Corliss Resources, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 2015

362 NLRB No. 21 (N.L.R.B. 2015)

362 NLRB No. 21
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Corliss Resources, Inc. and Teamsters Local 174, af-
filiated with The International Brotherhood of
Teamsters. Cases 19–CA–093237, 19–CA–
093281, 19–CA–102190, 19–CA–104557, 19–CA–
105226, and 19–CA–106514
February 27, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On March 24, 2014, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The Re-
spondent and the Charging Party Union filed limited ex-
ceptions and supporting and answering briefs. The Gen-
eral Counsel filed a brief supporting the Union’s excep-
tions, and the Respondent filed a reply 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 exceptions and briefs, and has decided to
adopt the judge’s rulings, findings,1 and conclusions ex-
cept as modified below and to adopt his recommended
Order as modified and set forth in full below.2

1 The Union has implicitly excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
The Respondent did not except to the judge’s findings that on multi-
ple occasions after the Union won a Board election, the Respondent
violated Sec. 8(a)(1) by unlawfully interrogating employees; creating
the impression of surveillance; threatening that joining the Union
would be futile; and threatening drivers with discharge, withholding of
pay raises, undesirable truck assignments, and other retaliatory treat-
ment for supporting the Union. Nor did the Respondent except to the
judge’s finding that it violated Sec. 8(a)(3) by removing Jeff Cope, for
a period of months, from the preferred truck he normally drove. Nei-
ther the General Counsel nor the Union excepted to the judge’s dismis-
sal of an allegation of an unlawful threat when the Respondent’s dis-
patcher, after the Union’s certification, told a driver that “[it] would be
better on the nonunion side versus the union side,” or of an allegation
that the dispatcher unlawfully interrogated the same employee (when
he later asked to transfer to a job outside the bargaining unit) by saying,
“Whoa, wait a minute, we need you for the vote [for decertification],
unless you’re for the Union.”
2 In adopting the judge’s recommended Order as modified with re-
spect to backpay, we rely on our recent decision in Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). We shall also
substitute a new notice in accordance with Durham School Services,
360 NLRB No. 85 (2014), and conform the notice to our other findings.
We agree with the judge, for the reasons he explained,
that the Respondent discharged Don Sturdivan in viola-
tion of Section 8(a)(3) of the Act.3 We also adopt the
judge’s dismissal of the allegations that the Respondent
unlawfully suspended Duane Crow for 1 day and that it
assigned preferred work to employees who opposed the
Union.
Contrary to the judge, however, we find that, in viola-
tion of Section 8(a)(1), Randy Britt, the Respondent’s
dispatcher, on 2 consecutive days called drivers “back-
stabbers” for supporting the Union, and that the Re-
spondent unlawfully advanced Jeff Cope’s start time in
order to further isolate him from other drivers.
A.”Backstabbers”
The Union was certified to represent a unit of the Re-
spondent’s dump truckdrivers on December 20, 2012.
Brian Tilly was one of two unit members elected to the
Union’s first bargaining team. On March 6, 2013,4 while
negotiations for a first contract were continuing, Tilly
went to the dispatch office and invited Britt (an undis-
puted supervisor) to join him and other drivers for an
afterwork social event that was intended to reduce ongo-
ing tension in the unit between prounion and antiunion
employees. Britt responded, “Why the fuck would I
want to go to drink with a bunch of backstabbers?” Til-
ly, whose description of the conversation the judge cred-
ited, repeatedly asked whom Britt was talking about.
Britt initially replied “everyone,” but “[u]ltimately, it
came down to he ended up calling me [Tilly] a backstab-
ber.” Britt said this was because Tilly had told an anti-
union employee that Britt had wrongly accused the Un-
ion of outing another employee as a union supporter.
Britt then told Tilly that “[w]e have the numbers and
we’re going to get all of you guys out” and to “get the
fuck out” of his office.
The judge correctly found (and the Respondent does
not except) that Britt’s statement that “we’re going to get
all of you guys out” was an unlawful threat. In the
judge’s view, however, the General Counsel had not al-
leged that Britt’s reference to “a bunch of backstabbers”
including “everyone” was unlawful. He also found that
Britt’s “backstabbers” comment referred solely to Tilly
and to Britt’s being personally “upset because Tilly
called him a liar,” and was therefore not unlawful.

3 In finding that the Respondent had knowledge of Sturdivan’s pro-
tected activity, we do not rely, as did the judge, on Coastal Sunbelt
Produce, 358 NLRB No. 135, slip op. at 1 fn. 3 (2012). We find it
unnecessary to pass on the judge’s finding that the discharge also vio-
lated Sec. 8(a)(4) because this additional finding would not materially
affect the remedy.
4 All dates are in 2013, unless otherwise stated.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Contrary to the judge, the complaint alleged that the
Respondent unlawfully “called its employees ‘backstab-
bers,’” (emphasis added)—i.e., in plural. Moreover, in
determining whether a supervisor’s statement is unlaw-
fully coercive, the question is not the supervisor’s motive
for making the statement, but whether the employee
would reasonably be coerced by it.5 Particularly in light
of Britt’s parting unlawful threat to “get all you guys
out,” his initial reference to “a bunch of backstabbers” in
response to Tilly’s invitation would reasonably have
been understood to characterize all supporters of the Un-
ion as disloyal and to threaten them with retaliation.6
The following morning, March 7, Britt made a similar
comment that was broadcast to all the drivers in the unit
over the Respondent’s CB radio system (which serviced
all of the Respondent’s trucks). While John Bobbitt and
the other drivers were waiting their turns to pull out from
the Respondent’s facility to make their first deliveries,
Bobbitt commented over the radio that two other drivers
(both known to be antiunion) had just pulled out of the
plant ahead of Tilly, who was senior to both of them.
This was contrary to established practice, by which driv-
ers pulled out in order of their seniority.7 Britt immedi-
ately retorted over the CB system that “maybe they were
told to leave at that time.” Bobbitt (who had formerly
been the Respondent’s dispatcher) replied that “senior
drivers are supposed to roll out first,” at which Britt “got
really agitated” and said, “You guys are a bunch of
whiners and you’re a backstabbing piece of shit.” Bob-
bitt asked what Britt meant, and Britt said, “You know
what, just drive your truck and collect your check on
Thursday, and I’ll talk to you when I talk to you.”
The judge noted that the Union was not mentioned in
this exchange and that Bobbitt was not, at the time,
known to be a strong supporter of the Union and was not
a charging party or the subject of any pending Board
charge. Accordingly, in the judge’s view, Britt’s com-
ments would “more reasonably” be interpreted simply as
“pique” that a former dispatcher “question[ed] his dis-
patch decisions,” and were not unlawful.

5 E.g., Engelhard Corp., 342 NLRB 46, 60–61 (2004) (test for coer-
cion under Sec. 8(a)(1) is “whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with the free exer-
cise of employee rights under the Act”) (emphasis in original), enfd.
437 F.3d 374 (3d Cir. 2006).
6 See George L. Mee Memorial Hospital, 348 NLRB 327, 349
(2006); Wometco Coca-Cola Bottling Co., 255 NLRB 431, 443 (1981).
Even if Britt had been referring solely to Tilly’s purported comment
about him, that would have been unlawfully coercive because Britt’s
reference was to Tilly’s protected activity of defending the Union to
another employee.
7 Priority in leaving was valued because it enabled drivers to com-
plete their first hauls as early in the day as possible.
Britt’s labeling of Bobbitt as “a backstabbing piece of
shit,” however, immediately followed his broadcast
comment that “[y]ou guys are a bunch of whiners,”
which was made in direct response to Bobbitt’s remark
in support of seniority. In those circumstances, we find
that employees would reasonably interpret Britt’s “back-
stabbers” statement to refer to employees’ concerted ac-
tivity regarding a term of employment.8 As such, it is
irrelevant whether Bobbitt previously had expressed sup-
port for the Union. Britt’s accusation of “backstabbing”
by Bobbitt, as with Tilly, was unlawfully coercive.9
B. Cope’s Start Time
Cope was a senior driver who drove one of the Re-
spondent’s newest model “transfer” trucks. (Most driv-
ers preferred to be assigned to transfer trucks because
they were relatively new and, unlike other types, air-
conditioned.) He was also known to be one of the most
active union supporters in the unit. As discussed below,
the Respondent’s advancement of Cope’s start time oc-
curred in March 2013, but a brief summary of back-
ground events in 2012 is necessary to put the start time
issue in context.
As found by the judge, sometime in mid-September
2012 (about 2 weeks before the election), Tim Corliss,
one of the Respondent’s co-owners, unlawfully asked
Darryle Jackson, a driver known to be antiunion, to par-
ticipate in what Corliss called a “secret squirrel job.”
Corliss told Jackson that this job involved assigning
Cope to Jackson’s “belly” dump truck because, unlike
the Respondent’s other trucks, it was used only to carry
loads between the Respondent’s own plants rather than to
customers. As Corliss explained to Jackson, “We’re
gonna pull the radios out of that truck and we’re gonna
put Jeff Cope in that truck and just have him run plant-
to-plant all day long and that way he can’t badmouth the

8 Accordingly, even if Britt had been expressing “pique” solely at
Bobbitt’s publicly “questioning his dispatch decisions” on the principle
of seniority, he would have been unlawfully expressing hostility toward
Bobbitt’s public assertion that the Respondent was improperly deviat-
ing from an established term and condition of employment. Member
Miscimarra agrees that both of Britt’s “backstabber” statements were
unlawful, but he finds it unnecessary to reach the issue of whether
Bobbitt was engaged in concerted activity during his conversation with
Britt. Instead, based on Britt’s hostility to the Union and the com-
monsense meaning of the term “backstabber,” Member Miscimarra
would find that employees would reasonably understand Britt’s use of
the term as an accusation that supporters of the Union have engaged in
a type of betrayal and based on such an expression, attributable to Britt,
employees would reasonably fear reprisals for supporting the Union.
See, e.g., Hialeah Hospital, 343 NLRB 391, 391 (2004) (manager’s
statements to employees that he felt “betrayed” and “stabbed in the
back” implied employee disloyalty in supporting the union and consti-
tuted an implicit threat of unspecified reprisals).
9 See the authorities cited in fn. 6.
3
CORLISS RESOURCES, INC.
Company.” As found by the judge, this comment clearly
referred to Cope’s outspoken support for the Union and
confirmed an intent by the Respondent to prevent Cope
from communicating with the Respondent’s other driv-
ers. Jackson, however, persuaded Corliss not to make
this reassignment because he, Jackson, preferred driving
the “belly” truck.
About 2 weeks later, Cope took his transfer truck into
the Respondent’s maintenance shop for repair. When the
truck was released from the shop, it was not returned to
Cope but was instead used as a spare for other drivers
whose trucks were down. The Respondent did not reas-
sign Cope to a preferred transfer truck until months later.
As the judge found (and the Respondent does not ex-
cept), the Respondent’s ongoing removal of Cope from
his truck was designed to isolate him from other employ-
ees and thus violated Section 8(a)(3).
Finally, in March 2013, while Cope was still awaiting
reassignment to a transfer truck, Britt (with Scott Corliss’
approval) offered Cope assignment to a “belly” truck,
which he accepted. Over the 12 previous months, the
“belly” truckdrivers had started their workday between 6
and 6:45 a.m. On March 27, however, the day after
Cope agreed to drive a “belly” truck, Britt changed the
start time for “belly” drivers to 5 a.m., an hour or more
before the other drivers in the unit typically started and
before most of them arrived at the facility. From then
until late July, Cope and the other full-time “belly” driv-
er, George Dye, were required to depart from the termi-
nal at 5 a.m. A third driver, Gary Hamilton, also started
at 5 a.m. when he intermittently drove a “belly” truck
during the same period.
The judge correctly found that the General Counsel
met his initial Wright Line10 burden of showing that the
advancement of Cope’s start time was unlawfully moti-
vated, citing an unlawful comment Corliss made to em-
ployee Duane Crow,11 and noting that requiring Cope to
leave the plant before other drivers arrived “fit nicely
with the Company’s plan” to isolate union supporters
from other drivers.12 The judge found, however, that the

10 251 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).
11 Not long after Cope began driving a “belly” truck, Duane Crow, a
relatively new driver, asked Tim Corliss if he could switch to driving a
“belly” truck. Crow explained that this would enable him to avoid the
ongoing dispute between pro and antiunion drivers. Corliss replied,
“Yeah, you know, that’s kind of tough. We’ve been trying to keep the
assholes away from the new people.” As the judge found, Corliss’
comment again indicated that the Respondent was trying to isolate
prounion drivers from the others.
12 As the judge noted, although the complaint alleged that this was
an 8(a)(1) rather than an 8(a)(3) violation, the analysis is the same
Respondent met its Wright Line burden of showing that it
would have advanced Cope’s start time even if he had
not engaged in union activity, based on evidence that the
“belly” trucks “typically” started earlier in the summer
(the Respondent’s busy season) and that they also started
earlier than the other trucks. The judge acknowledged
that the Respondent’s 12-month history immediately
preceding the change in Cope’s start time “does not sup-
port a practice of 5 a.m. start times in the busy season,”
but he relied on undisputed testimony that “there has
been such a practice in the past.” The judge also noted
that Britt simultaneously imposed a 5 a.m. start time on
Dye, who was antiunion.
Contrary to the judge, the Respondent’s earlier prac-
tice of imposing a 5 a.m. start time for the “belly trucks”
at some indeterminate time “in the past” does not negate
the significance of the actual start time having been 6
a.m. during the 12 months immediately preceding Cope’s
assignment. That period included the summer of 2012,
when the Respondent, according to its own rationale,
should have been similarly motivated to advance the start
time, but did not.13
An arbitrary departure from a past practice may sup-
port an inference of unlawful motive.14 In this case that
inference is further supported by (1) the timing of the
change only 1 day after Cope agreed to drive a “belly”
truck; (2) Tim Corliss’ undisputed plan, as early as Sep-
tember 2012, to implement a “secret squirrel job” to iso-
late Cope; and (3) Corliss’ subsequent confirmation to
Crow of the Respondent’s intent to “keep the assholes
[who were driving one or more “belly” trucks] away
from the new people.”
The fact that Dye, the other full-time “belly”
truckdriver, was also required to start at 5 a.m. carries
little weight in light of the affirmative evidence that the
Respondent had an ongoing agenda of isolating Cope.15

because the violation turns on the Respondent’s motive. Gates & Sons
Barbeque of Missouri, 361 NLRB No. 46, slip op. at 4 (2014); Ameri-
can Red Cross Missouri-Illinois Blood Services Region, 347 NLRB
347, 349 (2006); Grand Industries, 335 NLRB 360, 361 (2001). In this
respect, however, we do not rely on Saigon Gourmet Restaurant, 353
NLRB 1063, 1065 (2009), as did the judge.
13 Moreover, while the Respondent’s business as of March 2013
might have picked up from the winter, there is no basis for assuming
that it jumped immediately to the level of high summer, or that it was
necessary for the Respondent to advance the start time by an hour that
early in the year. It is clear from the record that the Respondent’s busi-
est season was June to August.
14 For similar cases involving employer actions to isolate union sup-
porters, see Florida Tile Co., 300 NLRB 739, 741 (1990), enfd. 19 F.3d
36 (11th Cir. 1994); Inductive Components, 271 NLRB 1448, 1471
(1984); Hall of Mississippi, Inc., 249 NLRB 775, 778–779 (1980).
15 A fourth driver, Ray Green, also drove a belly dump for 6 weeks
beginning May 14 and started at 6 a.m. most days. However, the Re-
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Where an employer takes an adverse action against an
employee who is not a union supporter because the em-
ployer could not otherwise justify taking the same action
against a union supporter, the former employee is being
used as a “pawn in an unlawful design” and the actions
against both employees are unlawful.16 We find from the
above evidence that the “busy” season was a convenient
pretext for further implementing the Respondent’s estab-
lished plan to prevent Cope from communicating with
other drivers about the Union by advancing the start time
for “belly” trucks, and that this action was consequently
unlawful.17
ORDER
The National Labor Relations Board orders that the
Respondent, Corliss Resources, Inc., Sumner, Washing-
ton, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about whether they or oth-
er employees support Teamsters Local 174.
(b) Telling employees that the representation campaign
was futile.
(c) Threatening to never enter into a collective-
bargaining agreement with the Union.
(d) Threatening to sell the business before entering in-
to a contract with the Union.
(e) Threatening employees that a strike is inevitable if
they unionize.
(f) Threatening to assign or reassign employees to par-
ticular trucks based on their union sympathies.
(g) Threatening to isolate prounion employees.
(h) Threatening to deny employees raises because they
selected the Union as their collective-bargaining repre-
sentative.
(i) Creating the impression that it is engaged in surveil-
lance of its employees’ union or other protected concert-
ed activities.
(j) Threatening to retaliate against prounion employ-
ees.

spondent does not cite or otherwise rely on Green’s start time, and
Green did not drive a “belly” truck until almost 2 months after Cope
started. His start time therefore has no bearing on the Respondent’s
motivation for assigning the earlier start time to Cope when it did.
16 Dawson Carbide Industries, 273 NLRB 382, 389 (1984), enfd.
782 F.2d 64 (6th Cir. 1986). See also Bay Corrugated Container, 310
NLRB 450, 451 (1993), enfd. 12 F.3d 213 (6th Cir. 1993); Robin
Transportation, 310 NLRB 411, 418 (1993). The complaint does not
allege that the change to Dye’s start time was unlawful.
17 Although the judge found that Cope’s removal from his truck was
unlawful, his recommended order did not include related make-whole
language. Since the record does not show whether the Respondent’s
unlawful treatment of Cope affected his pay or benefits, we will include
make-whole language for both violations.
(k) Threatening to discharge employees for engaging
in activities that it perceives as prounion.
(l) Threatening to treat union supporters as disloyal by
calling them “backstabbers.”
(m) Threatening to fire all union supporters.
(n) Threatening to consider and evaluate transfer re-
quests and other personnel matters based on an employ-
ee’s union sympathies.
(o) Removing drivers from their assigned trucks be-
cause of their union activities.
(p) Advancing prounion drivers’ start times to isolate
them from other employees.
(q) Discharging drivers because they support the Un-
ion.
(r) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Don Sturdivan full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Sturdivan whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the judge’s decision.
(c) Compensate Sturdivan for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar
quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to Sturdivan’s unlawful dis-
charge, and within 3 days thereafter notify him in writing
that this has been done and that the discharge will not be
used against him in any way.
(e) Offer Jeff Cope reassignment to transfer truck 337
or an equivalent truck, displacing if necessary the driver
currently assigned to that truck.
(f) Make Cope whole for any loss of earnings and oth-
er benefits suffered as a result of the discrimination
against him. Backpay shall be computed in accordance
with Ogle Protection Service, Inc., 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8
(2010).
5
CORLISS RESOURCES, INC.
(g) Compensate Cope for the adverse tax consequenc-
es, if any, of receiving a lump-sum backpay award, and
file a report with the Social Security Administration allo-
cating the backpay award to the appropriate calendar
quarters.
(h) Within 14 days from the date of this Order, remove
from its files any reference to Cope’s removal from his
transfer truck or assignment of an earlier start time, and
within 3 days thereafter notify him in writing that this
has been done and that those actions will not be used
against him in any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its facilities in Washington State copies of the attached
notice marked “Appendix.”18 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since October 30, 2012.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-

18 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.”
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. February 27, 2015
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) 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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate you about whether you or
other employees support Teamsters Local 174.
WE WILL NOT tell you that the representation campaign
was futile.
WE WILL NOT threaten to never enter into a collective-
bargaining agreement with the Union or to sell the busi-
ness before entering into a contract with the Union.
WE WILL NOT threaten that a strike is inevitable if you
unionize.
WE WILL NOT threaten to assign or reassign you to par-
ticular trucks based on your union sympathies.
WE WILL NOT threaten to isolate prounion employees.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to deny you raises because you
selected the Union as your collective-bargaining repre-
sentative.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT threaten to retaliate against prounion
drivers.
WE WILL NOT threaten to discharge you for engaging in
activities that we perceive as prounion.
WE WILL NOT threaten to treat you as disloyal by call-
ing you “backstabbers” if you support the Union.
WE WILL NOT threaten to fire all union supporters.
WE WILL NOT threaten to consider and evaluate transfer
requests and other personnel matters based on your union
sympathies.
WE WILL NOT remove prounion drivers from their as-
signed trucks because of their union activities.
WE WILL NOT advance prounion drivers’ start time to
isolate them from other employees.
WE WILL NOT discharge drivers because they support
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Don Sturdivan full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Sturdivan whole for any loss of earn-
ings and other benefits suffered as a result of our dis-
crimination against him, less any net interim earnings,
plus interest.
WE WILL compensate Sturdivan for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Sturdivan, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge will not be used against him in any
way.
WE WILL offer Jeff Cope reassignment to transfer truck
337 or an equivalent truck, displacing if necessary the
driver currently assigned to that truck.
WE WILL make Cope whole for any loss of earnings
and other benefits suffered as a result of our discrimina-
tion against him, with interest.
WE WILL compensate Cope for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar
quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful reassignment of Cope from his transfer truck or as-
signment to an earlier start time, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that our unlawful conduct will not be used
against him in any way.
CORLISS RESOURCES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/19-CA-093237 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.
Susannah C. Merritt, Esq., for the General Counsel.
Selena C. Smith, Esq., & Erik M. Laiho, Esq. (Davis, Grimm,
Payne & Marra), for the Respondent Company.
Danielle Franco-Malone, Esq. (Schwerin, Campbell, Barnard,
Iglitzin & Lavitt, LLP), for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. In late
2012, Teamsters Local 174 was elected and certified as the
bargaining representative for approximately 38 dump
truckdrivers employed by Corliss Resources, Inc., a concrete
and aggregate production and supply company in Washington
State. The General Counsel alleges that the Company, which
had strongly opposed the representation campaign, unlawfully
responded to the Union’s election and certification by (1) mak-
ing numerous coercive antiunion statements and threats to the
drivers; (2) discriminatorily discharging, reassigning, isolating,
or suspend-ing three drivers (Don Sturdivan, Jeff Cope, and
Duane Crow) because they were known or perceived as
prounion and/or because they testified at the pre and postelec-
tion hearings or cooperated in the Board’s unfair labor practice
7
CORLISS RESOURCES, INC.
investigation; and (3) assigning more hours and desirable work
to five other drivers because they were known to be strongly
opposed to the Union.1
Following several pretrial conferences, a 7-day hearing on
the foregoing allegations was held on August 12–16 and 22–23,
2013, in Seattle. The General Counsel and the Company
thereafter filed briefs on November 12, 2013. After carefully
considering the briefs and the entire record, for the reasons set
forth below I find that the Company made numerous unlawful
postelection statements and threats to the drivers as alleged. I
also find that the Company unlawfully removed Cope from his
truck and discharged Sturdivan. However, I find that the Gen-
eral Counsel has failed to prove the remaining alleged viola-
tions by a preponderance of the evidence.2
I. FACTUAL BACKGROUND
The drivers began talking about bringing in a union around
December 2011. The first union meeting was held several
months later, in March 2012. Later the same month, Scott
Corliss, the president and co-owner of the Company with his
brother Tim, held a mandatory meeting with the drivers to ad-
dress the matter. He told them that they had got his attention;
that hearing about them contacting the Union was like being
asked for a divorce. He acknowledged that there had been
some tough times financially, and that the Company had
stopped funding the 401(k) plan. He also acknowledged that he
could be a hothead. However, he said there was no way the
Company could operate or compete if there was a union; that it
would kill the business and he would have to sell or close it.
He therefore asked the drivers to give him more time. He said
the Company would be able to resume funding the 401(k) plan
the following month, after making the final $50,000 payment
on its most recent purchase of new trucks, and would take a
look at increasing wages as well. He also said he would be
stepping back and letting his son Steve and the general manager
take the lead.3

1 The underlying charges and amended charges were filed by the Un-
ion on various dates between November 2012 and June 2013. The
NLRB Regional Director issued the most recent, second consolidated
complaint on June 28, 2013, upon receiving the last amended charge.
The NLRB’s commerce jurisdiction is undisputed and well established
by the admitted allegations in the complaint.
2 Specific citations to the transcript, exhibits, and briefs are included
where appropriate to aid review, and are not necessarily exclusive or
exhaustive. In making credibility findings, all relevant and appropriate
factors have been considered, including the demeanor and interests of
the witnesses; whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts;
inherent probabilities; and reasonable inferences which may be drawn
from the record as a whole. See, e.g., Daikichi Sushi, 335 NLRB 622,
633 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed
Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.), cert. denied
522 U.S. 948 (1997).
3 The relevant facts regarding the March 2012 meeting are based on
the testimony of drivers Michael Anderson, Don Sturdivan, and Jeff
Cope (Tr. 130–135, 298–302, 339, 481–485.) To the extent there are
inconsistencies, I give the greatest weight to the testimony of Anderson,
as he demonstrated the best memory and provided the most detailed
account of the hour-long meeting and the Company has not disputed
About 6 weeks later, on May 4, the Union filed a formal pe-
tition for a Board-conducted election among the dump
truckdrivers. The Company immediately challenged the peti-
tion on the ground that the unit should include all of the drivers,
including the cement mixer drivers in the concrete division.
However, following a hearing, the NLRB Regional Director
issued a decision on June 12 finding that the petitioned-for unit
limited to the dump truckdrivers in the aggregate division was
appropriate.
During this time, in May and June, there was a substantial
amount of discussion among the drivers about the Union. Sev-
eral of the drivers were openly for the Union, and several open-
ly against the Union. Scott Corliss also continued his campaign
against the Union, distributing several antiunion fliers to the
drivers. Consistent with his previous statements at the March
2012 meeting, one of the fliers stated that the Company would
be budgeting to resume 401(k) contributions for the 2012 plan
year (GC Exh. 12, p. 2).4
The election was held the following month, on July 12. The
Union narrowly lost, 16–13. However, the Union filed objec-
tions alleging that the Company had unlawfully surveilled,
threatened, and promised benefits to the drivers, and the Com-
pany subsequently agreed/stipulated to a rerun election.
The rerun election was held on September 26. This time the
tally was 18–14 in favor of the Union, with several additional
challenged ballots. Following a hearing on the challenged bal-
lots, the NLRB Regional Director issued a decision on Decem-
ber 20, 2012, certifying that the Union had been duly elected as
the exclusive bargaining representative of the unit.
Thereafter, in or around late February 2013, union and com-
pany representatives began meeting to negotiate an initial col-
lective-bargaining agreement. However, the negotiations were
contentious, and no contract had been reached as of the August
hearing (Tr. 181, 776). Further, the antiunion drivers continued
to campaign against the Union, distributing a 4-page letter in
March 2013 stating, among other things, that they would file a
petition for another election “in due time” to decertify it as
bargaining representative (GC Exh. 10).5

the credibility or accuracy of that account. Although the General
Counsel notified the Company on the first day of hearing that Ander-
son’s testimony regarding Corliss’ March 2012 statements would be
relied on as background evidence to show union animus (Tr. 131), the
Company did not call Corliss to testify or ask the two management
witnesses who were present, Truck Supervisor Darrin Rousseau and
HR Manager Shawna Williamson, about the meeting.
4 Other fliers offered various additional reasons to vote against the
Union, including that Corliss had recently decided not to terminate an
employee even though he had been involved in a “very serious inci-
dent,” and would consider establishing a grievance committee to ensure
everyone is treated fairly in the future (GC Exh. 16, p. 2).
5 I take administrative notice that a decertification petition was, in
fact, subsequently filed by Robert Cummings, one of the antiunion
drivers, on December 24, 2013, a few days after the 12-month bar to
such petitions had elapsed (docketed as Case 19–RD–119595).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Unlawful Statements and Threats
As indicated above, the complaint alleges that owners Scott
and Tim Corliss and the dispatcher, Randy Britt, made numer-
ous postelection unlawful statements and threats to the drivers
between December 2012 and May 2013 in violation of Section
8(a)(1) of the National Labor Relations Act (the Act). As dis-
cussed below, I find that all but a few of these allegations are
well supported.
1. Owner/President Scott Corliss
In March 2013, Duane Crow, one of the newer, seasonal
drivers, approached Scott Corliss in the yard and introduced
himself. Crow told Corliss that he was tired of hearing the pros
and cons of the Union from other drivers, and wanted to hear
directly from the Company what his options were. Corliss
replied,
Duane, this is what’s going to happen, they’re going to force
me to wave my white flag, they’re going to tell me I’m going
to have to go union. I’m not going to go union, I’ll never go
union, and I will fight them forever. So you’ve got two op-
tions. You can come to work, do your job, or you can stand
outside that fence and hold a sign like the rest of them. [Tr.
235.]
Corliss made a similar statement to Crow 2 months in late May
when Crow told him that he had decided not to give an affidavit
to the NLRB in support of the Union’s unfair labor practice
charges. Corliss replied, “[I]t doesn’t really matter Duane. I’m
not going union, I’ll fight it forever” (Tr. 239–240).6
In agreement with the General Counsel, I find that Corliss’
foregoing statements to Crow were unlawful. Considered both
in combination and in context (i.e., after the Union was certi-
fied and contract negotiations had begun), the statements would
reasonably be understood to mean that the representation cam-
paign and election had been futile; that Corliss would never
enter into a collective-bargaining agreement with the Union;
and that a strike was inevitable. See, e.g., Wolfe Electric, 336
NLRB 684, 687 (2001), enfd. 314 F.3d 325 (8th Cir. 2002);
Bolivar Tee’s Mfg. Co., 334 NLRB 1145, 1152–1153 (2001),
enfd. per curiam 61 Fed. Appx. 711 (D.C. Cir. 2003); Basic
Metal & Salvage Co., 322 NLRB 462, 464 (1996); Ideal Eleva-
tor Corp., 295 NLRB 347, 351 (1989); and Cannon Industries,
291 NLRB 632, 637 (1988).
Weldon, Williams & Lick, Inc., 348 NLRB 822 (2006), cited
by the Company, is clearly distinguishable. The statement
there was an isolated remark by a low-level supervisor before
the union became the bargaining representative, and could not
otherwise reasonably be interpreted as a threat of futility under
the circumstances. Here, in contrast, the Union had already
been elected and certified, and the statement was made by the
Company’s owner and president. Further, it was not an isolated
statement. As discussed above, Scott Corliss had promised the

6 There is no dispute that Scott Corliss made these statements to
Crow. As indicated above, Corliss did not testify, and there were no
other witnesses to the conversation. Nor does the Company’s
posthearing brief articulate any reason to discredit Crow’s account.
drivers benefits and threatened them with plant closure without
any objective basis during the preelection organizing campaign.
Although those promises and threats occurred outside the 6-
month limitations period and are not alleged as separate unfair
labor practices, they were clearly coercive. See, e.g., South
Jersey Sanitation Corp., 357 NLRB No. 124 (2011); ADB
Utility Contractors, 353 NLRB 166, 168 (2008), reaffd. 355
NLRB 1020 (2010); Valerie Manor, Inc., 351 NLRB 1306,
1316 (2007); Superior Emerald Park Landfill, LLC, 340 NLRB
449, 459 (2003); Airtex Air Conditioning, 308 NLRB 1135 fn.
2 (1992); and Bakers of Paris, 288 NLRB 991 (1988), enfd.
929 F.2d 1427 (9th Cir. 1991). See also Progressive Electric,
Inc. v. NLRB, 453 F.3d 538, 544
(D.C. Cir. 2006), and authorities cited there.7 Finally, as dis-
cussed below, Co-owner Tim Corliss and Dispatcher Randy
Britt also made various unlawful postelection statements to
employees indicating that the Company would seek to rid itself
of the Union and its supporters by unlawful means.
2. Co-Owner Tim Corliss
a. Tim Corliss’ statement to Ozuna
John Ozuna is also a relatively new driver. Like Crow and
other junior drivers, he was therefore assigned to a truck and
trailer rather a newer transfer truck. Unlike most of the truck
and trailers, all of the transfer trucks have air-conditioning.
And most drivers prefer them for this and other reasons. Thus,
when a transfer truck becomes available (as when a driver quits
or is terminated), the Company normally offers it to the next
senior driver, who usually accepts it. Regardless of the type of
truck, however, each driver is normally assigned the same
numbered truck day after day until a newer or better one be-
comes available. Thus, it is common for the more senior driv-
ers to drive the same transfer truck for several years. (Tr. 48–
49, 92, 96, 107–108, 224, 292, 360–361, 395, 445–446, 474–
475, 489–491, 774–745, 1040–1043, 1144–1145, 1192.)
Sometime in December 2012, Ozuna walked up to the third-
floor dispatch office after completing his trips to submit some
paperwork. When he got to the office, Tim Corliss was there
talking to Britt. Upon seeing Ozuna, who was considered a
very good driver and had never given management any reason
to believe he was prounion, Corliss said, “Put him in the trans-
fer truck and take the union guy out.” Britt replied, “Whoa,
whoa, you’re jumping the gun, let’s not move too fast.”8

7 As indicated by the General Counsel, the promises and threats may
therefore also be considered as background evidence of animus in
support of the 8(a)(3) allegations. See, e.g., Wilmington Fabricators,
Inc., 332 NLRB 57 fn. 6 (2000); and Douglas Aircraft Co., 307 NLRB
536 fn. 2 (1992). See also NLRB v. Relco Locomotives, 734 F.3d 764,
781–782 (8th Cir. 2013).
8 The relevant facts regarding this December 2012 incident are based
on Ozuna’s testimony (Tr. 451), which was both credible and uncon-
troverted. Tim Corliss, like his brother, did not testify. As for Britt, he
did not deny that the incident occurred, that Tim Corliss made such a
statement, or that he urged Corliss not to move so fast (counsel never
asked him). Although he testified that he did not recall ever himself
telling Ozuna that he was going to put him in a transfer truck and take a
prounion guy out (Tr. 1080), there is no allegation or testimony that he
did so.
9
CORLISS RESOURCES, INC.
As indicated by the General Counsel, under all the circum-
stances, including the recent election campaign and Britt’s re-
sponse, Tim Corliss’ statement would reasonably be understood
to mean that the Company intended to assign or reassign driv-
ers to trucks based on their union sympathies, rather than sen-
iority in accordance with the normal practice. Indeed, as dis-
cussed below, this is precisely what the Company had recently
done by removing senior driver Jeff Cope, one of the most
vocal union supporters, from his transfer truck. And the Com-
pany’s posthearing brief does not offer any alternative meaning
or interpretation. Accordingly, I find that the statement was
unlawful. See, e.g., Aircraft Hydro-Forming, Inc., 221 NLRB
581, 590 (1975).
b. Tim Corliss’ statement to Crow
Around May 2013, at the end of the workday, Crow ap-
proached Tim Corliss in the yard and spoke with him about the
tension and uneasiness in the work atmosphere. Crow told
Corliss that he wanted to switch to driving one of the few belly
dump trucks, which only run between the Company’s plants
(plant to plant) rather than to construction sites with the trans-
fers and truck and trailers. Crow said he wanted to do this so
that he “didn’t have to be playing both sides of union, nonun-
ion,” and could “just kind of do my own deal and stay out of
it.” Corliss replied, “Yeah, you know, that’s kind of tough.
We’ve been trying to keep the assholes away from the new
people.” (Tr. 249–250.)9
As indicated by the General Counsel, in context, Corliss’
comment would reasonably be understood to mean that the
Company was trying to isolate prounion employees. And,
again, the Company has not offered any alternative meaning or
interpretation.10 Accordingly, I find that this comment was
likewise unlawful. See, e.g., Tyson Foods, 311 NLRB 552
(1993); and Montgomery Ward & Co., 93 NLRB 640, 640–641
(1951), enfd. as modified 192 F.2d 160 (2d Cir. 1951).
3. Dispatcher Randy Britt
Britt is related by marriage to both Scott Corliss and one of
the openly antiunion drivers (Richard Vandyk), i.e., both are his
brothers-in-law.11 He has worked for the Company for 24
years, and has performed various jobs, including dump
truckdriver, manager, and salesman. He has also twice served
as the aggregate dispatcher: from about 2005 to 2007, and again

9 Again, there is no dispute that Tim Corliss made this comment to
Crow.
10 As noted by the General Counsel, Crow testified that he did, in
fact, understand Corliss’ reference to “assholes” to mean the prounion
drivers. However, the test for evaluating such statements under Sec.
8(a)(1) of the Act is an objective one; i.e., whether it would be reasona-
ble for an employee to conclude that a statement referred to the union
or union activity. See, e.g., Miami Systems Corp., 320 NLRB 71 fn. 4
(1995), affd. in relevant part 111 F.3d 1284 (6th Cir. 1997); and
Smithers Tire & Automotive, 308 NLRB 72 (1992). Accordingly, I
have given no weight to Crow’s subjective interpretation of Corliss’
comment.
11 Scott Corliss married Britt’s sister, and Britt married Vandyk’s
sister. Although Britt testified that Corliss will soon be his ex-brother-
in-law, they are “very close” and talk “all the time.” (Tr. 54, 1050–
1051, 1122, 1130–1132, 1193.)
since April 2012, shortly after the union campaign began. He
has admittedly been the drivers’ supervisor and an agent of the
Company at all times material to the case.
a. Britt’s conversation with Mowatt
John Mowatt has worked for the Company for over 9 years,
and drives a transfer truck. He has attended a couple of union
meetings, but was not an open union supporter during the cam-
paign.
Sometime around December 2012, as Mowatt was leaving to
go home, Britt pulled him aside outside the drivers’ room. Britt
asked Mowatt, “Off the record, what are you hearing about the
Union from the other drivers?” Mowatt replied, “Nothing.”
Mowatt then asked Britt why the junior drivers were getting
paid more than him. Britt replied, “You’re not, there is no way
you’re getting a raise right now, not with the fucking Union
here.”12
In agreement with the General Counsel, I find that Britt’s ini-
tial question to Mowatt about what other drivers were saying
about the Union was unlawful. Britt testified that he typically
engaged drivers in conversations about the Union simply be-
cause, as a former driver, he was “curious.” He also testified
that he is himself a former union mechanic and “a union guy.”13
He suggested that he was trying to protect the drivers from
Scott Corliss, who “obviously” did not want a union, had
“broke” a union once before, and might retaliate against the
drivers if they were too “brash” in asserting or voicing their
union rights or sympathies. See transcript 1068, 1090–1096,
and the discussion infra regarding Britt’s warning to driver and
former dispatcher John Bobbitt to “keep it on the down low.”
However, Britt admitted that he is opposed to the Corliss dump
truckdrivers having a union because the Company is a relative-
ly small family business and would lose its “niche” (Tr. 1093–
1095). And his reference in the same conversation to the
“fucking union” certainly evinces that hostility.14 In any event,
there is no evidence that Mowatt, who had not previously re-
vealed his union sympathies, viewed Britt as his compatriot or
protector (rather than as his immediate supervisor and Corliss’
brother-in-law). Accordingly, under all the circumstances, the
question was coercive. See generally Rossmore House, 269
NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. Hotel Employ-

12 I credit Mowatt’s testimony about the conversation (Tr. 747).
Although Britt testified to the contrary, there are significant problems
with that testimony. Britt testified that he did not recall asking Mowatt
what the guys thought of the Union, and that he did not tell Mowatt that
there was no way he would get a raise with the Union. Indeed, he
testified that he “barely talk[s]” to Mowatt. (Tr. 1091–1092.) Howev-
er, Britt had earlier admitted in his direct testimony, before being spe-
cifically asked about Mowatt, that he “talk[s] to every driver every day
half a dozen times about everything,” including “union stuff” (Tr.
1091); that he talked to the drivers “quite a bit” regarding “lots of
things” about the Union throughout the relevant period (Tr. 1067); and
that he specifically asked drivers about what went on at union meetings,
including how many drivers were there (Tr. 1068, 1089).
13 See Tr. 190 (“I am just kind of a union guy”), and 1093 (“I am, at
heart, a union guy, which Corliss might beat me up if he heard me say
it”).
14 See, e.g., A.D. Connor, Inc., 357 NLRB No. 154 (2011).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). See also
Woodcrest Health Care Center, 360 NLRB No. 58 (2014).
I also find that Britt’s subsequent statement that there was
“no way” Mowatt would get a raise at that time because of the
“fucking union” was unlawful. As indicated above, the state-
ment on its face reflects animus towards the Union, and would
reasonably be understood to mean that the Company would
deny employees raises because of that animus. Contrary to the
Company’s posthearing brief (p. 106), there is nothing in the
statement itself, the context of the conversation, or the record as
a whole to suggest that Britt was simply making a legal point
about the Company’s statutory obligation to bargain in good
faith with the Union over wages, hours, and working conditions
to an overall agreement or impasse, or that the statement would
reasonably be interpreted as such. Accordingly, it was likewise
coercive. See generally Earthgrains Baking Cos., 339 NLRB
24 (2003), enfd. 116 Fed. Appx. 161 (9th Cir. 2004); and
Wellstream Corp., 313 NLRB 698, 707 (1994).
b. Britt’s statement to Jackson
Darryle Jackson was a driver for the Company for 11 years,
from 1992 until he voluntarily left in late January 2013. He
drove a belly dump the first 2 years, then a truck and trailer for
several years, and again a belly dump for the last 6 months.15
He also worked as a dispatcher for a brief period in 2006. It
was common knowledge that he was on management’s side
during the 2012 representation elections (Tr. 66, 97–99). In-
deed, in mid-September 2012, about 2 weeks before the rerun
election, Tim Corliss actually asked him to participate in a “se-
cret squirrel job.” Corliss told him that the Company wanted to
move Jackson out of his belly dump, pull the CB radio out of it,
and put Cope in it so that Cope would just drive from plant to
plant all day and could not “badmouth” the Company over the
CB in his transfer truck.16 Jackson talked Corliss out of doing
this at the time, because he personally liked driving the belly
dump plant to plant all day, and had asked for and been given
the truck after the first election. However, he decided to leave
the Company shortly thereafter to get away from the whole
“mess.” (Tr. 50–52, 56–59, 66, 93, 97–99.)17
During his last few months at the Company, Jackson and
Britt talked numerous times about the Union. They were casu-
al, friendly conversations, usually early in the morning, when
Jackson came in to wash his truck, and before the transfer-truck

15 See Jackson’s 2012 daily trip sheets, R. Exh. 68 [flash drive],
which indicate that he resumed driving belly dumps (408 and 406) on
June 29, 2012. See also Jt. Exh. 2 (list of trucks by number); and Tr.
795.
16 Based on the record as a whole, I find that Corliss’s comment
about Cope “badmouthing” the Company referred to Cope’s outspoken
support for the Union, and that the comment would reasonably have
been interpreted as such. Indeed, the Company does not contend oth-
erwise. I also infer that Scott Corliss was party to the plan, as Tim
Corliss used the plural personal pronoun “we” and indicated that Scott
might also talk to Jackson about the plan.
17 As indicated above, Tim Corliss did not testify. Jackson’s testi-
mony regarding the “secret squirrel” phone conversation is therefore
undisputed. Although Corliss’ statements during that conversation are
not alleged as a separate unfair labor practice, as discussed below they
are obviously relevant to the complaint allegations regarding Cope.
and truck-and-trailer drivers arrived. However, Britt repeatedly
made statements during the conversations such as, “Scott’s just
not going to let it happen,” and “Scott’s not going to let the
Union [in] because Scott will sell everything he owns to fight
the Union.” (Tr. 54–55, 65–68.)18
Like Scott Corliss’ own statements to Crow, I find that
Britt’s foregoing statements to Jackson were unlawful, as they
would reasonably be understood to mean that the representation
campaign and election had been futile, and that Corliss would
sell the business before signing a contract with the Union. It is
of no significance in this regard that Jackson and Britt were
friends, or that Jackson was already known to be against the
Union. As noted above, the test in evaluating such statements
is an objective one; it makes no difference whether the listener
was actually coerced. To hold otherwise would give unlimited
license to managers and supervisors to say whatever they want-
ed to friendly and/or known antiunion employees—including
unsupported predictions of plant closure and other statements
that would normally be considered hallmark violations of the
Act19—knowing that those employees were likely to repeat or
disseminate the statements to other employees in the voting
unit.
Indeed, there is reason to believe this is precisely what oc-
curred here. Jackson testified that he talked about the Union,
not only with Britt, but also with everybody who worked in the
Company (who were also his friends), and that he said the same
thing Britt said many times.20 Cf. Wabash Transformer Corp.,
215 NLRB 546, 549, 553 (1974) (manager’s statement to em-
ployee that the plant would close if the union won violated
Section 8(a)(1) even though the manager knew that the em-
ployee was strongly procompany and antiunion); Nu-Skin In-
ternational, Inc., 320 NLRB 385, 397 (1995) (supervisor’s
tearful statement to two employees, “Don’t these people under-
stand that if the Union is voted in, this place will close down?”
violated 8(a)(1) even though the two employees were strong
company supporters); and Phillips 66 (Sweeny Refinery), 360
NLRB No. 26 (2014) (supervisor’s statement to lead operator
that the company would probably make lead operator a salaried
position in the event the union came in violated 8(a)(1) even
though they had known each other for 30 years and were
friends).
c. Britt’s conversations with Bobbitt
John Bobbitt has worked for the Company for approximately
15 years. For the first 7 years he was a dump truckdriver. He
then worked for about a year with Britt as assistant dispatcher,
and for another year thereafter as salesman. He and Britt then
switched jobs, and he became the dispatcher, which he did for
the next 7 years, until April 2012, shortly after the union cam-
paign began. He left at that time because Britt, who Bobbitt
considered a friend, told him that he had a “target on his
back”—that Scott Corliss thought the drivers might have con-

18 Jackson’s testimony about Britt’s statements is undisputed. Britt
did not deny either that the conversations occurred or that he made such
statements (counsel never asked him). See Tr. 1090–1091.
19 See, e.g., Overnite Transportation Co., 333 NLRB 1392, 1394
(2001).
20 See also GC Exh. 18 (antiunion Facebook page).
11
CORLISS RESOURCES, INC.
tacted the Union because of the way Bobbitt was dispatching
them. However, Corliss called Bobbitt a few weeks later, in
mid-May, and asked him to come back. Corliss did not offer to
return Bobbitt to the dispatcher position (which Britt now again
occupied), but said he would put Bobbitt in a transfer truck for
a month, and then move him into a sales position after terminat-
ing the current salesman.
During either that or a subsequent conversation, Corliss also
mentioned the upcoming May 25 hearing to determine the
scope of the voting unit. He had apparently learned that Bob-
bitt had been subpoenaed by the Union to testify at the
preelection hearing. Corliss said he knew Bobbitt had to go to
the hearing, and that he would not tell him what to say, but he
really did not want the Union in. He also told Bobbitt during
this or a subsequent conversation that he needed him to vote
against the Union in the election, and Bobbitt agreed to do so.
Bobbitt subsequently did, in fact, testify under subpoena at
the May 25 preelection hearing. He returned to the Company
as a unit driver a few days later, and remained in that position
during and after both of the 2012 elections (Corliss put some-
one else in the sales position). He has never expressed his
opinion about the Union, and attended only one union meeting,
on Saturday, January 26, 2013, after the Union was certified,
when two of the drivers, Michael Anderson and Brian Tilly,
were elected to be the union bargaining representatives.21
On Monday, January 28, 2 days after he attended the union
meeting, Bobbitt called in as usual to get his start time and first
assignment for the day from Britt. After giving Bobbitt the
information, Britt told Bobbitt that he should keep the whole
union thing “on the down low.” Bobbitt did not respond.
Later that morning, Britt brought up the subject again when
Bobbitt went up to the dispatch office to say goodbye to Jack-
son. Britt said, “I heard Brian Tilly was a committee mem-
ber.” When Bobbitt did not respond affirmatively, Britt said,
“Well, what did you think about the meeting . . . were you at
the meeting?” Bobbitt replied, “Well, obviously you know I
was at the meeting because you’re asking me about it.” Britt
said, “Well, what do you think of it?” Bobbitt just shrugged his
shoulders.22

21 The foregoing facts are based on Bobbitt’s testimony (Tr. 538–
548, 570–572, 633–635, 691–692, 728–730, 735), which was both
credible and uncontroverted. As previously noted, Scott Corliss did not
testify. As for Britt, he never expressly or clearly denied that he told
Bobbitt that he had a “target on his back,” and admitted that he told
Bobbitt that Corliss was not happy with him. See Tr. 1081–1083.
22 I credit Bobbitt’s testimony about these conversations with Britt
(Tr. 573–574). I reject the Company’s argument (Br. 105) that it
“makes no logical sense” that Britt would tell Bobbitt to keep his union
sympathies “on the down low” because Scott Corliss already knew that
Bobbitt had testified on behalf of the Union at the preelection hearing 7
months earlier. As indicated above, Corliss knew that Bobbitt had been
subpoenaed by the Union, and thus had no choice but to testify. More-
over, Bobbitt assured Corliss at the time that he would vote against the
Union in the election if Corliss hired him back. Finally, Britt himself
never denied that the conversations occurred. Nor did he expressly or
clearly deny that he told Bobbitt to “keep it on the down low.” Rather,
he appeared to explain it, testifying,
[H]ave I said something of that nature to John, “on the down low?” I
Britt raised the subject again 2 days later, on January 30.
When Bobbitt called in for his dispatch time, Britt said he had
heard Tim and Scott Corliss talking about Anderson, Tilly, and
the Cope brothers (Jeff’s brother Todd was also an openly
prounion driver), and they were not too happy with them. He
told Bobbitt, “You’d better be on the fence and keep this on the
down low.” Britt repeated the same advice later that morning,
both when Bobbitt went upstairs to fill out a vacation request
form, and again when he subsequently called Bobbitt on his cell
phone. Britt asked Bobbitt if he understood what he meant, and
warned him that the Corliss brothers “like to get even.” Bobbitt
assured Britt that he would keep it on the down low.23
In agreement with the General Counsel, I find that Britt’s
questions and statements to Bobbitt on January 28 were unlaw-
ful, both because they constituted unlawful interrogation, and
because they would reasonably cause Bobbitt to believe that
union activities were under surveillance. Again, considering all
the circumstances leading up to and surrounding the conversa-
tions, it makes no difference that Bobbitt considered Britt his
friend. Cf. Bruce Packing Co., 357 NLRB No. 93 (2011) (su-
pervisor’s questioning of employee about union activity violat-
ed 8(a)(1) even though the conversation occurred after the em-
ployee’s shift and the supervisor was her friend and godfather
to one of her sons); and Woodcrest Health Care Center, supra
(supervisor’s statements to employee that he should “watch his
back,” “be careful,” “tone it down,” and “keep it under wraps”
unlawfully created the impression of surveillance notwithstand-
ing their friendly relationship). See also Relco Locomotives,
Inc., 358 NLRB No. 37 (2012), enfd. 734 F.3d 764 (8th Cir.
2013). I also find that Britt’s additional comments on January
30 violated 8(a)(1), as they would reasonably be interpreted as
a threat that the Corliss brothers would retaliate against drivers
who openly engaged in union activities. Cf. Jordan Marsh
Stores Corp., 317 NLRB 460, 462 (1995) (manager warned
employee to “watch out” or “watch your back” in reference to
union activity); and Springfield Hospital, 281 NLRB 643, 653
(1986) (supervisor stated that he would “get even” with em-
ployee for signing petition).
d. Britt’s conversation with Ozuna
As discussed earlier, Ozuna is a relatively new driver who
did not openly take a position on the Union during the cam-

don’t care if John Bobbitt is union. I don’t care if Rich Vandyk isn’t
union. I really don’t. So, my thing that I said to John, which I think
we are talking about, was, “Don’t be brash about it. I don’t care if
they are union or not union. Nothing good is going to come out of
kicking Corliss in the teeth. You know, you can be union but don’t
rub it in his face, you know. Nothing good is going to come out of it.”
Something of that nature is what I was saying. (Tr. 1085 [quotation
marks from court reporting service’s transcript].)
As noted earlier, he also admitted that he asked drivers about what went
on at union meetings.
23 For the same reasons noted above, I credit Bobbitt’s testimony
about these additional conversations with Britt (Tr. 575–577). See also
Britt’s testimony, Tr. 1133–1137 (admitting that he has said the same
or similar things to a couple of guys, and naming several prounion
drivers he thinks are being “brash” in their union support, including the
Cope brothers and bargaining representatives Anderson and Tilly).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
paign. One evening in March 2013, Britt called Ozuna on the
CB and asked him to come up to the dispatch office after he
parked his truck. When he arrived, both Britt and Tim Corliss
were there, and Britt asked Ozuna to go out into the hallway.
Britt then followed him out, leaving Corliss in the office. Britt
told Ozuna that the Corliss brothers were looking at him and
wondering who he was. He told Ozuna to keep his nose clean
and not to be seen talking to the union guys because, after the
Company went nonunion, it was going to get rid of all of them.
Ozuna responded that he said hi to everybody, and did not draw
the line by whether they were union or nonunion members.
Never-theless, he subsequently avoided talking for too long to
known prounion drivers, such as the Cope brothers, Anderson,
and Tilly, particularly in the yard, where there are cameras.24
Like Britt’s statements to Bobbitt, Britt’s foregoing state-
ments to Ozuna would reasonably create an impression of sur-
veillance and threaten drivers that they would be discharged for
engaging in activity that the Company perceived as prounion.
Accordingly, in agreement with the General Counsel, I find that
they were unlawful as well. See also Pratt (Corrugated Logis-
tics), 360 NLRB No. 48 (2014); Statler Industries, 244 NLRB
144, 149 (1979), affd. and remanded on other grounds 644 F.2d
902, 904 (1st Cir. 1981); and Sandy’s Stores, 163 NLRB 728,
736 (1967), enfd. in relevant part 398 F.2d 268, 270 (1st Cir.
1968).
e. Britt’s conversation with Tilly
Brian Tilly has worked for the Company for 15 years, and is
one of the most senior drivers in the aggregate department. He
was not a vocal or open union supporter during the campaign.
However, as indicated above, on January 26, 2013, he was
elected with Anderson to be on the union bargaining team.
About 6 weeks later, on March 6, Tilly went up to the dis-
patch office and invited Britt to join him and some of the driv-
ers at a local restaurant for a get-together after work. Britt re-
sponded, “Why the fuck would I want to go to drink with a
bunch of backstabbers?” Tilly asked him who he was talking
about, and Britt initially said, “everyone.” However, he even-
tually said that Tilly was the backstabber because he had told
Vandyk (who, as noted above, is Britt’s brother-in-law and one
of the openly antiunion drivers) that Britt had wrongly accused
the Union of sending a letter to the Company that effectively
outed Mowatt as a union supporter. Britt was upset because he
believed Tilly, who he had known and worked with for many
years, was calling him a liar. Britt told Tilly, “We have the
numbers and we’re going to get all of you guys out.” He then
told Tilly to “get the fuck out” of his office.25

24 I credit Ozuna’s testimony about his conversation with Britt (Tr.
453–454, 472). Britt never denied that he had a conversation with
Ozuna in the hallway or that he told Ozuna not to be seen talking to
prounion drivers because the Company would get rid of them after it
became nonunion again (counsel never asked him). As for whether he
ever told Ozuna to “keep his nose clean,” Britt testified that he did not
recall doing so, but admitted that he used the phrase often (Tr. 1080–
1081).
25 I credit Tilly’s testimony about his conversation with Britt (Tr.
371–375, 414, 426–432). Although Britt denied that he called Tilly a
“backstabber,” he admitted that the conversation occurred and that he
Contrary to the General Counsel, I find that the evidence
fails to establish that Britt called Tilly a “backstabber” because
of Tilly’s support for the Union or that the statement would
reasonably be interpreted as such. Rather, Britt made clear that
he was upset because Tilly called him a liar.26 Accordingly,
this allegation is dismissed.27
However, in agreement with the General Counsel, I find that
Britt’s subsequent statement, “We have the numbers and we’re
going to get all of you guys out,” was unlawful, as it would
reasonably be understood in context to mean that the Company
would fire all of the union supporters after getting rid of the
Union. As previously noted, the antiunion drivers were contin-
uing to campaign against the Union in order to eventually de-
certify it. (See GC Exh. 10; and Tr., 264, 282–283, 374.) Fur-
ther, as discussed above, Britt made similar unlawful state-
ments to both Bobbitt and Ozuna around the same time indicat-
ing that the Company would discharge or otherwise retaliate
against prounion drivers after getting rid of the Union.
f. Britt’s statement to Anderson
Michael Anderson has worked for the Company for about 10
years. As indicated above, he openly supported the Union dur-
ing the campaign and was elected, along with Tilly, to the un-
ion bargaining team.
In late April 2013, Anderson called the dispatch office and
asked Britt to mark him and Tilly down as off work on May 3,
14, and 30 for the contract negotiations. Britt responded that
he had already marked other drivers down as off on those days,
and that he did not really have to do what Anderson was asking.
Anderson replied, “I know you don’t, we can do it formally, it’s
been okay before,” adding, “All you have to do Randy is tell
your buddy Scott to sign a contract and then we won’t have to
do this no more.” Britt replied, “That ain’t never gonna hap-
pen,” and something to the effect that he would be “dead or 80
or retired” before that happened.28

called Tilly something else and told him to get out of his office. As
noted below, he also admitted that he called Bobbitt a “backstabber”
the very next day. (Tr. 1075–1076.) Finally, he did not deny that he
told Tilly the Company had the numbers and would “get all of you guys
out” (counsel never asked him).
26 The General Counsel does not allege that Britt’s initial statement
that “everyone” was a backstabber violated the Act.
27 The General Counsel alleges that Britt likewise unlawfully called
Bobbitt a “backstabber” over the CB radio on March 7, 2013. I dis-
miss this allegation as well. It is undisputed that Britt called Bobbitt a
“backstabber” after Bobbitt commented over the CB that two less sen-
ior drivers had pulled out of the plant ahead of Tilly. There was no
mention of the Union during the conversation and Bobbit was not a
strong union supporter, either in fact or by reputation. Nor is there any
record evidence that Bobbitt was the author or subject of any unfair
labor practice charges at the time. The record discloses only one
charge filed as of that date, which alleged only that the Company had
discriminatorily removed Cope from his transfer truck (GC Exh. 1(a)).
Thus, under the circumstances, Britt’s comment would more reasonably
be interpreted simply as pique over a former fellow dispatcher ques-
tioning his dispatch decisions.
28 I credit Anderson’s testimony about this phone conversation with
Britt (Tr. 160–161). Again, Britt never denied that he had a conversa-
tion with Anderson about him and Tilly getting time off for negotia-
tions (counsel never asked him). Although Britt did not recall ever
13
CORLISS RESOURCES, INC.
For the same reasons discussed above with respect to the
similar statements Britt and Scott Corliss made to Jackson and
Crow, respectively, I find that Britt’s statement to Anderson
was likewise unlawful.
g. Britt’s statements to Crow
As indicated above, Duane Crow is a relatively new driver
who the Company typically lays off during the slowest winter
months. In March 2013, he had a number of telephone conver-
sations with Britt about coming back to work for the upcoming
busy season. During one of those conversations, he and Britt
talked about whether it was better to be union or nonunion.
Britt said that, in his opinion, Crow would be better on the non-
union side versus the union side, and Crow agreed that he
would be better nonunion.29
About 2 months later, in May 2013, Crow went up to the
dispatch office after work to ask Britt about his initial assign-
ments the following day. While Crow was waiting in the hall-
way for Britt to finish a conversation with another driver, he
saw Darrin Rousseau, the truck supervisor. Crow jokingly
asked if he could get one of the Company’s beautifully refur-
bished mixer trucks if he transferred to the concrete side.
Rousseau laughed and said that particular truck was already
spoken for, but he would be happy to put Crow in a different
truck. At that point, Britt became free, so Crow left Rousseau
and went into the office. Crow told Britt that he was “thinking
about going to the concrete side.” Britt replied, “Whoa, whoa,
wait a minute, we need you for the vote, unless you’re for the
Union.” Crow replied, “I’m not for the Union, Randy, you
know that.”30
Contrary to the General Counsel, I find that the evidence
fails to establish that Britt’s statements to Crow during their
March telephone conversation were unlawful. An employer is
generally free to state its opinion that employees would be bet-
ter off without a union. See Langdale Forest Products Co., 335
NLRB 602 (2001), and cases cited there. Moreover, here, it is
unclear whether Britt or Crow initiated the conversation about

saying that Corliss would never sign a contract, and denied that he
would have made such a comment to Anderson, Anderson’s testimony
is more credible. As discussed above, Britt admitted that he frequently
talked to the drivers about union matters; it is undisputed that Britt
made similar statements to Jackson around January 2013; and it is also
undisputed that Scott Corliss himself made a similar statement to Crow
in March 2013.
29 I credit Crow’s testimony regarding his March conversation with
Britt (Tr. 233). Britt never specifically denied that the conversation
occurred (counsel never asked him). And while Britt testified that he
“wouldn’t have carried on any type of conversation” with Crow (Tr.
1074), I discredit this testimony for the same reason I discredited his
similar testimony regarding his conversation with Mowatt.
30 I credit Crow’s testimony regarding his May conversations with
Rousseau and Britt (Tr. 235–238). As indicated above, there was a lot
of conversation at the time about a third vote to decertify the Union.
See also GC Exh. 18 (antiunion Facebook page); and Tr. 150–153, 158,
1061. Further, Rousseau offered a weak denial regarding his hallway
conversation with Crow, testifying only that he did not recall the con-
versation (Tr. 871). As for Britt, I discredit his denial (Tr. 1073) for the
same reasons I have discredited his denials regarding his conversations
with Mowatt and Anderson.
being union versus nonunion, or in what context Britt expressed
his opinion on the matter. Accordingly, this allegation is dis-
missed.
However, in agreement with the General Counsel, I find that
Britt’s subsequent statement to Crow during the May conversa-
tion was unlawful, as it would reasonably be understood to
mean that transfer requests and other personnel matters would
be considered and evaluated based on a driver’s union sympa-
thies. Contrary to the Company’s contention, the evidence does
not show that Britt’s comment was made in a joking manner or
tone. Although Crow had previously joked around with Rous-
seau in the hallway about getting a particular mixer truck, Crow
testified that he was not joking when he told Britt in the office
that he was thinking about going to the concrete side, and that
Britt did not appear to be joking either (Tr. 264).31
B. Alleged Retaliation Against Cope, Sturdivan,
and Crow
As indicated above, the complaint also alleges that the Com-
pany carried out its unlawful threats by taking certain adverse
actions against drivers Jeff Cope, Don Sturdivan, and Duane
Crow after the rerun election. The General Counsel contends
that the Company did so because they were known or perceived
as prounion and/or because they testified at the pre and poste-
lection hearings or cooperated in the Board’s unfair labor prac-
tice investigation, in violation of Section 8(a)(3) and/or (4) of
the Act.
The appropriate test for evaluating such 8(a)(3) allegations is
set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Under that test, the General Counsel must prove by a prepon-
derance of the evidence that the employee’s union activity was
a substantial or motivating factor in the disciplinary or other
adverse action. The General Counsel can make a sufficient
initial showing in this regard by demonstrating that (1) the em-
ployee engaged in union activity and the employer knew it, or
the employer believed or suspected that the employee engaged
in or was likely to engage in such activity, and (2) the employer
had animus against such activity. If the General Counsel makes
the required initial showing, the burden shifts to the employer
to establish by a preponderance of the evidence that it would
have taken the same action even in the absence of the employ-
ee’s union activity. See Consolidated Bus Transit, 350 NLRB
1064, 1065 (2007); Multi-Ad Services, 331 NLRB 1226, 1240
(2000), enfd. 255 F.3d 363 (7th Cir. 2001), and cases cited
there. See also Concepts & Designs, Inc. v. NLRB, 101 F.3d
1243 (8th Cir. 1996). A similar analysis is applied in evaluat-
ing 8(a)(4) allegations that an employer has retaliated against

31 Continental Can Co., 282 NLRB 1363 (1987), cited by the Com-
pany, is therefore distinguishable. Compare also Washington Fruit &
Produce Co., 343 NLRB 1215, 1216 fn. 9 (2004) (disavowing judge’s
reasoning that supervisor’s statement was not a threat because he was
joking). The General Counsel also alleges that Britt’s statement during
the May conversation constituted an unlawful interrogation under the
standards set forth in Rossmore House, supra. I need not reach this
issue as such a finding would be cumulative and not affect the remedy.
Gaylord Chemical Co., 358 NLRB No. 63 fn. 1 (2012).
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an employee for filing charges or giving testimony under the
Act. Newcor, Inc., 351 NLRB 1034 fn. 4 (2007).
Applying the foregoing analysis, for the reasons set forth be-
low, I find that the Company unlawfully removed Cope from
his transfer truck and discharged Sturdivan, but did not other-
wise unlawfully retaliate against Cope and Crow in the manner
alleged.
1. Retaliation against Jeff Cope
a. Removing Cope from his transfer truck
Jeff Cope has worked for the Company for 14 years and
drove one of its newest, 2006 model transfer trucks (337) for
approximately the last 3 of those years prior to the relevant
events here. He was one of the most outspoken and enthusias-
tic supporters of the Union during the campaign. He would talk
up the Union daily, in the parking lot, drivers’ room, through-
out the facility, to anyone who would listen. He also spoke
about his views to supervisors, including Britt, who he consid-
ered a friend and had coffee with every morning in the dispatch
office before going out, and Rousseau. (Tr. 111, 120, 297,
336–337, 454–455, 477–480, 548, 1135.) He was also named
as a witness in support of the Union’s July 26, 2012 objections
to the first election (GC Exh. 6).
In late September 2012, Cope took truck 337 into the shop
because there appeared to be an oil leak in the top of the trans-
mission. He then took the following week off for a previously
planned vacation. When he returned to work on October 1,
shortly after the rerun election, he went back to the shop to get
his truck; however, the mechanic told him it was still down. So
Cope went to see Britt, who put Cope in two older 2000 truck
and trailers over the next few days instead (322 and 321).
Around this time, truck 337 was released from the shop.
However, it continued to sit for a couple of days. Britt, who
never liked to leave a new transfer truck sitting,32 talked to
Scott Corliss about this. However, according to Britt, Corliss
told him to just “leave it open” for the time being, without fur-
ther explanation (Tr. 1035–1036, 1119). Britt subsequently
reported this to Cope, when he asked about getting 337 back
(Tr. 533), and assigned him to even older, 1994 truck and trail-
ers (303, 302, and 308) over the next few weeks.
About this time, the Company began using 337 as a spare or
loaner truck for other drivers when their trucks were down for
refurbishing or repair. This, of course, did not escape Cope’s
attention, and after driving 308 for a few weeks—which, like
303 and 302, he considered “a write-up waiting to happen”33—
he decided to stop accepting such assignments. He continued
coming in early to see if Britt needed him, but would usually
decline work if Britt was going to put him in 308 or other old
truck and trailer. Cope told Britt that he was going to file an
NLRB charge over the matter, which the Union did on his be-

32 See Tr. 1037–1038 (“I like to have the transfer trucks full. They
are—they are worthy of—I mean, there is no way I want to sit a trans-
fer truck because you can use them on any job.”).
33 Cope testified that, based on his understanding of new rules, in-
fractions may be recorded on a driver’s license, even if the employer
rather than the driver is responsible or at fault (Tr. 498). And the Com-
pany offered no testimony or evidence to the contrary.
half shortly thereafter, on November 14, 2012. (Tr. 534–536,
1038–1039, 1113; GC Exh. 1(a).)
Over the next several months, Britt occasionally joked
around with Cope by telling him that he should drive a belly
dump truck. Britt never forced anyone to drive a belly dump
because they just went back and forth between the plants all
day, and, unlike Jackson, most drivers did not like driving
them.34 However, with Scott Corliss’ approval, in late March
2013, after Jackson quit and business started picking up, Britt
formally offered a belly dump to Cope, and Cope agreed to
give it a try.
Cope continued to drive the belly dump for several months
thereafter, until a few weeks before the unfair labor practice
hearing, when he was put into one of the 1998 transfer trucks
(325).35 In the meantime, in early May, Jesse Flanders, a 6-
year employee and vocal antiunion driver, asked for and was
assigned 337 to drive on a regular/daily basis, which he contin-
ued to do as of the hearing. (Tr. 457, 497–499, 502, 517–518,
522, 532, 802, 1040, 1032–1034, 1111–1112; GC Exh. 18; R.
Exhs. 46, 68 [flash drive].)36
I find that the General Counsel has made a sufficient show-
ing under Wright line that Cope’s outspoken support of the
Union was a substantial or motivating factor in not returning
him to truck 337 after the reported oil leak was repaired. The
Company does not dispute, and I find, that Scott Corliss was
aware of Cope’s strong support for the Union. As discussed in
the previous section, there is also abundant evidence of his
animus and intent to unlawfully retaliate, not only against union
supporters generally, but against Cope specifically. Indeed, just
a week before Cope took 337 into the shop, Tim Corliss dis-
closed to Jackson that he and Scott Corliss had a “secret squir-
rel” plan to remove Cope from 337 and isolate him in Jackson’s
belly dump.
Given this strong evidence of a discriminatory motive, the
Company’s rebuttal burden is substantial. Bally’s Park Place,
Inc. v. NLRB, 646 F.3d 929, 936 (D.C. Cir. 2011). In any
event, I find that the Company has failed to meet it. As noted
above, Scott Corliss, who made the decision to keep Cope out
of the truck, did not even testify.37 And Britt testified that
Corliss did not tell him why he decided to keep Cope out of the
truck. While Britt speculated, based on his observations about
how 337 was subsequently used, that Corliss wanted to use 337
as a spare or loaner truck (Tr. 1036 –1037), this explanation
makes no sense. As indicated above, 337 was one of the new-

34 See Tr. 121–123, 959, 997, 1032–1033, 1312, and 1634.
35 The record provides no explanation why the Company reassigned
Cope from the belly dump to transfer truck 325.
36 Whenever there are discrepancies between witness testimony and
a driver’s daily trip sheets, I have given greater weight to the latter.
37 As indicated by the General Counsel, Scott Corliss’ unexplained
failure to testify warrants an adverse inference that his testimony, as-
suming it was truthful, would not have helped or supported the Compa-
ny’s defense. See, e.g., Government Employees (IBPO), 327 NLRB
676, 699 (1999), enfd. mem. 205 F.3d 1324 (2d Cir. 1999); and Ready
Mixed Concrete, 317 NLRB 1140, 1143 fn. 16 (1995), enfd. 81 F.3d
1546 (1996). However, as discussed infra, an adverse inference is
unnecessary as there is nothing but speculation to support the Compa-
ny’s defense. See C.P. Associates, 336 NLRB 167, 168–169 (2001).
15
CORLISS RESOURCES, INC.
est transfer trucks in the fleet, and Britt admitted that transfer
trucks should always be full and never sit. Britt also admitted
that it is better for the Company to keep drivers in their as-
signed truck (Tr. 1042), and that there were many other trucks
available for the drivers (most of whom were junior to Cope) to
use as spares or loaners when their assigned trucks were in the
shop (Tr. 1030, 1037). Moreover, the only reason Britt could
offer why Corliss might have selected 337 as the spare—
because it was “down” (Tr. 1120–1121)—is both inconsistent
with the facts and illogical. Truck 337 was not down at the
time Corliss told Britt to “leave it open”; it had already been
fixed. And if it was still down, it could not have been used at
all.
I also reject the various other, equally speculative justifica-
tions proffered by the Company in its posthearing brief. For
example, the Company cites Cope’s testimony that he did not
really need or want to work a full 40-hour week (Tr. 530).
However, as indicated above, business normally decreased in
the winter. And there is no evidence that the Company had
removed Cope from 337 during previous slow seasons. Nor is
there is any evidence that this was actually the reason Corliss
did not put Cope back in 337 after it was fixed.
The Company also cites Britt’s testimony that he would not
have put Cope back into 337 after November 2012 without
Scott Corliss’ approval because Cope had filed an unfair labor
practice charge over the matter (Tr. 1038–1039). However,
again, this testimony tells us nothing about why Scott Corliss
did not approve putting Cope back into 337. And even if it did,
it would not really help. See Pergament United Sales, 296
NLRB 333 (1989), enfd. 920 F.2d 130 (2d Cir. 1990) (finding
violation where personnel director admitted that employees
were not hired because of pending unfair labor practice charg-
es). See also Carey Salt Co., 360 NLRB No. 38 slip op. at 1 fn.
4, and JD at 11 (2014) (finding violation where respondent
conceded that it delayed a wage increase because of an unfair
labor practice injunction proceeding); and Laidlaw Waste Sys-
tems, 307 NLRB 52 (1992).
The Company additionally cites the fact that Cope eventually
agreed to drive a belly dump truck instead. However, as indi-
cated above, Cope agreed to drive a belly dump long after he
had been removed from 337, and only after it became clear that
the Company would continue to assign him to old truck and
trailers if he did not do so. Thus, again, this fact provides the
Company no help. See also Deleon v. Kalamazoo County Road
Commission, 739 F.3d 914, 920 (6th Cir. 2014) (“under certain
circumstances, a voluntary or requested transfer may still give
rise to an adverse employment action”).
Finally, the Company cites Britt’s testimony that a few other
drivers have moved to another truck after their truck went into
the shop for repairs (Tr. 1042–1044). However, Britt’s testi-
mony was equivocal both as to when and under what circum-
stances these examples occurred, and was contradicted by sen-
ior drivers Anderson and Tilly (Tr. 109, 204, 360–361). More-
over, the Company presented no documentary or other testimo-
nial evidence to clarify or corroborate Britt’s testimony. Spe-
cifically, the Company failed to present any evidence that, like
Cope, other drivers had been involuntarily and permanently
reassigned to an older model and type of truck under similar
circumstances.
Accordingly, I find that the Company’s removal of Cope
from truck 337 violated Section 8(a)(3) of the Act as alleged.
See Yerger Trucking, Inc., 307 NLRB 567, 572 (1992).
b. Changing Cope’s hours to isolate him
In the 12 months before Cope began driving a belly dump,
the belly dump drivers typically started their workday between
6 and 6:45 a.m. every morning.38 However, on March 27,
2013, the day after Cope began driving a belly dump, Britt
changed the start time for the belly dump drivers to 5 a.m., an
hour or more before the transfer-truck and truck-and-trailer
drivers typically started. Virtually every day thereafter until
around late July, when he was put into transfer truck 327, Cope
and the other full-time belly dump driver during the same peri-
od, George (Butch) Dye, were scheduled to start at that time.39
As with the Company’s previous removal of Cope from
truck 337, I find that the General Counsel has made a sufficient
initial showing under Wright line that Cope’s outspoken sup-
port of the Union was a substantial or motivating factor in
changing his start time.40 Indeed, as discussed in the previous
section, it is undisputed that Tim Corliss told Crow about this
same time that the Company was “trying to keep the assholes
away from the new people.” As found above, in context,
Corliss’ use of the term “assholes” was plainly a crude refer-
ence to vocal union supporters. And changing Cope’s start
time so that he was out of the plant when other drivers arrived
fit nicely with the Company’s plan.
However, I find that the Company has adequately estab-
lished, by a preponderance of the evidence, that it would have
changed Cope’s start time regardless of his union activity. It is
undisputed that the dump trucks typically start earlier in the
summer, and that the belly dumps usually start earlier than the
other trucks for various reasons. Further, although the 12-
month history preceding March 2013 does not support a prac-
tice of 5 a.m. start times in the busy season, Bobbitt, who had

38 See Cope’s testimony, Tr. 500–501; and the belly dump drivers’
daily trip sheets, R. Exh. 68 [flash drive]. The trip sheets indicate as
follows: Mike Griffin drove belly dump 408 from April 23–June 14 ,
2012, and started between 6:30–6:45 a.m. virtually every day. John
Broughman drove 407 and started at 6:45 a.m. virtually every day from
May 9–July 10, 2012, and at 6:15 a.m. virtually every day from July
12–31, 2012. Jim Sherman drove 407 from July 31–Aug. 9, 2012, and
started at 6:15 a.m. virtually every day. George (Butch) Dye drove 407
from September 2012–March 26, 2013, and started at 6 or 6:15 a.m.
virtually every day. And Jackson drove 408 and 406 from late June,
2012–late January 2013, and likewise started at 6 or 6:15 a.m. during
most of that time; on only about 12 days over the 7-month period did he
start prior to 6 a.m., and only once before 5:15 a.m.. One exception
was Earl Dietz, who drove 407 for only a few weeks in June 2012, and
started between 5:30 and 6 a.m. virtually every day.
39 See id. A third driver, Gary Hamilton, was likewise scheduled to
start at 5 a.m. virtually every time he intermittently drove a belly dump
during that period. However, Ray Green, who drove a belly dump from
May 14–June 26, 2013, started at 6 a.m. virtually every day.
40 The complaint alleges that this conduct violated Sec. 8(a)(1) rather
than 8(a)(3). However, the analysis is the same. See Saigon Gourmet
Restaurant, Inc., 353 NLRB 1063, 1065 (2009).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the dispatch job before Britt (and was a witness for the General
Counsel) confirmed that there has been such a practice in the
past (Tr. 563). Finally, as indicated above, the Company like-
wise assigned a 5 a.m. start time to Dye, who Cope testified
opposed the Union (Tr. 504).
Accordingly, this allegation is dismissed.
2. Discharge of Don Sturdivan
Don Sturdivan drove a dump truck for the Company for 7
years before being terminated on October 30, 2012. He at-
tended every union meeting, talked to a few drivers about the
Union after the first meeting, and put a union flier in all of the
trucks before the first election. (Tr. 113, 295–296, 548.) He
also testified for the Union at the preelection and postrerun
election hearings on May 25 and October 25, 2012. Although
Bobbitt and another driver were also union witnesses at the
May hearing, Sturdivan was the only union witness at the Oc-
tober hearing. (GC Exhs. 19, 20.) Like Cope, Sturdivan was
also named as a witness in support of the Union’s July 26, 2012
objections to the first election (GC Exh. 6).
On October 29, 2012, 4 days after testifying at the second
hearing, Sturdivan accidentally bumped into the rear of another
dump truck at a stop light. According to the driver incident
reports completed shortly after the accident, Sturdivan and the
other truck, which was driven by Paul Dykes (one of the anti-
union drivers), were stopped behind several other cars at the
light waiting for it to turn green. Sturdivan saw Dykes’ brake
lights go off, and in the mistaken belief that Dykes was moving
forward, he began moving forward himself. Realizing his mis-
take, Sturdivan tried to stop but his foot slipped off the brake
and the truck continued rolling forward. The resulting impact
damaged both his front bumper and Dyke’s rear ICC bar, reach,
and license plate light. (R. Exhs. 23, 24.)41
After checking the damage, which appeared minor, and talk-
ing to Britt, both drivers continued on to pick up their loads.
They then returned to the main plant as instructed, and went to
the HR office to fill out their accident reports. (Tr. 320–322,
1150 –1151.)42
Shawna Williamson, the HR director and likewise a Corliss
family relative,43 was present in the office when Sturdivan ar-
rived. She had heard about the accident from Britt and noticed
that Sturdivan appeared shaken, so she asked if he was okay.
Sturdivan said he was, but was concerned because the Union
had told him that an accident would give the Company a reason
to terminate him. He asked Williamson if he was going to be
terminated. Williamson said she was not sure. Sturdivan told
Williamson that he had been stressed out lately, and that his
“head is just not in the game right now.” He expressed frustra-

41 Dykes testified that the collision also injured his shoulder, neck,
and upper back, and that he went to a chiropractor for about 4 weeks
thereafter for treatment (Tr. 1152–1153). However, he did not miss any
work and there is no evidence that his injury was considered by the
Company in determining the appropriate discipline for Sturdivan.
42 Sturdivan and Dykes also subsequently took postaccident drug
tests at another facility. The results were negative. (Tr. 1383.)
43 According to Williamson, Scott Corliss was married to her biolog-
ical aunt, and Eric Corliss, the company comptroller, is her cousin. She
is also related to Britt, who is her uncle. (Tr. 1355–1356.)
tion and stress about the union representation campaign, specif-
ically mentioning the fact that he and Williamson had testified
on opposite sides at the recent hearing. Williamson told him he
had done a good job. Sturdivan also said he was stressed out
by some things happening in his personal life, and asked for the
contact number for the Employee Assistance Program (EAP),
which she gave him.44
Williamson subsequently reviewed Sturdivan’s personnel
file in order to make a recommendation about appropriate dis-
cipline. She concluded that Sturdivan should be discharged
based on his following history:
(1) July 17, 2010 incident. While turning right at an inter-
section, Sturdivan cut the corner too closely, so that his trailer
rolled onto the pedestrian sidewalk and hit a light pole, causing
approximately $2500 damage to the trailer. Williamson rec-
ommended to Scott Corliss that Sturdivan be terminated for this
incident, but Corliss rejected her recommendation because he
liked Sturdivan. Instead, Sturdivan was issued a written warn-
ing. (R. Exhs. 13–15; Tr. 1379–1380, 1387.)
(2) August 2, 2010 incident. Less than a month later,
Sturdivan hit an ecology block with his truck, causing damage
to the front bumper. He was driving up a hill on the way to get
a load, when the truck stereo fell out towards his face, causing
him to close his eyes and turn the truck left into the block. He
was again issued a written warning. (R. Exh. 12.)
(3) August 15, 2011 incident with his transfer truck. While
Sturdivan was transferring the trailer tub into the truck, the
trailer started to slide forward and the tub fell out and landed on
the reach, causing substantial damage. Again, per Scott
Corliss’ instructions, Bobbitt (who was the dispatcher at the
time) issued Sturdivan a written warning and reassigned him to
a truck and trailer (which does not perform the transfer proce-
dure). (GC Exhs. 21 and 22; R. Exhs. 30–31; Tr. 333–334,
1635–1636.)
Williamson also considered the following earlier incidents in
Sturdivan’s file, for which no discipline had been issued: in
July 2005, shortly after he was hired, he swung too wide and
his front dual wheel hit the entrance to the scale, destroying the
wheel; on August 20, 2007, he failed to check the fuel gauge
before leaving and ran out of fuel; on August 28, 2007, he
caught a wheel on a piece of steel on the curb while turning
around, blowing a tire; in June 2008, there was apparently a
minor collision between his truck and a forklift, which bent his
mud flap bracket and light; in August 2008, he hit a 1-foot tall
manhole with the tow hook while turning the truck around,
breaking the manhole and denting his bumper; in January
2009, he forgot to set his parking brake before getting out of the
truck at a jobsite and had to jump back in to stop it safely; and
in April 2011, he was using a hammer to break out a rock that
was stuck between his dual wheels, when a piece of the rock

44 The foregoing summary is based on both Sturdivan’s and Wil-
liamson’s testimony, which is largely consistent. See Tr. 320, 343–
344, 350, 354–355, and 1374–1375. To the extent there are inconsist-
encies in their accounts, I credit Williamson as she impressed me as
having the better memory of the conversation and Sturdivan was admit-
tedly going through a difficult period, was under a lot of pressure, and
not as focused as normal at the time.
17
CORLISS RESOURCES, INC.
flew up and broke the truck’s back window. (R. Exhs. 16–22;
Tr. 1384.)
Williamson subsequently discussed the foregoing history
over the phone with Rousseau, who was on vacation at the
time, and he agreed that termination was appropriate. William-
son then called Scott Corliss. Corliss continued to make final
decisions regarding discipline, which, as reflected by his refusal
to terminate Sturdivan in 2010, did not always follow his man-
agers’ recommendations and typically turned on whether he
liked the particular driver or not. (See also Tr. 565 and 1538.)45
Williamson’s conversation with Corliss was very brief. As
she described the call,
it wasn’t a very in-depth conversation . . .I didn’t get into any
of the past documents with him, the history or anything. It
was just, “I think that he needs to be terminated.,” and Scott
said, “Okay.” [Tr. 1387.]
Williamson subsequently contacted Sturdivan and informed
him of Corliss’ decision. She also prepared a termination form
for payroll and personnel purposes, which Scott Corliss signed
on or about November 5, 2012. Williamson did not set forth
the reason for the termination, but simply wrote, “Please see
file for accident history.” (R. Exh. 11.)
I find that the General Counsel has made a sufficient show-
ing under Wright Line that Sturdivan’s activities and/or testi-
mony on behalf of the Union were a substantial or motivating
factor in Corliss’ decision to terminate him. As previously
discussed, there is abundant evidence, much of it undisputed,
that Corliss harbored animus toward, and intended to retaliate
against, union supporters. Further, the Company does not dis-
pute, and I find, that Corliss knew that Sturdivan supported and
testified on behalf of the Union. Indeed, Corliss was obviously
aware of Sturdivan’s testimony at the May hearing because his
June 7, 2012 antiunion memo to all the drivers specifically
mentioned the two drivers’ testimony (GC Exh. 14, p. 2).46
And, as indicated above, Williamson was present during
Sturdivan’s testimony at the subsequent hearing in October.47

45 The Company acknowledges that it does not follow a progressive
disciplinary system (R. Br. 42, fn. 35).
46 The memo does not mention Sturdivan by name, but appears to re-
fer to his testimony that he did not perform concrete mixer work or
other types of work other than driving his dump truck. See GC Exh.
19.
47 See Coastal Sunbelt Produce, Inc., 358 NLRB No. 135 fn. 3
(2012); State Plaza Hotel, 347 NLRB 755, 756–757 (2006), and cases
cited there (supervisor’s knowledge of employee’s union or protected
activity is properly imputed to employer in absence of credible evi-
dence to the contrary). Not all courts agree with the Board that a su-
pervisor’s knowledge may be imputed to the decisionmaker. See Vul-
can Basement Waterproofing of Illinois v. NLRB, 219 F.3d 677 (7th
Cir. 2000). However, it is a fair inference here given Williamson’s
high-level position as HR manager and Corliss’ regular presence at the
facility and hands-on involvement in the business. See Relco Locomo-
tives, 734 F.3d at 782 and 786–787. See also Encino Hospital Medical
Center, 360 NLRB No. 52 fn. 6 (2014) (employer’s knowledge of
employee’s testimony before State Attorney General was established by
circumstantial evidence); and Holsum De Puerto Rico v. NLRB, 456
F.3d 265, 270 (1st Cir. 2006), and Abbey’s Transportation Services v.
Moreover, there is strong circumstantial evidence that
Corliss discharged Sturdivan because of his union support and
testimony. As indicated above, in July 2010, prior to the union
campaign, Corliss liked Sturdivan so much that he rejected
Williamson’s recommendation to terminate him. Corliss like-
wise directed that Sturdivan be given only a written warning
after another incident just 2 weeks later, and again a year later
after the dropped tub incident in August 2011.48 However, in
October 2012, after the union campaign, Corliss approved dis-
charging Sturdivan for his accident with Dykes without a single
question or comment, notwithstanding that there was only mi-
nor damage and over a year had passed since the last incident.
Indeed, he did so without even reviewing Sturdivan’s history.
As indicated above, Williamson did not discuss it with him.
And Bobbitt, who signed most of the earlier incident reports
between 2005 and 2011, testified that he did not always notify
Corliss about incidents that did not involve an accident or dam-
age to the truck (Tr. 565–568.) Nor is there any evidence that
Corliss knew about or considered Sturdivan’s comment to Wil-
liamson after the accident about his head not being in the game
due to the stress at work and at home.49
As with the decision to remove Cope from his truck, I also
find that the Company has failed to establish that it would have
discharged Sturdivan absent his union activity. Although the
Company cites several examples where Corliss terminated
drivers following accidents, all are distinguishable. (See R.
Exh. 25 (driver Bee terminated after a second rear-end accident
where he ran into a Chevy Malibu at a red light causing heavy
damage to the rear of the car); R. Exh. 27 (driver Brickell ter-
minated for jackknifing and rolling his trailer over on its side
while backing up a hill at plant), and R. Exhs. 28–29 (driver
Martin terminated in November 2012 after two incidents in 1
month: he was involved in highway accident and ticketed for
improper lane change, and 5 days later he backed into a
marked-off area on jobsite and fell into an empty septic tank,

NLRB, 837 F.2d 575 (2d Cir. 1988) (employer’s knowledge of employ-
ee’s union activity was adequately established by circumstantial evi-
dence).
48 See also the examples discussed below where only written warn-
ings were issued to other drivers, including Jeff Cope, for similar or
more severe incidents prior to the union campaign.
49 Rousseau testified that he also spoke with Scott Corliss about
Sturdivan’s accident. However, he testified that he did not do so until
after he returned from his vacation, which the record indicates was a
day or two after Corliss had already told Williamson to terminate
Sturdivan. Further, he testified that, like Williamson, he simply told
Corliss that termination was appropriate. (Tr. 832–833.) Finally,
although not necessary to my decision, I discredit Rousseau’s denial
(on direct examination by company counsel) that Sturdivan’s union
support came up during their conversation (Tr. 846). First, it was an
exceptionally weak denial (“not that I can remember, no”) and, in
marked contrast to his usual testimony, was barely audible. See Ander-
son v. City of Bessemer, 470 U.S. 564, 575 (1985) (variation in a wit-
ness’ demeanor and voice tone or inflection may justify disbelieving a
witness); and Flamingo Hilton-Laughlin, 324 NLRB 72, 99 (1997)
(discrediting witness whose voice “wilt[ed] to a near-whisper in re-
sponse to critical questions”), enf. denied in part on other grounds 148
F.3d 1166 (D.C. Cir. 1998). Second, it was not corroborated, as Corliss
did not testify.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
causing extensive damage to the tank).) (See also GC Exh. 33
(driver Futch terminated after rear-ending a car, leaving the
scene, and lying about it later); and GC Exh. 34 (driver
DeHaven terminated in September 2008 after rolling his trailer
on the highway, subsequently rehired in 2011 but terminated
again in June 2012 after backing up his truck into a fellow em-
ployee’s Corvette).)
Moreover, Corliss did not terminate other drivers who had
similar or more severe incident or accident records. For exam-
ple, in late July 2012, a few weeks after the first election, Rob-
ert Cummings, the most vocal antiunion driver, was not dis-
charged even though he hit a homeowner’s roof as he was rais-
ing his box, lifting the corner of the roof and causing significant
damage to the roof line, truss, and gutter. Cummings was like-
wise not discharged when, just 7 months later, in February
2013, his truck slid on a down slope as he was making a turn
and ran into a fence post. Indeed, there is no record evidence
that Cummings was issued any discipline whatsoever for these
incidents.50
There are also a number of examples before the union cam-
paign. Brian (not Michael) Anderson was given only a written
warning in February 2010 after he ignored prior safety instruc-
tions and followed a loader up a hill, resulting in a collision
when the loader backed into him. He was also given only a
written warning a year later, in March 2011, when he failed to
lower his truck box before leaving a jobsite and caught an
overhead cross walk sign and ripped it out of its fasteners, re-
quiring the city to close one of the traffic lanes and call a boom
truck out to remove the sign. (GC Exh. 30.)
Another example is Jeff Cope, who as discussed above
would later become a vocal union supporter. He was issued
only a verbal warning in September 2010 after he laid his load-
ed trailer over on its side while taking a left hand turn around
the add hopper at a scale. He was also given only a written
warning less than a year later, in June 2011, when his left foot
slipped off the clutch while sitting at a stop light and he lightly
bumped the rear of the car in front of him. And he was again
given only a written warning when, just 4 months later, in Oc-
tober 2011, he failed to yield the right of way to a loader and
the loader backed into him, damaging his right front headlight,
fender, and bumper. (GC Exh. 31.)
In sum, the record indicates that Corliss makes disciplinary
and discharge decisions on a highly individual, personal, and
subjective basis, without necessarily following the recommen-
dations of his managers or even reviewing the driver’s person-
nel file. Thus, in the absence of any contemporaneous docu-
mentation of Corliss’ thought processes in deciding to dis-
charge one driver but not another, the only real or probative
evidence of his reason or motive for doing so would be his own
testimony. However, as indicated above, he chose not to testi-
fy. The Company has therefore failed to meet its burden. See
Carpenter Technology Corp., 346 NLRB 766, 773 (2006); and

50 See GC Exh. 32. See also Cummings’ antiunion flier, GC Exh.
10, pp. 2–3 (describing his history of incidents or accidents and Corliss’
response). The Company offers no explanation for the absence of any
discipline for the 2012 and 2013 Cummings’ incidents. See Tr. 441;
and R. Br. 43.
Desert Toyota, 346 NLRB 118, 119 (2005), and cases cited
there (employer does not satisfy its burden merely by showing
that it could have discharged the employee, i.e., by presenting a
legitimate reason for the discharge; rather, it must show that it
would have discharged the employee even absent his union
activities).51
Accordingly, I find that the discharge of Sturdivan violated
Section 8(a)(3) and (4) of the Act as alleged.
3. Suspension of Duane Crow
As discussed above, Crow is a relatively new driver who is
employed by the Company on a seasonal basis. He was not an
open union supporter. Indeed, he told Britt in March 2013 that
he agreed he would be better nonunion. He also told Britt dur-
ing a conversation in May that he was not for the Union. And
later that month, Crow told Scott Corliss that, although he had
planned to give an affidavit to the NLRB against the things
Cummings had said, he had “decided that it would probably be
better if he didn’t at this point.” As discussed above, Corliss
responded that it did not really matter because he was “not
going union” and would “fight it forever.”52
The next workday after the foregoing conversation with
Corliss (May 28, the Tuesday after the Memorial Day holiday),
Crow called the dispatch office to find out his start time. Britt
told Crow he was not needed. Crow asked if he could come in
anyway and just drive plant to plant. Britt agreed, and Crow
ended up hauling pea gravel plant to plant for almost 9 hours,
from 7 a.m. to 3:40 p.m. (See R. Exh. 68 [flash drive].)
At home later that evening, Truck Supervisor Rousseau re-
ceived a text message from Scott Corliss with an attached pic-
ture. The picture showed a truck’s reach with some pea gravel
in it (R. Exh. 3). The message identified the truck number
(306) and instructed Rousseau to investigate who drove it and
why the gravel was not cleaned off. Rousseau, who also served
as the Company safety coordinator, had repeatedly reminded
the drivers to remove any gravel from their reach, as it could
get blown off and strike other vehicles. Indeed, he had recently
reminded the drivers of this at safety meetings on April 19 and
May 10, as there had been a marked increase in windshield
damage claims against the Company (R. Exhs. 4–6, 47).
Rousseau knew most of the drivers by their truck number, so
he knew immediately that 306 was assigned Crow. However,
he also knew that Crow could have been off that day and that
someone else might have driven the truck. So, when he arrived
at work early the next morning, after taking his own picture of
the reach, he contacted Britt to find out who the driver had
been. Britt was already aware of the issue, as he had likewise

51 As noted earlier with respect to the discriminatory treatment of
Cope, Scott Corliss’ unexplained failure to testify warrants an adverse
inference that his truthful testimony would not have supported the
Company’s defense. However, again, an adverse inference is unneces-
sary here as there is nothing but speculation to support the Company’s
defense.
52 As found above, in context (after the Union’s certification and
contract negotiations had begun), this statement unlawfully conveyed
that the employees’ efforts to obtain representation had been futile and
that the Company would never sign a labor agreement with the Union.
19
CORLISS RESOURCES, INC.
received a text message and picture from Corliss the previous
evening, and advised Rousseau that Crow had been the driver.
In the meantime, Crow called Britt as usual for his start time.
However, Corliss’ text message to Britt the evening before had
instructed him to leave the truck parked until Rousseau had
completed his investigation. So Britt told Crow not to come in.
He did not mention the pea gravel or Rousseau’s investigation,
but instead told Crow that he was not needed; that there had
been a lot of rain and there was nothing going on. He told
Crow to enjoy the day off and call again the next day.
Later that morning, however, Crow noticed some of the new
drivers on the road heading to one of the plants. He called
Rousseau and asked what was going on. Rousseau said he did
not know and would call him back in a couple hours. A few
hours later, Crow called Rousseau again. Rousseau at that
point revealed to Crow that he had been left home because
somebody had reported pea gravel on the reach of his truck.53
Crow next worked on May 31 and June 3, both days for over
9 hours. At the end of the latter day, Rousseau gave Crow a
verbal warning notice that he had prepared on May 29. The
notice stated that pea gravel had been found on the reach of
Crow’s truck and that Crow had been left home on that date to
investigate it. Crow signed the notice, returned to work the
next day, again for almost 9 hours, and continued to work regu-
larly through the season. (See GC Exh. 11; R. Exh. 68 [flash
drive].)
In agreement with the Company, I find that the General
Counsel has failed to establish, by a preponderance of the evi-
dence, that Corliss suspended Crow, i.e., told Britt to leave his
truck empty pending the pea gravel investigation, in retaliation
for Crow’s known or suspected support for the Union or coop-
eration in the Board’s investigation of its charges.54 Unlike
Cope and Sturdivan, there is no evidence that Crow actually
supported the Union or that Corliss suspected that he did. In-
deed, as indicated above, Crow had twice told Britt that he did
not support the Union. Further, he was not a union witness at
the pre and postelection hearings and was not identified as a
witness in the Union’s objections to the first election. Nor is
there any evidence that Crow actually cooperated in the
Board’s investigation or that Corliss believed he had done so
prior to the pea gravel incident. Although Crow had made an
appointment to give an affidavit in support of the unfair labor
practice charges, he canceled it and told Corliss that he had
done so.
Moreover, even assuming, as the General Counsel asserts,
that Corliss harbored such strong union animus that he would
have wanted to retaliate against Crow for even considering
giving such an affidavit, there is no direct evidence that Corliss
knew that Crow had driven the truck that day. Nor is there a
sufficient basis in the record to infer it. Although Rousseau

53 Although Crow denied, both at the time and at the hearing, that he
had failed to clean off his reach, there is no evidence or allegation that
Corliss or anyone else planted the pea gravel there.
54 There is no allegation that the Company violated the Act by issu-
ing Crow the verbal warning notice on June 3. The sole allegation is
that the Company “suspended” Crow on May 29 in violation of Sec.
8(a)(3) and (4) of the Act.
testified that Corliss knew which trucks most of the drivers
were assigned to, Britt testified that it was unlikely Corliss
knew it was Crow’s truck. While Britt was not always a credi-
ble witness, I credit him in this instance. As indicated above,
Crow was a relatively new driver who was not employed year
round.55 Indeed, by his own testimony, Crow felt it necessary
to introduce himself when he spoke to Corliss about the Union
in March 2013. (See Tr. 235 (“Scott, you probably don’t know
me, but I drive a dump truck for you. . . .”).) Further, both
Rousseau and Britt testified that Corliss did not mention
Crow’s name in his text messages that evening; rather, he only
identified the truck number.56
Finally, on its face, there is nothing remarkable about a deci-
sion to leave a truck parked to investigate a problem with it.
Nor is there anything remarkable about failing to reveal an
ongoing investigation to the subject employee. And, as noted
above, despite the arguably suspicious timing of the incident,
there is no allegation that Corliss planted the pea gravel on
Crow’s reach or that Rousseau discriminatorily disciplined
Crow for the incident by issuing him a verbal warning notice
after the investigation concluded that he was at fault.
Accordingly, the allegation is dismissed. 57
C. Alleged Preferential Treatment of Antiunion Drivers
As indicated above, the General Counsel’s final allegation is
that the Company assigned work and hours more favorably to
antiunion drivers from January through April 2013.58 Specifi-
cally, the General Counsel alleges that the Company gave pref-
erential treatment to the following five drivers (listed by their
overall seniority ranking): Richard Vandyk (7), Paul Dykes
(12), James Thrasher (15), Jesse Flanders (26), and Robert
Cummings (31).

55 See Tr. 250, 261, 281; Jt. Exh. 1; and R. Exh. 68 [flash drive].
56 The General Counsel does not contend that Corliss’ failure to tes-
tify warrants an adverse inference that Corliss knew Crow was the
driver. In any event, I do not draw such an inference given the absence
of any substantial independent direct or circumstantial evidence of such
knowledge. See Riverdale Nursing Home, 317 NLRB 881, 882 (1995)
(improper for judge to rely on adverse inference to fill evidentiary gap
in General Counsel case); and Ridgewell’s, Inc., 334 NLRB 37, 42
(2001), enfd. 38 Fed. Appx. 29 (D.C. Cir. 2002) (denying respondent’s
request for adverse inference against General Counsel for failing to
present any evidence on a particular issue, as respondent had the burden
of proof on that issue). See also Urooj v. Holder, 734 F.3d 1075, 1078
(9th Cir. 2013) (“if the burden of proof were satisfied by a respondent’s
silence alone, it would be practically no burden at all”) (citation omit-
ted); and NLRB v. Louis A. Weiss Memorial Hospital, 172 F.3d 432,
446 (7th Cir. 1999) (“an absence of evidence does not cut in favor of
the one who bears the burden of proof on an issue”).
57 Given the foregoing findings, there is no need to address whether
the Company met its rebuttal burden under Wright Line by showing
that Corliss would have directed that Crow be left home even absent his
revelation that he had considered giving an affidavit in support in the
Union’s charges.
58 The complaint alleged that such preferential treatment has oc-
curred since at least October 5, 2012 (6 months before the underlying
charge was filed). However, the General Counsel now contends that it
began as of January 2013, the first full month after the Union was certi-
fied, and continued through April, the last full month before the charge
was filed.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There is some support for this allegation. It is undisputed
that the five-named drivers are openly antiunion. (See, e.g., GC
Exhs. 10, 18.)59 It is also clear that they were openly antiunion
before January 2013, and that the Company would have known
this. (See Tr. 143, 184, 186, 258, 277, 457, 485–488, 1067,
1076, 1126–1127, and 1186.) See also Scott Corliss’ July 5,
2012 memo to employees (GC Exh. 15 (“many drivers have
approached me to discuss the union, and many of them agree
with us that the union is wrong for this company”).)
There is also abundant evidence, not only of Corliss’ antipa-
thy towards drivers who supported the Union, but also of his
corresponding gratitude to those who opposed it. (See, e.g., GC
Exh. 17.) And there is reason for suspicion that this antipathy
and/or gratitude was expressed through the dispatch process, as
Britt stopped posting the daily dispatch sheets in the drivers’
room, contrary to longstanding practice dating back at least 9
years (Tr. 115–117, 187–188, 251, 389–390, 487, 512, 754–
755). No explanation for doing so was provided, either at the
time (mid-2012) or at the hearing.
However, to prove unlawful preferential treatment, the Gen-
eral Counsel must prove that there actually was preferential
treatment. Here, the allegation ultimately fails, as there is in-
sufficient evidence that Britt actually assigned hours or work to
the five antiunion drivers more favorably.
1. Hours of work
The General Counsel contends that Britt favored the five an-
tiunion drivers with respect to both the total hours of assigned
work and weekday overtime hours.
a. Total hours
According to the General Counsel, the “clearest evidence” of
the Company’s bias in favor of the five antiunion drivers is the
following statistics regarding their total hours in each of the
first 4 months in 2013 as compared to the same period in 2012:
January: the total hours of the five antiunion drivers
increased 70.1 percent, as compared to 64.1 percent for the
other drivers.
February: the total hours of the five antiunion drivers
increased 62.2 percent, but only 36.2 percent for the other
drivers.
March: the total hours of the five antiunion drivers
decreased only 7.2 percent, but decreased 13.5 percent for
the other drivers.
April: the total hours of the five antiunion drivers in-
creased 20.7 percent, but 16.2 percent for the other drivers.
The General Counsel also cites the following difference in the
total average monthly increase: 39.5 percent for the five anti-
union drivers, but only 29.2 percent for the other drivers.

59 Contrary to the General Counsel’s posthearing brief, the record
indicates that GC Exh. 10 was distributed in early April 2013, not 2012.
See Tr. 144, 257, 458, 486. Indeed, it is clear from the document itself
that it was distributed after the Union was certified. Thus, it states that
“the union buzz” began “a year ago,” refers to the “negotiations,” and
states that “we will start a decertification process in due time.”
There are significant problems with these statistics, however.
The most obvious, even to a nonstatistician,60 is that they fail to
consider whether the drivers in the two groups (i.e., the five
antiunion drivers versus all other drivers) were equally availa-
ble to work in 2013. For example, as discussed above, Jeff
Cope refused most assignments in January, February, and
March, and thus worked only a few days in each of those
months. (See R. Exh. 68 [flash drive].) Anderson likewise
worked only a few days in January, February, and March. (See
R. Exh. 59.)61 In contrast, all five of the antiunion drivers
worked throughout all 4 months. (See R. Exhs. 43 (Vandyk);
36 (Dykes), 44 (Thrasher), 46 (Flanders), and 58 (Cum-
mings).)62
Moreover, the General Counsel acknowledges that “there
were three outliers” in the group of other drivers “that skewed
the monthly averages.” (Br. 58 fn. 22.) No explanation is pro-
vided as to what should be done with this information or how it
affects the comparison.
Finally, an examination of the 2013 records indicates that
openly prounion drivers who worked throughout the first 4
months had about as many or more hours as antiunion drivers.
Thus, Tilly, who is fourth in overall seniority, had 728 hours,
only 32 hours (4 percent) less than Vandyk (760 hours), and 12
hours (2 percent) more than Dykes (712 hours), the antiunion
drivers next closest to him in seniority.63 And Ozaki, who is
21st in seniority and was identified by Britt as a strong union
supporter (Tr. 1135), had 663 hours, 85 hours (14 percent)
more than Flanders (578 hours), the antiunion driver next clos-
est to him in seniority. Swanson, another driver identified by
Britt as prounion, likewise had a substantially higher total (655
hours) than Flanders, even though Swanson was lower in sen-
iority (30th). (See R. Exh. 51, as corrected, R. Br. 60 fn. 53,
based on the time card entries and trip sheets.)
Other senior drivers likewise had high totals. For example,
Bobbitt, who is fifth in seniority, had 773 hours. This was
more hours than any of the antiunion drivers except Cummings
(777 hours), whose higher number, as discussed infra, could be
explained by the fact that he volunteered more than any other
driver for weekend work.64
b. Weekday overtime hours
As indicated above, the General Counsel’s posthearing brief
(p. 60) also asserts that Britt assigned weekday overtime hours
more favorably to the five antiunion drivers. However, it cites
no testimony or documentary evidence to support this assertion.

60 For purposes of this analysis, I have assumed that the percentage
differences cited by the General Counsel are statistically significant
(there is no expert testimony on the issue).
61 There is no evidence that Anderson was available or wanted to
work additional days in those months.
62 While Cope and Anderson likewise worked few or no days in Jan-
uary 2012, Dykes and Flanders also worked only part of that month.
63 Even assuming arguendo that the 4-percent deficit with Vandyk is
statistically significant, it could be explained by the fact that he is
Britt’s brother-in-law.
64 As discussed infra, Thrasher’s high total number (747 hours) can
likewise be explained by the fact that he volunteered more than other
drivers for weekend work.
21
CORLISS RESOURCES, INC.
Nor does it dispute the accuracy of the Company’s statistical
summary showing that both Tilly (34 hours) and Swanson (38
hours) had about the same or more weekday overtime during
the first 4 months of 2013 than any of the antiunion drivers
except Vandyk (71 hours);65 that Ozaki (21 hours) also had
more than Flanders (20.5 hours) and Dykes (19 hours); and that
other senior drivers such as Bobbitt (60 hours) also had a high
number of overtime hours. (R. Exh. 53.)
2. Work assignments
The General Counsel contends that Britt assigned the follow-
ing types of work more favorably to the five antiunion drivers:
weekend work, prevailing-wage work, and other desirable
work.
a. Weekend work
Weekend work has historically been assigned by seniority;
that is, the dispatcher requested volunteers over the CB radio,
usually on Friday, and assigned whatever jobs there were to the
most senior drivers who wanted to work. If not enough drivers
volunteered, the dispatcher went to the bottom of the seniority
list and/or contacted drivers who the dispatcher knew generally
wanted weekend work. (Tr. 46–48, 83, 95–96, 127, 253, 273,
385, 558, 564.) The General Counsel contends that Britt
stopped following this seniority-based practice in January 2013
and instead assigned weekend work primarily to the five anti-
union drivers.
Again, there is some support for this allegation. Anderson
and Tilly both testified that they heard such announcements
over the CB radio only rarely or occasionally after Britt became
dispatcher (Tr. 191, 386–388). Crow and Bobbitt also testified
that they have heard few announcements for weekend work
since that time (Tr. 253–254, 274–275, 560).66
However, as indicated above, Anderson worked only a few
days in the first 3 months of 2013, and only once on a Friday
(March 1). (See R. Exh. 59.) He also acknowledged that he
hardly ever volunteers to work weekends (Tr. 228). Further,
Tilly admitted that he has been assigned weekend work since
he informed Britt he was interested in it (Tr. 387, 413). This is
confirmed by the Company’s records, which show that Tilly
performed almost 32 hours in the first 4 months of 2013, more
than Vandyk (9 hours), Dykes (21 hours), and Flanders (22
hours). (See R. Exh. 57.)67

65 Again, the exceptionally high number for Vandyk could be ex-
plained by the fact that he is Britt’s brother in law rather than his oppo-
sition to the Union.
66 However, this was not corroborated by Cope, Ozuna, or Mowatt,
who were also called by the General Counsel but never asked about
weekend work.
67 There appear to be some inconsistencies in the underlying docu-
mentation. For example, R. Exh. 57 (the Company’s summary chart)
indicates that Tilly worked 11.5 hours in April, based on the payroll
clerk’s computer timecard entry for Sunday April 28, which in turn is
based on the driver’s trip sheet or timecard (R. Exh. 45 [flash drive];
Tr. 1469–1470). However, it appears that no trip sheet for Tilly on that
day was produced in response to the General Counsel’s subpoena. See
GC Exh. 36–59; and Tr. 442. Nevertheless, as the General Counsel has
not disputed the accuracy of R. Exh. 57 or the Company’s similar
Other senior drivers likewise worked a substantial number of
weekend hours during the same period. Thus, Mark Kukhahn,
who is second in overall seniority and not identified in the rec-
ord as either pro or antiunion, worked 29 hours. And Bobbitt,
who as indicated above is fifth in seniority, worked 25 hours.
Again, both of these totals are higher than those for Vandyk,
Dykes, and Flanders.
Finally, while Thrasher and Cummings worked more week-
end hours than any other driver in the first 4 months of 2013
(47 and 60 hours, respectively), this was also true in the first 4
months of 2012 (when Bobbitt was dispatching). The prepon-
derance of the record evidence indicates that the simple reason
for this is that they volunteer more than any other driver (Tr.
1159, 1207, 1244, 1309–1310).
b. Prevailing wage work.
The General Counsel also asserts that the record is “replete
with evidence” that Britt assigned the five antiunion drivers to
more public works jobs that could “potentially” be paid at sub-
stantially higher King County prevailing wage or Davis-Bacon
rates (Br. 56). Specifically, the General Counsel cites Britt’s
dispatch sheets from late March through April 2013 showing
that VanDyk was repeatedly dispatched to a “potential” Davis-
Bacon job at Joint Base Fort Lewis and McCord, while more
senior transfer drivers such as Bobbitt and Tilly were dis-
patched to other, less desirable jobs such as “one hit wonders”
(single hauls to multiple customers) and plant-to-plant runs
(GC Exhs. 24–29; Tr. 606–623).
With respect to the preceding period from January through
late March 2013, the General Counsel requests an adverse in-
ference that Britt likewise assigned such potentially higher
wage jobs to the antiunion drivers based on the Company’s
failure to produce Britt’s marked-up paper dispatch sheets for
that period (assertedly because they had been tossed prior to
receiving the subpoena). The General Counsel also requests an
adverse inference based on the Company’s failure, until the
seventh and last day of trial, to produce: (1) the initial, un-
marked electronic version of those dispatch sheets, and (2) the
prevailing wage sheets Britt prepared for use by payroll in de-
termining the appropriate wage rate to pay the drivers.
However, the General Counsel’s framing of the issue as-
sumes that Britt did not know whether a driver would actually
be entitled to a higher wage on the job. In fact, both Britt and
Bobbitt (the General Counsel’s own witness) testified that it is
usually clear before a job is assigned, based on the location and
type of work (e.g., whether the driver would be exporting or
dumping material at or away from the incorporation site),
whether the driver would get paid the higher wage (Tr. 625,
637, 1008–1009). Thus, the more relevant inquiry is not
whether Britt dispatched the five antiunion drivers to more
potentially higher-wage jobs, but whether he dispatched them
to more jobs that actually paid higher wages.

summaries, I have considered the summaries where there is at least
some reliable documentation to support them. Thus, in this instance, I
find, based on the computer timecard entries, which are audited and
used for payroll purposes, that Tilly did, in fact, work 11.5 hours on
Sunday, April 28 as indicated in R. Exh. 57.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Britt’s dispatch sheets are not particularly helpful in answer-
ing this question as they do not include all the information nec-
essary to determining whether the higher wage rate applies.
Most or all of that information is normally set forth in the driv-
ers’ trip sheets, which, as indicated above, were produced to the
General Counsel and introduced into the record. As for Britt’s
prevailing wage sheets, while they may contain additional in-
formation that is used by payroll, along with the trip sheets, to
determine the proper wage to pay drivers (Tr. 1463), they are
not necessary here to determine if the Company actually paid
drivers the higher wages.
The documents that are necessary and most reliable in an-
swering this question are the payroll timecard entries, which,
again, were produced to the General Counsel and introduced
into the record (GC Exhs. 70–71; R. Exh. 45[flash drive]). And
an examination of those entries during the first 4 months of
2013 reveals no disparate treatment in this respect. Indeed,
none of the five antiunion drivers were paid any wages whatso-
ever at the King County prevailing wage or Davis-Bacon rates
during that period. In contrast, Tilly was paid 8 hours, and
Ozaki 4.5 hours at the higher rates. Other senior drivers such
as Bobbitt (18 hours) were also paid some wages at the higher
rates. (R. Exh. 55.)68
Accordingly, while I agree with the General Counsel that the
Company failed to adequately explain or justify its failure to
timely produce the electronic dispatch sheets and the prevailing
wage sheets,69 I find that an adverse inference of unlawful pref-
erential treatment is unwarranted. Indeed, regardless of what
those documents would show, in the final analysis it appears
that the five antiunion drivers, rather than the other drivers,
have the greater grievance against the Company in this respect.
c. Other desirable work
Finally, the General Counsel asserts that Britt also favored
the five antiunion drivers by assigning them earlier start times
and desirable jobs such as long hauls and all day jobs. Howev-
er, the General Counsel’s posthearing brief cites no specific
examples or other record basis for making such a finding. Ra-
ther, it again requests an adverse inference based on the Com-
pany’s failure to produce the above-described documents.
I find that such a broad adverse inference would clearly be
improper, particularly in light of the abundance of other docu-
ments produced by the Company that contain similar infor-

68 Certain drivers who drive truck and trailers rather transfer trucks
had even more hours at the higher rates. Thus, Holdener, who prefers
to drive a 2000 truck and trailer (323) even though he is the most senior
driver and is not identified in the record as pro or antiunion, had 128
hours. And prounion driver Swanson, who is assigned a 1998 truck and
trailer (315) had 67 hours. This is consistent with Britt’s testimony that
truck and trailers are used more often than transfer trucks on most King
County prevailing wage and Davis-Bacon jobs (Tr. 1008–1012).
69 I credit Williamson and find that the General Counsel has failed to
establish deliberate destruction or spoliation of Britt’s marked-up paper
copies of the dispatch sheets from January to late March 2013. See
generally Champ Corp., 291 NLRB 803 (1988), enfd. 933 F.2d 688
(9th Cir. 1990), cert. denied 502 U.S. 957 (1991); and BP Amoco
Chemical-Chocolote Bayou, 351 NLRB 614, 636 (2007). See also
Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013); and
Carderella v. Napolitano, 471 Fed. Appx. 681, 683 (9th Cir. 2012).
mation. See Riverdale Nursing Home, 317 NLRB 881, 882
(1995). I also again find that these documents and the other
record evidence fail to establish preferential treatment.70
Accordingly, the allegation is dismissed.
CONCLUSIONS OF LAW
1. By the following conduct, the Respondent Company has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act:
a. Interrogating employees about whether they or other em-
ployees support the Union.
b. Telling employees that the representation campaign was
futile.
c. Threatening to never enter into a collective-bargaining
agreement with the Union.
d. Threatening to sell the business before entering into a con-
tract with the Union.
e. Threatening employees that a strike is inevitable.
f. Threatening to assign or reassign employees to particular
trucks based on their union sympathies.
g. Threatening to isolate prounion employees.
h. Threatening to deny employees raises because they select-
ed the Union as their collective-bargaining representative.
i. Threatening employees that their union activities are under
surveillance.
j. Threatening to retaliate against prounion drivers.
k. Threatening to discharge employees for engaging in ac-
tivities that it perceives as prounion.
l. Threatening to fire all of the union supporters.
m. Threatening to consider and evaluate transfer requests and
other personnel matters based on an employee’s union sympa-
thies.
2. By removing Jeff Cope from his assigned transfer truck
because of his support for the Union, the Company engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
3. By discharging Don Sturdivan because he supported the
Union and testified on its behalf in the pre and postelection
hearings, the Company engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(3), (4), and
(1), and Section 2(6) and (7) of the Act.
4. The Company did not otherwise violate the Act as alleged
in the second consolidated complaint.
REMEDY
The standard and appropriate remedy for the violations
found is an order requiring the Company to cease and desist
from its unfair labor practices and to take certain affirmative

70 In so finding, I have not relied solely on the failure of the General
Counsel’s posthearing brief to cite to any evidence or examples from
the record. Rather, whether required or not, I have searched for any
unmentioned “truffles buried in the record” (Rabin v. Flynn, 275 F.3d
628, 635 (7th Cir. 2013)), that would sufficiently prove such preferen-
tial treatment. I found too few, at least not enough that withstood scru-
tiny or comparison to how drivers were dispatched before the represen-
tation campaign and election. Proving a violation of this kind is no
simple matter, particularly where, as here, dispatching decisions must
consider numerous factors. And the evidence in this case falls short.
23
CORLISS RESOURCES, INC.
action.71 Specifically, the Company shall be required to offer
Jeff Cope reassignment to transfer truck 337, displacing if nec-
essary the driver currently assigned to that truck.72 With re-
spect to Don Sturdivan, the Company shall be required to offer
him reinstatement to his former position and to make him
whole for any loss of earnings and other benefits as a result of
his unlawful discharge. Backpay shall be computed in accord-
ance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest compounded daily as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), and Kentucky River
Medical Center, 356 NLRB No. 8 (2010). The Company shall
also be required to file a report with the Social Security Admin-
istration allocating Sturdivan’s backpay to the appropriate cal-
endar quarters, and to compensate Sturdivan for the adverse tax
consequences, if any, of receiving a lump-sum backpay award
covering more than 1 year. See Latino Express, Inc., 359
NLRB No. 44 (2012). In addition, the Company will be re-
quired to expunge any reference to Sturdivan’s discharge from
its files, and to notify him that this has been done.
Accordingly, based on the foregoing findings of fact and
conclusions of law and the entire record, I issue the following
recommended73
ORDER
The Respondent, Corliss Resources, Inc., Sumner, Washing-
ton, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about whether they or other em-
ployees support Teamsters Local 174.
(b) Telling employees that the representation campaign was
futile.
(c) Threatening to never enter into a collective-bargaining
agreement with the Union.
(d) Threatening to sell the business before entering into a
contract with the Union.
(e) Threatening employees that a strike is inevitable.
(f) Threatening to assign or reassign employees to particular
trucks based on their union sympathies.
(g) Threatening to isolate prounion employees.
(h) Threatening to deny employees raises because they se-
lected the Union as their collective-bargaining representative.
(i) Threatening employees that their union activities are un-
der surveillance.
(j) Threatening to retaliate against prounion employees.
(k) Threatening to discharge employees for engaging in ac-
tivities that it perceives as prounion.
(l) Threatening to fire all of the union supporters.

71 No extraordinary remedies have been requested by either the Gen-
eral Counsel or the Union.
72 There is no allegation that the Company constructively laid off
Cope by removing him from truck 337 and no request that he be
awarded backpay.
73 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(m) Threatening to consider and evaluate transfer requests
and other personnel matters based on an employee’s union
sympathies.
(n) Removing drivers from their assigned trucks because of
their union activities.
(o) Discharging drivers because they support the Union or
testify in an NLRB proceeding on its behalf.
(p) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the Board’s order, offer Jeff Cope re-
assignment to transfer truck 337, displacing if necessary the
employee currently assigned to that truck.
(b) Within 14 days from the date of the Board’s Order, offer
Don Sturdivan full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(c) Make Sturdivan whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.
(d) Compensate Sturdivan for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and file a re-
port with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to Sturdivan’s unlawful dis-
charge, and within 3 days thereafter notify him in writing that
this has been done and that the discharge will not be used
against him in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its fa-
cilities in Washington State copies of the attached notice
marked “Appendix.”74 Copies of the notice, on forms provided
by the Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be

74 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.”
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 30, 2012.
(h) 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 that the
Respondent has taken to comply.
Dated, Washington, D.C. March 24, 2014
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interrogate you about whether you or other
employees support Teamsters Local 174.
WE WILL NOT tell you that the representation campaign was
futile.
WE WILL NOT threaten to never enter into a collective-
bargaining agreement with the Union or to sell the business
before entering into a contract with the Union.
WE WILL NOT threaten that a strike is inevitable.
WE WILL NOT threaten to assign or reassign you to particu-
lar trucks based on your union sympathies.
WE WILL NOT threaten to isolate prounion employees.
WE WILL NOT threaten to deny you raises because you se-
lected the Union as your collective-bargaining representative.
WE WILL NOT threaten that your union activities are under
surveillance.
WE WILL NOT threaten to retaliate against prounion drivers.
WE WILL NOT threaten to discharge you for engaging in ac-
tivities that we perceive as prounion.
WE WILL NOT threaten to fire all of the union supporters.
WE WILL NOT threaten to consider and evaluate transfer re-
quests and other personnel matters based on your union sympa-
thies.
WE WILL NOT remove drivers from their assigned trucks
because of their union activities.
WE WILL NOT discharge drivers because they support the
Union or testify in an NLRB proceeding on its behalf.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
by Section 7 of the Act.
WE WILL offer Jeff Cope reassignment to transfer truck 337,
displacing if necessary the driver currently assigned to that
truck.
WE WILL offer Don Sturdivan full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Sturdivan whole for any loss of earnings and
other benefits suffered as a result of our discrimination against
him, with interest.
WE WILL compensate Sturdivan for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters.
CORLISS RESOURCES, INC