California Gas Transport, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 26, 2007

28-CA-021287 (N.L.R.B. Sep. 26, 2007)

JD(SF)28–07
Nogales, Ariz.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA
CALIFORNIA GAS TRANSPORT, INC.
and
GENERAL TEAMSTERS (EXCLUDING MAILERS),
STATE OF ARIZONA, LOCAL 104, AN AFFILIATE OF
THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS
Case 28–CA–21287
Johannes Lauterborn, Phoenix, Ariz., for the
General Counsel.
Gregg J. Tucek, of Sherman & Howard, Phoenix, Ariz., for
Respondent.
Kathy Tiihonen, Phoenix, Ariz., Organizer, for the Charging
Party.
DECISION
Statement of the Case
JAMES M. KENNEDY, Administrative Law Judge: This case was tried before me in
Tucson, Arizona on July 18 and 19, 2007. The complaint, issued on May 31, 2007 1 by the
Regional Director for Region 28 of the National Labor Relations Board is based upon an unfair
labor practice charge filed by General Teamsters (excluding Mailers), State of Arizona, Local
104, an affiliate of the International Brotherhood of Teamsters (the Union) on March 14, 2007. It
alleges that Respondent, California Gas Transport, Inc., has engaged in certain unilateral
changes in the working conditions of Respondent's Nogales-based drivers in violation of
§8(a)(5) and (1) of the Act. At the hearing, Counsel for the General Counsel amended the
complaint to assert that Respondent had withdrawn recognition of the Union. Respondent
denies the allegations.
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses and to file briefs. All parties have filed briefs which have
been carefully considered. Based upon the entire record of the case, as well as my observation
of the witnesses and their demeanor, I make the following:

1 All dates are 2007 unless otherwise noted.
JD(SF)28–07
5
10
15
20
25
30
35
40
45
2
Findings of Fact
I. Jurisdiction
Respondent admits that at all times material it has been a Texas corporation
headquartered in El Paso and having offices in Nogales, Arizona and San Diego, California. It
is engaged in the business of transporting propane gas by tanker truck. During the 12-month
period ending March 14, 2007 Respondent in conducting its business purchased and received
at its Nogales facility goods valued in excess of $50,000 directly from points outside the State of
Arizona. Accordingly, it admits that it is an employer engaged in commerce within the meaning
of §2(2), (6) and (7) of the Act. In addition, Respondent admits that the Union is a labor
organization within the meaning of §2(5) of the Act.
II. Background and Issues
On August 31, 2006, the Board issued a bargaining order against Respondent requiring
it to recognize and bargain with the Union over the wages, hours, and terms and conditions of
employment of its Nogales-based drivers. California Gas Transport, Inc., 347 NLRB No. 118. 2
Respondent has filed an appeal of that order in the United States Court of Appeals for the Fifth
Circuit and has declined to recognize the Union pending the outcome of that appeal.
As was found in the earlier case, Respondent has only one customer, Universal Gas.
Universal Gas has contracted with several propane suppliers in the United States to purchase
large quantities of propane. The propane is picked up by Universal's carrier, Respondent, at
various locations in United States. Those locations include a Valero Energy refinery in El Paso;
a refinery in Gallup, New Mexico; a petroleum storage facility west of Phoenix (known as
Bumstead LPG (in the suburb of Waddell); and a refinery in Bakersfield, California. Respondent
is contracted to Universal to deliver the propane to Universal’s customer which, according to the
contract of transport services between Respondent and Universal, is PEMEX, the state-owned
petroleum monopoly of Mexico. PEMEX has storage facilities in the cities of Juarez, Nogales,
Mexicali and Tijuana, Mexico. I infer from the testimony that those locations are operated by
Hidrogas Silza.
The Juarez location is usually served by Respondent's El Paso drivers short-hauling
propane from the nearby Valero Energy refinery in El Paso which is only a few miles from the
Juarez border station. Nogales, Mexico is always serviced by drivers located in Nogales,
Arizona and who commonly pick up propane from the Gallup refinery or from the Bumstead
storage facility. The Nogales, Mexico drop-point is about 8 miles beyond the border. On rare
occasions these drivers have been asked to deliver to Juarez or to pick up from a Flagstaff,
Arizona storage facility.

2 Administrative Law Judge Gregory Z. Meyerson conducted the hearing in that matter in the
spring of 2005 and issued his decision on September 16 that year. While the Board was
reviewing his decision, the Regional Director succeeded, 9 months later, in obtaining a
temporary injunction from United States District Court on June 21, 2006, under §10(j) of the Act.
Among other things, that order required Respondent to recognize and bargain with the Union
and to reinstate certain employees who had allegedly been discharged under section §8(a)(3) of
the Act. During the course of this matter it was demonstrated that Respondent did in fact
reinstate employees in question. One of those individuals testified in this matter. Although not
shown in this record, it appears that the §10(j) injunction ended shortly after the Board issued its
order; it was only in effect for slightly over 2 months.
JD(SF)28–07
5
10
15
20
25
30
35
40
45
3
The San Diego drivers acquire their propane from three locations, the Bakersfield
refinery, the Bumstead facility or the Gallup refinery. They then deliver their LPG cargo to either
Mexicali or Tijuana. The Mexicali drop-point is about is about 15 miles beyond the Calexico,
California border crossing.
It is fair to say that the San Diego drivers are long-haul or over-the-road drivers. The
Nogales drivers normally perform one long haul and one medium length run. The trucks from
both cities are equipped with sleeper units enabling the drivers to sleep in the cabs. Their rest
periods can occur at any time, depending on when they have exhausted their drivable hours as
set forth by U.S. Department of Transportation regulations. Runs are based upon what
Universal Gas's instructions from PEMEX are at any given moment. In early 2007, Respondent
was required to deliver approximately two million gallons of propane per month. Gardea
describes the manner that the deliveries are called for: “They [Universal] tell me every month
how much gallons we are going to pick up, but during the month, they might need more propane
and I have to deliver more propane. But are we talking about the same two million gallons. It is
just a different amount of loads per day.”
Aware of these circumstances, the complaint alleges three incidents supposedly
breaching the bargaining obligations of §8(d) and §8(a)(5). First, it asserts that on October 20,
2006, Respondent withdrew recognition of the Union in the Nogales bargaining unit. Second, it
asserts that on January 27, Respondent changed the route of driver Rogelio Delgadillo by
assigning him to drive to El Paso. Third, it contends that in January and February Respondent
unilaterally changed the working conditions by assigning its drivers to runs to Mexicali, normally
served by the San Diego drivers.
Respondent defends the first, arguing that any obligation to bargain must await the
outcome of its appeal to the Fifth Circuit. It defends the second on a factual basis, observing
that Delgadillo was one of three drivers assigned a Juarez run in that time frame and that
Delgadillo is splitting hairs between a Juarez run and an El Paso run; he knew he was expected
to deliver to Juarez, but would not. It defends the third observing that the February Mexicali run
was only temporary in order to deal with the temporary loss of the Bakersfield supplier due to an
explosion, fire and temporary shut-down of that facility. However, there is one January run to
Mexicali it does not address.
In addition, it should be observed at this juncture that there has been, and continues to
be, a wildly differing perspective on what types of drivers these are. Respondent has
consistently, starting with the previous proceeding, contended that the Nogales-based drivers,
like the San Diego drivers, are over-the-road drivers who can be called upon to drive wherever
the customer requires at any time of any given week. It does allow that it generally lets the
drivers be home for many weeknights and most weekends; indeed those making the Nogales-
Wadddell roundtrip would be at home that same night. The General Counsel argued to Judge
Meyerson, and now to me, that the Nogales-based drivers are route drivers who drove only to
Gallup and Waddell, ending their routes at their Nogales-area homes. Judge Meyerson,
affirmed by the Board, accepted that argument and made an appropriate finding. See 347
NLRB No. 118, slip op. at 46, where he said:
. . . [Nogales dispatcher] Velasco attempted to alter the Nogales-based drivers’
route assignments by directly dealing with them. Of course, these route
assignments were inherently related to their rates of pay, hours, and terms and
conditions of employment. These are mandatory subjects over which the
Respondent was required to bargain with the Union. See Permanente Medical
Group, Inc., 332 NLRB 1143 (2000); Southern California Gas Co., 316 NLRB
JD(SF)28–07
5
10
15
20
25
30
35
40
45
4
979, 982 (1995). In attempting to make these changes in the route assignments
without consulting and bargaining with the Union, the Respondent was engaged
in direct dealing with the represented employees and was making unilateral
changes in the terms and conditions of their employment in violation of the Act.
Christopher Street Owners Corp., 294 NLRB 277, 282 (1989).
Under principles of res judicata I am bound by that finding. Accordingly, as part of the
background to the case, I find myself obligated to consider the drivers who drove from the
Nogales yard to be route drivers, not over the road drivers. See the collateral estoppel
discussion infra.
III. The Alleged Unfair Labor Practices
a. The Purported Withdrawal of Recognition
As noted above, the Board has ordered Respondent to recognize and bargain with the
Union in a bargaining unit consisting of Respondent's Nogales-based drivers. It directed that
the bargaining take place on retroactive basis beginning August 30, 2004. As stated, the Board
did not issue its order until August 31, 2006. At that time, Respondent made the decision to file
an appeal of the Board's order in the United States Court of Appeals for the Fifth Circuit. Aside
from a short period covered by the temporary injunction referred to in footnote 2, there was no
formal bargaining order in place until August 31, 2006. During the 2-month period covered by
the temporary injunction, the Union did make an effort to bargain. In fact, Respondent on July
7, 2006, asked the Union to submit a written contract proposal and to consider certain dates for
negotiations. The Union, by letter of August 9, 2006 proposed to meet in October. However,
the Board order intervened on August 31 and Respondent determined to appeal it. In mid-
October one of the Union's business representatives, Frank Mendoza, telephoned one of
Respondent's attorneys to follow up on a proposed meeting. The attorney advised him that
Respondent had filed an appeal of the Board's order and would not agree to meet until the
validity of the Board's order had been affirmed by the court. As a result of the appeal no
bargaining has yet occurred.
b. Delgadillo's instructions to go to Juarez
The assignment of Nogales-based drivers to drive to Juarez has never been frequent.
Respondent has generally serviced Universal's needs in Juarez through propane pickup from a
Valero Energy refinery in El Paso. Nevertheless, a Juarez run was given to Delgadillo
beginning on Saturday, January 27. He was the second driver to be assigned that run during
the late January time frame. The first leg required Delgadillo to make an early morning run to
Waddell for a pickup at Bumstead. He brought it back to Nogales at noon that day. He parked
the loaded tanker at Respondent’s Nogales, Arizona yard. He was off on Sunday. Early on
Monday morning, January 29, he drove the load to El Paso.
Delgadillo had earlier been involved in the unfair labor practice hearing before Judge
Meyerson, specifically an allegation concerning driving from Nogales to Juarez. He also knew
that he did not possess a Juarez crossing badge issued by Mexican Customs. 3 His lack of a
badge led to a conversation with dispatcher Velasco in which he attempted to negotiate around
what he perceived to be the problem he would encounter when crossing the border at Juarez.

3 Testimony shows that the Mexican Customs badge is required of commercial drivers only
at the Juarez border station, not the border stations at Nogales, Mexicali or Tijuana.
JD(SF)28–07
5
10
15
20
25
30
35
40
45
5
Velasco didn’t concur with his apprehensions. Apparently, in some frustration, Velasco told him
to drive to the El Paso yard and take up the matter with operations manager Oscar Gardea who
was officed there and who would resolve the problem by assigning a passenger who possessed
the appropriate badge and who would ride with him across the border. Delgadillo was not
enamored of this procedure either. At this point he decided to contend that he had been
instructed to drive only to El Paso, rather than to Juarez. Accordingly he drove to Respondent’s
El Paso facility. Once there, he had a conversation with Gardea who asked him if he was going
to take truck across. When Delgadillo said he would not, Gardea told him to wait. Shortly
thereafter another driver appeared and took the truck to Juarez. Delgadillo waited 6 hours until
the truck was returned. He then took his DOT rest period, from 5 p.m. until 3 a.m. the following
morning, staying in the sleeper unit of his truck. Afterwards, he drove the truck, as instructed,
back to Waddell where he loaded an order and delivered it to Nogales, Mexico.
c. The Runs to Mexicali
Under normal circumstances, Nogales-based drivers never made runs to Mexicali, which
is located across the border from Calexico, California. Both Mexicali and Tijuana are normally
served by Respondent's San Diego drivers. Much of their LPG was obtained from a refinery in
Bakersfield. Those drivers, leaving from San Diego, would pick up at one of three racks in the
Bakersfield refinery. They would then haul to the appropriate destination, either Mexicali or
Tijuana. Even so, there were recurrent occasions where the San Diego drivers were obligated
to go to Bumstead/Waddell or even on to Gallup for loads.
On January 22, Delgadillo found himself in Waddell at 6 p.m., needing to take his DOT
scheduled rest. At 4 a.m. on January 23, he loaded at Bumstead and, per instructions, took the
load to Mexicali, despite the fact that Nogales drivers had never before delivered loads to
Mexicali. He then returned to Waddell, reloaded and went back to Nogales. This run to
Mexicali seems to have been an isolated incident. Indeed, Respondent's officials, when
testifying, were mystified about it. In some respects their puzzlement is understandable, given
their perspective that once drivers are on the road, Respondent's obligation is to serve
Universal's ever-shifting requirements. This particular Mexicali run may simply have been a
response to an immediate need specified by Universal, and Delgadillo’s presence at Bumstead
was fortuitous to a Mexicali delivery. Whatever the reason, Delgadillo's Mexicali run was in fact
typical of all Respondent's longer runs, including Gallup. A Gallup roundtrip from Nogales was
a little over 800 miles. This Mexicali excursion, Waddell-Mexicali-Waddell-Nogales was about
690 miles. 4 Drivers were expected to run through the entire week, ending up in Nogales.
Certainly Delgadillo was back in Nogales by Wednesday, though his trip logs for the days later
in the week are not in evidence.
The Mexicali situation changed for a short time in early February. It is undisputed that
on Thursday, February 8, 2007, several of Respondent's San Diego drivers were awaiting loads
at Bakersfield. At that time an explosion or fire occurred at the facility, although this record does
not clearly describe the location or nature of the conflagration. The waiting drivers notified their
dispatcher of the situation by either radio or cellular telephone in San Diego. He told them to
leave the area for safety reasons and await further instructions.
Respondent’s operations manager Oscar Gardea was visiting the San Diego office that
day and learned of the Bakersfield problem as it was occurring. He notified his contact at
Universal in Juarez, Palemon Solorzono, to find out what alternative sources Universal wished

4 Including the run from the Mexicali border station to the drop point and back.
JD(SF)28–07
5
10
15
20
25
30
35
40
45
6
to use. His inquiry resulted in the San Diego-based drivers running from Bakersfield to both
Waddell and Gallup. At first, this slowed their capability to serve Tijuana. As Respondent
focused on Tijuana, that necessarily reduced its capability to serve Mexicali. After a day or two,
Respondent determined that it could cover Mexicali by diverting some of its Nogales-bound
trucks there, since Universal deemed the LPG demand in Nogales to be not as vital.
During the weeks of February 12-17 and February 19-23, Respondent's Nogales-based
drivers made a number of runs to Mexicali. Some were as a result of re-routes and some were
scheduled. Over that 2-week period, approximately 24 deliveries were made to Mexicali from
either Bumstead or Gallup, including some loads diverted from the Nogales yard. Most of
Respondent's Nogales-based drivers participated in at least one run. Several made three or
more.
IV. Analysis and Conclusions
To recap, this case has three contentions: 1. Unilateral changes insofar as runs from
Nogales to Juarez are concerned; 2.a. Unilateral changes with regard to the January 22 run to
Mexicali made by Delgadillo and 2.b. Unilateral changes with regard to the February runs to
Mexicali triggered by the temporary loss of the Bakersfield supplier. 3. The alleged withdrawal
of recognition.
Taking the last first, Respondent's recognition of the Union as the collective bargaining
representative of its Nogales drivers is based solely on the Board's order in California Gas
Transport, Inc., 347 NLRB No. 118. Respondent has not voluntarily recognized the Union; it
has been ordered to do so and has chosen to file an appeal with the appropriate United States
Court of Appeals. This circumstance may be viewed two different ways. First, follow
Respondent’s assertion that I must await the outcome of the court's review of that order; or,
second, as a Board administrative law judge, that I am bound to recognize Board orders as a
matter of res judicata.
Certainly as the Board’s judicial officer, I am obligated to recognize and give effect to
what has gone before, at least insofar as Board findings are concerned. I am therefore not able,
as a matter of law, to observe that in reality Respondent may eventually succeed in overturning
the bargaining order which the Board issued.
In American Thoro-Clean, 283 NLRB 1120 (1987), Administrative Law Judge David S.
Davidson found himself faced with a similar procedural circumstance. The preceding case there
had not yet been decided by the Board, as opposed to here where the Board has decided it, but
the Court of Appeals has not yet reviewed it. Judge Davidson made the following observation
which I find persuasive:
For purposes of this decision, I rely on the findings and conclusions of Judge Giannasi in
Case 13-CA-21389 with respect to the unfair labor practice committed by Respondent
before the issues in this case arose. To be sure, if his decision should be reversed in any
substantial part, the underpinnings of this case may well disappear. However, whether
affirmed or reversed by the Board or a court of appeals, the decision in that case will be res
judicata as to the issues decided in it, and they are not subject to relitigation in this case.
Thus, that decision establishes that Local 11 was the majority representative of
Respondent's employees. . . .
Following Judge Davidson’s logic, I find that the proof establishes that Respondent was
obligated to recognize the Union as the collective bargaining representative of the Nogales
JD(SF)28–07
5
10
15
20
25
30
35
40
45
7
drivers effective August 30, 2004. This complaint alleges that Respondent withdrew recognition
on October 20, 2006. Even so, the General Counsel has not shown what act Respondent took
which constitutes a withdrawal of recognition. He does argue that when Respondent’s attorney
truthfully told the Union’s business agent Mendoza that it was in the process of appealing the
Board’s order to the Court of appeals, that action constituted a withdrawal of recognition.
Frankly, I find that argument to be unworthy of much consideration. A straightforward refusal to
bargain in order to challenge a Board certification is certainly not a withdrawal of recognition.
Indeed, it is part of the statutory process by which representation case issues can be reviewed
by the courts. See §10(f) of the Act which requires a final board order as a predicate to court
review. A certification of representative is not a final order subject to direct challenge. Similarly,
Respondent’s refusal to bargain is the statutory predicate for an appeal of the bargaining order.
It cannot be regarded as a withdrawal of recognition. Alleging a withdrawal of recognition adds
nothing to the overall situation. Furthermore, ordinary unilateral changes do not usually qualify
as a withdrawal of recognition. Indeed, the General Counsel does not cite any particular case
for that proposition. Frankly, I fail to see the utility of the allegation.
As Judge Davidson said above, whatever happens in the previous case will become res
judicata in the second. Indeed, it may fairly be said that Respondent is acting at its peril with
respect to its decision to decline to bargain with the Union pending final resolution of the issue
by the Court of Appeals. 5 I will agree with the General Counsel that the bargaining obligation
attached as the Board said, but the simple fact is that despite the Board's order, Respondent
has never recognized the Union in any meaningful way. Accordingly, I shall recommend that
this allegation be dismissed. Respondent's refusal to bargain with the Union is simply a matter
for compliance with the original Board order.
Turning to the unilateral change allegations, once again the issue of res judicata, or
more properly, collateral estoppel, comes into play.
The definitions of and distinction between the principles of res judicata and collateral
estoppel were set forth by Justice Marshall in Montana v. United States, 440 U.S. 147, 153-154
(1979). The Board has adopted his reasoning and applied it. See Sabine Towing &
Transportation Co., 263 NLRB 114, 120 (1982) where Administrative Law Judge William
Schmidt, affirmed by the Board, held that collateral estoppel barred relitigation of an issue which
had been previously decided against the General Counsel. He observed that Justice Marshall
said in Montana: “Under res judicata, a final judgment on the merits bars further claims by
parties or their privies based on the same cause of action. Cromwell v. County of Sac., 94 U.S.
351, 352 (1877); Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (1955); 1B J.
Moore, Federal Practice Para. 0.405 [1], pp. 621, 624 (2nd ed. 1974) (hereinafter 1B Moore);
Restatement (Second) of Judgments Section 47 (Tent. Draft No. 1, March 28, 1973) (merger);
id. Section 48 (bar). Under collateral estoppel, once an issue is actually and necessarily
determined by a court of competent jurisdiction, that determination is conclusive in subsequent
suits based on a different cause of action involving a party to the prior litigation. Park Lane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979).” Accordingly Judge Schmidt dismissed
the allegation.
In the previous case against Respondent Judge Meyerson and the Board clearly found
that the Nogales-based runs to places other than Waddell, Gallup and probably Flagstaff, are
material and substantial changes in the working conditions of the Nogales-based drivers. In
making that finding, the Board held that the runs to which those drivers are assigned are regular

5 Mike O’Connor Chevrolet-Buick-GMC Co., 209 NLRB 701 (1974).
JD(SF)28–07
5
10
15
20
25
30
35
40
45
8
routes, not over-the-road runs. It made that finding knowing full well that these drivers drove
vehicles with sleeper units behind the cabs. It was aware that most of the runs were to
Phoenix/Waddell and permitted the drivers, for the most part, to spend rest periods or nights at
their homes in or near Nogales. These drivers did not normally depart in the first part of the
week and return at the end of the week as long haul drivers might normally be expected to do.
Therefore, the fact that the Juarez and Mexicali runs may be relatively similar to the Gallup run
is of no moment, given the Board's finding in the previous case. More specifically, it is settled
law that an employer violates §8(a)(5) and (1) if a material change in the conditions of
employment is made without consulting with the employees' bargaining representative and
providing a meaningful opportunity to bargain. Ciba-Geigy Pharmaceuticals Division v. NLRB,
772 F. 2d 1120, 1126 (3rd Cir. 1983). "An employer must inform the union of its proposed
actions under circumstances which at least afford a reasonable opportunity for counter
arguments or proposals." NLRB v. Centra, 954 F. 2d 366, 372 (6th Cir. 1992)." Accordingly, I
find that when Respondent assigned Delgadillo first to Mexicali in January and later in that
month to Juarez, without first consulting with the Union, it violated §8(a)(5) and (1) of the Act.
I do not find, however, that Delgadillo suffered a loss of pay for his refusal to across the
border. Respondent normally provides each driver with a bonus for each border crossing. Had
Delgadillo allowed the badge-bearer to join him in taking that load across from El Paso to
Juarez, he would have received the bonus. Whether it was he or the badge-bearer who was
behind the wheel would have had no effect on his remuneration. Accordingly any backpay due
him for making the January 27-29 Nogales-El Paso/Juarez run should not include the bonus.
As for the Mexicali runs which occurred for two weeks after the Bakersfield fire, I
observe that Respondent did not immediately assign the Nogales drivers to cover Mexicali. It
took a few days for Respondent to realize that the San Diego drivers were having difficulty
meeting the needs in Tijuana if they were to also serve Mexicali. It therefore had sufficient time
and opportunity to notify the Union that it needed to assign Nogales drivers to make Mexicali
runs. It did not avail itself of that time window. More specifically, I find that the Bakersfield fire
did not constitute an exigent circumstance. For the Nogales drivers, it was not an emergency.
In addition, while Respondent was able to cobble together pay calculations for Nogales-Gallup-
Mexicali and Nogales-Waddell-Mexicali, those runs did not have an established pay scale, such
as those set forth in G.C.Exh. 10. Beyond that, runs to Mexicali meant that drivers could
sometimes end up in Mexicali and need to deadhead home to Nogales, a leg for which they
would not be paid anything beyond reimbursement for diesel fuel. Such circumstances clearly
needed to be bargained with the Union.
Accordingly, I am unimpressed with Respondent's defense that the Nogales drivers
actually profited from Mexicali runs. It may be that some did earn more than they might have
had they remained running solely to Gallup or Bumstead and back to Nogales. The change
may indeed have provided earnings opportunities that they might not otherwise have had. Yet,
that is not the issue. The issue is whether Respondent made a material and substantial change
in Nogales drivers' working conditions when it assigned them to those runs. In addition, it
deprived the Union of the opportunity to negotiate appropriate remuneration for making them.
On that basis, I conclude that Respondent's assignment of the Mexicali runs in February
violated §8(a)(5) and (1).
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
JD(SF)28–07
5
10
15
20
25
30
35
40
45
9
effectuate the policies of the Act. The affirmative action will include an order to post a notice to
employees advising them of the remedial steps it will take. It shall also require Respondent to
make whole the Nogales drivers for any pay losses they may have suffered, plus interest, due to
their being assigned unusual runs in circumstances where their collective bargaining
representative had not been given the opportunity to bargain over such assignments. Interest
will be calculated under New Horizons for the Retarded, 283 NLRB 1173 (1987). Nevertheless,
it will not be required to pay the border crossing bonus to driver Rogelio Delgadillo for his refusal
to cross the border on January 29, since he, not Respondent, made the decision not to make
that crossing and his reason for refusing to cross is not related to the unlawful unilateral change
that the assignment entailed.
Based on the foregoing findings of fact and the entire record in this case, I hereby issue
the following
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of § 2(2), (6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of § 2(5) of the Act.
3. The General Counsel has failed to prove that Respondent withdrew recognition of the
Union.
4. Respondent violated §8(a)(5) and (1) of the Act when on January 22 and 27, and in
early February 2007 it unilaterally assigned its Nogales-based drivers to Juarez and Mexicali
runs without first bargaining with the Union over the manner in which those assignments
changed the drivers’ wages, hours and working conditions.
Based on the foregoing findings of fact and conclusions of law and the entire record, I
issue the following recommended: 6
ORDER
Respondent, California Gas Transport, Inc., El Paso, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
a. Making unilateral changes in the routes, pay rates or other terms or conditions of
employment its Nogales bargaining unit employees, without prior notice to or bargaining with the
Union as their exclusive collective bargaining representative.
b. In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by § 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

6 If no exceptions are filed as provided by § 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in § 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)28–07
5
10
15
20
25
30
35
40
45
10
a. Within 14 days of the Board’s decision, make whole the employees in the bargaining
unit, together with interest, for any pay they may have lost due to the unlawful unilateral
changes as set forth in the Remedy section of this decision.
b. Within 14 days after service by the Region, post at its facility in Nogales, Arizona,
copies of the attached notice marked “Appendix.” 7 Copies of the notice, on forms provided by
the Regional Director for Region 28 after being signed by Respondent's authorized
representative, shall be posted by 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 Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, Respondent has gone out of business or closed the facility
involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees employed by Respondent at any
time since January 27, 2007.
c. Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps
Respondent has taken to comply.
______________________________
James M. Kennedy
Administrative Law Judge
Dated, Washington, D.C. September 26, 2007

7 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
“Appendix”
Notice to Employees
Posted By Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
♦ Form, join or assist a union
♦ Choose representatives to bargain with us on your behalf
♦ Act together with other employees for your benefit and protection
♦ Choose not to engage in any of these protected activities.
WE WILL NOT make unilateral changes in your routes, pay rates or other terms and conditions
of employment without first notifying or bargaining with General Teamsters (excluding
Mailers), State of Arizona, Local 104, an affiliate of the International Brotherhood of
Teamsters as your exclusive collective bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights guaranteed by the Federal law set forth above.
WE WILL make those of you whole, together with interest, for any pay you may have lost due to
our unlawful unilateral changes in your routes, pay rates and other terms or conditions of
employment
CALIFORNIA GAS TRANSPORT, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue – Suite 1800
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6284.