him from work.
It is clear that the five Overnite employees were removed
from the job because they were Overnite employees who were
on strike against Overnite, and because they wore clothing for
Overnite and/or the Union.
It is no defense to the Company to state that it employed
other employees of Overnite. There is no showing that Emery
Worldwide was aware of the Overnite status and/or Union af-
filiation of the other individuals.
I find that in the Company denying work to the five indi-
viduals named in the complaint, it violated Section 8(a)(3) and
(1) of the Act.
234
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
The Company, having discriminatorily denied work to em-
ployees Alonso, Neil Collins, Sammie Collins, Morejon and
Odery, I shall recommend they be made whole for any loss of
earnings or other benefits suffered as a result of the discrimina-
tion against them with interest.
Back pay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), and interest shall be com-
puted in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987).
I shall not order any further employment by this Company
for the five named individuals, because the Government does
not seek any reinstatement as the job in question was for a tem-
porary, fixed period of duration, namely from December 5,
1999 to December 23, 1999, inclusive.
When the Court Reporting service serves on me a copy of
the transcript and exhibits, which they will do not later than ten
days from now, I will certify those pages of the transcript that
constitute my decision.
I will attach thereto an order and a notice. The order will set
forth certain matters that the Company
235
is directed to do, and there will be a notice to employees that is
to be posted at the Company for sixty days.
When I certify my Bench Decision to the Board, it is my un-
derstanding that it is from that period forward that the appeals
period starts for the appealing of my decision to the Board
and/or the Courts, should any party seek to appeal the matter.
That is my understanding of the rules and regulations. How-
ever, be governed by the Board’s rules and regulations in any
further action related to this case, rather than relying on my
understanding of what the rules constitute.
Let me say that it has been a pleasure to be in Miami, Flor-
ida.
Madam Court Reporter, I thank you for transcribing the pro-
ceeding.
And with this, the trial is closed.

(Whereupon, at 12:20 p.m., the trial in the above-entitled matter
was closed.)