Corporate Express Delivery Systems

National Labor Relations Board - Board Decisions

Dec 19, 2000

332 N.L.R.B. 1522 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1522
Corporate Express Delivery Systems and Teamsters
Local 886, affiliated with International Brother-
hood of Teamsters, AFL–CIO, CLC. Case 17–
CA–20076
December 19, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On September 15, 1999, Administrative Law Judge
Pargen Robertson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering 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 record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt his recommended Order as modified.2
We agree with the judge that the record establishes that
the Respondent’s owner-operators are employees within
the meaning of Section 2(3). Thus, the owner-operators
perform work which is substantially the same as that of
employee drivers and constitutes the essential functions
of the Respondent’s normal operations as a package
pickup and delivery service.3 They work full time, are
trained by the Respondent and need not have prior ex-
perience, and they do business in the Respondent’s name
with substantial guidance from and control of the Re-
spondent. Although owner-operators must obtain and
use their own vehicles, they are not permitted to use their
vehicles to make deliveries for anyone other than the
Respondent. Owner-operators purchase their insurance
through a company designated by the Respondent. They
are required to display the Respondent’s logo on their
vehicles and to wear certain color trousers, shirts, and
shoes, if they opt not to wear uniforms. They have no
proprietary interest in their routes and no significant op-
portunity for entrepreneurial gain or loss. The routes, the
base pay, and the amount of freight to be delivered daily
on each route are determined by the Respondent, and
owner-operators have no right to add or reject custom-
ers.4 Finally, the Respondent incurs no liability for uni-
laterally terminating an owner-operator’s contract.

28, 1999.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 We have modified the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, 325 NLRB 17 (1997).
3 See Slay Transportation, 331 NLRB No. 170 (2000).
Accordingly, weighing all of the incidents of their rela-
tionship with the Respondent, we find that the owner-
operators are employees and not independent contractors.
See Roadway Package System, 326 NLRB 842 (1998).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Corpo-
rate Express Delivery Systems, Oklahoma City, Okla-
homa, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days of this Order, offer immediate and
full employment to Hildegard Kirk, Edwin Kirk, and
Joseph Bennett to their former positions or, if those posi-
tions no longer exist, to substantially equivalent positions
without prejudice to their seniority or any other rights or
privileges previously enjoyed.”
2. Insert the following as new paragraph 2(b) and
reletter the subsequent paragraphs.
“(b) Make Hildegard Kirk, Edwin Kirk, Joseph Ben-
nett, and Thomas McHargue whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them plus interest, in the manner set
forth in the remedy section of the decision.”
3. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its facility in Oklahoma City, Oklahoma, copies of the
attached notice marked “Appendix.”33 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places were notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, 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 em-ployees and former employees employed by
the Respondent at any time since February
4. Substitute the attached notice for that of the admin-
istrative law judge.

4 Owner-operators may within certain parameters, however, change
delivery times on their routes.
332 NLRB No. 144
CORPORATE EXPRESS DELIVERY SYSTEMS 1523
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT interrogate our employees concerning
the activities of Teamsters Local 886, affiliated with In-
ternational Brotherhood of Teamsters, AFL–CIO, CLC,
or any other labor organization.
WE WILL NOT threaten our employees with plant
closure because of union activities.
WE WILL NOT engage in surveillance of our em-
ployees’ union activities.
WE WILL NOT threaten our employees with a cut in
pay because of their union activities.
WE WILL NOT threaten our employees that it will be
futile for them to support the Union.
WE WILL NOT discriminatorily enforce a no-
solicitation rule against union solicitation.
WE WILL NOT unlawfully include a rule against em-
ployees discussing wages in our employee handbook.
WE WILL NOT terminate our employees because of
their union activities.
WE WILL NOT issue written warnings to our em-
ployees because we suspect the employees of union so-
licitation.
WE WILL, within 14 days of this Order, offer imme-
diate and full employment to Hildegard Kirk, Edwin
Kirk, and Joseph Bennett to their former positions or, if
those positions no longer exist, to substantially equiva-
lent positions without prejudice to their seniority or any
other rights or privileges previously enjoyed.”
WE WILL, make Hildegard Kirk, Edwin Kirk, Joseph
Bennett, and Thomas McHargue whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, plus interest.
WE WILL, within 14 days from the date of the Order,
remove from our files any reference to the unlawful writ-
ten warning and discharges of Thomas McHargue,
Hildegard Kirk, Edwin Kirk, and Joseph Bennett and
WE WILL, within 3 days thereafter, notify McHargue,
Hildegard Kirk, Edwin Kirk, and Bennett in writing that
this has been done and that the warning and discharges
will not be used against any of them in any way.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of their rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.

CORPORATE EXPRESS DELIVERY
SYSTEMS

Mary Taves, Esq., for the General Counsel.
Terry L. Potter, Esq., of St. Louis, Missouri, for the Respon-
dent.
Eddie Landers, of Oklahoma City, Oklahoma, for the Charging
Party.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This
matter was heard in Oklahoma City, Oklahoma, on May 26 and
27, 1999. The charge was filed on March 11 and amended on
April 13 and May 18, 1999. A complaint issued on April 15,
1999.
The Respondent, Charging Party (Union), and General
Counsel were represented and were afforded full opportunity to
be heard, to examine and cross–examine witnesses, and to in-
troduce evidence. The Respondent and General Counsel filed
briefs. On consideration of the entire record and briefs, I make
the following
I. JURISDICTION
Respondent admitted that at material times it has had an of-
fice and place of business at Oklahoma City as well as at loca-
tions throughout the United States, where it has been engaged
in providing same–day delivery and related services; it con-
ducted business from Oklahoma City during the 12 months
ending March 31, 1999, including the purchase and receipt at
Oklahoma City of goods valued in excess of $50,000 directly
from outside the State and the receipt of gross revenue in ex-
cess of $50,000 from the sale and delivery of goods directly to
points outside the State; and during that 12-month period it has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the National Labor Relations Act
(the Act).
Respondent Area Manager William Kennedy testified that its
Oklahoma business primarily serves the pharmaceutical and
banking industries. Their biggest local customer is McKesson.
II. LABOR ORGANIZATION
Respondent admitted that the Charging Party (Union) has
been a labor organization at material times within the meaning
of Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1524
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
It is alleged that Respondent discharged employees in viola-
tion of Section 8(a)(3) and engaged in independent violations of
Section 8(a)(1) of the Act.
The overriding disputed issue is whether people called
owner/operators are employees. Respondent employed both
owner/operator and company drivers in its delivery system. The
alleged unfair labor practices were concentrated around Re-
spondent’s relationship with the owner/operators.1
The Act excludes from its definition of employee “any indi-
vidual having the status of an independent contractor.” Respon-
dent alleges that the alleged discriminatees with the exception
of Tom McHargue fall within that exclusion.
Are the Owner/Operator Drivers Employees?
Respondent contends that owner/operators, unlike company
drivers, are independent contractors. The duties of the
owner/operator and company drivers are similar.2 Both function
as drivers for the delivery of packages for Respondent and it is
not disputed that company drivers are employees.
The General Counsel offered evidence regarding the inde-
pendent contractor issue. As the name implies owner/operators,
unlike company drivers, own their vehicles. Joseph Bennett
started as an owner/operator in February 1997 when the com-
pany was called US Delivery. He was told that he would have
to have a van size ¾ ton or larger, less than 3 years old and with
no more than 50,000 miles. Edwin Kirk responded to an ad
from Respondent in July 1998 stating that owners of vans, mi-
nivans or full–sized vans were needed. Kirk applied with Re-
spondent. He had a minivan at the time and General Manager
Rick Johnson asked him if he could get a full-size van. Rick
Johnson faxed a letter to Richardson Ford stating what Kirk
would be earning in order to assist Kirkin securing financing on
a full-size van. Kirk testified that he would not have qualified
for financing without Johnson’s fax.
Hildegard and Edwin Kirk and Rocky Terrel and Joseph
Bennett were required to fill out applications and take drug
tests and background checks when they applied to work as
owner/operators with Respondent. H. Kirk interviewed with
Respondent’s general manager who asked her what type van
she was driving. Kirk replied she was driving a minivan and the
general manager said that was all right. When she signed an
agreement with Respondent the general manager told her that
the company offered the insurance she needed for her vehicle
and the premiums would be deducted from her biweekly pay.
H. Kirk was not given an option to select any other insurance
carrier or policy. The general manager told Hildegard Kirk of
the available routes and specified the one he had selected for
her. She was trained by riding with another driver
(owner/operator) for about 4 days. Hildegard Kirk told the gen-

1 However, Respondent does not dispute that alleged discriminatee
Thomas McHargue is an employee.
2 Hildegard Kirk testified that compensation and benefits are differ-
ent for owner/operators. While company drivers receive hourly pay,
health insurance, profit sharing, and vacation time and do not own their
vehicles, owner/operators are not paid by the hour, do not receive
health insurance, profit sharing, and vacation time and do own their
vehicles.
eral manager that she did not like that route and he assigned her
to another route. She rode with another owner/operator for 3
days to train on that route. Edwin Kirk testified that he was
trained for 3 days by riding with the driver that had the route
before him. Other owner/operators had similar training. Joseph
Bennett was scheduled to train by riding with a supervisor but
when he caught up with the supervisor he said he had to return
to town. Bennett completed that route alone and that was all the
training he received.
All the owner/operators signed agreements with Respondent
stating their positions were those of independent contractors.
All were paid on the basis of a fixed rate plus a varying amount
depending on the amount of freight delivered on a particular
day.
Owner/operators Rocky Terrel and Joseph Bennett were
originally hired as “special drivers.” General Manager Rick
Johnson told each of them that there were no routes available at
the time each was hired. Bennett was given a regular route
almost immediately after being hired and before he actually
started working as a special driver. When a route came open,
Rick Johnson told Terrel about the route. After discussion,
Terrel and Johnson agreed for Terrel to take the route. Subse-
quent to Rocky Terrel changing to his present route, he asked to
be switched back to his former route. Respondent denied his
request because his former route had already been filled.
Rocky Terrel’s wife Cindy also started working for Respon-
dent as a special owner/operator driver. Later she was identified
as an employee for her husband’s company. However, Bill
Kennedy told Rocky Terrel that Respondent’s computers were
not set up to issue checks to his company and checks were sub-
sequently issued in Rocky Terrel’s name to cover work on two
routes handled by Rocky and his employee (i.e., his wife).
H. Kirk worked around 55 hours a week as owner/operator
for Respondent. Her work for Respondent was her regular
work. Most owner/operators did not have other employment
while working for Respondent. However, Joseph Bennett told
Rick Johnson during his interview that he did morning delivery
for the Tulsa World and did not want to quit that job. Bennett
told Rick Johnson that he would not take the job with Respon-
dent if required to give up the Tulsa World job. Bennett contin-
ued to hold the job delivering the Tulsa World but he did not
use the same vehicle for both jobs. Owner/operator Rocky Ter-
rel testified that he worked full time for Respondent and that he
averaged around 89 or 90 hours a week.
Hildegard Kirk was required to apply with the Labor De-
partment for nonworkman’s compensation coverage. Respon-
dent furnished the forms for her application for nonworkman’s
coverage. Kirk was required to sign the forms and send them in.
Respondent suggested that H. Kirk use the name Hilda’s Deliv-
ery Service on her nonworkman’s coverage.
Respondent paid its owner/operators every 2 weeks. Hilde-
gard Kirk was paid in her own name rather than as Hilda’s
Delivery Service. Respondent unilaterally set her compensa-
tion. There were no negotiations on the amount of compensa-
tion. As shown above Rocky Terrel was paid in his name for
both the route he covered and the one covered by his wife.
Hildegard Kirk’s work started at 1:15 p.m. When both
Hildegard Kirk and Rocky Terrel started work, each went to
CORPORATE EXPRESS DELIVERY SYSTEMS 1525
Respondent’s office and picked up his or her daily route sheet
and keys (as well as key cards) required for entry into some of
the delivery points. Edwin Kirk started at a stop on his route
and checked into Respondent’s office later during his route.
Owner/operators were required to arrive at specific delivery
points at time specified on his or her route sheet and to notify
Respondent if he or she missed that appointed time by more
than 10 minutes. The operations manager would then tell the
owner/operator whether to go on with the delivery and write
down the time or to pass that stop. Owner/operators received
additional pay for additional stops. However, owner/operators
had no input into the decision to make additional stops. Re-
spondent made that decision. Owner/operators were not given
an opportunity to drum up additional business for themselves.
The owner/operators were given $20 for referral of a new cus-
tomer for Respondent. However, the owner/operator did not
receive additional compensation other than the $20, if Respon-
dent successfully picked up business as the result of that refer-
ral. The owner/operators could not deviate from the order of
stops set out on the route sheet. At the end of the workday most
owner/operators returned to Respondent’s office and turned in
their route sheet and keys.
On occasions when an owner/operator needed a day off for
personal reasons or illness, Respondent would arrange a backup
driver. Although H. Kirk never did so, she understood that an
owner/operator could make arrangements with another driver to
take the owner/operator’s route if the other driver was familiar
with that particular route. Owner/operators could not hire
someone to drive their route.3 Rocky Terrel testified that
owner/operators were required to submit a completed form (GC
Exh. 40) requesting time off and Respondent was to take care
of his routes while he was off. Rocky Terrel did not pay the
person that ran in place of Terrel. Respondent handled that
matter.
Rocky Terrel testified that he could not sell or trade his
routes to anyone else. He has seen postings for available Satur-
day routes with a message to see someone if interested. He
recalled a memo instructing the drivers to not discuss problems
such as being late, with a customer. Instead the driver was to
inform the customer he or she could call Respondent’s office to
discuss the problem.
The owner/operators were directed by Respondent to refer
all customer delivery related complaints back to its office.
Owner/operators were not permitted to extend credit to custom-
ers without permission. The owner/operators were not permit-
ted to work for another employer.
Respondent determined whether the owner/operators vehicle
met its standards for specific routes. Owner/operators were
required to place magnetized company decals on both sides of
their vehicle (GC Exh. 39). Owner/operators were required to
wear navy pants and company shirts that were either navy or
white or striped. Hildegard Kirk purchased her own uniform
and the decal for her shirt. However, owner/operators were
allowed to use the Company’s uniform service. Rocky Kirk
was wearing a company uniform during his testimony. It in-

3 However, as shown here, Rocky Terrel was given permission to
hire his wife Cindy for another route than the one he was driving.
cluded a short–sleeved polo shirt with Respondent’s logo, blue
shorts, and dark shoes. He was required to wear that uniform
during deliveries.
Respondent maintains all records on owner/drivers including
the route sheets and manifests4 that are turned in daily.
Owner/operators were required to maintain daily route sheet for
each particular route. The owner/operators were paid each 2
weeks and insurance premiums on their vehicle, pagers rental,
and miscellaneous charges such as for their drug test and physi-
cal examination, were deducted from their pay. Each
owner/operator was required to submit a 2-week voucher5 in
order to receive pay. All drivers including owner/operators6 and
company drivers were required to have pagers. The
owner/operators were permitted to use Respondent’s bathroom
and break room.
Drivers are required to phone in to Respondent (a voice mail
for each driver) several times during each route for updates on
pickups.
Respondent’s offer regarding the independent contractor is-
sue included Area Operations Manager William Kennedy testi-
fying that an application is required for its company driver
positions (R. Exh. 9). Respondent conducts a background check
with OSPI and the motor vehicle record is pulled on the appli-
cant. Each applicant is given drug and physical examinations
along with both written and actual driving tests.
Owner/operator applicants are not required to take driving
tests. Company drivers may interchange company vehicles
whereas owner/operators must use their own vehicles as speci-
fied in their agreement with Respondent. Owner/operators take
their vehicles home and may start their day’s work at delivery
points away from the terminal. Employees have clock-in times
while owner/operators do not. Employees rent their uniforms
from Cintas. Each employee has 10 sets of uniforms and each
rotate turning in 5 uniforms a week to Cintas for cleaning.
Owner/operators purchase their uniforms.
William Kennedy disagreed with the testimony that
owner/operators may not change their route. He testified that
Respondent does not care whether delivery times are changed
and that owner/operators routinely change their times (see Tr.
245–249; R. Exh. 6 regarding changes in Rocky Terrel’s route).
However, company drivers are required to run routes in proper
sequence on penalty of disciplinary action. The parties stipu-
lated Joint Exhibit 1 into evidence. That is a sample of route
sheets over two 1-week periods. Those route sheets do show
that some stops were made out of sequence and that it was not
unusual for deliveries to be made more than 10 minutes after
their scheduled time.
Owner/operators have an option of arranging their own re-
placements from other owner/operators when absent or by noti-
fying Respondent and having Respondent provide a driver as
replacement. There are scheduled and unscheduled absence
4 Rocky Terrel testified that the route sheets reflect the regular route
each day while the manifest (G.C. Exh. 14) reflects extra freight deliv-
ered on that particular day.
5 Each voucher should reflect the cumulative route sheets and mani-
fests for the particular 2-week period.
6 Owner/operators were sometimes referred to as contract drivers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1526
reports for both company drivers and owner/operators. That is
so because the owner/operators’ pay changes because of ab-
sences.
There are no provisions for disciplinary action7 for
owner/operators.
Some owner/operators have layovers during their routes
from a few minutes to 6 hours. There are no restrictions on the
owner/operators’ time during a layover.
In 1998 the average annual income for each company driver
was $18,000.8 During that same period, the average annual
income for each owner/operator was $32,000.9
None of the policies in Respondent’s employee handbook
(GC Exh. 3) applied to owner/operators. Kennedy testified that
owner/operators may hire someone to assist in their work for
Respondent. He recalled that spouses of the owner/operator are
employed in some cases as well as “sons, daughters, wives,
husbands, aunts, uncles, whatever.”10 However, on cross-
examination Kennedy admitted that Respondent conducts the
same background checks and drug tests regardless of whether
the driver is the owner/operator or an employee of the
owner/operator.
William Kennedy denied that owner/operator Angela Loyall
was disciplined because she took home a package that should
have been delivered during her route. Instead, Respondent
wrote Loyall expressing that the package should have been
turned back to Respondent since it was not delivered before the
end of her workday. Kennedy testified that Joe Bennett was
docked 40 hours pay because he forgot his keys and Respon-
dent had to cover part of Bennett’s route. If that had happened
to a company driver the employee would have received disci-
plinary counseling (see R. Exh. 16).
Company drivers are normally limited to 55 hours work each
week whereas owner/operators have no limit on the number of
hours each of them work.
Findings
Credibility
I was impressed with both the demeanor and testimony of
Hildegard and Edwin Kirk, Rocky Terrel, and Joseph Bennett.
Each of them appeared to testify truthfully under both direct
and cross-examination even on those occasions when answers
appeared to be opposed to the witness’ interest. I credit their
testimony. William Kennedy was inconsistent in his testimony.
Despite testimony that owner/operators were not treated like
company drivers, he admitted on cross-examination that he told
Rocky Terrel not to solicit for the Union and he recently told

7 However, William Kennedy admitted that owner/operators are
written up for performance deviations and for substandard perform-
ance. See GC Exhs. 43–54 and Tr. 308–309 and 314.
8 However, William Kennedy admitted on cross that $18,000 did not
include such things as withholding taxes, unemployment compensation,
vacation and sick time and that Respondent paid all maintenance cost
for vehicles operated by company drivers.
9 That $32,000 represents a gross amount and the owner/operator is
responsible for costs associated with maintaining his or her vehicle.
10 William Kennedy admitted on cross-examination that he did not
recall any employee of an owner/operator that was not also a family
member of that owner/operator.
both owner/operators and company drivers that vacation privi-
leges were being suspended. Kennedy also admitted that de-
spite his testimony that owner/operators are not subject to dis-
ciplinary action, they are written up for performance deviations
and for substandard performance. Kennedy was evasive on
cross-examination. In consideration of his demeanor and full
testimony, I do not credit him to the extent his testimony con-
flicts with credited evidence.
Conclusions
Recently the Board considered whether owner/operator driv-
ers are independent contractors and as such, excluded from the
Act’s definition of employee, in Roadway Package System, 326
NLRB 842 (1998), and Dial-A-Mattress Operating Corp., 326
NLRB 884 (1998).11 In Roadway, the Board referred back to
earlier Roadway decisions where the independent contractor
argument was rejected in holding that the drivers “bear few of
the risks and enjoy little of the opportunities for gain associated
with an entrepreneurial enterprise” and Roadway had “substan-
tial control over the manner and means” of performance by
their drivers. The Board considered a series of factors in Road-
way including duties and responsibilities;12 vehicles;13 business
11 See NLRB v. United Insurance Co. of America, 390 U.S. 254
(1968).
12 The Board found that Roadway’s contract with the drivers was
terminable by either or both parties; drivers may select their own
routes; the drivers work full time for Roadway averaging 9- to 9-1/2-
hour shifts; and the drivers must wear Roadway-approved uniforms.
Here, Hildegard Kirk rejected her first assigned route and was given
another route; owner/operators work full time for Respondent with
Hildegard Kirk averaging 55 hours a week; Rocky Terrel talked with
the general manager before agreeing to accept his first regular route and
he worked approximately 90 hours a week for Respondent; Respondent
approved the vans used by Rocky Terrel and Hildegard Kirk; when
Edwin Kirk applied, he had a minivan and Respondent asked him to get
a full-size van; according to their contract with Respondent,
owner/operators are prohibited from using their van for other business;
their insurance policy does not cover work other than for Respondent;
owner/operators were required to apply for nonworkers compensation
insurance on forms supplied by Respondent and Hildegard Kirk was
told to use the name Hilda’s Delivery Service on her application;
Rocky Terrel originally used the name D&L Distributing, but was told
Respondent’s computers were not set up for pay to anything other than
an individual (afterward, pay for both Rock Terrel and his wife (em-
ployee) were issued to Rocky Terrel); owner/operators are paid bi-
weekly an amount unilaterally established by Respondent;
owner/operators drive routes specified by Respondent; replacement
drivers are arranged by Respondent on occasion when an
owner/operator misses work and fails to provide their own replacement
(owner/operator Rocky Terrel worked as a special driver when he first
started for Respondent and during that time he backed up regular driv-
ers); and the drivers are required to phone in anytime he or she is going
to be more than 10 minutes late arriving at a delivery point.
13 The drivers lease or buy their vehicles and must restrict the use of
the vans to Roadway work unless the identifying insignia is removed or
covered; drivers may operate additional vehicles with Roadway’s con-
sent; and the drivers are responsible for maintaining their own vehicles.
Here, owner/operators are required to use vans approved by Respon-
dent; Respondent provides owner/operators’ training using either
owner/operator or company drivers; they are required to place magnet-
ized contact decals on both sides of their vehicle; and until recently,
CORPORATE EXPRESS DELIVERY SYSTEMS 1527
support package;14 compensation and financial support,15 and
proprietary interest.16 The Roadway Board held as,

in United Insurance, the drivers here do not operate inde-
pendent businesses, but perform functions that are an essential
part of one company’s normal operations; they need not have
any prior training or experience, but receive training from the
company; they do business in the company’s name with assis-
tance and guidance from it; they do not ordinarily engage in
outside business; they constitute an integral part of the com-
pany’s business under its substantial control; they have no
substantial proprietary interest beyond their investment in
their trucks; and they have no significant entrepreneurial op-
portunity for gain or loss. [326 NLRB at 851.]

The General Counsel argued that the owner/operators do not
operate independent businesses but perform functions that are
an essential part of Respondent’s normal operations.
Owner/operators perform the same duties as company drivers
and those duties are integral to Respondent’s operations as a
package pickup and delivery service. The owner/operators’
contract with Respondent and their insurance, provide that
owner/operators may not use their vehicles to deliver goods for
anyone other than Respondent.17 Their work for Respondent is
full time. Owner/operators are not free to add or delete custom-
ers. That is handled unilaterally by Respondent. The
owner/operators contract with Respondent provides that Re-
spondent provides the base compensation for each route. That
base compensation is not negotiated but is established unilater-
ally by Respondent. Respondent decided the amount of freight
to be delivered by each owner/operator each day. Respondent
may unilaterally terminate its contract with owner/operators
without incurring liability.
The General Counsel goes on to argue that the
owner/operators have no substantial proprietary interest beyond
their investment in their vans or trucks and they have no sig-
nificant entrepreneurial opportunity for gain or loss. As shown
above, Respondent could and did on occasion, unilaterally
change routes for owner/operators and it terminated the con-

owner/operators were required to use insurance selected by Respon-
dent.
14 Roadway provided a package at an $8-per-day charge to furnish
each driver with a clean uniform each day; the lease of a required scan-
ner and computer; an annual DOT inspection; and a vehicle washing
service. Here, the credited evidence proved that owner/operators usu-
ally buy their uniform but that they may use the Cintas rental service
used by company drivers.
15 Both Roadway and Respondent contract drivers were responsible
for the withholding and payment of their own Federal, state and local
taxes. Neither Roadway nor Respondent provided any contract driver
benefits including vacation, holidays, disability, or retirement.
16 Roadway argued that it offered propriety interest to drivers for
their routes beginning in 1994. There was evidence of some instances
of drivers selling portions of their respective routes after that date.
Respondent did not offer propriety interest to its owner/operators. None
of the owner/operators were shown to be able to sell all or portions of
their routes.
17 When first interviewed, Joseph Bennett told Respondent that he
would not give up his morning route delivering newspapers. However,
Bennett used a different vehicle for the morning newspaper delivery.
tract with an owner/operator before the actions alleged herein.
Contrary to testimony of several owner/operators, the daily
route sheets proved that those drivers did change delivery times
and sequence.
Respondent assisted some owner/operators to purchase their
van or truck. Owner/operators are responsible for their insur-
ance coverage but record evidence illustrated the
owner/operators were required to use insurance recommended
by Respondent.18 Insurance premiums were deducted from
owner/operators’ pay.
In Dial-A-Mattress Operating Corp., the Board applied a
similar test to the one it applied in Roadway, but found that
those owner/operators were independent contractors. Among
other things the Dial-A-Mattress owner/operators oftentimes
formed corporations.19 The owner/operators frequently hired
employees including drivers and helpers.20 Their trucks or vans
could be used in other work provided they did not work for
Dial-A-Mattress competitors.21 Several of the owner/operators
did not drive trucks or vans themselves.22 Instead they used
their own employees as drivers.
It is clear from my comparison of the cases and the facts here
that Respondent proved a weaker case for an independent con-
tractor finding than the employer did in Roadway. I find in
accord with the Board’s decisions in Roadway and Dial-A-
Mattress that the owner/operators are not independent contrac-
tors and are employees as defined in the Act.
The 8(a)(1) Allegations:
Interrogation
Rick Johnson phoned owner/operator Jim Dunn shortly after
the February 28 union meeting. Johnson asked Dunn who was
responsible for starting the union movement. Dunn replied that
he did not know. Johnson said that a memo had already been
sent from the “corporate office that they would close the doors
and none of us would have a job.” A few days after that con-
versation, Dunn had a phone conversation with William Ken-
nedy. Dunn had phoned Kennedy regarding his route. During
that conversation Dunn told Kennedy that Rick Johnson had
called him and was very upset and that Johnson had said that if
the Union persisted and if it did go through they would have to
close the doors and none of us would have jobs. Kennedy of-
fered “very little response” to Dunn’s statement.
18 William Kennedy testified that Respondent changed its policy and
that owner/operators are now free to use insurance other than that rec-
ommended by Respondent.
19 Here, despite some owner/operators forming separate legal enti-
ties, they were told that Respondent’s computers were set up so that
checks could be made out only personally to the owner/operator.
20 Here William Kennedy estimated that 10 percent of the
owner/operators hired employees but his testimony on cross-
examination proved that all those employees were spouses or children
of the owner/operator.
21 All of Respondent owner/operators were prohibited from using
their authorized vehicles for other work. Even Joseph Bennett, the one
owner/operator that was permitted to retain prior work delivering a
morning newspaper, used another vehicle for that work.
22 All the owner/operators drove vehicles even though a small per-
centage also hired a close relative to drive an additional route.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1528
Respondent’s area operations manager, William Kennedy,
issued a written warning to Thomas McHargue on March 17,
1999. Operations Manager Carol Miller took McHargue to
Kennedy’s office. Miller, Kennedy, and McHargue were pre-
sent in Kennedy’s office. Kennedy said to McHargue that he
had been soliciting some of the contract drivers at McKesson.
Kennedy asked McHargue if he had any comments. McHargue
replied that he did not even go to McKesson. McHargue denied
that he said anything to anyone about the Union.
Threat of Closure
As shown above, Rick Johnson phoned Jim Dunn23 shortly
after the February 28 union meeting. After Johnson asked Dunn
who was responsible for starting the union movement Johnson
said that a memo had already been sent from the “corporate
office that they would close the doors and none of us would
have a job.” A few days after that conversation Dunn had a
phone conversation with William Kennedy. Dunn had phoned
Kennedy regarding his route. During that conversation Dunn
told Kennedy that Rick Johnson had called him and was very
upset and that Johnson had said that if the Union persisted and
if it did go through, they would have to close the doors and
none of us would have jobs. Kennedy offered “very little re-
sponse” to Dunn’s statement.
Within the next 2 weeks Dunn again phoned Kennedy. Dunn
told Kennedy that he had changed his mind and that he did not
wish to support the Union. Kennedy responded that Dunn’s
name had come up. Dunn said that he had solicited two people
and he would cease his activities for the Union. Dunn also said
that he felt like changes should be made but he now felt the
Union was not the answer and that maybe they could somehow
get together and settle their differences without a third party.
Kennedy agreed to that. Kennedy set it up so those drivers
could come in on Saturdays and talk to him if the driver had a
pay discrepancy.
Hildegard Kirk testified about talking with supervisors about
the Union on March 4 or 5. Kirk talked with Assistant Opera-
tions Manager David Umbarger and Dispatcher Barbara Daw-
son. H. Kirk asked Umbarger and Dawson if they had heard the
rumor that a group of owner/operators were trying to get the
Union in. Umbarger replied, “yes, know about it and the word
from the office in Houston24 has already come down that they
would rather shut the door than let the union come in.” H. Kirk
had several discussions with those supervisors. On one occa-
sion Barbara Dawson said that the Union was a really bad deal
and that when Wilson Food Company tried to get unionized, it
caused the company to fold altogether. Umbarger replied that
he really did not care for it but that he was management and,
therefore, the Union would not do anything for him anyway.
After the February 28 union meeting, Umbarger walked up
while Joseph Bennett was talking to an employee about the
Union. Umbarger said that someone from the home office had
come down and said that if the Union got in, they were going to
close the doors.

23 Dunn’s testimony as well as testimony by other witnesses regard-
ing Rick Johnson, was not in dispute. Johnson did not testify.
24 “Houston” refers to Respondent’s main office.
Surveillance
On the occasion when Rick Johnson phoned Jim Dunn
shortly after the February 28 union meeting, Johnson asked
Dunn who was responsible for starting the union movement.
Subsequently, as shown above, Dunn changed his mind and
told William Kennedy that he did not want to support the Un-
ion. Kennedy told Dunn that Dunn’s name had come up.
Hildegard and Edwin Kirk, Eddie Landers, Rocky Terrel,
and Joseph Bennett saw General Manager Rick Johnson drive
up to the union hall at the time of a March 13, 1999 union
meeting. Rocky Terrel followed Johnson as Johnson drove
around the block a couple of times then Johnson turned in to
the union hall parking area. Johnson’s wife was also in his car.
Johnson was driving a white sports vehicle. Hildegard Kirk
testified that Rick Johnson does not normally work on Satur-
days, which was the day of the meeting. Johnson lives ap-
proximately 1 hour’s drive from the union hall. Union organ-
izer Eddie Landers went out as Johnson was driving out of the
union hall parking area and asked Johnson to come in the meet-
ing. Johnson said that he was just driving around watching the
snow.
Threat of Pay Cut; Told Employees They had Terminated Oth-
ers because of the Union; Told Employees it would be Futile to
Select the Union
General Manager Rick Johnson talked with owner/operator
Angela Loyall around March 17, 1999. Johnson asked if Loyall
wanted to be the bearer of bad news and that she should tell
them there was not going to be a union. Johnson said, “you
noticed that Ed and Hilda aren’t here and the union said they’d
get their jobs back.” Johnson asked Loyall if she could stand a
$500 pay cut. Johnson said the Union was Mafia. He told Loy-
all there would be armed guards at the facility after discussing
that someone had thrown firecrackers in to the bay. Johnson
said because the owner/operators were independent contractors
they could not have a union.
Discriminatory Enforcement of No-solicitation Rule
As shown herein a day or two after March 17, William Ken-
nedy issued Tom McHargue a warning (GC Exh. 38) for
soliciting for the Union. Kennedy issued the written warning to
Thomas McHargue because company driver Bob Calahan told
him that another driver, Joe Iskey, told Calahan that Tom
McHargue has been bothering Iskey about the Union, about
joining the Union. Kennedy talked with Iskey and Iskey con-
firmed what Calahan had told Kennedy. Kennedy then talked to
McHargue and issued the warning.
Kennedy also told Rocky Terrel not to solicit for the Union
during company time. He explained that he told Terrel that
because he was afraid that violence would ensue if Terrel did
not leave a driver alone about the Union.
Thomas McHargue knew of employees selling products be-
fore his warning. He has sold Amway products to Freddie
Johnson around the first of March 1999. Freddie Johnson is the
wife of General Manager Rick Johnson and an owner/operator
driver. In Respondent’s case, William Kennedy testified that
McHargue sold Amway products when Respondent was US
Delivery and that US Delivery did not have a no-solicitation
CORPORATE EXPRESS DELIVERY SYSTEMS 1529
rule. Kennedy’s testimony conflicts with that of McHargue in
view of McHargue’s recollection that he sold Amway products
in March 1999. At that time Respondent was not US Delivery
and Respondent did have a no-solicitation rule.
Former owner/operator Bennett testified that employees
bought and sold charitable goods at work. He bought candy that
was being sold by an employee for the employee’s daughter.
Handbook Rule Against Discussing Wages
Respondent admitted that its employee handbook includes
the following:

Discussion of one’s own pay rate or that of any other em-
ployee is strongly discouraged. One’s own pay information
should not be discussed with other than the employees’ own
supervisor or the Human Resources representative.
Findings
Credibility
As shown above, I was impressed with both the demeanor
and testimony of Hildegard and Edwin Kirk, Rocky Terrel, and
Joseph Bennett. I credit their testimony. William Kennedy was
inconsistent in his testimony. Kennedy was also evasive on
cross-examination. In consideration of his demeanor and full
testimony, I do not credit him to the extent his testimony con-
flicts with credited evidence. I was impressed with the de-
meanor of Angela Loyall, Thomas McHargue, Eddie Landers,
and Jim Dunn. In some measure, other evidence supported
their testimony. I credit the testimony of those witnesses to the
extent it does not conflict with other evidence as explained
here.
Conclusions
Interrogation
Several courts of appeal have adopted the test applied in
Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964), in determining
whether an employer has engaged in unlawful activity by inter-
rogating employees. There are eight factors included in the
Bourne test: (1) the history of the employer’s attitude toward its
employees; (2) the nature of the information sought or related;
(3) the rank of the questioner in the employer’s hierarchy; (4)
the place and manner of the conversation; (5) the truthfulness
of the employee’s response; (6) whether the employer had a
valid purpose in obtaining the information; (7) whether a valid
purpose, if existent, was communicated to the employee; and
(8) whether the employer assured the employee of no reprisals.
NLRB v. Brookshire Grocery Co., 919 F. 2d 359 (5th Cir.
1990); NLRB v. McCullough Environmental Services, 5 F.3d
923 (5th Cir. 1993).
Shortly after a February 28 union meeting, General Manager
Rick Johnson phoned owner/operator Jim Dunn and asked
Dunn who had started the Union.
Around March 17 to 19, 1999, admitted employee Thomas
McHargue was questioned by Respondent’s highest ranking
official in Oklahoma at its Oklahoma City facility. Kennedy
told McHargue that he had been soliciting for the Union and he
asked McHargue if he had any comments.
There was no showing whether Respondent had a history of
antiunion attitude before this matter. As to the nature of the
information sought, Dunn was asked to identify the employees
that started the Union and McHargue was required to defend
the accusations that he engaged in solicitation for the Union.
The questioners were the two highest ranking officials at Okla-
homa City. Rick Johnson questioned Dunn in a phone conver-
sation. McHargue was questioned in the highest ranking offi-
cial’s office in the presence of another supervisor. McHargue
was alone. Dunn did not name any employees and McHargue
denied the allegations against him. There was no evidence that
Respondent had a valid purpose in questioning Dunn and
McHargue and no valid purpose was communicated to either
Dunn or McHargue. Neither of the two was given any assur-
ance against reprisals.
I find that evidence illustrated that Dunn and McHargue
were interrogated in violation of Section 8(a)(1) of the Act.
Threat of Closure
The evidence illustrated that Supervisors Umbarger and
Dawson threatened employee Hildegard Kirk with plant closure
by telling her that the word has come down from Houston that
Respondent would rather shut the door than let the Union in.
Additionally, Dawson told Kirk that Wilson Food had folded
because of the Union. Umbarger also threatened employee
Joseph Bennett that Respondent would close its doors if the
Union came in. General Manager Rick Johnson threatened Jim
Dunn25 that Respondent would close its doors and none of us
would have a job.
I find that evidence proved that Respondent threatened plant
closure and loss of jobs because of the Union in violation of
Section 8(a)(1). Interstate Truck Parts, 312 NLRB 661 (1993);
Almet, Inc., 305 NLRB 626 (1991).
Surveillance
General Manager Rick Johnson drove around the union hall
several times and through the hall parking lot once, during a
union meeting with Respondent’s employees on March 13,
1999. That action plus Johnson’s phone call to employee Jim
Dunn after the first union meeting, illustrated to the employees
that Johnson was engaged in surveillance of their union meet-
ing. That understanding was reinforced by William Kennedy’s
comment to Jim Dunn within 2 weeks following March 13, that
Dunn’s name had come up as supporting the Union. All that
evidence illustrated that Respondent engaged in surveillance of
its employees union activities in violation of Section 8(a)(1) of
the Act. McLean Roofing Co., 276 NLRB 830, 833 (1985).
Threat of Pay Cut; Told Employees They had Terminated Oth-
ers Because of the Union; Told Employees it Would be Futile
to Select the Union
The undisputed evidence proved that employee Angela Loy-
all was threatened by General Manager Johnson that the Kirks
had not been reinstated despite claims from the Union and that
she should be prepared for a $500 pay cut. I find those com-
ments constitute further violations of Section 8(a)(1). Harper-
Collins San Francisco, 317 NLRB 168, 180 (1995); Ace Cab,
Inc., 301 NLRB 119, 125 (1992).

25 Rick Johnson did not testify. Jim Dunn’s testimony regarding
Johnson was not rebutted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1530
Discriminatory Enforcement of No-solicitation Rule:
Respondent selectively enforced a no-solicitation policy
against union solicitation. The evidence proved that Respon-
dent permitted employees to solicit other employees during
work for such things as candy and Amway products. Despite
the contrary testimony of William Kennedy I find that Respon-
dent did permit that solicitation during material times including
occasions as recently as March 1999. On the other hand Re-
spondent prohibited its employees from soliciting for the Union
and disciplined employee Thomas McHargue on information
that McHargue had solicited for the Union. That action consti-
tutes an additional violation of Section 8(a)(1). McGaw of
Puerto Rico, Inc., 322 NLRB 438 (1993); Frazier Industrial
Co., 328 NLRB 717 (1999).
Handbook Rule Against Discussing Wages
The Board has consistently held that employer rules or poli-
cies prohibiting employees from discussing their pay are
unlawful. As shown above, that is precisely the case here. Re-
spondent’s handbook includes a rule that discourages discus-
sion of wages. That constitutes a violation of Section 8(a)(1).
Hilton’s Environmental, Inc., 320 NLRB 437 (1995).
The 8(a)(3) Allegations; Discharge of Hildegard Kirk; Dis-
charge of Edwin Kirk; Discharge of Joseph Bennett
Edwin and Hildegard Kirk started working as owner/opera-
tors for Respondent in the summer of 1998. Hildegard Kirk
started on August 10, 1998.
H. Kirk testified that she started talking with other drivers
about organizing a union in mid-February 1999. Joseph Bennett
also talked with other drivers about the Union. Between Febru-
ary 15 and 18, H. Kirk and Rocky Terrel contacted Bobby
Monroe, representative of the Union. They set up a meeting for
the drivers at the Union’s hall on February 28. H. Kirk told the
other owner/operators about the meeting. In addition to H.
Kirk, owner/operators Rocky Terrel, Cindy Terrel,26 Jim Dunn,
H. Kirk’s husband Edwin Kirk, Joe Bennett, and Angela Loyall
attended the February 28 meeting. Both Hildegard and Edwin
Kirk as well as Joseph Bennett signed both the sign-in sheet27
and a union authorization card during that meeting.
Union organizer Eddie Landers faxed a copy of the in-plant
organizing committee (GC Exh. 35) to Respondent on Monday,
March 1, 1999. The names or committee members printed in
the order they appeared on that fax are Hilde Kirk, Edwin S.
Kirk, Angela Loyall, Cindy Terrel, Rocky Terrel, Joe T. Ben-
nett, and James M. Dunn. Landers then wrote and faxed Re-
spondent on March 10, 1999, and advised Area Manager Ken-
nedy that the Union was attempting to organize the company28
carriers (GC Exhs. 36 and 37).

26 Cindy Terrel is not an owner/operator or an employee of Respon-
dent. Instead her husband, Rocky Terrel, employs Cindy Terrel as a
driver. Rocky Terrel is an owner/operator.
27 The owner/operators that attended that meeting including Bennett
actually printed their name on a letter advising Respondent area man-
ager of the Union’s in-plant organizing committee (GC Exh. 35).
28 Respondent does not dispute that the company drivers are employ-
ees.
After the meeting, both Kirks solicited drivers to sign union
authorization cards. Hildegard Kirk solicited the cards at the
warehouse after work and when she visited other drivers. Dur-
ing the first week after the February 28 meeting she received
five signed union cards.
As shown above, Hildegard Kirk testified about talking with
two supervisors on and after March 4 or 5, 1999. Some 8(a)(1)
allegations stem from those conversations. As shown above
under Section 8(a)(1), Operations Manager David Umbarger
threatened Joseph Bennett that Respondent would close the
doors before the Union got in.
Both Hildegard and Edwin Kirk were terminated on March
9. Edwin Kirk was called in off his route. When he arrived his
wife, Hildegard was already there. She told him she had been
fired. When she reported for work that evening David Um-
barger told her to see Bill (William) Kennedy. Kennedy called
General Manager Rick Johnson on the intercom and handed H.
Kirk her termination notice. Hildegard Kirk testified that she
had never had problems with her work before March 9. After-
ward, Rick Johnson escorted Edwin Kirk back to Kennedy’s
office. Kennedy handed Kirk his termination letter and asked
Kirk to sign the letter. Kirk signed the letter and left. There was
never any indication that Respondent was unhappy with Edwin
Kirk’s work.
Bennett was terminated on March 12, 1999. William Ken-
nedy came into Rick Johnson’s office and handed Bennett his
termination letter. Bennett asked if Kennedy wanted him to
finish out his route and Kennedy replied no. Bennett asked if
Kennedy was going to give him a reason and Kennedy replied
“nope.” Bennett signed the termination letter and handed it
back to Kennedy. Before that incident nothing had been said to
show that Respondent was unhappy with Bennett’s work.
William Kennedy initially testified that he made the decision
to discharge Hildegard and Edwin Kirk and Joseph Bennett
because he was authorized to take that action by his contracts
with those owner/operators. Subsequently, Kennedy testified
that he had “some problems” with Hildegard Kirk and Joe Ben-
nett in the past. He testified that Hildegard Kirk was hard to get
along with and was hard on operations. He had no problems
with Edwin Kirk but terminated him because he was married to
Hildegard. Kennedy did not remember the last time he had
problems with Hildegard Kirk but he testified that the problem
on that occasion was her pay. Subsequently, in response to a
leading question, Kennedy said the last problem over Hildegard
Kirk’s pay occurred approximately a week before her termina-
tion. Kennedy could not recall the last time he had a problem
with Bennett. But he testified that Bennett was obstinate. How-
ever, there was no straw that broke the camel’s back and led
directly to the termination of Bennett.
Kennedy admitted that he gave no reason to the Kirks or to
Joe Bennett for their terminations.
Written Warning to Thomas McHargue
Thomas McHargue is a company driver for Respondent.
McHargue is not an owner/operator. He has worked there for 9
years. McHargue attended a March union meeting at the Team-
sters hall. He saw General Manager Rick Johnson drive out of
the union parking area. The following workday in Respondent’s
CORPORATE EXPRESS DELIVERY SYSTEMS 1531
Back Bay, Johnson said to McHargue, “you had a short turnout
didn’t you.”
A day or two after March 17, Carol Miller told McHargue to
follow her to William Kennedy’s office. Kennedy said to
McHargue, “You’ve been soliciting at McKesson.” McHargue
replied, “Have you looked at my route sheets, I don’t even go
to McKesson.” Nevertheless, Kennedy issued McHargue a
warning (GC Exh. 38) for soliciting for the Union. McHargue
told Kennedy that he did not solicit for the Union.
McHargue testified that employees sold products before his
warning. He sold Amway products to Freddie Johnson around
the first of March 1999. Freddie Johnson is the wife of General
Manager Rick Johnson and an owner/operator driver. In Re-
spondent’s case William Kennedy testified that McHargue sold
Amway products when Respondent was US Delivery and that
US Delivery did not have a no-solicitation rule.
William Kennedy admitted that he issued a written warning
to McHargue on March 17, 1999 (GC Exh. 38). Kennedy is-
sued the warning because company driver Bob Calahan told
him that another driver, Joe Iskey, told Calahan that Tom
McHargue has been bothering Iskey about the Union, about
joining the Union. Iskey told Calahan that he had better get
somebody to do something about McHargue or he was going to
tear his head off. Kennedy talked with Iskey and Iskey con-
firmed what Calahan had told Kennedy. Kennedy then talked to
McHargue and issued the warning.
Findings
Credibility
As shown above, I credit the testimony of Hildegard and
Edwin Kirk, Rocky Terrel, Joseph Bennett, Angela Loyall,
Thomas McHargue, Eddie Landers, and Jim Dunn. I do not
credit the testimony of William Kennedy.
Conclusions29
I shall first consider whether the General Counsel proved
that Respondent terminated Hildegard and Edwin Kirk and

29 Respondent contended that regardless of whether it engaged in un-
fair labor practices those practices were disavowed in a March 18, 1999
memorandum to employees (R. Exh. 18). That memo included the
following paragraph:
I have also heard that some persons in management are al-
leged to have made threatening statements to employees with re-
gard to the ongoing union organizing efforts. I want each and
every one of you to know that these statements, if true, do not re-
flect Company policy. This Company does not and will not retali-
ate against any employee for exercising their lawful rights. Let me
repeat that: This Company does not and will not retaliate against
any employee for exercising their lawful rights. I personally
pledge to each and every one of you that I will hold everyone here
accountable for complying with this policy, and I will not tolerate
any deviation from it.
The above memo does not qualify as a disavowal Passavant Memo-
rial Area Hospital, 237 NLRB 138 (1978). It was not specific to the
unfair labor practices found here and it failed to repudiate any of its
misconduct that had occurred before issuance of the memo. Of signifi-
cance is the memo’s emphasis on the word employee. At that time
Respondent was advising owner/operators they were not employees.
Moreover, despite Respondent’s contention to the contrary, the memo
does not show that Respondent had no animus against Union activity.
Joseph Bennett, and issued a written warning to Thomas
McHargue because of union animus. Manno Electric, 321
NLRB 278 fn. 12 (1996); Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462 U.S.
393 (1983).
The credited evidence showed that the Kirks and Bennett en-
gaged in union activity including attending a union meeting for
Respondent’s drivers before their terminations. All three at-
tended the February 28 union meeting and signed up as in–
plant organizing committee members (GC Exh. 35).30 Eddie
Landers testified that he faxed that list of in-plant organizers to
Respondent on March 1, 1999. William Kennedy denied that
Respondent received the list from Landers. In view of my
credibility findings as shown above, I am convinced that the
Union did fax that list to Respondent on March 1, 1999. As
shown above, the Kirks were the first two names on that list.
On February 28, General Manager Rick Johnson phoned Jim
Dunn. Dunn was present at the February 28 union meeting and
had signed the in-plant committee sheet. Johnson asked Dunn
who was responsible for starting the union movement. Dunn
responded that he did not know. Johnson told Dunn that a
memo from the home office had been sent down saying they
would close the doors and none of us would have a job.
After February 28, Assistant Night Manager Umbarger told
Joseph Bennett that word from the home office was that if the
Union got in they were going to close the doors. On March 4 or
5 Hildegard Kirk talked with Supervisors Umbarger and Daw-
son about the Union. Umbarger told Kirk that he had heard
about the Union and the word from Houston was that Respon-
dent would rather shut the door than let the Union come in.
Barbara Dawson said the union caused Wilson Food to fold.
When Jim Dunn told Area Manager Kennedy that the Union
was not the answer, Kennedy told Dunn that his name had
come up. That comment illustrated that Respondent had dis-
cussed employee support for the Union.
After the February 28 meeting, each of the Kirks and Bennett
solicited other drivers to sign union authorization cards.
The record including especially the above-mentioned evi-
dence, proved that the owner/operators were employees as de-
fined in the Act; both Hildegard and Edwin Kirk and Joseph
Bennett, engaged in union activity; Respondent learned of their
union activity; Respondent demonstrated its union animus;
Respondent’s termination of the Kirks and Bennett coincided
with its learning of their union activity; and Respondent had no
basis other than union activity, to terminate the Kirks and Ben-
nett. I find that Respondent terminated Hildegard and Edwin
Kirk and Joseph Bennett because of its union animus.
I shall also consider whether the record proved that Respon-
dent would have discharged the Kirks and Joseph Bennett in
the absence of their union activity. The General Counsel asked
William Kennedy for the reason he discharged Hildegard and
Edwin Kirk and Joseph Bennett. He responded that he termi-
nated them because he had that right under their contract with
30 The initial in-plant organizing committee included the names
Hilde Kirk, Edwin S. Kirk, Angela Loyall, Cindy Terrel, Rocky Terrel,
Joe T. Bennett, and James M. Dunn.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1532
Respondent. Subsequently Kennedy testified that he had some
problems in the past with Hildegard Kirk and Joseph Bennett
and Edwin Kirk was married to Hildegard. However, the record
does not support my finding that Respondent discharged the
Kirks or Joseph Bennett for anything other than their union
activities. None of the grounds for discharge was alleged or
proved to have occurred proximate to the discharges. For ex-
ample, as to Hildegard Kirk and Joseph Bennett, there was no
showing of any occurrence that precipitated Respondent’s deci-
sion to terminate either of them.31 As to Edwin Kirk, William
Kennedy admitted that nothing occurred regarding Kirk’s work,
which justified his termination other than the fact that Kirk was
married to Hildegard. However, the Kirks’ marriage did not
commence proximate to their discharge. There was no credible
showing of anything including disciplinary action, notes, recol-
lection or other evidence that any of the three terminated em-
ployees engaged in any activity other than union activity which
led to their termination.
I find that Respondent terminated Hildegard Kirk, Edwin
Kirk, and Joseph Bennett because of its union animus and Re-
spondent failed to prove that it would have terminated either of
the Kirks or Bennett in the absence of union activities.
As to the written warning to McHargue, the record shows
that warning was given despite that fact that employees were
permitted to solicit for matters other than the Union. McHargue
was identified by Respondent as supporting the Union when he
attended the March 13 union meeting. As shown above, Gen-
eral Manager Rick Johnson’s comments to McHargue proved
that Johnson knew that McHargue attended that meeting.
Moreover, William Kennedy’s comments to McHargue at the
time he issued the written warning, illustrated that Kennedy
thought that McHargue was engaged in union activities.
The record proved that Respondent did not discipline em-
ployees for solicitation but that it warned McHargue because it
suspected McHargue was engaged in union solicitation and
Respondent failed to prove that it would have warned McHar-
gue in the absence of union activities.
I find that Respondent terminated Hildegard Kirk, Edwin
Kirk, and Joseph Bennett and issued a written warning to Tho-
mas McHargue in violation of Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. Corporate Express Delivery Systems is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Teamsters Local 886, affiliated with International Broth-
erhood of Teamsters, AFL–CIO, CLC is a labor organization
within the meaning of Section 2(5) of the Act.

31 As shown above, Kennedy initially testified that he had some
problems with Hildegard Kirk regarding her pay and that he could not
remember the last time he had problems with her. After leading ques-
tions Kennedy testified that the last problem with Hildegard Kirk oc-
curred within a week of her termination. In view of my overall deter-
mination of Kennedy’s credibility and especially the apparent incongru-
ity of his testimony in this regard, I do not credit his testimony that he
discharged Hildegard Kirk because he had problems with her including
problems over her pay.
3. Respondent, by interrogating its employees about the Un-
ion; threatening its employees with plant closure if they select
the Union; engaging in surveillance of its employees union
activities; threatening its employees with a cut in pay, and
threatening that it would be futile for the employees to support
the Union; by discriminatorily enforcing a no-solicitation rule
against union solicitation; and by maintaining an illegal rule
discouraging its employees from discussing employee pay, has
engaged actions in violation of Section 8(a)(1) of the Act.
4. Respondent, by terminating its employees Hildegard Kirk,
Edwin Kirk, and Joseph Bennett and issuing a written warning
to its employee Thomas McHargue has engaged in conduct
violative of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
In view of my finding that Respondent illegally terminated
Hildegard Kirk, Edwin Kirk, and Joseph Bennett, in violation
of sections of the Act, I shall order Respondent to offer those
employees immediate and full employment to their former
positions or, if those positions no longer exist, to substantially
equivalent positions. I order Respondent to erase all reference
to the terminations of Hildegard Kirk, Edwin Kirk, and Joseph
Bennett and its written warning to Thomas McHargue. I further
order Respondent to make those employees whole for any loss
of earnings suffered as a result of the discrimination against
them. Backpay shall be computed as described in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as described in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended32
ORDER
The Respondent, Corporate Express Delivery Systems,
Oklahoma City, Oklahoma, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating its employees about the Union; threatening
its employees with plant closure if they select the Union; en-
gaging in surveillance of its employees union activities; threat-
ening its employees with a cut in pay if the employee support
the Union, threatening that it would be futile for the employees
to support the Union; by discriminatorily enforcing a no–
solicitation rule against union solicitation; and by maintaining
an illegal rule discouraging its employees from discussing their
pay.
32 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
CORPORATE EXPRESS DELIVERY SYSTEMS 1533
(b) Terminating its employees and issuing a written warning
to its employees because of the Union.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of 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 this Order, offer immediate and full
employment to Hildegard Kirk, Edwin Kirk, and Joseph Ben-
nett to their former positions or if those positions no longer
exist, to substantially equivalent positions without prejudice to
their seniority or any other rights or privileges previously en-
joyed, and make them and employee Thomas McHargue whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them plus interest, in the manner
set forth in the remedy section of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the written warnings and discharges of
Thomas McHargue, Hildegard Kirk, Edwin Kirk, and Joseph
Bennett and within 3 days thereafter notify those employees in
writing that this has been done and that the warnings and dis-
charges will not be used against any of them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, and timecards,
personnel records, reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Oklahoma City, Oklahoma, copies of the attached no-
tice.33 Copies of the notice, on forms provided by the Regional
Director for Region 17, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Within 21 days after service by the Region, file with the
Regional Director, Region 17, a sworn certification of a respon-
sible official on a from provided by the Region attesting to the
steps that the Respondent has taken to comply.

33 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.”