Dallas & Mavis Specialized Carrier Co.,

National Labor Relations Board - Board Decisions

Jan 23, 2006

346 N.L.R.B. 253 (N.L.R.B. 2006)

DALLAS & MAVIS SPECIALIZED CARRIER CO.
346 NLRB No. 27
253
Dallas & Mavis Specialized Carrier Co. and Interna-
tional Brotherhood of Teamsters Local No. 142.1
Cases 13–CA–39115, 13–CA–39269, and 13–CA–
39311
January 23, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On December 31, 2001, Administrative Law Judge
John H. West issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The General
Counsel filed exceptions and a supporting brief, and the
Respondent 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 the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Order
and to adopt the recommended Order as modified.3
Dallas & Mavis Specialized Carrier Co. (the Respon-
dent) maintained an operation to transport primarily
Chrysler engines and automobile parts between facilities
in Kenosha, Wisconsin, and several other locations. The
Respondent’s employees were truckdrivers for this op-
eration (Chrysler operation), as well as for a “dedicated
run” (covering the same route every day) between
Belvidere, Illinois, and Toledo, Ohio. The employees
initiated an organizing campaign when a majority of the
truckdrivers attended a union meeting on January 20,
2001.4 Twenty employees in attendance signed a petition
for representation by the International Brotherhood of
Teamsters, Local 142 (the Union) and an open letter to
the Respondent’s managers by which the employees
agreed to be on the Union’s organizing committee. On

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 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.
3 We shall modify the judge’s recommended Order to conform to our
findings and to the requirements of Indian Hills Care Center, 321
NLRB 144 (1996), as revised in Excel Container, Inc., 325 NLRB 17
(1997). We shall also substitute a new notice in accordance with the
Order as modified and with our decision in Ishikawa Gasket America,
Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
4 All dates are in 2001, unless otherwise stated.
January 24, Union Business Representative Larry Regan
told the Respondent’s president of operations, Michael
Berman, that a majority of the employees had memorial-
ized support for the Union. Regan asked that the Re-
spondent voluntarily recognize the Union as the drivers’
bargaining representative. The Union sent the organizing
letter to the Respondent by facsimile and certified mail
on January 30, and it presented the petition to the Re-
spondent on February 15. The Respondent voluntarily
recognized the Union on February 15,5 and the parties
subsequently held two bargaining sessions. The Respon-
dent closed the Chrysler operation on March 31 after it
lost the Chrysler contract, terminating all unit employees
on or before this date. However, it continued to operate
the “dedicated run” until May, using owner-operators in
place of the terminated drivers. The judge found that the
Respondent committed several unfair labor practices,
discussed below, during the weeks following the January
20 union meeting.
I. THE 8(A)(1) ALLEGATIONS
A. Greene’s Statements
Chester Stallings was one of two drivers who arranged
the initial organizing meeting at the Union’s hall in Gary,
Indiana, on January 20. It is undisputed that the Respon-
dent’s general operations manager, Derrell Greene,
learned about this meeting from the Respondent’s dis-
patchers. On January 22, 2 days after the meeting,
Stallings called dispatcher Kathy Koehler to obtain his
next driving assignment. Koehler said Greene wanted to
speak to Stallings. Greene asked Stallings, “What’s go-
ing on?” When Stallings asked Greene what he meant,
Greene said, “I heard that you [sic] all going union and
that if you go union that they [the Respondent] would
have to ask Chrysler for some more money and Chrysler
wouldn’t give it to them” because “Chrysler already
wanted them to go 18% lower on the contract” and “they
would have to close the doors.”
We adopt the judge’s finding that Greene’s statements
violated Section 8(a)(1) by threatening plant closure and
by conveying the impression of surveillance of union
activities. As to the threat, we agree with the judge that
Greene did not make a prediction of plant closure based
on objective facts or refer to demonstrably probable con-
sequences beyond the Respondent’s control. NLRB v.
Gissel Packing Co., 395 U.S. 575, 618 (1969).

5 We disavow the judge’s statement that the Respondent’s general
operations manager, Derrell Greene, unwittingly recognized the Union
by reviewing the Union’s petition and signed authorization cards on
February 15. The Respondent did more than simply review the Union’s
petition and cards. It explicitly recognized the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD254
As to the impression of surveillance allegation, the test
applied by the Board is whether, under all the relevant
circumstances, reasonable employees would assume
from the statement in question that their union or other
protected activities had been placed under surveillance.
Flexsteel Industries, 311 NLRB 257 (1993). In this in-
stance, without explanation or apparent legitimate pur-
pose, Greene intervened in a routine dispatch conversa-
tion to inform Stallings, one of two principal employee
organizers, that he was aware of the union effort.
Stallings had not previously informed Greene that he
supported the Union, that an organizing campaign had
begun, or that employees had attended a union meeting 2
days earlier. He had not discussed the topic with Greene
at all. Further, at this point, employee organizational
activity was not open and well known. Indeed, the only
group meeting was held at the Teamsters’ union hall in
Gary, Indiana, many miles from the Respondent’s facil-
ity. Under these circumstances, we find that Stallings
reasonably would have concluded from Greene’s state-
ment that Greene had become aware of Stallings’ union
involvement, and that he was letting Stallings know that
the Respondent was monitoring this activity.6 We there-
fore agree with the judge that Greene’s statements cre-
ated an unlawful impression of surveillance.7
B. Gray’s Statements
We also adopt the judge’s finding that head dispatcher
Denise Gray’s statements to employee Alfred Hester
violated Section 8(a)(1).8 At the end of January, some-
time after the January 20 union meeting, Gray asked
Hester during a work-related telephone conversation

6 An impression of surveillance violation does not require a finding
that the employer obtained knowledge of the employees’ activities by
unlawful means. Frontier Telephone of Rochester, 344 NLRB at 1276
fn. 19 (citing United Charter Service, 306 NLRB 150, 151 (1992)).
7 Member Schaumber would dismiss the unlawful impression of sur-
veillance allegation because he finds that the statement “I heard that
you [sic] all going union” does not refer to the meeting or to any spe-
cific protected activity other than the general implication that Greene
had heard about the union campaign. Nor did Greene convey or imply
any surreptitious manner by which he obtained this information. Mem-
ber Schaumber agrees with his colleagues that obtaining knowledge of
union activity by unlawful means is not a prerequisite to finding a
violation. Nonetheless, he believes that the openness with which
Greene conveyed his knowledge of the organizing campaign, without
indicating any covert or surreptitious monitoring of employee activity,
is a relevant circumstance in determining what a reasonable employee
would infer from Greene’s statements.
8 In their briefs, both parties addressed the issue of whether Gray’s
statements created an unlawful impression of surveillance. However,
the complaint does not allege that the Respondent created the impres-
sion of surveillance through Gray’s statements, nor did the judge spe-
cifically find such a violation. Accordingly, we address only the issue
of whether Gray unlawfully threatened that the Respondent would close
its facility.
whether the employees were forming a union. Gray then
continued, “[t]he company is not going to let this happen
if you guys do this, I mean, they’re not going to let us tell
them how to run this company or what to do.” Gray fur-
ther stated that if the Union came in, “[t]hey might just
close the company down.” We agree with the judge’s
findings that Gray is the Respondent’s agent9 and that her
statements constituted an unlawful threat of plant clo-
sure.
II. THE 8(A)(3) ALLEGATIONS10
A. Change in Paycheck Distribution Policy
Before the Union’s campaign, employees picked up
their weekly paychecks on Wednesdays at the Respon-
dent’s office in Kenosha, Wisconsin. Greene testified
that if the receptionist was not in the employees called
the dispatcher and asked for their checks to be brought
downstairs to them. Either a dispatcher or the payroll
clerk would then deliver the check. Although company
policy generally precludes employees from walking to
the upstairs office area where the dispatchers worked,
one driver testified he was allowed to do so to pick up his
check. Other drivers testified that dispatchers would
sometimes even drop checks to them from an upstairs
window.
On January 24, after the Respondent laid off its recep-
tionist, Gray informed employees that they could no
longer pick up their paychecks, which would instead be
mailed to their homes. If an employee needed the check
by Thursday, he or she could pay $7.50 per check to
have it sent by overnight Federal Express. Gray’s mes-
sage did not state any reason for the change in policy.
Several days later, in response to numerous employee
complaints, the Respondent reverted to its prior policy,
allowing employees to pick up their paychecks at the
Kenosha office.

9 We do not rely on the judge’s finding that the similarity between
the plant closure threats by Gray and Greene gave drivers another rea-
son to believe that Gray spoke as management’s agent. Absent evi-
dence that Greene’s statements to Stallings were disseminated to any-
one else, there is no basis for finding drivers could make this compari-
son.
Member Schaumber finds it unnecessary to pass on this 8(a)(1) alle-
gation because it is cumulative and does not affect the remedy.
10 As discussed infra at fn. 15, we find it unnecessary to pass on
whether the Respondent’s transfer of unit work violated Sec. 8(a)(3).
DALLAS & MAVIS SPECIALIZED CARRIER CO. 255
Applying Wright Line,11 the judge found that the Re-
spondent violated Section 8(a)(3) by changing its pay-
check distribution policy. The timing and abrupt nature
of the decision, on the first payday after the Respondent
had heard about its employees’ union activities and had
responded with threats to close its doors, demonstrated
the Respondent’s antiunion animus. The judge also
found that the Respondent did not meet its rebuttal bur-
den under Wright Line. Emphasizing that the Respon-
dent’s purported reason for the policy change—the layoff
of the receptionist—was not conveyed to employees at
the time of the change, the judge essentially found that
this purported reason was a mere pretext for its actual
unlawful motivation. We agree.12 We do not doubt that
the loss of a receptionist could be a legitimate reason for
changing the method of paycheck distribution. However,
in light of alternative paycheck distribution methods used
by the Respondent before this change, we find that the
Respondent has failed to show that those methods were
no longer feasible. The Respondent chose a wholly new
method of distribution, which method was time-
consuming and costly. Given the timing, we believe that
the Respondent has not shown that it would have chosen
this method absent union activity. For these reasons, we
agree with the judge that the Respondent violated Section
8(a)(3) by changing its paycheck distribution policy.13

11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel
meets his or her initial evidentiary burden by establishing that: (1) the
employee engaged in protected activity; (2) the employer knew of that
activity; and (3) the employer demonstrated animus toward that activ-
ity. If the General Counsel makes such a showing, the burden of per-
suasion shifts to the employer “to demonstrate that that same action
would have taken place even in the absence of the protected conduct.”
See Webasto Sunroofs, 342 NLRB 1222, 1224–1225 (2004). Member
Schaumber would find that the General Counsel must also show a
causal nexus between the Sec. 7 animus and the adverse employment
action. See Shearer’s Foods, Inc., 340 NLRB 1093, 1094 fn. 4 (2003),
for further explanation.
12 We note as well that the burden of distributing checks did not nec-
essarily fall entirely on dispatchers in the absence of a receptionist.
Greene testified that the payroll clerk sometimes performed this func-
tion, and there is no evidence that she did not remain employed and
available to do so throughout the relevant period.
13 Member Schaumber finds that the Respondent did not violate Sec.
8(a)(3) by changing its paycheck policy. The Respondent changed its
policy in response to the loss of its receptionist who normally distrib-
uted paychecks. Upon learning of the hardship caused to employees,
the Respondent promptly reinstated its prior policy. He finds that, even
assuming arguendo that the General Counsel satisfied its initial Wright
Line burden, the Respondent met its rebuttal burden. The increased
burden on dispatchers to distribute all paychecks from an area in which
employee access is prohibited is a legitimate business reason for decid-
ing to mail paychecks instead, notwithstanding the fact that dispatchers
occasionally distributed paychecks when the receptionist was unavail-
able. The fact that the Respondent was willing to shoulder this addi-
B. Discharges of Bigheart, McCall, and Rice
On January 26, the Respondent terminated Madonna
Bigheart, Leslie McCall, and Dennis Rice for refusing to
take a “broker load” (i.e., any load other than a Chrysler
load) to New York. Union activist Stallings also refused
a broker load on that day but was not disciplined. The
judge concluded that the discharges violated Section
8(a)(3). He found that the General Counsel satisfied his
burden under Wright Line, supra, of proving that the Re-
spondent knew of the alleged discriminatees’ involve-
ment in protected activity, harbored union animus, and
took adverse action against those employees based on
this animus. Contrary to the judge, we find that the Gen-
eral Counsel failed to meet his initial burden of proving
the Respondent’s knowledge of the discharged drivers’
union activities.
All three employees attended the January 20 union
meeting, signed the representation petition and organiz-
ing committee letter, and wore “Vote Teamsters” buttons
on the job. Rice also solicited two employees to sign
authorization cards (the employees did not sign because
they had already signed cards). However, the Respon-
dent had not received the petition or organizing commit-
tee letter by January 26. McCall and Rice each testified
that no supervisor or manager ever saw him wearing his
union button or spoke to him about the campaign. Addi-
tionally, there is no evidence that any supervisor or man-
ager saw Bigheart wearing her union button. Although
dispatcher Dan Lexer spoke to Bigheart about the Union,
he was not alleged to be a supervisor or agent of the Re-
spondent. Furthermore, the nature of the Respondent’s
business does not require employees to visit the Kenosha
office except when picking up their paychecks. Employ-
ees receive their assignments by telephone or by com-
puter messages from the dispatchers, and they perform
their duties on the road and at facilities located some
distance away from the Kenosha office. There was little
opportunity for the Respondent’s management to observe
any driver wearing a union button, and all other union
activity took place away from the Respondent’s prem-
ises.
Notwithstanding the above, the judge inferred the Re-
spondent’s knowledge of the three drivers’ union activity
from its general knowledge of the January 20 union
meeting, the Union’s recognition demand and claim that
a majority of employees supported the Union, the timing
of the discharge 2 days after the Union’s recognition
demand, and what the judge found to be pretextual rea-
sons asserted for the discharge. We find that these fac-

tional burden when its employees complained does not detract from the
legitimacy of its asserted reason for the paycheck distribution change.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD256
tors are an insufficient basis for inferring that the Re-
spondent knew or suspected that Bigheart, McCall, and
Rice were union supporters when it discharged them on
January 26. As of this date, the Respondent certainly had
reason to believe that many of its employees were en-
gaged in union activity but, apart from Stallings, there is
no evidence showing why it would know or suspect the
involvement of any particular employee. Further, while
the discharges took place soon after the Union’s recogni-
tion demand, they took place immediately after the driv-
ers’ undisputed refusals to accept broker load assign-
ments. Even if the Respondent’s determination to dis-
charge them for their refusals was unfair or arbitrary,
there can be no inference that it acted based on knowl-
edge of union activity in light of the fact that it failed to
discipline known union activist Stallings for the same
conduct on the same day.14
Our dissenting colleague builds inference upon infer-
ence in a vain attempt to show knowledge of the three
employees’ union activity on January 20. She infers that
it is “likely” that informants attended the meeting. She
further infers that the Respondent “likely” learned from
these informants that the three had signed the prounion
petition and letter. In our view, these inferences are not
an adequate substitute for evidence. Consequently, we
find that the General Counsel did not meet his initial
Wright Line burden of proving that the Respondent had
knowledge of the alleged discriminatees’ protected ac-
tivities.15 We reverse the judge and dismiss the allega-
tions of unlawful discharge.

14 We reject as pure speculation the judge’s surmise that the Respon-
dent “appreciated it would be more subtle” to act against “less vocal
Union supporters.” As stated above, there is insufficient evidence that
the Respondent knew Bigheart, McCall, and Rice were union support-
ers at all.
15 Member Liebman would adopt the judge’s findings that the Re-
spondent knew of these employees’ union activities and discharged
them unlawfully. She relies on Kajima Engineering & Construction,
331 NLRB 1604 (2000), which holds that an employer’s knowledge of
an employee’s union activity can be inferred from the employer’s
knowledge of general union activity, its antiunion animus, the timing of
the discharge, and the employer’s pretextual reasons for the discharge.
Each of these criteria for inferring the Respondent’s knowledge exists
here. The Respondent was admittedly aware of general union activity,
and it demonstrated antiunion animus by conduct that included viola-
tions of Sec. 8(a)(1), (3), and (5). Moreover, the timing is highly suspi-
cious: as the majority acknowledges, the Respondent fired McCall,
Rice, and Bigheart less than a week after the initial union meeting and
only 2 days after the Respondent learned that most employees sup-
ported the Union and unlawfully changed its paycheck distribution
policy. Finally, the judge appropriately found that the Respondent’s
asserted reason for these discharges was pretextual: the new policy
making broker loads mandatory, which the terminated employees had
purportedly violated, had not been disseminated to drivers and appar-
ently did not apply to all drivers.
C. Discharge of Brooks
The Respondent terminated John Brooks on January
30 after Ryder, from whom the Respondent leased its
trucks, informed the Respondent that Brooks was outside
of their insurance guidelines due to his poor driving re-
cord. In December 2000, the Respondent received a re-
port from Ryder’s insurance company, listing several
moving violations that Brooks had committed and direct-
ing the Respondent to take appropriate action. The Re-
spondent had previously placed Brooks on probation
after it received a similar report from Ryder’s insurance
company.
Brooks did not testify because he was unavailable, and
the judge rejected his Board affidavit as a proposed ex-
hibit. Employee Chester Stallings testified that he wit-
nessed Brooks signing an authorization card on January
21, and he saw Brooks wearing the union button he gave
him. However, there is no evidence that any supervisor
or manager had ever seen Brooks wearing his union but-
ton, signing an authorization card, or otherwise engaging
in protected activity. Likewise, there is no evidence that
any supervisor or manager ever spoke to Brooks about
the Union. Brooks did not attend the union meeting on
January 20 or sign the petition or letter presented to em-
ployees at that meeting. The authorization card that he

In Member Liebman’s view, additional evidence supports the infer-
ence that the Respondent knew of McCall, Rice, and Bigheart’s union
activity. Significantly, all four employees wore union buttons after
they attended the January 20 union meeting. At that meeting, these
employees signed a petition authorizing the Union to represent them
and a letter identifying themselves as members of the union committee.
The Respondent acknowledged that it utilized informants to obtain
information about the Union’s campaign; some of these informants
likely attended the January 20 meeting, which the Respondent learned
about before it occurred. Thus, the Respondent likely knew who had
signed the prounion petition and letter long before the Union sent it
copies of the documents. Dispatcher Lexer approached Bigheart on
January 24, 2 days before her termination—at a time when Bigheart
would have had a union button pinned to her purse—and stated that he
had heard that the drivers were going into the Union. Bigheart re-
sponded that they were trying. Although the majority correctly points
out that Lexer was not alleged or found to be a supervisor, his role as a
dispatcher would support a finding that he was an agent of the Respon-
dent, just as dispatcher Gray was. Moreover, the dispatchers (specifi-
cally, Gray and Koehler) had initially informed the Respondent of the
January 20 union meeting, suggesting that they were among its infor-
mants. Finally, McCall testified without contradiction that he was
wearing his union button when he went to pick up his paycheck from
the Respondent’s receptionist on January 24, and the judge found that
the receptionist saw both McCall and Bigheart wearing their buttons on
that day. This was the same day that Lexer spoke with Bigheart, and
was 2 days before their terminations. The foregoing evidence, in the
aggregate, provides sufficient basis for a conclusion that the Respon-
dent knew of Bigheart, McCall, and Rice’s union activity when it ter-
minated their employment.
DALLAS & MAVIS SPECIALIZED CARRIER CO. 257
signed was not presented to the Respondent until Febru-
ary 15.
The judge based his finding that the Respondent vio-
lated Section 8(a)(3) by discharging Brooks on the same
circumstantial evidence discussed above regarding the
discharges of Bigheart, McCall, and Rice. However, for
the reasons discussed above, we find that the General
Counsel failed to establish that the Respondent had
knowledge of Brooks’ union activity by January 30, the
date it discharged him.16 In sum, in the absence of any
evidence whatsoever that any supervisor or manager was
aware of the limited protected activity in which Brooks
participated, we reverse the judge and dismiss the 8(a)(3)
allegation pertaining to Brooks.17
III. THE 8(A)(5) ALLEGATIONS
A. Effects of Closing Chrysler Operation
On March 30, at the parties’ second bargaining ses-
sion, Regan and Berman discussed the effects of the Re-
spondent’s decision to close the Chrysler operation.
Regan requested that the Respondent maintain some em-
ployees, selected on the basis of seniority, in its other
divisions or for broker loads, and that it grant other em-
ployees a severance package consisting of vacation pay
and 2 months’ severance pay and health insurance. Ber-
man agreed to get back to Regan. On April 2, Berman
sent Regan a seniority list he had requested. Regan testi-
fied that at that time, he was under the impression that
the parties would go back to the bargaining table to nego-
tiate the items he had requested at the March 30 meeting,
after identifying the most senior employees.
On April 3, Berman sent a letter to Regan, in which he
summarily rejected all of the Union’s proposals regard-
ing the effects of the closure, except for vacation pay.
The letter contained no explanations for rejecting
Regan’s proposals, nor did it contain any counterpropos-
als or indications that the Respondent was willing to en-

16 There is even less warrant, if any, for inferring the Respondent’s
specific knowledge of Brooks’ union activity from its general knowl-
edge of employees’ union activity than in the case of the prior dis-
charges of Bigheart, McCall, and Rice. On January 30, the date of
Brooks’ discharge, the Respondent received from the Union the orga-
nizing committee letter signed by 20 drivers. Brooks was not one of
them.
17 Member Liebman assumes that the General Counsel met his initial
burden, under Wright Line, supra, to demonstrate that the Respondent’s
termination of Brooks was motivated by antiunion animus, but she
finds that the Respondent has demonstrated that it would have dis-
charged Brooks even absent his union activity. She finds that the Re-
spondent’s receipt in December 2000 of the insurance company’s audit
of Brooks’ driving record and its request that the Respondent take
action in accordance with that audit supports the Respondent’s decision
to terminate Brooks’ employment in January.
gage in further bargaining.18 On April 10, Regan sent a
letter to Berman requesting further bargaining about
these outstanding issues, stating the Union’s belief that
the Respondent did not adequately address issues raised
during bargaining, as well as its belief that the Respon-
dent’s asserted inability to find work for drivers was
false and inaccurate.19 Berman did not respond to
Regan’s April 10 letter, nor did Berman return Regan’s
subsequent telephone calls. Berman acknowledged that
he never indicated to the Union that he thought the par-
ties were at impasse.
The judge found that the Respondent violated Section
8(a)(5) by failing to bargain about the effects of its deci-
sion to close the Chrysler operation, as it was obligated
to do pursuant to First National Maintenance Corp., 452
U.S. 666 (1981).20 We agree with the judge that the Re-
spondent failed to fulfill this bargaining obligation. In
doing so, we find that the Union’s April 10 letter, its ac-
tions at the bargaining table, and its repeated attempts to
reach Berman after its letter went unanswered clearly
evinced a request for further bargaining after the Re-
spondent’s April 3 letter. Even though the Respondent
began bargaining on April 3 by listening to the Union’s
proposals regarding effects of the closure and providing a
response, the Respondent failed to engage in further re-
quested bargaining thereafter. There was no impasse or
other valid reason to stop bargaining.21 Therefore, we
find that the Respondent violated Section 8(a)(5) by its

18 The portion of the letter responding to the Union’s proposals
stated:
• DUE TO THE LOSS OF EQUIPMENT AND
INABILITY TO SECURE VOLUME TRUCKLOAD
TRAFFIC, DMSCC DOES NOT INTEND TO
CONTINUE IN THIS BUSINESS ENVIRONMENT.
• DRIVERS TERMINATED ON 3/31/01 WILL
RECEIVE NO SEVERANCE OR COMPANY PAID
INSURANCE AS REQUESTED. INSURANCE
INFORMATION (COBRA) WILL BE FOR-
WARDED TO EACH OF THE DRIVERS.
• DRIVERS WILL RECEIVE ACCRUED HOLIDAY
PAY AS DISCUSSED.
19 The letter stated, inter alia:
The Union’s Committee believes that you did not adequately address
issues that were brought up during negotiations. . . . Our research and
experience has proven that this statement [about “loss of equipment
and inability to secure volume truckload traffic,” see fn. 20] is false
and inaccurate. Your company has at least fifty (50) terminals and
agents national [sic] wide, including Canada. Your agents found
plenty of work for these drivers in the past.
20 The General Counsel does not contend that the Respondent had a
duty to bargain about its decision to close the Chrysler operation.
21 We therefore need not rely on the judge’s finding that the Respon-
dent failed to provide the Union with adequate preimplementation
notice of its decision to close.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD258
failure to bargain with the Union over the effects of its
decision to close the Chrysler operation.
B. Decision to Transfer Belvidere-Toledo Run to
Owner-Operators and Effects of Decision
As stated above, the Respondent terminated all unit
employees, including drivers who covered the Belvidere-
Toledo run, by March 31. The following week, the Re-
spondent transferred the Belvidere-Toledo run to owner-
operators: independent contractor, nonunion drivers who
owned their own Ryder trucks. The Respondent contin-
ued to operate the Belvidere-Toledo run using owner-
operators until May 5, when it permanently shut down
this portion of its operation. Berman admitted that he did
not provide notice to the Union or an opportunity to bar-
gain about this transfer of work or its effects, although
negotiations with the Union were still ongoing when he
made the work-transfer decision at the end of March.
Former unit employees discovered the transfer of the
Belvidere-Toledo run when they saw the Respondent’s
truck trailers on the road and talked to owner-operators
on the CB radio. Employees informed Regan of this
discovery on April 14 or 15; prior to that time, the Union
had understood that the entire Chrysler operation had
been shut down on March 31, including the Belvidere-
Toledo run. After hearing from the former employees
that the Belvidere-Toledo run was being done by owner-
operators, Regan left telephone messages with Berman’s
secretary asking Berman to call him to talk about this
issue. Berman admits that he never returned Regan’s
calls, although he had Regan’s telephone number and
knew how to reach him. Regan did not thereafter request
bargaining in writing; he testified that he relied on his
April 10 letter and subsequent telephone messages to
Berman to convey his request for bargaining about the
transfer of the Belvidere-Toledo run. Regan subse-
quently filed unfair labor practice charges with the Board
regarding this work transfer.
We agree with the judge that the Respondent’s transfer
of unit work violated Section 8(a)(5).22 The decision is a
mandatory subject of bargaining pursuant to Fibreboard
Paper Products v. NLRB, 379 U.S. 203 (1964), and Tor-
rington Industries, 307 NLRB 809 (1992). We reject the
Respondent’s argument that the decision to replace em-
ployee drivers with owner-operators was a change in the
scope, nature, and direction of its enterprise pursuant to
First National Maintenance Corp. v. NLRB, supra. The
Respondent’s transfer of the Belvidere-Toledo run to the
owner-operators involved “nothing more than the substi-

22 In light of this conclusion, we find it unnecessary to pass on the
judge’s finding that the Respondent’s transfer of unit work also violated
Sec. 8(a)(3), because such a finding would have no material effect on
the remedy.
tution of one group of workers for another to perform the
same work.” Gaetano & Associates, 344 NLRB 531,
533 (2005) (citing Fibreboard and Torrington, supra).
See also Naperville Ready Mix, Inc., 329 NLRB 174, 181
(1999), enfd. 242 F. 3d 744 (7th Cir. 2001), cert. denied
534 U.S. 1040 (2001) (employer’s continued delivery of
its product to construction sites through an elaborate sub-
contracting arrangement with “owner-drivers,” where the
only difference was that the work was formerly per-
formed by bargaining unit drivers, was a mandatory sub-
ject of bargaining). The Respondent failed to give the
Union notice and an opportunity to bargain about this
decision or its effects.
Finally, we reject the Respondent’s argument that the
Union waived its right to bargain by failing to request
bargaining in writing. The Union’s April 10 letter re-
questing further bargaining over outstanding issues en-
compasses a request to bargain about the transfer of
work, notwithstanding that the Union was led to believe
that the Belvidere-Toledo run was part of the closure and
only later discovered that the Respondent was continuing
this part of the operation. In any event, Regan requested
bargaining once he discovered the transfer by contacting
Berman through his secretary, despite Berman’s attempt
to avoid the request. See Essex Wire Corp., 130 NLRB
450, 457 (1961), and cases cited therein (request to bar-
gain need not be in writing). For these reasons, the Re-
spondent’s actions violated Section 8(a)(5).
AMENDED REMEDY
The General Counsel excepts to the judge’s failure to
specifically order a conditional backpay remedy pursuant
to Transmarine Navigation Corp., 170 NLRB 389
(1968), for unit employees who were terminated on or
about March 31, when the Respondent closed its Chrys-
ler operation. The General Counsel also requests an ad-
ditional backpay remedy for unit employees affected by
the Respondent’s transfer of the Belvidere-Toledo run to
owner-operators, from the date of their termination on
March 31 to May 5, when the Respondent finally shut
down the Belvidere-Toledo run. We grant these re-
quested remedies.
As a result of the Respondent’s unlawful refusal to
bargain about the effects of its decision to close, the ter-
minated unit employees have been denied an opportunity
to bargain through their collective-bargaining representa-
tive. Meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Union. A bargaining order alone, therefore, cannot serve
as an adequate remedy for the unfair labor practices
committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
DALLAS & MAVIS SPECIALIZED CARRIER CO. 259
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violations and to re-create in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Respon-
dent to pay backpay to the terminated employees in a
manner similar to that required in Transmarine Naviga-
tion Corp., supra, as clarified by Melody Toyota, 325
NLRB 846 (1998).
Thus, the Respondent shall pay its terminated employ-
ees backpay at the rate of their normal wages when last
in the Respondent’s employ from 5 days after the date of
this Decision and Order until occurrence of the earliest of
the following conditions: (1) the date the Respondent
bargains to agreement with the Union on those subjects
pertaining to the effects of the closure of the Chrysler
operation on its employees; (2) a bona fide impasse in
bargaining; (3) the Union’s failure to request bargaining
within 5 business days after receipt of this Decision and
Order, or to commence negotiations within 5 business
days after receipt of the Respondent’s notice of its desire
to bargain with the Union; or (4) the Union’s subsequent
failure to bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which they were terminated to the time they
secured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner. However, in no
event shall this sum be less than the employees would
have earned for a 2-week period at the rate of their nor-
mal wages when last in the Respondent’s employ.
In addition, those unit employees affected by the Re-
spondent’s transfer of the Belvidere-Toledo run to
owner-operators, shall receive backpay from the date of
their termination on March 31 to May 5, 2001, when the
Respondent finally shut down the Belvidere-Toledo run.
Backpay shall be based on earnings which the termi-
nated employees would normally have received during
the applicable period, less any net interim earnings, and
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Dallas &
Mavis Specialized Carrier Co., Kenosha, Wisconsin, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b), delete
paragraph 2(c), and reletter the following paragraphs
accordingly.
“(b) Pay backpay to the unit employees terminated in
March 2001 as a result of the Respondent’s closure of its
Chrysler operation in the manner set forth in the
amended remedy section of this decision.”
2. Substitute and reletter the following for paragraph
2(e).
“(d) Within 14 days of service by the Region, mail a
copy of the attached notice marked “Appendix”19 to the
Union and to all the employees who were employed out
of its place of business in Kenosha, Wisconsin, at any
time since January 22, 2001. The notice shall be mailed
to the last known address of each of the employees after
being signed by the Respondent’s authorized representa-
tive.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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 threaten you with closure of our opera-
tion if you select the International Brotherhood of Team-
sters, Local No. 142, or any other union, as your collec-
tive-bargaining representative.
WE WILL NOT create the impression that your union ac-
tivities are under surveillance.
WE WILL NOT unlawfully modify our paycheck distri-
bution policy.
WE WILL NOT unlawfully discharge employees.
WE WILL NOT unlawfully transfer unit work to owner-
operators.
WE WILL NOT unlawfully fail and refuse to bargain col-
lectively with the International Brotherhood of Team-
sters, Local No. 142 about the effects of our decision to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD260
close our Chrysler operation and about our decision to
transfer unit work to our owner-operator drivers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union concern-
ing the effects of our decision to close the Chrysler op-
eration, and concerning the decision to transfer unit work
to our owner-operator drivers.
WE WILL make whole, with interest, unit employees
for losses of pay and benefits suffered as a result of our
decision to transfer their work to our owner-operator
drivers and WE WILL pay limited backpay to all unit em-
ployees terminated in March 2001 as a result of our clo-
sure of the Chrysler operation.
DALLAS & MAVIS SPECIALIZED CARRIER CO.
Edward Castillo, Esq., for the General Counsel.
C. John Holmquist Jr., Esq. and Rachele L. Lyngklip, Esq.
(Dickenson Wright PLLC), of Bloomfield Hills, Michi-
gan, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. International
Brotherhood of Teamsters, Local No. 142, AFL–CIO (the Un-
ion) filed charges against Dallas & Mavis Specialized Carrier
Co. (Respondent). A consolidated complaint and notice of
hearing was issued on May 31, 2001.1 It alleges that Respon-
dent violated Section 8(a)(1) of the National Labor Relations
Act (the Act) by, on more than one occasion, threatening em-
ployees with closure of its operations if employees selected the
Union as their collective-bargaining representative, and by
creating the impression that employees’ union activities were
under surveillance; that the Respondent violated Section 8(a)(1)
and (3) of the Act by modifying its paycheck distribution pol-
icy, by discharging Madonna Bigheart, Leslie McCall, Dennis
Rice, and John Brooks, and by transferring unit work to owner-
operator drivers because of employees union and concerted
protected activity and in order to discourage employees from
engaging in such activities; and that Respondent violated Sec-
tion 8(a)(1) and (5) if the Act by failing and refusing to bargain
collectively with the Union about the effects of its decision to
close its Chrysler operation and its decision to transfer unit
work to its owner-operator drivers. The Respondent denies
these allegations.
A hearing was held on October 2, 3, and 4 in Chicago, Illi-
nois. Upon the entire record in this proceeding, including my
observation of the demeanor of the witnesses and consideration
of the briefs filed by General Counsel and the Respondent, I
make the following

1 All dates are in 2001, unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with a place of business in
Kenosha, Wisconsin, has been engaged in the interstate trans-
portation of freight. The complaint alleges, the Respondent
admits, and I find that at all times material herein, Respondent
has been an employee engaged in commerce within the mean-
ing of Section 2 (2), (6), and (7) of the Act, and the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Part of the Respondent’s operation involved what is referred
to as the Daimler/Chrysler Kenosha Engine Shuttle, which the
Respondent commenced in the beginning of 1999. The opera-
tion involved transporting Jeep Cherokee engines from the
Chrysler plant in Kenosha to plants in Detroit, Michigan, and
Toledo, Ohio. The Respondent was also used by Chrysler to
transport return loads of racks for engines or parts back to the
Kenosha area. Additionally, the Respondent assigned six driv-
ers to a Belvidere, Illinois to Toledo, Ohio dedicated run for
Chrysler. The involved employees of the Respondent utilized
equipment which was leased from Ryder Leasing, which also
maintained the equipment. Derrell Greene, the Respondent’s
general manager of operations, was the only manager in the
Kenosha office for the Chrysler operation, and he was in charge
of this operation. Greene worked from 7 a.m. to 7 p.m. Mon-
day through Friday. He utilized three dispatchers, one for each
of the three shifts. Dispatcher Denise Gray worked from 6 a.m.
to 3 p.m.; dispatcher Cathy Koehler worked from 2 to 11 p.m.;
and dispatcher Dan Lexer worked from 10 p.m. to 7 a.m. The
involved drivers were paid by the mile on a weekly basis.
There were 40 drivers involved in this operation when it ceased
in March 2001.
According to the testimony of Greene, in July or the summer
of 2000 Chrysler extended its normal 2-week shut down (vaca-
tion) to 3 or 4 weeks at many of its plants because of industry
conditions. Greene testified that some of the drivers in the
Chrysler operation requested the Respondent to get other
freight during this period;2 that in November 2000 Chrysler
started shutting down plants and it advised the Respondent the
week before the shutdown; that the Respondent handled broker
loads during this period; and that he and Michael Berman, who
is the president of the Respondent and is present at Respon-
dent’s Kenosha facility about 10 to 15 percent of his workweek,
told dispatchers in July 2000 to tell the drivers that if they did
not want to handle a broker load they should turn in their
trucks, this policy was renewed “vigorously” (Tr. 422) in No-
vember 2000, and the dispatchers were reminded almost on a
daily basis of the renewal of the policy. On cross-examination,
Greene testified that he did not provide written notice to the
drivers in July or November 2000 or at any other time that they

2 Chester Stallings, Madonna Bigheart, Leslie McCall, Greg Strigins,
and John Brooks were specifically named by Greene who then indi-
cated “just about every driver.” (Tr. 412.)
DALLAS & MAVIS SPECIALIZED CARRIER CO. 261
could be terminated for refusing broker loads; that he did not
know that the drivers who handled Chrysler loads were told
when they were hired that they would only be handling Chrys-
ler loads; that several drivers told him that they had only hired
for Chrysler loads; and that most of the involved drivers told
him this.
Greene testified that he drafted a letter dated January 15, Re-
spondent’s Exhibit 1. The letter reads, as here pertinent, as
follows:
As you are well aware, the automotive industry has
taken a downturn in business and this has caused a major
ripple effect in the economy. Just in the past couple of
weeks two of our key competitors have filed bankruptcy
due to the downtrend in the automotive industry. Over the
past two months DC [Daimler Chrysler] has shut down
some of their plants to offset some of its losses. Shutting
down these plants has of course required Dallas & Mavis
to find additional van loads until the plants are up and run-
ning again. Many of you have expressed to me that you
only signed on to move DC freight. In turn I have ex-
plained to several of you the necessity to move other
freight in order to pay our bills and more importantly—
pay your wages (one of our more significant bills is our
monthly truck payment). Switching from dedicated lanes
to outside freight is not an easy task. For those of you
who have supported this effort—I say again thank you.
Greene testified that this letter was placed in the paychecks
of all the drivers; that he gave the letter to the payroll clerk,
Kari Moss, to send out; but that he did not observe Moss send-
ing it out. Counsel for the General Counsel objected to the
receipt into evidence of this letter correctly pointing out that the
drivers who testified at the trial herein testified that they had
never received this letter. Also counsel for the General Counsel
argued that there is no evidence that the letter was in fact dis-
tributed to the drivers, and no driver testified that he received
this letter or spoke to Greene specifically about the letter. I
ruled as follows:
I’m going to receive Respondent’s [Exhibit] 1 to the
extent [of] this witness’ testimony that he drafted it an
then he turned [it] over to a payroll clerk, Kari Moss, for
distribution, [and] that he has no personal knowledge as to
whether it was in fact distributed to all the drivers.
Notwithstanding this limitation on the receipt of this docu-
ment, the Respondent did not subsequently call Kari Moss as a
witness to testify that she had in fact been given this document
to distribute to the involved drivers and that she did in fact
distribute this document to the drivers who testified at the trial
that this letter was not distributed to them. On cross-
examination, Greene testified that nowhere in Respondent’s
Exhibit 1 did he inform drivers that they could be terminated
for refusing broker loads.
The Respondent’s truckdriver, Leslie McCall, testified that
he had a discussion with another of the Respondent’s drivers
about the fact that the Respondent had done away with the $12-
an-hour detention pay drivers received from the Respondent for
every hour after the first hour they had to wait for a pickup.
The other driver invited McCall to a union meeting to be held
on January 20.
On January 20, a meeting was held at the union local hall in
Gary, Indiana. The meeting was arranged by Larry Regan, a
business agent organizer of the Union, at the behest of the Re-
spondent’s drivers Stallings and Larry Whitehead. Approxi-
mately 20 of the Respondent’s drivers were in attendance.
They signed a petition, General Counsel’s Exhibit 12, which
reads as follows: “We the undersigned hereby declare that in
order to achieve fairness on the job, we authorize the Teamsters
Union Local No. 142 to represent us for the purpose of Collec-
tive Bargaining.” They also signed General Counsel’s Exhibit
13, which is “An Open Letter To The Management” of the
Respondent indicating that “[a]s members of the Union Com-
mittee, we know our rights to organize” and “[w]e expect the
Company to respect those rights.” The employees who at-
tended the meeting were given union buttons, union bumper
stickers and union authorization cards to give to other employ-
ees. McCall testified that he attended this meeting and he
signed both of the above-described documents; and that he
wore his union button every day until he was fired.
Dennis Rice, who drove a truck for the Respondent between
the Chrysler plant in Kenosha and Detroit, Illinois, and Ohio,
attended the January 20 meeting. He signed the above-
described petition and organizing committee letter. Also, Rice
took a union button and wore it on his jacket while he was at
work, and he solicited two drivers to sign union authorization
cards but both told him they had signed. On cross-examination,
Rice testified that no manager or supervisor ever saw him wear-
ing a union button and no supervisor or manager ever spoke to
him about the union organizing campaign.
Alfred Hester was a truckdriver for the Respondent in its
Chrysler operation from June 11, 1999, until March 31. He
attended the above-described January 20 union meeting, and he
signed the above-described petition and union organizing
committee notice letter.
Madonna Bigheart was a truckdriver for the Respondent in
its Chrysler operation from November 1999 until January 26.
She attended the above-described January 20 union meeting,
and she signed the above-described petition and union organiz-
ing committee notice letter. Bigheart also received a union
button and she put it on her purse which she had with her when
she went to work.
Whitehead, who was a truckdriver in the Respondent’s
Chrysler operation from July 1999 until March 31, attended the
January 20 union meeting, and he signed the above-described
petition and the notice to the Respondent regarding the employ-
ees on the organizing committee. Whitehead received a union
button and he wore it every day to work. From January 2000
until he was terminated, Whitehead was assigned a dedicated
run from Belvidere to Toledo.
Stallings, who was a truckdriver in the Respondent’s Chrys-
ler operation from April 1999 until March 30, attended the
January 20 union meeting where he signed the above-described
petition and notice to the Respondent regarding the employees
on the organizing committee. At the end of the meeting he took
union authorization cards and subsequently he had 17 of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD262
drivers who did not attend the meeting sign the cards.3
Stallings also received a union button at the meeting and he
wore it every day. He drove a dedicated run from Chrysler at
Belvedere to Toledo.
Greene testified that he was first made aware of a potential
union organizing drive on a Monday in the mid-January 2001
when Gray telephoned him and told him that she had been told
by some of the drivers that a meeting had been held over the
weekend to discuss the possibility of organizing for a union.
He relayed this information to Berman that same day. Green
also testified that Koehler had told him on the Friday before
that she had been told by drivers that they were going to have a
meeting and he relayed this information to Berman but when
Berman asked he was unable to tell him what the meeting was
about. Greene told Koehler that to tell any driver who brought
it up that if the drivers were going to meet, they were not to use
the company trucks to do so.
On Monday, January 22, Stallings was in Kenosha and he
telephoned Koehler for his evening dispatch. Koehler told him
that Greene wanted to speak with him. Stallings testified that
Greene asked him “what’s going on” and he asked Greene what
he meant; that Greene then said, “‘I heard that you all going
[sic] Union and that if you go Union that they would have to
ask Chrysler for some more money and Chrysler wouldn’t give
it to them.’ Chrysler already wanted them to go 18 percent
lower on the contract and that, you know, they would be, they
would have to close the doors” (Tr. 338); that he telephoned
Regan and told him what Greene said; and that Regan told him
that he was going to file charges because it was illegal for
Greene to say that the Respondent was going to shut the doors.
Greene testified that this telephone conversation “was very
similar to what Mr. Stallings indicated.” (Tr. 423.) Further,
Greene testified:
I asked him what was going on. He said, what do you
mean? And I said, I understand that some of the drivers
are in the process of organizing a union. And he said, yes
we are. And I said, can you tell me what’s going on? And
he proceeded to tell me, using quite a few expletives, that
he felt that the company wasn’t doing certain things for
them.
I said, well, you got to do what you got to do. And the
conversation was probably less than 30 seconds. [Tr. 423
and 424.]
Greene also testified that this was all that was said in this con-
versation, and he never had any other conversations with
Stallings about the union organizing.
On January 23, Regan had a grievance and negotiation meet-
ing with the Vice President of Labor Relations for Active
U.S.A. Todd Barnum, which Regan testified was a branch of
Dallas and Mavis. Regan testified that at that time he knew that

3 On January 21, Stallings witnessed truckdriver Brooks sign the un-
ion authorization card he had given him. GC Exh. 25. Stallings testi-
fied that he gave Brooks a union button which he put on his shirt, and
he gave Brooks a union bumper sticker; and that when he subsequently
saw Brooks at the Steel City truck stop in Gary, Indiana, Brooks was
always wearing his union button.
he had a majority of the drivers in the Chrysler operation be-
cause he had been given additional union authorization cards,
and he asked Barnum for voluntary recognition; and that Bar-
num told him that he would have to bring this up with Berman,
who was then the president of operations for Dallas and Mavis
Specialized Carriers, first and then down the road he, Barnum,
probably would be assigned to negotiate the contracts. Berman
testified that Active USA provides the drivers for the Respon-
dent’s dedicated operation for the Ford Motor Company; that
Active USA is a motor carrier that is a subsidiary of the holding
company called JHT Holdings; that Dallas & Mavis is a sub-
sidiary of JHT Holdings; that Barnum does not work for Dallas
& Mavis; and that Barnum is the vice president of labor for
Active USA.
On January 23 or 24, according to the testimony of Greene,
he had a meeting with Brooks. Greene testified as follows
about this meeting:
I believe it was Tuesday or Wednesday of that week,
Mr. Brooks came in and basically just told me that some
of the drivers were talking about forming a union and that
Chester Stallings was the leader and that he was not inter-
ested in joining the union. That was the conversation we
had. [Tr. 424.]
On cross-examination, Greene testified that on January 23 or
24 Brooks walked into his office and asked him if he heard
what was going on and he told Brooks “no, I hadn’t really
heard a lot about it” (Tr. 437); that at the time he had been told
by two dispatchers that the drivers were attempting to organize
and he had already had his conversation with Stallings; that
Brooks told him that he had been approached to sign a union
card and he refused, he was not going to join the union; and
that Brooks told him that it was Stallings who approached him
to sign a union card and Stallings was the ring leader. As noted
above, Brooks signed a union authorization card on January 21.
And as noted below, Greene was given copies of the signed
union authorization cards to look at when the Union sought
recognition from the Respondent.
On January 24, Regan telephoned Berman and told him that
a majority of the involved employees had memorialized their
support for the Union. Regan asked Berman for voluntary rec-
ognition. Berman said that he was in negotiations with Chrys-
ler, which was seeking reductions from the Respondent, and the
negotiations were not going very well. Berman asked Regan to
bear with him and he would get back to him. Regan testified
that during this conversation Berman told him that he was
aware of the union organizing campaign.
On January 24, Bigheart was waiting in the parking lot at the
Respondent’s Kenosha office to pick up her paycheck. Dis-
patcher Lexer came up to her truck and told her that he had
heard that the drivers were going into the Union. When Big-
heart replied that they were trying, Lexer said, “[w]ell, I’m
staying away from that . . . I have enough problems to take care
of.” (Tr. 276.)
On January 24, while he was returning from Toledo, White-
head received a Qualcom message, which was an e-mail type
system installed in the trucks, from Koehler asking him if he
wanted to take a broker load going to Florida. Whitehead sent
DALLAS & MAVIS SPECIALIZED CARRIER CO. 263
a Qualcom message to Koehler indicating that he did not have
the travel money to go to Florida. Koehler did not respond.
Whitehead testified that he was not disciplined for refusing to
take this broker load; and that he was never informed that re-
fusal to take broker loads was grounds for discipline or termi-
nation. About 6 p.m. he telephoned Gray to find out if she had
any local runs since he did not have any money, and she told
him to call in on Friday morning January 26.
According to the testimony of Greene, on January 24 or 25
Berman changed the paycheck policy. Greene testified that he
met with Berman on January 24 and they discussed the fact that
the Respondent had just lost its receptionist at the Kenosha
office;4 that before this the drivers’ paychecks were given to the
receptionist downstairs at the Kenosha office and she would
have the drivers sign for their paychecks; that it was decided
that checks would be mailed to the drivers because they did not
want the drivers walking up the steps into the company area,
which was against company policy; and that the only reason
that the Respondent changed its paycheck policy on January 24
is because it had lost its receptionist. The receptionist worked
from 7:30 a.m. until 4:30 p.m. and in the past if the receptionist
was not at her desk, according to Greene, the driver could con-
tact the dispatcher and have the dispatcher bring down their
paycheck. On January 24 Gray, at the direction of Greene, sent
a Qualcom message to all drivers informing them of the new
paycheck policy and indicating that if they wanted the pay-
check the next day the driver could pay $7.50 and they would
be mailed overnight. No reason was given to the drivers for
this change in policy which had existed from when the involved
Chrysler division officially opened on April 16, 1999. McCall
testified that before the union organizing campaign he would go
to the Respondent’s Kenosha office on Wednesdays after 9 a.m.
and get his paycheck from the receptionist; that if the reception-
ist was not there when he went to pickup his paycheck, he
would get it from the third-shift dispatcher; and that during the
union campaign he received a memorandum indicating that
drivers were no longer allowed to pick up their paycheck at the
Respondent’s Kenosha office, the checks would be mailed, and
the drivers could pay $7.50 if they wanted next day delivery.
Rice testified that in the past he received his paycheck from the
receptionist in the Respondent’s Kenosha’s office; that when
the receptionist was not present for some reason, sometimes he
was allowed to go up to the dispatcher’s office or the dispatcher
would toss it out of the window to him; and that after the orga-
nizing campaign commenced he received a letter from Greene
on January 24 indicating that the paycheck would be mailed to
his home, and no reason was given for the change in policy.
Bigheart testified that before the union organizing drive she
was able to pick up her paycheck from the receptionist or from
a dispatcher if it was after hours; and that after the organizing
drive commenced she received a Qualcom message and a letter
indicating that the paychecks would be mailed or if the driver
wanted overnight, the driver would have to pay $7.50. When
called by the Respondent, Greene testified that the paycheck
policy was changed again a couple of days later but this change
was not done in writing; that he told Berman about the drivers

4 Greene thought that this was a downsizing decision.
complaining that the mailing policy was causing them a hard-
ship since they had bills to pay and they needed to receive their
paychecks right away; that this subsequent change was com-
municated primarily to the drivers by the dispatchers telling
them that they could come back and pick up their checks; and
that the drivers were able to pick up their checks until the clos-
ing in March 2001.
On January 25, according to the testimony of Regan, he re-
ceived telephone calls from Stallings and Whitehead “basically
concerning . . . threats of closure” (Tr. 120). He advised the
employees that he would file unfair labor practice charges
against the Respondent.
On January 25, at about 11 a.m. McCall called the Respon-
dent’s Kenosha office to ask for a load. Dispatcher Koehler
told him that she had a Jeep Toledo going out at 7 p.m. and he
said that he did not want to take it. Koehler then said that she
had an “11 o’clock” (apparently p.m.) Sterling Heights, he told
her that he would take the 7 p.m. load for Jeep in Toledo, and
she assigned the load to him. McCall testified that Koehler let
him pick the load he wanted. McCall picked up the load at
about 7 p.m. and at about midnight that night the left front tire
on his tractor went flat in Jamestown, Indiana. McCall con-
tacted dispatcher Lexer and Ryder was sent out to change the
flat.
At about 11 p.m. on January 25, Rice spoke with Gray from
his home. She asked him if he had a load that was coming back
to Racine and he told her that he did. Gray told Rice that she
had a load going from Racine, Wisconsin to New York and she
was putting him on it. Rice testified that he did not agree to
take the load from Racine. He did not testify that he refused
the load at that time.
The following day, January 26, Rice advised dispatcher
Koehler that he was not going to take the New York load be-
cause the Respondent was not going to pay him for the deten-
tion or layover, and dispatcher Koehler would not give him a
cash advance for food and other things on the trip. After Rice
dropped off his load in Kenosha on January 26 he went to a
local parking lot to get some sleep. Rice saw McCall’s truck,
he woke him up, and they went and got something to eat. When
Rice returned to his truck he saw the Qualcom message from
Gray which indicated that rejecting loads would not be toler-
ated and he should clean out his truck and take it to Racine.
Rice testified that he understood this message to mean that he
as fired. Rice told McCall who then telephoned the Respon-
dent’s Kenosha office. Subsequently, McCall told him that he
had just been fired for turning down the trip to New York. Rice
testified that before he was fired the Respondent gave drivers a
choice regarding whether they wanted to take broker loads; and
that he was allowed to refuse to take a broker load in the past
and he was not told that he would be disciplined or that it was
grounds for termination. On cross-examination, Rice testified
that, with respect to the New York broker load, he told Gray
that he did not drive on Sundays and he did not run to the east
coast. On redirect Rice testified that he never received any-
thing in writing from the Respondent informing him that han-
dling broker loads was mandatory. Rice was hired in May
2000 as a driver of Chrysler products. Typically he worked 12
hours a day.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD264
On Friday, January 26, at about 2 a.m. when McCall reached
the Ohio State line he telephoned dispatcher Lexer, told him
that he was rolling, and asked him if he had any loads out of
Toledo. Lexer told McCall that he had two or three loads going
up to New York and Lexer asked him if he wanted one. When
he declined, Lexer told him not to worry about it. At about 4
a.m., after his trailer was emptied at Jeep in Toledo, Ohio,
McCall called Lexer and indicated that he needed a load. Lexer
told McCall to pick up a load at Excel and deliver it in Kenosha
at 2 p.m. that day. On his way back to Kenosha, at about 7
a.m., McCall received a message on his Qualcom in the truck
indicating that Koehler had a load to New York from Racine,
Wisconsin, and asking him if he wanted it. Using Qualcom,
McCall advised Koehler that he did not have the hours to han-
dle the load. Koehler then sent him Qualcoms indicating that
he should bring his log book to Respondent’s Kenosha office
because the bosses wanted to look at it. McCall delivered his
load in Kenosha between 10 a.m. and 12 p.m. At that point he
had been awake and working for 17 hours straight. McCall
drove to a parking lot and went to sleep. At about 3 or 4 p.m.
another of the Respondent’s drivers, Dennis Rice, as noted
above, knocked on his truck door and woke him up. They went
to get something to eat. McCall testified that Rice said that he
might be getting fired for not taking a load to New York; and
that when they returned to Rice’s truck he had a Qualcom mes-
sage from dispatcher Gray indicating that he was fired. Shortly
after this, McCall telephoned dispatcher Gray to get a load for
Monday, which was his normal practice. She told him that she
had a load going to New York from Racine, Wisconsin. He
told Gray that he did not want it. She asked him if he was go-
ing to get the New York load. He said he was not and he asked
her if he did not get the load, was he fired. Gray responded,
“yes,” and she told him to clean out his truck and take it to
Ryder in Racine and drop it off. McCall testified that he told
Gray that “I already did four turns [and] I didn’t have no more
[DOT driving] hours”; that Gray wanted this non-Chrysler,
broker load picked up in Racine immediately; that before Janu-
ary 26 the involved drivers did not have to take broker loads,
and this is what he was told when he was hired; that before
January 26 he had never been informed by a supervisor or a
dispatcher that refusal to take a broker load was grounds for
discipline or termination; and that he had never been informed
of this in writing or on the Qualcom. Also, McCall testified
that the Respondent knew how many hours he had worked that
week since it was in the Respondent’s computer; and that if he
drove over the number of hours allowed by DOT he could be
personally liable for a stiff fine.
Between 3 and 4 a.m. on January 26, Whitehead telephoned
Lexer and asked him if he had any local loads that morning.
Lexer told him that he did not have any local loads but he did
have a broker load to Baltimore and New York. Whitehead
told Lexer that he had already told Koehler that he did not have
enough money to go to Florida, he could not go to Baltimore,
and he wanted Lexer to take his name off the list. Whitehead
was not disciplined for refusing a broker load and he was not
informed that refusing a broker load was grounds for discipline
and termination. He testified that when the Respondent started
handling broker loads the drivers volunteered to take them.
On the morning of January 26, Stallings telephoned Koehler
from a truck stop in Gary, Indiana, to get a load. Koehler told
him that she had a broker load to New York and he refused it
without giving a reason. Koehler did not tell him that the re-
fusal of a broker load would be grounds for discipline or termi-
nation. Stallings testified that before the union organizing drive
it was the Respondent’s policy that broker loads were not man-
datory; that when he was hired Greene and Donnie Harold, who
“was above Greene,” told him that he was dedicated to Chrysler
only; that and he had refused broker loads to Florida and Penn-
sylvania offered to him by Koehler in November and December
2000; that he did not give a reason for refusing the loads; and
that he was not told that refusing a broker load was grounds for
discipline or termination.
McCall testified that he began working for the Respondent
on October 18, 2000; that normally he handled four turns a
week, namely transporting Chrysler engines from Kenosha to
Detroit and returning with empty trailers, empty engine racks,
or sometimes defective engines on the racks; that typically he
worked 17 hours a day; that he considered the three dispatchers
to be his supervisors; that the Respondent had a computer pro-
gram in which the dispatchers entered his miles and they knew
how many miles he drove in a week; that he wore a union but-
ton from the time he received it on January 20 until he was
fired; and that he wore the union button to the Respondent’s
Kenosha office when he picked up checks. On cross-
examination, McCall testified that no manager or supervisor
ever saw him wearing the union button or ever spoke to him
about the union organizing campaign; and that he did not drop
off his log as requested on January 26. On redirect, McCall
testified that he did not bring his log to the Respondent’s office
on January 26 because the Respondent already knew how many
turns he had done that week and the information was in the
Respondent’s computer; and that he went to the Respondent’s
Kenosha office on Wednesday, January 24, to pick up his pay-
check from Sharon the receptionist and he was wearing his
union button at the time.
At about 10 a.m., on Friday, January 26, Bigheart, while she
was driving in Michigan on her way back to Kenosha on her
third and final turn that week, received a Qualcom message
from Koehler asking her if she wanted to take a broker load to
New York. Bigheart advised Koehler that she did not want to
take the load. Koehler sent a second message indicating the
Bigheart had to stop and telephone Greene. She did. Greene
asked her why she turned down the New York load and she told
him that she had worked all week long and she had made plans
weeks earlier to be with her family. Bigheart testified that
Greene said that the load was to be picked up in Racine that
afternoon and it was not supposed to be delivered until Mon-
day; and that when she refused it a second time Greene told her
to clean out her truck, which meant she was fired. Bigheart
estimated that it would take about 12 to 13 hours of driving
time from her home in Portage, Indiana, to New York. She
testified that when she was hired dispatchers Gray and Koehler
told her that taking broker loads was not mandatory, and in the
past she had refused broker loads from both Gray and Koehler
and she had never been told before the union organizing drive
that she would be disciplined or terminated for refusing a bro-
DALLAS & MAVIS SPECIALIZED CARRIER CO. 265
ker load or that such refusal was a violation of company policy;
and that during her employment at the Company she had never
received anything in writing letting her know that broker loads
were mandatory. On cross-examination, Bigheart testified that
she did not tell Greene that she was out of DOT hours. Subse-
quently she testified that Greene told her that she could pick up
the load, hold it over the weekend, and make the delivery on
Monday; and that she did not tell Greene that she did not have
enough hours to pick up the load and bring it to her house.
According to Greene’s testimony, broker loads were any
loads other than Chrysler loads. Such loads were not limited to
return loads to Kenosha, and the driver could go anywhere in
the continental United States as opposed to handling Chrysler
loads in Wisconsin, Illinois, Ohio, Michigan, and Indiana.
Greene testified that there was never any written rule that driv-
ers had to accept broker loads; that he alone decided to termi-
nate driver McCall on January 26 for refusing a brokered load
to New York; that he did not recall the date when the involved
brokered load was supposed to be picked up; that before he
decided to terminate McCall he considered McCall’s overall
work record and he spoke to Gray about McCall; that he was
not aware of any prior written discipline to McCall; that
McCall might have refused a broker load in the past but he
would not know if this occurred with McCall because the dis-
patchers do not discuss every load with him; that Gray told him
that she had accepted a broker load to be moved and McCall
was refusing the load; that Gray told him why McCall was
refusing the load and “in my mind it was not a satisfactory
reason for not accepting the load”; that he believed that McCall
told Gray that he did not have enough hours under the United
States Department of Transportation (DOT) regulations to haul
the load; that he requested that McCall bring in his records so
that he could determine whether McCall in fact did not have
enough hours; that he would not have been able to obtain this
information on the TMW software system; that he decided to
terminate Rice on January 26 because he refused the same bro-
kered New York load saying, according to what Gray told him,
that he did not work on weekends because he wanted to spend
time with his children; that while Rice had refused loads on
Thursdays, Fridays, and weekends in the past but he did not
terminate Rice in the past; that some of the loads that Rice re-
fused in the past were Chrysler loads and the remainder were
broker loads; that he decided to terminate Bigheart on January
26 when Koehler told him that Bigheart was refusing the same
broker load to New York; that Bigheart told him that she would
not take the load because she had made plans to be with her
family for the weekend and she did not want to take the load;
that he told Bigheart that she could pick the load up and take it
home and let it sit over the weekend and depart on Sunday for a
Monday delivery; that the broker New York load was a load of
salt to be picked up in Racine, Wisconsin; that the load was
supposed to be picked up on January 26, before the company
closed; that he was not sure of when it had to be delivered on
Monday, January 29, in New York; that he did not know the
mileage between Racine and New York; that under DOT regu-
lations a driver can drive a maximum of 10 hours consecutively
and then the driver has to take an 8-hour break; that also under
DOT regulations a driver is not to drive more than 70 hours
within a 8-day period; that if a driver fails to abide by these
regulations the driver can be ticketed, suspended, or terminated;
that Bigheart did not tell him that she was out of hours for the
rest of the week; that he did not investigate to determine how
many hours Bigheart had worked that week but he did consider
her overall job performance; that 600 miles a day is average for
a driver and considering that the driving day is 10 hours, this
would mean that the average is 60 miles an hour; that in the
past Bigheart had told him that she wanted to drive as much as
possible because she needed the money and she had taken a
high number of loads in the past including broker loads; that
prior to the involved broker New York load Bigheart, to his
knowledge, had never refused a load, she did not miss many
days of work, and she had no prior written disciplinary record;
that he thought that Bigheart lived in the Gary, Indiana area;
that when he offered the same broker New York load to Big-
heart, McCall and Rice he did not know where they were at the
time; that he did not know of any driver being terminated be-
fore January 26 for refusing a broker load; and that other driv-
ers have been terminated for refusing to take Chrysler loads,
General Counsel’s Exhibits, 4, 6, and 7.5 Greene did not testify
that he cited any written policy to the drivers who refused the
involved New York load indicating that the handling of broker
loads was mandatory.
When called by the Respondent, Greene testified that the Re-
spondent does not have a written policy with respect to drivers
refusing broker loads; that a lot of drivers were able to refuse
broker loads without any punishment because before there was
enough business to cover the Respondent’s costs and expenses;
that in the November 2000 through the end of January 2001
time frame the Respondent lost some of the dedicated lanes that
it had from Chrysler due to shutdowns; that the Respondent had
to supplement its revenue by finding other freight; that while
the involved drivers originally had the option to choose whether
to handle broker loads because the Respondent had available
freight, as the freight started drying up he and Berman told the
dispatchers that they were to tell the drivers if they did not want
to handle a load, they could turn in their truck; and that this had
been the Respondent’s policy since July 2000 when Chrysler
started to shut down the plants. Greene testified that while the
computer TMW system records the miles of a load the system it
does not show the on duty driving hours that a driver has and
only the log would show that.
On January 26, Regan received telephone calls from Big-
heart, Rice, and McCall informing him that they had been ter-
minated by the Respondent for refusing to haul a broker load.
Regan testified that some of these employees told him that they
were out of hours and did not have funds on them to pay for
food on the trip; and that he told these employees that he would
be filing charges for them. Later that day Berman telephoned
Regan. Regan put the call on the speaker phone so that another
Business Agent Steve Parks could hear. Regan testified that he
and Berman discussed voluntary recognition, and he told Ber-

5 While the driver referred to in GC Exh. 5 was initially assigned a
Chrysler load, the termination letter indicates that his termination was
due to his failure to contact the dispatch office, and a lack of communi-
cation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD266
man that he had filed unfair labor practice charges, and he was
about to file additional charges regarding the three discharges;
that he asked Berman why the Respondent had fired the three
drivers and Berman told him that they refused work; that he
told Berman that the Respondent had never done that in the
past; that he discussed the fact that the Respondent had altered
that the method of pay, and Berman told him that he would
look into the paycheck situation; that Berman told him that the
Respondent had lost an office staff person who was responsible
for issuing paychecks downstairs; that Berman told him that he
was still in negotiations with Chrysler and Berman asked if the
Union was willing to take a reduction; and that Berman told
him that he would get back to him on January 29 regarding
voluntary recognition.
On Sunday, January 28, Stallings, pursuant to an invitation
which was given to him by Koehler, attended a breakfast meet-
ing at a restaurant. He was one of four drivers present. Ber-
man, Greene, Koehler, and Lexer were also present. The driv-
ers were advised that Chrysler wanted the Respondent to rebid
on the involved contract and Chrysler wanted the bid reduced
by 18 percent. Stallings brought up broker loads indicating that
drivers did not have the money to go on long runs, and if the
Respondent let the drivers have a $100 advance, it would not
have any problems with broker loads. Berman and Greene
agreed. But since Chrysler movements increased, the drivers
did not handle any more broker loads.
Brooks was terminated on January 30. Greene testified that
Berman made the decision; that he met with Berman and told
him that Brooks was a good driver and he did not want to ter-
minate him; that Berman said that there were some issues with
the insurance company and Brooks was one of the drivers who
had to be terminated; that Brooks was the only driver in the
Chrysler division who was terminated but there were other
drivers in the Company who were terminated at this time; that
Brooks was terminated because he was outside of the insurance
standards; that the Respondent had the same insurer for the 2
years it was in Kenosha; that he first became aware that Brooks
was outside the insurance standard in December 2000; that the
report, General Counsel’s Exhibit 10, listed all of Brooks driv-
ing violations but it did not indicate what action had to be taken
with regard to Brooks;6 that he was aware of Brooks driving
record before he received the report; that as indicated in Gen-

6 As here pertinent the report reads as follows:
Brooks, John Hire Date: 05/19/99
MVR Date: 09/13/00
Status: Active-DMSCC
09/28/98 - Operating without being licensed
11/16/98 - Driving when license is suspended
11/16/98 - Failure to yield right of way
01/19/99 - License suspension for accumulation
of violations. Privileges reinstated on
07/19/99
07/02/99 - Speeding
10/08/99 - Speeding
Mr. Brooks is on a six month probation—an MVR is being ordered
once per month.
MVR (07/21/99) indicates that Brooks was hired while license was
suspended for DUI.
eral Counsel’s Exhibit 8, Brooks was advised by letter on
March 1, 2000, that his “driving record had fallen outside our
insurance guidelines” and if during the next 6 months he was
“convicted of another moving violation or [was] involved in a
preventable accident, [his] qualification as a Dallas Mavis
driver will be terminated”; that page 2 of General Counsel’s
Exhibit 8, which is a “PROBATION STATUS” indicates that
Brooks was placed on 6 months’ probation beginning on March
1, 2000, because “Exceeds company insuring requirements
(traffic violations)”; that after Brooks was placed on probation
he did not receive another violation and he was retained after
his probationary period ended; that in March 2000 the Respon-
dent did not receive something from its insurer indicating that
Brooks was outside the guidelines but rather Ryder, from
whom the Respondent leases tractors, indicated that his driving
record was not good enough for him to be driving their tractor;
that Ryder agreed to let Brooks continue to drive their tractor if
he was placed on probation and he was successful in getting
one of his violations removed from his record; that the tickets
that Brooks received in 1998 and in January 1999 were re-
ceived before he started working for the Respondent; that on
March 1, 2000, Debra Lewis, who drove for the Respondent in
its Chrysler division, received the same letter as Brooks, Gen-
eral Counsel’s Exhibit 9; that Lewis was terminated in Septem-
ber 2000 after her probation ended when she received another
speeding ticket; that he was not informed about any other driver
in the Chrysler division being outside the insurance guidelines;
that according to the report from the Respondent’s insurer,
General Counsel’s Exhibit 10, Respondent’s driver Robert
Brueckner, who was hired by the Respondent in 1997 and who
did not work in the Chrysler division, was outside the insurable
standards in that he had a total of six violations in 1998 and
1999, it was recommended by an outside safety compliance
manager utilized by the Respondent that he be terminated, he
was placed on probation, and he violated the terms of the pro-
bation with no consequences; and that he did not know whether
Brueckner was still working for the Respondent. Subsequently,
Greene testified that the Respondent terminated Debra Lewis in
October 2000 when her driver’s license was revoked and she
could not drive for the Respondent. General Counsel’s Exhibit
24. Lewis had been placed on the aforementioned probation by
the Respondent in March 2000 after Ryder sent a letter to the
Respondent indicating that her driving record placed her out-
side of their standards.
Berman testified that Brooks first came to his attention in the
summer of 2000 when the Respondent received an audit from
its insurance company and Brooks was on their list of drivers
who fell below their standards for employment; and that he told
Greene to terminate Brooks but Greene felt that Brooks was a
productive driver and he did not want to terminate him. On
cross-examination, Berman testified that he did not believe that
Brooks was terminated in the summer of 2000; that General
Counsel’s Exhibit 10 is the only thing that the Respondent re-
ceived from its insurer, as here pertinent, and it does not rec-
ommend that Brooks be terminated; that it was the Respon-
dent’s decision to terminate Brooks based on the guidelines set
forth by the insurer; that he believed that one other driver,
Lewis, was terminated because of her driving record; and that
DALLAS & MAVIS SPECIALIZED CARRIER CO. 267
he did not know that Lewis was terminated because she lost her
commercial driver’s license.
According to the fax transmission cover sheet and record
sheet, General Counsel’s Exhibit 14, the Union faxed the sheet
with names of the involved employees who were on the Union
organizing committee on January 30 to Berman at the Respon-
dent’s Kenosha office. The certified mail documents included
in this exhibit indicate that the Union also mailed something to
Darrell Greene on January 30. Regan testified that the certified
mail in question was a hard copy of the document which was
faxed on January 30 to Berman. Greene testified that he first
saw General Counsel’s Exhibit 14 on January 30.
On direct, Hester gave the following testimony about a tele-
phone conversation he allegedly had with Gray in late January
2001 when he telephoned Gray for a load:
[A]nd once I got the dispatch, she [Gray] asked me a
question I think, are you, you guys are forming a union?
And she made a statement that the company is not going to
let this happen if you guys do this, I mean, they’re not go-
ing to let us tell them how to run this company . . . . [or]
what to do.
Q. When she asked you if you were bringing in the un-
ion, what was your response?
A. I said I hope that it wouldn’t happen.
. . . .
Q. Can you repeat to me again what was said during
the telephone conversation?
. . . .
MR. HESTER: Okay, I called in for dispatch as I do
every day. And once I got my dispatch, she [Gray] made a
statement that she heard that we were forming a union and
she said to me that this company is not going to let you
guys run this company and tell them what to do.
. . . .
Q. Do you recall if she said anything else during the
conversations?
A. That’s it. That’s all. My next words was [sic] I
hope this wouldn’t happen to us.
Q. What wouldn’t happen to you?
A. That they would close the company up.
Q. Had she made any comment about that possibility?
A. Right, she did.
Q. What did she say specifically?
A. Well, then, they might just close the company
down, that’s all she said in her statement.
Q. And did she say why they might close down the
company?
A. She didn’t say why, no, other than the union.
Q. So, she said that they were going to close down the
company if the union came in?
A. Right.
ADMINISTRATIVE LAW JUDGE WEST: What exactly, not
verbatim, what we’re interested in is what she said.
MR. HESTER: Okay.
ADMINISTRATIVE LAW JUDGE WEST: All right. Again,
from the beginning to the end. You called in asking for a
dispatch. She gave you a dispatch. What was then said by
Denise Gray?
MR. HESTER: I heard you guys were forming a union.
ADMINISTRATIVE LAW JUDGE WEST: Keep going.
MR. HESTER: Okay. And then, she made a statement
that this company is not going to let you guys run this
company and tell them what to do.
ADMINISTRATIVE LAW JUDGE WEST: Keep going.
MR. HESTER: And I made a statement to her, I hoped
that wouldn’t happen after she made the statement, I’m
getting confused here but she made the statement that this
company, they would probably close the company up if
we did that. And I said to her hope that didn’t happen.
[Tr. 254–256.]
On February 8, Regan telephoned the Respondent’s attorney,
John Holmquist, about voluntary recognition and Holmquist
told him to contact Greene.
Greene testified that he signed McCall’s termination letter,
Respondent’s Exhibit 2, which is dated February 9; that he
believed that Gray drafted the letter; and that the normal proce-
dure is to send such a letter with the driver’s paycheck, he
could not say for sure how it was done, but “I signed it and
gave it back to the dispatchers to be mailed to the drivers.” (Tr.
426.) Counsel for the General Counsel objected to the receipt
into evidence of the letter indicating that while he did not object
to the fact that Greene signed the letter and gave it to the dis-
patcher, he did object to any inference that the letter was in fact
mailed to McCall in view of McCall’s testimony at the trial
herein that he had no personal knowledge of the letter. Counsel
for the General Counsel’s objection was sustained. The receipt
of the exhibit was limited to the fact that Greene signed this
letter and he gave it to a dispatcher.
On February 15, Regan sent Stallings to Greene with proof
of the majority consisting of the above-described petition and
copies of the signed union authorization cards. Stallings ar-
rived at the Kenosha office around 2 p.m. He waited 3 hours to
see Greene, whom he was told was in a meeting. Greene re-
viewed the petition and the copies of the cards but he would not
sign the recognition agreement. Stallings telephoned Regan
and told him what was occurring. Regan told Stallings that it
did not matter that Greene refused to sign the recognition
agreement because just looking at the petition and the copies of
the cards were good enough, and Regan was going to telephone
the Respondent’s lawyer, John Holmquist. Greene then tried to
call the Respondent’s attorney. Stallings left the Respondent’s
Kenosha facility and went to the Chrysler facility about one
half a mile away to get some sleep. While Stallings was at
Chrysler he received a Qualcom message indicating that
Greene wanted to see him back at the Respondent’s Kenosha
facility. Stallings went to see Greene who then signed the rec-
ognition agreement. Later that day Stallings brought Regan the
signed recognition agreement, General Counsel’s Exhibit 15.
On February 20, the Union sent a letter, General Counsel’s
Exhibit 16, to Barnum in Kenosha indicating the Union’s desire
to enter into negotiations for a collective-bargaining agreement.
Subsequently, Regan was advised that Berman and not Barnum
would be handling the negotiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD268
On March 1, the Union sent a letter to Berman, General
Counsel’s Exhibit 17, indicating its desire to enter into negotia-
tions relative to a collective-bargaining agreement.
On March 8, Berman telephoned Regan and they agreed to
have a bargaining session on March 16.
On March 16, there was a meeting between Regan, and ne-
gotiating committee members Stallings and Whitehead on the
one hand, and on the other hand, Berman. The Union presented
its proposed collective-bargaining agreement (GC Exh. 18).
The Respondent did not have a proposed collective-bargaining
agreement at this time. The parties went through the none-
conomic issues of the Union’s proposal. They then agreed on a
wage rate of 40 cents a mile, and, according to the testimony of
Regan and Stallings, Berman wanted to condition that on a
driver not having any occurrences (violations or accidents).
Health insurance, pensions, pay for jury duty, detention pay,
and vacations were discussed. Berman told Regan and the
others that he was going to try to adjust his bid to Chrysler
based on the Union’s fair proposal and he was going to try to
get Ryder to lower its rate. Stallings testified that Berman said
that Chrysler wanted the Respondent to lower its bid by 18
percent but the Respondent could not do it. Berman indicated
that he would get back to Regan on March 26. Berman testified
that at this meeting they reviewed the Union’s proposal and
basically there was agreement on the noneconomic issues; that
he advised the Union that Chrysler had asked the Respondent to
reduce its costs between 15 and 18 percent and he had ap-
proached Ryder requesting a dramatic reduction in the monthly
cost; that a wage rate of 40 cents a mile was agreed on and he
indicated that acceptance of that wage rate was contingent on
Ryder reducing the equipment cost and Chrysler allowing the
Respondent to maintain the existing rate; and that the mileage
rate was not based on driver’s performance or safety records.
On March 26, Regan telephoned Berman and was told by a
secretary that Berman was still in negotiations with Chrysler.
On March 28 Whitehead received a Qualcom message from
Gray asking him if he was going to turn in his truck in South
Bend. Whitehead telephoned Gray and asked her what was
going on. She told him that the license plates were going to
expire on March 31.
On March 29, Regan and Berman talked by telephone. Ber-
man informed Regan that the Respondent lost the involved
Chrysler account. Regan said that he wanted to get back to the
table to negotiate for the more senior people and negotiate the
effects of the closure if the Respondent was going to close.
On March 29, Stallings telephoned Koehler to tell her that he
could not handle the Belvidere run on March 30 because he had
another negotiating meeting to attend. Koehler told him to turn
in his truck. He told her that such a message would have to
come from Berman or Greene. Greene then got on the tele-
phone and told him to turn in his truck because it was over.
Stallings testified that he understood Greene to mean that they
no longer had the Chrysler account and the Respondent was
closing the doors.
On March 30, Regan, Stallings, Whitehead, and driver Craig
Heart met with Berman. Regan proposed retaining some of the
more senior drivers to handle broker loads. He requested that
the drivers receive their vacation pay, and he requested a sen-
iority list. Regan also requested that the drivers who were to be
laid off receive 2 months of severance plus 2 months of health
insurance. According to the testimony of Regan, Berman indi-
cated that he did not believe that he could do that, Regan asked
for a counterproposal, and Berman said that he would look into
the broker loads. Whitehead testified that Berman never noti-
fied the Union that he thought that the parties were at impasse,
and the Respondent did not communicate further about broker
loads, severance pay or benefits. Stallings testified that Berman
was going to get back to the Union; that this turned out to be
the last bargaining session; and that to his knowledge the Re-
spondent did not meet with the Union to discuss broker loads or
a severance package. Berman testified that he indicated that the
Respondent was ceasing operations immediately; that Regan
felt that the Respondent could keep the involved drivers in the
system and he told Regan that he did not believe that it could be
done; that Regan brought up severance, holiday pay, vacation
pay, and insurance coverage; that Regan asked for a seniority
list; and that he told the Union representatives that he would get
back to them in a few days.
Whitehead testified that on March 31 he received a letter,
dated March 28 (GC Exh. 22), from Berman informing him that
the Respondent no longer had the Chrysler business, the
“Chrysler operation will be eliminated within the next few
days,” the operation would close March 31, and his position
would be terminated at that time.
On April 2, Regan received a seniority list from the Respon-
dent (GC Exh. 19).
Also on April 2, Stallings received a letter from the Respon-
dent informing him that it had lost the Chrysler account and
that he was no longer employed by the Respondent.
On April 3, Berman faxed and sent Regan the following let-
ter (GC Exh. 20):
This letter is to follow up with respect to our recent
meeting, this past Friday in Chicago, IL. As you are
aware, Dallas & Mavis Specialized Carrier Co. LLC.
ceased operating the Chrysler Division due to the loss of
business based on our inability to meet Daimler/Chrysler’s
price reduction initiative. The termination of services was
effective on 3/31/01 and therefore all drivers were termi-
nated as of this date. Furthermore, the agreement between
Dallas & Mavis and Ryder Transportation whom provided
the equipment for this operation did not renew the appro-
priate licenses and therefore all equipment has been re-
turned to their facilities.
Several issues were raised at our meeting and therefore
I will respond to each one of them as follows:
• DUE TO THE LOSS OF EQUIPMENT AND
INABILITY TO SECURE VOLUME
TRUCKLOAD TRAFFIC, DMSCC DOES NOT
INTEND TO CONTINUE IN THIS BUSINESS
ENVIRONMENT.
• DRIVERS TERMINATED ON 3/31/01 WILL
RECEIVE NO SEVERANCE OR COMPANY
PAID INSURANCE AS REQUESTED. INSUR-
ANCE INFORMATION (COBRA) WILL BE
FORWARDED TO EACH OF THE DRIVERS.
DALLAS & MAVIS SPECIALIZED CARRIER CO. 269
DRIVERS WILL RECEIVE ACCRUED HOLIDAY
PAY AS DISCUSSED.
We regret the having to close this operation however
based on the circumstances no other options were avail-
able. Should you have any questions, please call me at . . .
Regan testified that before he received this letter neither Ber-
man nor any representative of the Respondent had spoken to
him about possibly paying the drivers a reduced amount of
severance pay or reduced health benefits; and that he filed an
unfair labor practice charge. Berman testified that Regan tried
to reach him a couple of times about this letter but he never got
back in touch with Regan about this letter. On cross-
examination, Berman testified that after this letter he did not
communicate with Regan at all; that he never told the Union
that he thought the parties were at impasse; and that after this
letter he was advised that Regan telephoned but he did not re-
turn these telephone calls.
By letter dated April 10 (GC Exh. 21), Regan advised Ber-
man as follows:
This correspondence is the Union’s position in regards
to the letter that you sent on April 3, 2001. The Union’s
Committee believes that you did not adequately address
issues that were brought up during negotiations.
Your response:
Due to the loss of equipment and inability to secure
volume truckload traffic, DMSCC does not intend to con-
tinue in this business environment.
Our research and experience has proven that this
statement is false and inaccurate. Your company has at
least fifty (50) terminals and agents national wide, includ-
ing Canada. Your agents found plenty of work for these
drivers in the past.
Also, during the organizing campaign, you fired a
number of drivers for insubordination for not accepting
agent loads, regardless of the fact that they did not have
the legal hours or monies to handle the loads. You also at-
tempted to negotiate a pay advance to cover their ex-
penses.
Therefore, the union is requesting the company negoti-
ate in good faith over these outstanding issues.
Please contact me to set up a meeting. Your prompt
attention in this matte will be greatly appreciated.
Regan testified that Berman did not respond to this letter and
neither he nor any other company representative ever contacted
him regarding the Union’s request to resume contract negotia-
tions. Berman testified that he received and reviewed this letter
and he did not consider there to be any open issues as far as the
company was concerned; and that he did not respond to this
letter because he had already stated the company’s position.
On cross-examination, Berman testified that he did not respond
to this letter or the telephone calls that Regan made to him after
he sent him this letter.
The Respondent’s drivers who worked out of the Kenosha
office also handled the Belvidere, Illinois to Toledo, Ohio run
which was another movement of Chrysler engines and parts.
This operation began in late 1999 or early 2000 and the Re-
spondent was using five or six drivers on this run when the
Respondent shut down in March 2001. Greene testified that
after the Respondent shut its doors in March 2001 it transferred
this run to its nonunion owner-operators and the run continued
until May 5, 2001, when it was permanently shut down for the
Respondent; that Berman made the decision to transfer the run
to the owner/operators; and that the five or six owner/operators
utilized their own tractors and Ryder vans on this run.
Regan testified that it was his understanding that the Re-
spondent’s entire Chrysler operation had been shutdown on
March 31 when it terminated all of the senior drivers. On April
14 or 15, Regan was advised that the Respondent was using
owner operators on the Chrysler Belvidere to Toledo run. He
then filed an unfair labor practice charge. Regan also tele-
phoned Berman the same day he filed the charge regarding this
and 2 days later but he was only able to leave a message with
the secretary that he needed to speak with Berman regarding
the fact that the Respondent was still running Chrysler products
with Dallas & Mavis owner operators. Regan testified that
neither Berman nor any company representative returned his
calls; and that the Company never went back to the bargaining
table to discuss the truckloads, the severance package or the
Belvidere to Toledo run. On cross-examination, Regan testi-
fied that he did not submit a letter to Berman specifically ask-
ing him to negotiate about the decision or the effects of the
decision to have the Chrysler Belvidere to Toledo run handled
by owner operators because he was relying “on the January
[sic] [undoubtedly he was referring to April] 10th letter and the
phone calls that [he] tried to unsuccessfully make to [Berman].”
(Tr. 159.) On redirect Regan testified that Berman never indi-
cated that he believed that the parties were at impasse; that
regarding the Belvidere to Toledo run, he never received any
notice from the Company that it was transferring this run to its
owner operators and he was not given any opportunity to bar-
gain about the effects of such a decision; and that he did not
receive anything in writing from Berman with regard to the
Belvidere to Toledo run. Whitehead testified that it was his
understanding that the entire Chrysler had been shut down; that
in April 2001 he was told that Respondent’s Belvedere to
Toledo run, which he and four other of Respondent’s drivers
handled, was being handled for the Respondent by owner op-
erators; and that the Respondent did not give notice to the Un-
ion that it intended to transfer the Belvedere to Toledo run to
owner operators and the Respondent never gave the Union an
opportunity to bargain over the decision to transfer or the ef-
fects of this transfer. Stallings testified that when he was ter-
minated it was his understanding that the entire Chrysler opera-
tion had been shut down, including the run he formerly handled
from Belvidere to Toledo; that while driving for another com-
pany in April he came upon five of the Respondent’s trailers
and he talked to one of the drivers using his CB radio; that he
determined, based on what the driver told him, that this was the
Belvidere to Toledo run that he and four other drivers in the
Chrysler operation formerly handled; that the Respondent never
notified the Union that the Respondent intended to transfer the
Belvidere to Toledo run to owner operators, and the Respon-
dent never gave the Union an opportunity to bargain over this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD270
decision or the effects of this decision; and that the owner op-
erators are nonunion.
Berman testified that while at the final meeting Regan re-
quested to meet and negotiate over the decision to terminate the
operation, Regan did not request to meet and negotiate over the
Belvidere to Toledo run, and Regan did not request to meet and
negotiate over the effects of the transfer of this run to owner
operators; and that the Respondent could not continue to oper-
ate the Belvidere to Toledo run with the Chrysler engine em-
ployees because it did not have the equipment to do so. On
cross-examination, Berman testified that the decision to transfer
the Belvidere to Toledo run to the owner-operators was made in
the final week of March 2001 at the same time he was in nego-
tiations with the Union; that he did not provide the Union at
that time with any notice that he intended to transfer the
Belvidere to Toledo run to owner-operators; that he did not
give the Union at that time any opportunity to bargain over the
decision to transfer the work to owner-operators; that he did not
give the Union any opportunity to bargain over the effects of
such a decision; and that the owner-operators that he transferred
the work to are nonunion.
Paragraph IV of the complaint, as here pertinent, alleges that
dispatchers Gray and Koehler have been supervisors of Re-
spondent within the meaning of Section 2(11) of the Act, and/or
agents of Respondent within the meaning of Section 2(13) of
the Act. The Respondent specifically denies these allegations.7
Greene testified that the dispatchers assigned loads to the
drivers typically without consulting with him, coordinated any
problems that the drivers might run into, reassigned loads, let
drivers take a day off when there were equipment problems
without clearing it with him, contacted the customer if the
shipment was going to be late, arranged with Ryder to have any
on the road equipment problems taken care of, communicated
with the drivers utilizing the Qualcom system, notified him if a
driver did not receive his or her paycheck, monitored driver
productivity utilizing the TMW software system and driver
logs, notified him if there was a problem with a driver’s per-
formance, and recommended what type of action should be
taken against the driver but he never followed a dispatcher’s
recommendation.8 Greene also testified that he prepared the
job description for the lead dispatcher, General Counsel’s Ex-
hibit 2, in concert with the Human Resources Department.
Under “SUPERVISORY RESPONSIBILITIES” the following
appears: “Oversees the dispatcher functions.” Under the same
heading in the job description for dispatchers, General Coun-
sel’s Exhibit 3, the following appears: “This job has no supervi-
sory responsibilities.”
McCall testified that he considered the three dispatchers to
be his supervisors; that the dispatchers got him loads, reas-
signed loads, gave him instructions on how to get to a particular
location, was the person he contacted if he was going to be late

7 While counsel for the General Counsel includes dispatcher Lexer
in his argument on brief regarding supervisory status, Lexer was not
specifically named in either the complaint or the Respondent’s answer
to the complaint.
8 Greene testified that he had terminated a driver and in some in-
stances the dispatcher recommended termination.
making a delivery, arranged to have Ryder make repairs when
he was en route to a destination, straightened out a paycheck
problem, and gave him time off when he was caught in a snow-
storm in Chicago, Illinois, and could not get his truck out for 2
days.
Rice testified that Gray was the head dispatcher and he con-
sidered her to be a supervisor; that he obtained his loads from
the dispatchers; that the dispatchers could reassign a load; that
if he was going to be late on a delivery he contacted the dis-
patcher on duty; that if he had to leave work early he asked the
dispatcher which was usually Gray; that he asked Gray to get
home early 1 week and she okayed it over the telephone imme-
diately; and that he concluded that he was terminated by Gray
because after he refused a broker load to New York, Gray sent
a message to him over the Qualcom in his truck indicating that
rejecting loads would not be tolerated and so he should clean
out his truck and take it to Racine.
Hester testified that he considered Gray and Koehler to be
his supervisors. On cross-examination, Hester testified that the
dispatchers do not have the authority to hire or fire drivers; and
that in his affidavit to the Board he indicated as follows:
They [dispatchers] do not have the authority to hire or
fire drivers but they notify drivers when they are termi-
nated. I do not know if they can effectively recommend
discipline or termination. [Tr. 259.]
Bigheart testified that Greene was her supervisor; that she
did not know if the dispatchers had to consult with a manager
or supervisor before they assigned or reassigned a load; that she
asked the dispatcher on duty if she had to leave work early or
took a day off; and that when she had a work related problem
like sliding the tandems on the trailer she contacted the dis-
patcher on duty.
Stallings testified that his supervisor was Greene. As noted
above, when dispatcher Koehler told him to turn in his truck on
March 29 he told her that such a message had to come from
Berman or Greene. Stallings also testified that dispatchers
assigned loads; that he got directions to a location from dis-
patch; that if he was going to be late to a destination he would
contact dispatch; that if he needed time off from work he would
contact the dispatchers; that he reported an accident to dis-
patcher Gray; and that when he had a flat tire he contacted dis-
patcher Gray who told him that she was going to make ar-
rangements with Ryder to repair the tire.
When called by the Respondent Greene testified that he was
the immediate supervisor of the dispatchers; that he was re-
sponsible for the performance evaluations of the dispatchers;
and that Respondent’s Exhibits 4 and 5 are the “Performance
Evaluation[s] Non-Supervisory employee” for Gray and Keoh-
ler (then her surname was Bizek), respectively. Greene signed
both of the evaluations on February 27.
Analysis
Paragraph V(a) of the complaint alleges that on January 22
the Respondent, by Greene, in a telephone conversation threat-
ened employees with closure of its operation if employees se-
lected the Union as their collective-bargaining representative,
and created the impression that employees’ union activities
DALLAS & MAVIS SPECIALIZED CARRIER CO. 271
were under surveillance. On brief, counsel for the General
Counsel contends that Greene failed to specifically deny
Stallings’ testimony regarding either of these allegations; that
Greens’ threat to close the doors was unlawful because it
lacked any rational basis; and that it would have been reason-
able for Stallings to assume from what Greene said to him on
January 22 that the drivers’ union activities had been placed
under surveillance. The Respondent, on brief, argues that even
if Greene made the alleged statements, he was not making a
threat, but merely inquiring into the union activity at the Com-
pany and, as allowed under NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), predicting the potential consequences in view
of Chrysler’s economic troubles; that the eventuality of closing
was dependent upon factors beyond the control of the Respon-
dent; and that the alleged statements were predictions rather
than threats.
As here pertinent, the United States Supreme Court con-
cluded in Gissel, supra at 618 and 619 as follows:
Thus, an employer is free to communicate to his employees
any of his general views about unionism or any of his specific
views about a particular union, so long as the communications
do not contain a “threat of reprisal or force or promise of
benefit.” He may even make a prediction as to the precise ef-
fects he believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond his
control. . . . If there is any implication that an employer may
or may not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to him, the
statement is no longer a reasonable prediction based on avail-
able facts but a threat of retaliation based on misrepresentation
and coercion, and as such without the protection of the First
Amendment. We therefore agree with the court below that
“[c]onveyance of the employer’s belief, even though sincere,
that unionization will or may result in the closing of the plant
is not a statement of fact unless, which is most improbable,
the eventuality of closing is capable of proof.” . . . As stated
elsewhere, an employer is free only to tell “what he reasona-
bly believes will be the likely economic consequences of un-
ionization that are outside his control,” and not “threats of
economic reprisal to be taken solely on his own volition.”
[Citations omitted.]
Greene’s was not the only threat to close the operation. Hes-
ter’s testimony about Gray threatening that the Respondent
would close the Chrysler operation was not refuted by the Re-
spondent in that it did not call Gray to the witness stand to deny
making the statement. As concluded below, Hester’s testimony
about this threat is credited. Gray was a dispatcher who
worked in the Respondent’s Kenosha office under Greene’s
supervision during daytime hours when he would have been
present at the facility. Without even getting into the question of
whether she was a supervisor or agent of the Respondent,
which matters will be dealt with below, one has to accept the
fact that this threat was uttered by two different people at the
Respondent’s Kenosha facility. At the time Greene uttered the
threat he had no knowledge of what demands the Union would
make in negotiations for a collective-bargaining agreement.
Without knowing this, without knowing if Ryder would reduce
its rate, without knowing if Chrysler would back off its demand
for a specific reduction, without knowing whether anyone else
would bid on the contract, and without knowing what any com-
petitor would bid, Greene could not have been making a predic-
tion based on objective fact. Greene did not refer to demon-
strably probable consequences beyond the Respondent’s con-
trol. In this light, the statement was not a reasonable prediction
based on available facts but rather a threat of retaliation based
on union representation, and as such it is without the protection
of the First Amendment of the United States Constitution.
As noted above, the Respondent argues that Greene “was
merely inquiring into the union activity at the Company.” (R.
Br. 30.) Gray told Greene about the union meeting which took
place over the weekend at a union hall in Gary. The meeting
was not held at the Company’s facility. Stallings testimony is
credited. Greene was less than candid about what he said to
Stallings. Stallings did not first offer any information before he
was questioned by Greene. Indeed, the Respondent does not
take the position that at this time Stallings was an open union
supporter or that it knew the role Stallings played in the orga-
nizing drive. Would Stallings reasonably assume from
Greene’s statement that the employees’ union activities had
been placed under surveillance? Under the circumstances ex-
tant here I do not see how one could find otherwise. The Re-
spondent violated the Act as alleged in paragraph V(a) of the
complaint.
Paragraph V(b) of the complaint alleges that in late January
the Respondent, by Gray, in a telephone conversation threat-
ened employees with closure of its operation if employees se-
lected the Union as their collective-bargaining representative.
On brief, counsel for the General Counsel contends that since
Hester’s testimony was not rebutted by the Respondent, Hes-
ter’s testimony must be credited; that Gray’s threat that the
Company would close down was unlawful since it lacked any
basis in fact; and that unlike Greene’s earlier threat, Gray did
not even attempt to link her “draconian” threat to the econom-
ics of the Chrysler contract. Additionally, as here pertinent,
counsel for General Counsel contends that Gray was a supervi-
sor because she independently assigned loads to drivers, re-
solved problems they encountered while transporting freight,
contacted shippers and brokers to find available loads, inde-
pendently reassigned loads, monitored drivers’ productivity,
effectively recommended to Greene whether a driver should be
disciplined and/or terminated, exercised discretion in terminat-
ing drivers for refusing a broker load, and to the extent she
worked on weekends or might have occasionally worked be-
tween 7 p.m. and 7 a.m. when Greene and Berman were not at
the facility, she would effectively have been in charge of the
operation.9 The Respondent, on brief, argues that the burden of
proving supervisory status rests with the party asserting that
supervisory status exists; that the duties of the person in ques-
tion must be exercised with independent judgment on behalf of
management and not in a routine manner; that there is no evi-
dence that the dispatchers ever effectively recommended the

9 As noted above, Gray’s normal hours were 6 a.m. to 3 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD272
hire, fire, or discipline of any of the involved employees; that
mere suggestions are not effective recommendations; that, as
here pertinent, Gray lacked the authority to hire, fire, or disci-
pline; that Gray’s responsibilities did not involve the exercise
of independent judgment but were merely routine and clerical
in nature; that, as here pertinent, Gray had no actual or apparent
authority, and she was not an agent of the Respondent; and that,
as here pertinent, Gray’s alleged threat was isolated and not
coercive.
First, did Gray make the threat. Gray was not called as a
witness by the Respondent to deny making the threat. In light
of this, Hester’s testimony is credited. As noted above, Gray’s
threat of closure was not the only threat of this kind. Contrary
to the Respondent’s argument, a threat to close the operation if
the employees decide to be represented by a union is coercive.
Second, is the Respondent responsible for Gray’s conduct. At
the time she made the threat was Gray a supervisor or an agent
of the Respondent. Section 2(11) of the Act defines a supervi-
sor as follows:
any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
The party alleging supervisory status has the burden of proof.
The possession of any one of the indicia makes the individual
in question a supervisor when the individual exercises or has
the authority to exercise independent judgment. Rice’s testi-
mony that Gray was the head dispatcher was not refuted by the
Respondent. While the aforementioned job description for
dispatcher, General Counsel’s Exhibit 3, indicates that “[t]his
job has no supervisory responsibilities,” the Respondent’s job
description for lead or head dispatcher indicates
“SUPERVISORY RESPONSIBILITIES, Oversees the dis-
patcher functions.” (GC Exh. 2.) Since Gray was the lead or
head dispatcher, according to the Respondent’s own job de-
scription she had supervisory responsibilities. In my opinion,
however, the evidence is insufficient to show that Gray pos-
sessed supervisory authority within the meaning of the Act.
Her direction, assignment, and reassignment of the drivers was
routine. It was not shown that she exercised independent
judgment with respect to hiring, transferring, suspending, lay-
ing off, promoting, adjusting grievances, firing, disciplining, or
discharging, or that she made effective recommendations with
respect thereto. Normally when Gray worked her 6 a.m. to 3
p.m. shift Greene was at the Respondent’s Kenosha facility.
And to the extent that Gray might have on occasion been the
only one at the Respondent’s facility, this alone would not be
enough to warrant finding her to be a supervisor under the Act.
Ken-Crest Services, 335 NLRB 777, 779 fn. 16 (2001).
Was Grey acting as an agent of the Respondent when she
made the above-described threat to Hester? As pointed out by
the Board in Pan-Oston Co., 336 NLRB 305, 306 (2001):
The Board applies the common law principles of
agency in determining whether an employee is acting with
apparent authority on behalf of the employer when that
employee makes a particular statement or takes a particu-
lar action. . . . Apparent authority results from a manifesta-
tion by the principal to a third party that creates a reason-
able belief that the principal has authorized the alleged
agent to perform the acts in question. . . . Either the princi-
pal must intend to cause the third person to believe the
agent is authorized to act for him, or the principal should
realize that its conduct is likely to create such a belief.
. . . .
The Board’s test for determining whether an employee
is an agent of the employer is whether, under all of the cir-
cumstances, employees would reasonably believe that the
employee in question was reflecting company policy and
speaking and acting for management. . . . The Board con-
siders the position and duties of the employee in addition
to the context in which the behavior occurred.
The Board may find agency where the type of conduct
that is alleged to be unlawful is related to the duties of the
employee. For example, in Hausner Hard-Chrome of KY,
Inc., [326 NLRB 426 (1998)], the Board found that the
heads of varius departments who regularly communicated
management’s production priorities to employees acted as
agents of the employer when they told employees that the
employer would likely shut down the plant if employees
voted in favor of the union.
. . . .
Although not dispositive, the Board will consider
whether the statements or actions of an alleged employee
agent were consistent with the statements or actions of the
employer. The Board has found that such consistencies
support a finding of apparent authority. For example, in
Hausner Hard-Chrome, discussed above, the Board found
that the “manifestation of apparent authority was strength-
ened” because the statements made by the department
heads were consistent with statements made by manage-
ment.
. . . .
[I]n Cooper Industries, [328 NLRB 145 (1999)], the Board
found that employees could reasonably believe that employee
facilitators who made various coercive statements acted as
agents of the employer because the employer had held them
out as primary conduits for communication with manage-
ment.
. . . .
Finally, it is the burden of the party who asserts that an
individual has acted with apparent authority to establish
the agency relationship. [Except as noted above, citations
omitted.]
Gray, as here pertinent, was held out by the Respondent as a
primary conduit for communication with management, her
statement about closing was consistent with Greene’s earlier
statement to union “leader” Stallings that the operation would
close if the employees brought in the Union, Gray regularly
communicated management’s position to the involved drivers,
DALLAS & MAVIS SPECIALIZED CARRIER CO. 273
the employees would reasonably believe that Gray was reflect-
ing company policy and speaking and acting for management,
and Gray had apparent authority in that the Respondent created
a reasonable belief that it had authorized Gray to make the
same coercive threat Greene had made earlier. Gray was acting
as agent of the Respondent when she made the above-described
threat to Hester. The Respondent violated the Act as alleged in
paragraph V(b) of the complaint.
Paragraph VI(a) of the complaint alleges that on January 24
the Respondent, by Greene, unlawfully modified its paycheck
distribution policy. On brief, counsel for the General Counsel
contends that only 1 day after the Union’s demand for recogni-
tion, the Respondent abruptly changed its longstanding pay-
check distribution policy; that this meant that the involved driv-
ers, some of whom lived in States other than Wisconsin, would
have to wait days for the delivery of their paycheck by mail
unless the drivers were willing to pay $7.50 to have the check
sent by overnight mail; that similar to Sivalls, Inc., 307 NLRB
986, 1003 (1992), the Respondent’s change to the paycheck
distribution policy was clearly in retaliation for the employee’s
union activities; that the abrupt nature and the timing establish
unlawful motivation; that the failure of the Respondent to pro-
vide a plausible reason at the time for the abrupt change further
underscores its retaliatory nature; that Greene’s belated expla-
nation is obviously inconsistent with his earlier testimony that
the drivers were able to pick up their paycheck from the recep-
tionist or the dispatchers, and the explanation makes no sense
when one considers that the Respondent reverted to its original
policy after a number of drivers complained about the change;
and that the change was implemented at the same time that the
Respondent was exhibiting its union animus by making clearly
unlawful statements to its employees. The Respondent, on
brief, argues that the change in the paycheck distribution policy
was too insignificant to warrant an inference of animus or re-
taliation for union activity, Lowery Trucking Co., 200 NLRB
672, 675 (1972); that this is especially so in light of the fact that
the Respondent lost its receptionist; and that the change in the
payroll policy lasted only a few days, and did stem from any
discriminatory motive.
The Administrative Law Judge in Lowery Trucking Com-
pany found as follows:
Regarding the contention that on January 28, Respon-
dent changed its policy respecting distribution of pay-
checks by distributing them at 5 p.m. instead of 1 p.m., I
find the record herein inadequate to establish what the
prior practice was, and even if, as contended, a prior prac-
tice was changed, I find the change too insignificant to
warrant an inference of animus or retaliation for union ac-
tivity.
Obviously a change of 4 hours, without even knowing for
sure what the previous practice was, is quite different than the
situation at hand. The Administrative Law Judge in Sivalls,
Inc., supra, indicated that timing is a crucial consideration in
assessing motivation. Here either on the same day or a day
after Regan asked Berman for recognition, pointing out that the
Union had a majority, this change was implemented. In the
past, when the receptionist was not present, drivers got their
paychecks from the dispatchers. When the obvious was alleg-
edly pointed out to Berman, namely that drivers were com-
plaining because they had bills to pay and they could not wait
days to receive their paychecks in the mail, the old policy was
reinstated. Why was it necessary to change the policy in the
first place? The lack of a receptionist in the past did not result
in mailing the paychecks to drivers. And the lack of a recep-
tionist from the time the old policy was reinstated up to the
closing of the operation did not cause any problems which were
made a matter of record. The January 24 or 25 change was
retaliatory. It also occurred because Berman had not granted at
that time the Union’s request for voluntary recognition and he
wanted to remind the drivers that the Respondent controlled the
purse strings; the Respondent could make things difficult for
the drivers. Berman’s unspoken message was that bringing the
Union in could have previously unforeseen consequences for
the drivers, namely to even get their paycheck a day late they
would have to reach into their own pocket and give the Re-
spondent $7.50 (for overnight mail) every Wednesday. With
respect to Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), counsel for the General Counsel has demonstrated that
drivers in the Respondent’s Chrysler operation engaged in un-
ion activity, and Berman was placed on notice on January 24
that a majority of them had memorialized their support for the
Union. This was after the Respondent told Stallings, the em-
ployee leader of the union movement, that if the employees
succeeded in bringing in the Union, the operation would close.
So we have an adverse action against employees, the change in
the paycheck policy, on either the same day or the day after the
Respondent was told that a majority of the employees wanted
the Union, and within 2 or 3 days after the Respondent demon-
strated its antiunion animus by threatening to close the Chrysler
operation. Counsel for the General Counsel has made a prima
facie showing. As noted above, the Respondent did not give
the drivers a reason when it changed the policy on January 24
or 25. The reason it gave at the trial herein, in my opinion, is
not a business justification in that, as noted above, drivers were
able to get their paychecks in the absence of the receptionist
both during her absences and after she left the employ of the
Respondent. The Respondent has not demonstrated that the
paycheck policy would have been changed in the absence of the
above-described union activity. Knowing how much it means
to a worker to receive the reward for his toils in a timely fash-
ion, this action by the Respondent was significant. The Re-
spondent violated the Act as alleged in paragraph VI(a) of the
complaint.
Paragraphs VI(b), (c), and (d), respectively, of the complaint
allege that on January 26 the Respondent unlawfully discharged
Bigheart, McCall, and Rice.10 On brief, counsel for the General
Counsel contends that before it terminated these three drivers
the Respondent knew that a majority of its drivers had author-

10 The complaint alleges that the discharge of Bigheart occurred in a
telephone conversation with Greene, the discharge of McCall occurred
in a telephone conversation with Gray, and the discharge of Rice oc-
curred in a Qualcomm computer message from Gray.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD274
ized the Union to be their exclusive collective-bargaining rep-
resentative; that knowledge of the union activities of these three
drivers can be inferred from the fact that (1) Respondent admit-
tedly relied on employee informants to provide it with specific
information concerning the organizing campaign, (2) Respon-
dent threatened the closure of its operations, created the im-
pression that employees’ union activities were under surveil-
lance, and changed a longstanding paycheck distribution policy
for discriminatory reasons, (3) these three drivers wore union
buttons to work on a daily basis and the Respondent’s recep-
tionist saw McCall and Bigheart wearing their union buttons on
January 24, and (4) Respondent terminated these three drivers
for a pretextual reason only a few days after the Union de-
manded recognition; that Greene’s testimony about the change
in Respondent’s policy from July 2000 on regarding broker
loads was belied by the fact that other drivers refused broker
loads during this period, including on January 26, and they
were not disciplined or even told that rejection of broker loads
was grounds for discipline and/or termination; that Greene’s
inconsistent testimony regarding broker loads and the failure of
the Respondent to call the dispatchers to testify about the policy
clearly establish the nonmandatory nature of broker loads; and
that McCall and Bigheart did not have enough DOT hours to
lawfully transport the broker load to New York. The Respon-
dent, on brief, argues that the General Counsel failed to estab-
lish that the Respondent knew of the alleged concerted activity,
as here pertinent, of these three discharged employees and that
there was union animus or discriminatory motivation; that
while discriminatory motivation can be inferred from inconsis-
tencies between the proffered reason for the discharges and
other actions of the employer, disparate treatment of similar
employees with similar offenses, and a company’s deviation
from past practices in implementing the discharges, here coun-
sel failed to establish any inconsistencies between the proffered
reasons for terminating the three employees and failed to pro-
vide any evidence of disparate treatment; that while the counsel
for the General Counsel argues that the timing of the discharges
is suspicious, suspicion does not substitute for proof; that the
Respondent would have discharged these three drivers even in
the absence of union activity in that they were insubordinate
when they refused the broker load; that “the fact that [the Re-
spondent] had not previously terminated any employee for
refusing broker loads provides no evidence of disparate treat-
ment where, as here, the employee instituted a new policy”;11
that whether others have been discharged for refusing broker
loads prior to January 26 is of no moment; that “[i]n July of
2001 [sic] [the Respondent] established a new policy for its
employees, which it renewed in November of 2000”;12 that
beginning in July 2000 the Respondent began communicating
to its drivers that if they did not take loads, they would be ter-
minated; that “the fact that . . . Stallings, the first employee to
refuse a broker load on January 26 was not fired, also fails to
provide evidence of disparate treatment [in that], Greene’s re-

11 The R. Br. at 18.
12 Id.
luctance to fire [Stallings] displays . . . Greene’s disagreement
with [the Respondent’s] new policy”;13 and that
While [the Respondent] was unaware of the union ac-
tivity of the drivers who were terminated, it had knowl-
edge that Chester Stallings was a vocal union supporter
and organizer, yet failed to seize upon this alleged oppor-
tunity to retaliate against him for his union activity. For
the General Counsel to argue that [the Respondent] dis-
charged the drivers in question in order to retaliate against
its entire [work force] for organizing a union which [the
Respondent] recognized voluntarily defies logic, where
one of the Union’s staunchest supporters was not fired
pursuant to the new policy.[14]
The Respondent did not initially recognize the Union when
the demand was made on January 24. And when the Respon-
dent did recognize the Union on February 15, it was only after
Greene reviewed the petition and copies of the cards but re-
fused to sign the recognition agreement. As was pointed out by
Regan, the review of the petition and the copies of the cards
was, arguably, sufficient to accomplish recognition.15 Since
Greene refused to sign the recognition agreement after review-
ing the petition and the cards, it appears that his initial review
of the petition and cards was not done with the intent of recog-
nizing the Union if all was in order. Consequently, it appears
that Green unwittingly engaged in conduct which resulted in
recognition as opposed to intentionally, voluntarily recognizing
the Union. Regan indicated that he was going to telephone the
Respondent’s lawyer apparently to make sure that the Respon-
dent fully appreciated what had occurred. When Stallings left
the Respondent’s Kenosha office without Greene’s signature on
the recognition agreement, Greene was trying to get in touch
with the Respondent’s lawyer. Later Greene had Stallings re-
turn to the Respondent’s Kenosha office and Greene then, after
again reviewing the petition and the copies of the union au-
thorization cards, signed the recognition agreement memorial-
ized what had already been accomplished by his review of the

13 Id. at 19.
14 Id.
15 Jerr-Dan Corp., 237 NLRB 302 (1978); and Brown & Connolly,
Inc., 237 NLRB 271 (1978). It appears that by reviewing the petition
and the copies of the union authorization cards the Respondent, through
Greene, agreed to use a method other than an election to determine
employee sentiments. In taking this approach, the Respondent agreed
to be bound by the results of the card check. The Union had already
demanded recognition on January 24 from Greene’s boss, Berman, and
there would not have been a misunderstanding on the part of Greene as
to the purpose of reviewing the petition and the copies of the union
authorization cards. As Judge Wallace Nations concluded in Research
Management Corp., 302 NLRB 627 at 639 (1991):
The Respondent did not have the authorization cards thrust in
its face. The Union made an offer to prove its majority support
through a card check. The Respondent was free to reject the of-
fer. . . . Having made a reasoned decision to accept the Union’s
offer, the Respondent is not free to reject what it voluntary sought
to learn. On being informed of the Union’s majority support, it
was obligated to bargain with the Union.
DALLAS & MAVIS SPECIALIZED CARRIER CO. 275
petition and cards. Initially, the Respondent did not intention-
ally, voluntarily recognize the Union. The Respondent signed
the recognition agreement only after Greene had already unwit-
tingly recognized the fact that the Union had the support of the
majority of the involved employees by voluntarily utilizing a
method other than an election.
As set forth by the Board in Fluor Daniel, Inc., 304 NLRB
970 (1991):
In Wright Line, [supra], the Board set forth its causa-
tion test for cases alleging violations of the Act turning on
employer motivation. First, the General Counsel must
make a prima facie showing sufficient to support the infer-
ence that protected conduct was a “motivating factor” in
the employer’s decision. Once accomplished, the burden
then shifts to the employer to demonstrate that the same
action would have taken place notwithstanding the pro-
tected conduct. It is also well settled, however, that when
a respondent’s stated motives for its actions are found to
be false, the circumstances may warrant an inference that
the true motive is an unlawful one that the respondent de-
sires to conceal. The motive may be inferred from the to-
tal circumstances proved. Under certain circumstances the
Board will infer animus in the absence of direct evidence.
That finding may be inferred from the record as a whole.
[Citations and footnotes omitted.]
In order to establish a prima facie violation of Section
8(a)(1) and (3) of the Act, the General Counsel must establish
union activity, employer knowledge, animus and adverse action
taken against those involved or suspected of involvement which
has the effect of encouraging or discouraging union activity.
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case, even without
direct evidence. Evidence of false reasons given in defense
may support such inferences.
Counsel for the General Counsel has established that many
of the Respondent’s employees attended a meeting at a union
hall in Gary; that Greene was told about the union meeting; that
Greene told Stallings he knew about the union meeting, he
asked Stallings about union activity and threatened to close the
Respondent’s Kenosha facility; that Regan, in demanding rec-
ognition on January 24, told Berman that a majority of the Re-
spondent’s employees had memorialized their support for the
Union; and that the Respondent changed its paycheck distribu-
tion policy after being notified of the employees’ efforts in
support of the Union. The General Counsel has demonstrated
union activity of most of the Respondent’s employees, em-
ployer knowledge that the majority of its employees support the
Union, anitunion animus by way of the first threat to close and
the change in the paycheck policy, and adverse action against
those suspected of involvement which has the effect of discour-
aging union activity. For these reasons and for other reasons set
forth below, the General Counsel has made a prima facie show-
ing sufficient to support the inference that protected conduct
was a motivating factor in the Respondent’s decision.
Has the employer demonstrated that the same action would
have taken place notwithstanding the protected conduct? The
Respondent appears to argue two different ways on the same
issue. First, the Respondent argues that Greene was reluctant to
fire Stallings, who allegedly was the first to refuse a broker
load on January 26, and who was a “vocal union supporter”
because Greene disagreed with the new policy. This would
have meaning only if the new policy was first implemented on
January 26 and Greene took the actions he did because he was
told to. But this is not Greene’s testimony. Greene testified
that he and Berman in July and November 2000 told the dis-
patchers to tell the drivers about the new policy if they refused
a broker load. The “new” policy was not implemented in July
2000 and it was not renewed in November 2000. Greene’s
testimony regarding this is not credited. The dispatchers who,
according to Greene’s testimony were the ones who allegedly
told the drivers about this “new” policy in July and November
2000 were not called as witnesses to corroborate Greene.
Those drivers who testified did not corroborate Greene. The
policy was first announced on January 26. But it was not a new
policy for all of the involved drivers. The Respondent con-
cedes that Greene did not enforce the policy with respect to
Stallings. On brief the Respondent argues that Greene did not
because he disagreed with the policy. The fact of the matter is
that the Respondent did not enforce the change in policy
against Stallings because he was a vocal union supporter. The
Respondent appreciated that it would be more subtle to enforce
the changed policy against less vocal union supporters. The
same point could be made and the risk incurred in making the
point would be far less. The Respondent’s treatment of Rice,
McCall, and Bigheart, on the one hand, and, on the other,
Stallings and Whitehead, who also refused a broker load on
January 26 and was not even told by the dispatcher that refus-
ing a broker load was grounds for discipline or termination,
demonstrate the Respondent’s disparate treatment of employees
with similar conduct. Also, the Respondent deviated from past
practice in disciplining Rice, McCall, and Bigheart. It had been
the Respondent’s past practice to allow all of the drivers to
refuse broker loads. All of a sudden what was acceptable in the
past became unacceptable for some but not all. Not only were
drivers other than the three not disciplined for refusing broker
loads on January 26, the other drivers who refused broker loads
on January 26 were not even told about the Respondent’s
changed policy. Why weren’t the other drivers told about this
change in policy? Obviously because it was not the Respon-
dent’s policy, except for Rice, McCall, and Bigheart.
One has to also ask if the degree of discipline administered
by the Respondent was reasonably related to the seriousness of
the employees’ conduct and the record of the employee in his
or her service to the Respondent. What was not an offense until
January 26 allegedly became an offense, at least with respect to
Rice, McCall, and Bigheart. It was not shown by the Respon-
dent that the involved conduct was an offense on January 26
with respect to other of the Respondent’s employees, especially
those who engaged in the same conduct and were not even told
about the “new” policy. To discharge three people citing a rule
which existed only on January 26, and which existed only with
respect to these three people, indicates to me that not only
wasn’t the discipline reasonably related to the seriousness of
the alleged offense but there was no real “offense” to begin
with. The rule was changed for these three drivers only, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD276
when they followed the accepted practice for all of the other
drivers they were discharged. Why? The only thing that had
changed was the Union involvement. Contrary to any impres-
sion the Respondent may have attempted to convey, the past
service of these three drivers was not even taken into considera-
tion. The Respondent has not shown that Rice, McCall, and
Bigheart would have been discharged notwithstanding the em-
ployees’ protected conduct.
As pointed out by the Board in Kajima Engineering, 331
NLRB 1604 (2000):
It is well established that where there is no direct evi-
dence, knowledge of an employee’s union activities may
be proven by circumstantial evidence from which a rea-
sonable inference may be drawn. . . . Such circumstances
may include the employer’s demonstrated knowledge of
general union activity, the employer’s demonstrated union
animus, the timing of the discharge in relation to the em-
ployee’s protected activities, and the pretextual reasons for
the discharge asserted by the employer. [Citations omit-
ted.]
Here, Rice, McCall, and Bigheart were terminated 2 days af-
ter Regan demanded recognition from Berman and Berman did
not grant recognition. These discharges occurred 4 days before
another discriminatory discharge. The record contains substan-
tial evidence of antiunion animus. All three of the employees
discharged on January 26 wore union buttons. While there is
no direct evidence that any supervisor saw the buttons, there is
compelling circumstantial evidence that warrants an inference
that the Respondent knew of or at least suspected these three
employees of engaging in union activities or harboring union
sympathies and that it terminated them in reaction to the em-
ployees’ union activities, particularly the Union’s demand for
recognition. E. Mishan & Sons, Inc., 242 NLRB 1344 (1979).
Also, there is a sufficient basis to infer that the Respondent
knew of the union activity of the three employees terminated on
January 26. General Counsel has established that union activity
was a motivating factor in the Respondent’s decision to termi-
nate them. In the absence of any legitimate basis for their ter-
minations, the Respondent has not met its burden of demonstra-
tion that the terminations would have occurred even in the ab-
sence of the employees’ protected conduct. The Respondent
violated the Act as alleged in paragraphs VI(b), (c), and (d) of
the complaint.
Paragraph VI(e) of the complaint alleges that on January 30
the Respondent, by Greene, at Respondent’s facility, unlaw-
fully discharged Brooks. At the trial herein the Respondent
moved to strike this paragraph of the complaint arguing that
counsel for the General failed to establish a prima facie case of
protected concerted activity known to the Company in that
management did not see Brooks with a union button or sticker.
Also the Respondent pointed out that Brooks did not testify in
support of allegation of discrimination. The motion was taken
under advisement. On brief, counsel for the General Counsel
contends that with regard to Brooks’ own union activities,
knowledge can again be inferred from the facts that (1) Re-
spondent admittedly relied on employee informants to provide
it with specific information concerning the organizing cam-
paign, (2) Respondent reacted swiftly to rumors of an organiz-
ing campaign by threatening employees with closure of its op-
erations, creating the impression that its employees’ union ac-
tivities were under surveillance, and abruptly changed its long-
standing paycheck distribution policy for discriminatory rea-
sons, (3) Brooks wore a union button to work, (4) Respondent
terminated Brooks only 1 week after the Union’s initial demand
for recognition, and (5) Respondent terminated Brooks for a
pretextual reason;16 that the record establishes that the Respon-
dent’s “motivation factor” in terminating Brooks was his per-
sonal union activities and/or the drivers’ collective effort to
organize; that the only reason proffered by the Respondent for
termination Brooks is that he was outside the insurance stan-
dards but in evaluating the pretextual nature of this reason, one
must merely look at the fact that the Respondent admittedly had
knowledge of and yet tolerated Brook’s less than perfect driv-
ing record for almost 2 years; that not coincidently, only 1
week after Brooks signed an authorization card and the Union
made its demand for voluntary recognition, the Respondent
suddenly terminated Brooks for being outside the insurance
standards; that in March 2000 when Ryder recommended to
Respondent that Brooks be terminated based on their review of
his driving record, Greene’s independent investigation con-
firmed that Brooks’ driving record was outside the insurance
standards but he simply placed Brooks on 6 months’ probation;
that in late summer 2000 an audit from the Respondent’s in-
surer again notified the Respondent that Brooks’ driving record
was outside insurance standards and the Respondent continued
to employ Brooks; that in December 2000 when Greene saw
the audit from the Respondent’s insurer he took no action re-
garding Brooks; that Greene admitted that when Brooks was
terminated by the Respondent he had not had any accidents or
traffic tickets since October 8, 1999; and that the only other
driver who was terminated because of a poor driving record
was Lewis, who had her license suspended so that she could not
drive Respondent’s trucks. The Respondent, on brief, argues
that even assuming that knowledge of Brooks’ alleged pro-
tected activity can be inferred, the General Counsel has none-
theless failed to establish that Brooks was discharged out of
anti-union animus, as opposed to his poor driving record; that
although the General Counsel contends that such knowledge
should be inferred by virtue of the timing of Brooks’ termina-

16 The following appears in fn. 15 at p. 34 of the brief of the counsel
for the General Counsel:
The Judge should discredit Greene’s clearly self-serving testimony
that, on January 23 or 24, Brooks informed him that he had been ap-
proached to sign a card and refused. Respondent did not present this
evidence during the Regional Office’s administrative investigation or
at any other time as would normally be expected. In fact, it was only
after Respondent was put on notice that Brooks would not be available
to testify (or contradict other witnesses’ testimony) that Greene fabri-
cated this unbelievable story for the first time. Moreover, even if true,
Brooks’ mere denial of involvement would not have necessarily con-
vinced Respondent that he was innocent of union activity given his
wearing of a union button.
It should be noted that counsel for the General Counsel did not make
what was presented during the administrative investigation a matter of
record at the trial herein.
DALLAS & MAVIS SPECIALIZED CARRIER CO. 277
tion, the General Counsel failed to provide sufficient evidence
to support such an inference, failed to call Brooks to the stand,
and, therefore, failed to establish a prima facie case in regards
to Brooks since it is based exclusively on speculation and con-
jecture; and that accordingly, the allegations of improper dis-
charge pertaining to Brooks should be stricken and the allega-
tions dismissed.
The Respondent’s renewed motion to strike is hereby denied.
It is not necessary for an alleged discriminatee to testify to find
a violation of the Act if the evidence of record supports such a
finding. Here it does.
As noted above, the Board in Fluor Daniel, Inc., supra, con-
cluded that “when a respondent’s stated motives for its actions
are found to be false, the circumstances may warrant an infer-
ence that the true motive is an unlawful one that the respondent
desires to conceal.” (Footnote omitted.)
Notwithstanding the fact that Ryder and the Respondent’s
insurer found Brooks driving record to be below their stan-
dards, the Respondent retained him for some time after it was
aware of these findings. Subsequently, nothing changed with
respect to his driving record. What did change, however, was
the Union organizing drive which resulted in a majority of the
Respondent’s employees memorializing their support for the
Union and the Union demanding recognition. Citing Brooks’
driving record was a pretext. And the Respondent appreciates
how obvious this is for on brief the Respondent now advances
another alleged reason, namely, that Brooks failed to disclose
his poor driving record information on his application for em-
ployment. No evidence was introduced at the trial herein that
there was a problem with Brooks’ application for employment.
Neither of Respondent’s witnesses testified that this was the
reason that Brooks was terminated. Additionally, Brooks’ ap-
plication was not introduced into evidence. Moreover if there
was a problem with what information Brooks gave about his
driving record on Respondent’s employment application, the
Respondent was placed on notice regarding Brooks’ driving
record while he was an employee and the Respondent took no
action at the time about any alleged shortcomings on Brooks’
application. Additionally, by law, Joint Exhibit 1, the Respon-
dent was required to check Brooks’ driving record for the pre-
ceding 3 years in every State in which Brooks held a motor
vehicle operator’s license or permit during those 3 years. The
reason that the Respondent gives for Brooks’ termination does
not withstand scrutiny. It is pretextual. As concluded in Fluor
Daniel, Inc., supra, an inference is warranted that the real rea-
son for Brooks’ termination is an unlawful one that the Re-
spondent desires to conceal.
If this case were decided under Wright Line, supra, the Gen-
eral Counsel has shown that a majority of the involved drivers
engaged in union activity; that the Respondent was aware of the
extent of the employees’ union activity since the Union de-
manded recognition indicating that a majority of the employees
had memorialized their support; that the Respondent then pro-
ceeded to go after drivers who were made vulnerable either by
(a) the Respondent changing a policy with regard to some but
not all of its employees, especially not the most vocal union
supporters, or (b) the Respondent no longer accepting an em-
ployee’s driving record which it had accepted for some time
before the union activity; and that there was significant anti-
union animus on the part of the Respondent. On the other
hand, the Respondent has not shown that the same action would
have taken place notwithstanding the protected conduct of
Brooks and his fellow employees. Brooks was not terminated
before the union activity. Nothing changed until the union
activity. If there was no business justification for terminating
Brooks before the union activity, the Respondent has not shown
that there was a business justification for terminating Brooks
after the union activity culminated in a demand for recognition
and a denial of that demand on January 24. The Respondent
violated the Act as alleged in paragraph VI(e) of the complaint.
Paragraph VI(f) of the complaint alleges that on April 1 the
Respondent, by Berman, unlawfully transferred unit work to
owner operator drivers. On brief, counsel for the General
Counsel contends that an employer’s decision to transfer unit
work outside the bargaining unit is a mandatory subject of bar-
gaining since it simply involves “the substitution of one group
of workers for another to perform the same work . . . under the
ultimate control of the same employer for lower wages,” Gei-
ger Ready-Mix Co. of Kansas City, 315 NLRB 1021, 1023
(1994); and Torrington Industries, 307 NLRB 809 (1992); that
an employer violates Section 8(a)(1) and (5) of the Act by
transferring work performed by unit employees to others out-
side the bargaining unit without providing the union notice or
an opportunity to bargain; that an employer violated Section
8(a)(1) and (3) where it terminates unit employees and transfers
their work to others outside the bargaining unit to avoid having
to deal with a union, Ferragon Corp., 318 NLRB 359, 360–362
(1995);17 that an employer had previously made threats of clo-
sure is sufficient to establish that the decision to transfer work
was motivated by union animus, Westchester Lace, Inc., 326
NLRB 1227 (1998); that on March 30, at the second bargaining
session, Berman misrepresented to the Union and the individual
drivers that the entire Chrysler operation had been shut down,
including the Belvidere-Toledo run; that Berman admitted that
he surreptitiously transferred the Belvidere-Toledo run to the
Respondent’s nonunion drivers the same week that the second
bargaining session was held, and he also conceded that the
Respondent never provided the Union with any notice or oppor-
tunity to bargain about the decision to transfer the Belvidere-
Toledo run to its nonunion drivers; that Regan attempted to
discuss the new revelations concerning the nonunion drivers
doing the Belvidere-Toledo run with Berman, leaving two mes-
sages with Berman’s secretary requesting that Berman call him
back to discuss this and other outstanding issues; that Berman
never returned Regan’s telephone calls or returned to the bar-
gaining table to bargain about the decision to transfer the
Belvidere-Toledo run to the nonunion drivers; that the Respon-
dent continued to utilize its nonunion drivers to do the
Belvidere-Toledo run until it actually shut down this aspect of
the operation on May 5; and that the violation of Section
8(a)(1) and (3) is supported by the facts that the Respondent (1)
knew of its union drivers’ organizing activities, (2) knew that
Belvidere-Toledo drivers Stalliings and Whitehead were the

17 In the instant proceeding, the Respondent terminated five union
drivers who drove the Belvidere-Toledo run.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD278
most ardent union supporters based on their participation on the
Union’s bargaining committee, (3) harbored strong union ani-
mus based on its commission of other unfair labor practices,
including multiple threats to close its operation if the drivers
selected the Union as their collective-bargaining representative,
(4) surreptitiously transferred the Belvidere-Toledo run to its
nonunion operators only about 1 month after it recognized the
Union, and (5) provided “lack of equipment” as the only reason
for transferring the work to the nonunion drivers even though
“the non-union drivers admittedly used the same equipment as
the union drivers.” (GC Br. at 41.)
The Respondent, on brief, argues that it was not obligated to
bargain with the Union regarding either its decision to transfer
the Belvidere-Toledo run or the effects thereof because the
decision involved a change in the nature, scope and direction of
the Respondent’s business and any bargaining regarding this
decision would have been futile; that the decision to transfer the
work was not motivated by labor costs, but rather the Respon-
dent’s decision to close the Chrysler Engine Operation and,
thus, discontinue the use of employees who had handled the
traffic; that the Respondent returned its trucks to Ryder in an-
ticipation of phasing out this aspect of its business; that any
attempt on behalf of the Respondent to negotiate with the Un-
ion regarding the decision to transfer work to Belvidere would
have been futile, as no concessions the Union could have of-
fered would have reversed the closing; that this transfer was not
a mandatory subject of bargaining; that the Union waived its
right to bargain over the effects of the decision to transfer the
work by failing to request such bargaining; that the Union
never made a clear request to bargain after it became aware of
the Respondent’s alleged transfer of bargaining unit work to
non-Union drivers; that Regan testified that he only made a
single telephone call to Berman after Regan became aware of
the continuation of the Belvidere run; and that Regan’s testi-
mony confirms the Union’s failure to request that the Respon-
dent bargain with it regarding the decision to transfer its
Belvidere run to owner-operators, and the effects thereof.
The General Counsel’s contention that the nonunion drivers
used the same equipment as the union drivers on the Belvidere-
Toledo run is one-half correct. The owner-operators used the
same trailers as the union drivers but the owner-operators used
their own tractors. The Respondent argues that the situation at
hand should be treated as a relocation involving a change in the
nature, scope and direction of the Respondent’ business.
Physically the only change was that the Respondent turned in
the tractors it leased from Ryder and then paid to use the trac-
tors owned by the owner-operators. The Respondent could
have continued to use five leased tractors from Ryder or it
could have leased five tractors from another company from
March 31 to May 5. There was no relocation and there was no
change in the nature, scope and direction of the Belvidere-
Toledo run from March 31 to May 5. The Respondent misled
the Union when it left the impression that all of the Chrysler
operation had been shut down by March 31. The Respondent
purposefully avoided engaging in any, let alone meaningful,
negotiations with the Union about this transfer of unit work.
As pointed out by counsel for the General Counsel on brief,
transferring unit work outside the bargaining unit is a manda-
tory subject of bargaining. The Respondent did not give the
Union notice and an opportunity to bargain regarding the Re-
spondent’s decision to transfer unit work to nonunion owner
operators. The Respondent did not even present the Union with
a fait accompli. The Respondent engaged in deceitful conduct
and then when the conduct was discovered, the Respondent
would not even return the Union’s calls which it knew related
to the fact that the Respondent’s deceit had been discovered by
the Union. The Respondent violated the Act as alleged in para-
graph VI(f) of the complaint.
Paragraphs VIII(a), (b), (c), and (d) of the complaint collec-
tively allege that on March 30 the Union, by Regan, requested
that Respondent bargain collectively with the Union over the
effects of its decisions to close its Chrysler operation and the
Respondent’s decision to transfer unit work to its owner-
operator drivers, and since April 3 the Respondent has failed
and refused to bargain collectively with the Union about these
subjects which are mandatory subjects for the purposes of col-
lective bargaining. On brief, counsel for the General Counsel
contends that while an employer has the right to close its opera-
tions for any reason and there is no attendant duty to bargain
over such a decision, an employer is obligated to give the union
timely notice and afford the union an adequate opportunity to
bargain over the effects of its decision to close its business
operations in a meaningful manner and at a meaningful time,
First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981); that here, on March 28 and 29, without providing any
advance notice to the Union, the Respondent’s dispatchers be-
gan to instruct the drivers to turn in their trucks to the Ryder
terminal in South Bend; that when the drivers attempted to
ascertain the reason for this directive, they were told that it was
over and all the trucks had to be turned in before the license
plates expired on March 31; that despite Berman’s assurances
that he would consider the Union’s March 30 proposals,
namely, that laid-off drivers be given 2 months of severance
pay and health insurance benefits, the Respondent never had
any intention of engaging in meaningful negotiations; that this
is evidenced by the fact that only 4 days later, on April 3, Ber-
man faxed to the Union a one-page letter summarily stating that
the Chrysler drivers would neither be retained on broker loads,
nor given any severance package; that this letter did not explain
why the Respondent had rejected the Union’s severance pack-
age proposals, it did not make a single counterproposal to the
Union, and it did not declare an impasse; that by April 3 the
Respondent had already refused to bargain in good faith over
the effects of its decision to close the Chrysler operation by (1)
failing to provide the Union with “pre-implementation notice”
of its decision to close the operation and, thereby failing to
satisfy its effects-bargaining obligation, Geiger Ready-Mix Co.
of Kansas City, supra, 1022 at fn. 8, and (2) summarily reject-
ing the Union’s severance package proposals; and that after
April 10 the Respondent continued to engage in bad-faith bar-
gaining when Berman failed to respond to Regan’s letter and
telephone messages which requested further bargaining about
effects of the decision to close the Chrysler operation.
The Respondent, at page 33 of its brief, argues as follows:
DALLAS & MAVIS SPECIALIZED CARRIER CO. 279
Because [the Respondent] voluntarily recognized the
Union and the General Counsel failed to provide any evi-
dence that [the Respondent] or its officers or agents exhib-
ited any anti-union animus or discriminatory motivation,
the totality of [the Respondent’s] bargaining conduct ex-
hibits its good faith effort to bargain over the effects of the
cessation of its operations.
Here, the Respondent failed to provide the Union with pre-
implementation notice of its decision to close its Chrysler op-
eration. Rather, the Respondent presented the Union with a fait
accompli. Obviously this did not satisfy the Respondent’s ef-
fects bargaining obligation. The Respondent also did not en-
gage in meaningful negotiations in that it summarily rejected
the Union’s proposals without adequately explaining why, did
not make any counterproposals and it did not disclose in a can-
did, honest, truthful fashion that it intended to continue a part of
the Chrysler operation. The Respondent misled the Union.
The bargaining that took place was not sufficient to meet the
employer’s obligation to bargain over the effects of the decision
to close the Chrysler operation and the decision to transfer unit
work, the Belvidere-Toledo run, to non-union owner-operators.
The Respondent violated the Act as alleged in paragraphs
VIII(a), (b), (c), and (d) of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by (1)
threatening employees with closure of its operation if the em-
ployees selected the Union as their collective-bargaining repre-
sentative, and (2) creating the impression that employees’ union
activities were under surveillance.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act by (1) modifying its paycheck distribution policy, (2) dis-
charging Madonna Bigheart, Leslie McCall, Dennis Rice, and
John Brooks, and (3) transferring unit work to owner-operators.
5. The Respondent violated Section 8(a)(1) and (5) of the
Act by failing and refusing to bargain collectively with the
Union about the effects of its decision to close its Chrysler
operation and its decision to transfer unit work to its owner-
operator drivers.
6. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative action
set forth below to effectuate the policies of the Act.
Having found that the Respondent unlawfully terminated
Madonna Bigheart, Leslie McCall, Dennis Rice, and John
Brooks, it will be recommended that the Respondent be ordered
to make them whole for any loss of earnings or benefits they
may have suffered, from the time of their discharge to the date
the Chrysler operation was closed, as a result of the Respon-
dent’s unlawful conduct, in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent violated Section 8(a)(1)
and (5) of the Act by failing and refusing to bargain collectively
with the Union about the effects of its decision to close its
Chrysler operation and its decision to transfer unit work to its
owner-operator drivers, it will be recommended that Respon-
dent make Madonna Bigheart, Leslie McCall, Dennis Rice, and
John Brooks, and its other unit employees who were terminated
on or about March 31, 2001, when the Respondent closed its
operation, whole by paying those employees’ normal wages for
a period specified by the National Labor Relations Board, plus
interest.
The Respondent will be required to expunge from its records
any reference to the unlawful discharges of Madonna Bigheart,
Leslie McCall, Dennis Rice, and John Brooks.
It shall be recommended that the Respondent, on request,
bargain collectively with the Union with respect to (1) the ef-
fects of its decision to close the Chrysler operation, and (2) its
decision to transfer the Belvidere-Toledo run to nonunion driv-
ers, and to embody any understanding reached into a signed
agreement.
On these findings of fact and conclusions of law and o the
entire record, I issue the following recommended18
ORDER
The Respondent, Dallas & Mavis Specialized Carrier Co.,
Kenosha, Wisconsin, its officers, agents, successors, and as-
signs shall
1. Cease and desist from
(a) Threatening employees with closure of its operation if the
employees selected the Union as their collective-bargaining
representative, and creating the impression that employees’
union activities were under surveillance.
(b) Unlawfully modifying its paycheck distribution policy,
unlawfully discharging employees, and unlawfully transferring
unit work to owner-operators.
(c) Unlawfully failing and refusing to bargain collectively
with the Union about the effects of its decision to close its
Chrysler operation and its decision to transfer unit work to its
owner-operator drivers.
(d) 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) On request, bargain with the Union concerning the effects
of its decision to close the Chrysler operation, and concerning
the decision to transfer unit work to its owner-operator drivers.
(b) Make Madonna Bigheart, Leslie McCall, Dennis Rice,
and John Brooks whole for any loss of earnings and other bene-

18 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD280
fits as a result of the discrimination against them, in the manner
set forth in the remedy section of the decision, and make them,
and its other unit employees who were terminated on or about
March 31, 2001, when the Respondent closed its operation,
whole by paying these employees’ normal wages for a period
specified by the National Labor Relations Board, plus interest
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of Madonna
Bigheart, Leslie McCall, Dennis Rice, and John Brooks, and
within 3 days thereafter notify the employees in writing that
this has been done and that the discharges will not be used
against them in any way.
(d) 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 re-
cords, 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.
(e) Within 14 days of service by the Region, mail a copy of
the attached notice marked “Appendix”19 to the Union and to
all the employees who were employed out of its place of busi-
ness in Kenosha, Wisconsin, at any time from the onset of the
unfair labor practices found in this case until March 31, 2001.
The notice shall be mailed to the last known address of each of
he employees after being signed by the Respondent’s author-
ized representative.
(f) 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.

19 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.”