Dawn Trucking Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 8, 2017

29-CA-171337 (N.L.R.B. Feb. 8, 2017)

JD(NY)-03-17
Rosedale, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
DAWN TRUCKING INC.
and Cases 29–CA–171337
29–CA–174915
MICKOY HOLNESS, an individual
Kimberly Walters, Esq., for the General Counsel.
Richard Ziskin, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
BENJAMIN W. GREEN, Administrative Law Judge. This case was tried in Brooklyn, New
York on December 15, 2016.1 The General Counsel alleges that, since November 6, 2015, the
Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by
discharging its employees Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan
Rosario and Kevin Wittier (the drivers) because of their support for and activities on behalf of
the Building Material Teamsters Local 282, International Brotherhood of Teamsters (the Union).
The General Counsel further alleges that, on February 16, the Respondent violated Section
8(a)(5), (3) and (1) of the Act by dealing directly with certain drivers regarding offers to reinstate
them upon the condition that they reject the Union. For the reasons described below, I find that
the Respondent violated the Act as alleged.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the post-hearing briefs that were filed by the parties, I make these
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. The parties further agree that the
Union is a labor organization within the meaning of Section 2(5) of the Act. [Jt. Exh. 1]
II. PROCEDURAL HISTORY
Since the Respondent has raised an issue of timeliness under Section 10(b) of the Act,
the procedural background is provided in detail as follows:
On March 7, Mickoy Holness, an individual, filed the original charge in case 29–CA–
171337 alleging that, after November 6, 2015, the Respondent violated Section 8(a)(1) by

1 All dates refer to 2016 unless indicated otherwise.
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refusing to dispatch employees for work because they unanimously elected the Union as their
bargaining representative in an NLRB election conducted on November 5, 2015. [GC Exh. 1(d)]
On March 17, Holness filed a first amended charge in case 29–CA–17137 alleging the
same cessation of work as a violation of Section 8(a)(3) and (1). [GC Exh. 1(a)]
On April 25, Holness filed the original charge in case 29–CA–174915 alleging that, on
February 16, the Respondent violated Section 8(a)(5), (3) and (1) by dealing directly with
employees concerning their terms and conditions of employment and promising benefits in
exchange for employees disavowing support for the Union. [GC Exh. 1(i)]
On May 23, Holness filed a second amended charge in 29–CA–17137 alleging that the
Respondent discharged employees after the November 5, 2015 election in violation of Section
8(a)(5) (as well as Section 8(a)(3)). [GC Exh. 1(m)]
On August 30, an order consolidating cases, consolidated complaint and notice of
hearing (the complaint) issued in cases 29–CA–171337 and 29–CA–174915. [GC Exh. 1(q)]
On December 9, the Respondent filed a third amended answer denying the essential allegations
of the complaint. [GC Exh. 1(z)] The complaint alleged that, on about November 6, 2015, the
Respondent violated Section 8(a)(5), (3) and (1) by discharging the drivers. However, in its
post-hearing brief, the General Counsel moved to withdraw the allegation that these drivers
were discharge in violation of Section 8(a)(5).2 The complaint further alleged that, on about
February 16, the Respondent violated Section 8(a)(3) and (1) by offering to reinstate all the
drivers except Rosario upon the condition that they reject the Union. Finally, the complaint
alleged that, on February 16, the Respondent violated Section 8(a)(5) and (1) by bypassing the
Union and dealing directly with employees regarding their term and conditions of employment.
III. ALLEGED UNFAIR LABOR PRACTICES
The Respondent is in the business of carrying dirt and other fill material to and from
construction sites in dump trucks. [Jt. Exh. 1 ¶ 1]
The Respondent is owned by Henry Burey and he manages the operation. [Tr. 66, 71–
72] [Jt. Exh. 1 ¶ 5] The parties stipulated and I find that Burey is a supervisor and agent within
the meaning of Section 2(11) and 2(13) of the Act. [Jt. Exh. 1 ¶ 5]
Prior to November 5, 2015, the Respondent employed six drivers (named above) who
operated the trucks. Burey also drove a truck occasionally. [Tr. 16–17, 35–36, 66] The
Respondent generally maintained a fleet of seven trucks. [Tr. 16, 34] Burey testified that he
bought a new (eighth) truck, but returned it in September 2015. [Tr. 79] On jobs that were not
paid a prevailing wage, the drivers earned $27 per hour with the exception of Holness who
earned $30 per hour. [Tr. 22, 74] [Jt. Exh. 1 - Exhibit B] The drivers were paid more for
prevailing wage jobs. [Tr. 74]
Burey was responsible for assigning work to the drivers. [Tr. 14, 33] At the end of each

2 I hereby grant the General Counsel’s motion to withdraw the allegation that the Respondent
violated Section 8(a)(5) and (1) by discharging the drivers on November 6. As discussed below, I have
found that the Respondent violated Section 8(a)(3) and (1) by discharging the drivers and the finding of a
Section 8(a)(5) violation would add nothing to the remedy.
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workday, Burey sent text messages to each driver indicating the client, starting time, and
location for their next day of work. If the Respondent did not have work for a driver because of
the weather or because business was slow, Burey sent a text message to the driver telling him
so. [Tr. 14–15, 33–34]
In addition to the drivers, the Respondent employed Burey’s wife Karlene Burey.
Karlene did not drive a truck or have a commercial driver’s license. Burey described Karlene’s
job as running errands. [Tr. 66–67] [Jt. Exh. 1 Exhibit B]
In about September 2015, Holness contacted Union Business Agent Jay Strull. [Tr. 17]
Thereafter, the Union filed a petition with the NLRB to represent a unit of drivers employed by
the Respondent.3 Pursuant to that petition, an election was scheduled for November 5, 2015.
[Tr. 46–47] [Jt. Exh. 1 ¶¶ 6–7]
Prior to the election, employees received a document with their paychecks that stated as
follows [Tr. 19, 37] [GC Exh. 2]:
DAWN TRUCKING
There are certain facts that the employees of Dawn Trucking should keep in mind
when considering how to vote in the election this week:
• The company has been able to compete better against union competitors
because it has not been restricted by union work rules that do not put money in
your pocket.
• 'The company does not presently have the client base that will continue to
retain the company if the union is voted in.
• The law does not require an employer to grant any concession to the union, to
increase pay, to improve a benefit or to agree to any union demand.
• If the union gets in and makes demands which the company does not agree to,
it has the right to strike which means you lose your pay and the company can
stop paying your health insurance premiums. The company also have the legal
right to hire permanent replacements for any striker. When the strike is over, the
company does not have to fire the replacement to make way for the returning
striker.
• A union has the right fine members for crossing a picket line even as much as
the amount of money they earn while working. The fines may be collected in
court.

3 The parties stipulated and I find that the following unit is appropriate:
All full-time and regular part-time drivers employed by the Respondent and working at or out of the
Respondent’s Rosedale facility, located at 155-49 Broad Street, Rosedale, New York.
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• If the union gets in it is legal to require that everyone must join and that dues
get automatically deducted from your paycheck.
• It is not easy to just try the union to see if you like it. Once it is in, it is very
difficult for employees to get rid of it and you could end up paying dues for your
entire time with the company.
• If you vote against the union the union cannot take it out on you or retaliate
against you for voting No. The Labor Board protects you.
• The fact that I agreed to an election and gave your home addresses to the
union does not mean that I favor the union coming in here, The Labor Board and
the Labor Board rules require turning over your home Addresses to the Union.
Holness testified that, the day before the election, Burey spoke to him and drivers
Thomas, Coore and Wittier in the yard. According to Holness, Burey told them he would shut
down if they went Union. [Tr. 18, 28–31] Thomas generally corroborated the testimony of
Holness. Although Thomas did not place Coore in the yard during this conversation and
recalled it taking place a couple of days before the election, Thomas testified that Burey told
them he was not interested in going Union because the Union does not provide work and he
has no connections to get union work. According to Thomas, Burey said he would have no
work for the drivers and would rather shut down than go Union.4 [Tr. 37–38]
Burey did not specifically address and deny this conversation with drivers in the yard.
Burey did testify he told Thomas that “we were not going forward. I was worried about taking
work and there could be a strike or it would lead a company to financial problems.”5 [Tr. 77]
On Thursday, November 5, 2015, a representation election was conducted at the end of
the day among employees in the driver unit. [Tr. 40] The election tally of ballots was 6-0 in
favor of union representation. [Jt. Exh. 1 ¶ 7]
Before he voted in the election, Thomas received his dispatch assignment for the
following day. When Thomas arrived home after voting, he received a call from Burey. Burey
told Thomas, “Straight across the board, we’re done.” [Tr. 40] Burey did not have any other
communication with the drivers or the Union about the discharge, layoff, lock out, and/or refusal
to assign work to the drivers. [Tr. 72]
Thomas worked his assignment on November 6, 2015. [Tr. 40] Holness did not work on
November 6, 2015, because of a medical emergency. [Tr. 20]
After November 6, 2015, Burey did not assign work to the drivers. [Tr. 20, 40–41, 72]
[Jt. Exh. 1 ¶ 9] Burey admits he performed some work as a driver after the election. [Tr. 67–69]
The General Counsel introduced an invoice from the Respondent to client Triumph Construction

4 I credit Thomas’s account of the conversation because his recollection is consistent with what
Respondent previously announced in writing and he (Thomas) testified with assurance and detail. The
complaint does not allege that Burey’s comments were unlawful and I make no finding in this regard. I
note, however, that the statement may be evidence of motive even if it is not alleged as a threat. Jones
Plumbing Co., Inc., 277 NLRB 437, 440 (1985).
5 It is not entirely clear whether Burey was referring to the same conversation in the yard that was
testified to by Thomas and Holness.
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Corp. (Triumph) that showed the Respondent dispatched one truck to Triumph (operated by
Burey) on the following dates: November 9–13, 16–20, 23–25, 27, and 30, 2015. [GC Exh. 5]
On direct examination, Burey explained his decision to stop assigning work to the drivers
as follows [Tr. 72]:
A During that time I was not in the best of health. Prior to a couple of weeks
before I got Notices from the NLRB I actually checked in the hospital with
some health issues. And for the first time I realized that I’m getting to be an
old guy and so at that time I didn’t want to take on additional work that Drivers
would strike and Union would shut the business down. It was basically a lock
out. We had not hired Replacement Drivers or -
Q So since November 6th, 2015 has Dawn Trucking hired any Drivers?
A No, we have not hired any Drivers since November.
On cross-examination, Burey testified as follows [Tr. 78-79]:
A So on your direct examination you testified that when you ceased dispatching
Drivers it was, a quote, “basically a lock out”. Is that your testimony?
Q Yes, it was.
Q What do you mean by lock out?
A Well, like I said I was having health issues. And – you know – I just wanted
to retire and stop the operation.
…
Q So when did you declare that it was a lock out?
…
A Basically, before all of this –- before October -- before the NLRB letters. You
know -- I was close to the Drivers and they all know that I have no family
member that was going to take over my business. They knew that my wife
was near retirement. They knew I was having health issues, as I was
approaching 63. And I told the Drivers that I had no long term plan for my
business. They knew that before August. So I even had to buy a new truck
that I returned in February to the – in September.
Q So you’re saying that you considered it a lock out back in October?
A I was in the process of closing my business before this -- before the
allegation and before any letters from the NLRB or before this thing
happened.
On November 12, 2015, Respondent attorney Peter Sullivan sent an email to Union
Attorney Travis Mastroddi that stated in part, “We are not sure yet where we are going on
Dawn.” [GC Exh. 3]
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On November 19, 2015, the NLRB certified the Union as the bargaining representative
of the driver unit. [Jt. Exh. 1 ¶ 7(c)]
In late-November or early-December 2015, Holness contacted Strull and asked whether
there was any progress with the Respondent or if they were going to start working. Strull
indicated that he had not heard anything yet. [Tr. 21]
Thomas testified that, in late-January, Burey called and stated the following [Tr. 41]:
And he said that he was interested in starting back up his Company. But he was
only interested in taking on two guys, me and Kevin [Wittier]. And that he had
found out who the terrorists were and he wasn’t interested in anyone else.
Thomas told Burey he had obtained a different job a week ago and would not be
available to work. [Tr. 42] At trial, Burey was asked about this conversation and did not deny
that it occurred as Thomas testified. [Tr. 77]
On February 16, Burey sent the following text message to drivers Holness, Coore, and
Perez [Jt. Exh. 1 ¶ 10 - Exhibit A]:
I want to start work again @ $27.00 per hour, no union rates no benefits, no
prevailing wage Reply by tomorrow if interested 2/17/16 by 4.00 pm
Burey testified that he arranged for a small amount of work in February and (as
discussed below) in August because he was advised that he could terminate any backpay owed
to certain drivers by offering them reinstatement. [Tr. 73, 75–77] However, Burey specifically
testified that these offers of reinstatement occurred after he was advised that a charge had been
filed with the NLRB. [Tr. 79–80] As indicated above, the first charge was not filed until March 7.
[GC Exh. 1(a)]
Burey testified that he selected a wage rate of $27 per hour because that was the wage
rate drivers were earning before he stopped assigning them work. According to Burey, he
would have paid Holness $30 per hour if he had accepted reinstatement because that was what
Holness had been earning previously (even though the text message referenced a $27 per hour
wage rate). [Tr. 73–74] Burey further testified that he mentioned “no prevailing wage” because
the jobs he arranged were not prevailing wage jobs.
None of the drivers accepted the February 16 offer to resume work with the Respondent.
[Tr. 73–74, 77]
On March 9, having learned from Strull that the Respondent might resume work,
Mastroddi prepared a letter that Strull signed and sent to Burey. [Tr. 49–50] The letter stated
[GC Exh. 4]:
It has come to our attention that Dawn Trucking, Inc. (“Dawn”) has again begun
or is soon to begin employing drivers after having shrunk its contingent of drivers
down to one (yourself) shortly after a majority of its drivers voted to select Local
282 as their bargaining representative. Pursuant to the November 19, 2015
Certification of Representative issued by Region 29 of the National Labor
Relations Board (copy enclosed), Local 282 is the exclusive collective bargaining
representative for Dawn’s drivers.
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Please accept this letter as the Union’s request to meet and bargain over the
terms and conditions of employment for Dawn’s drivers, and please contact me
in order to schedule dates to meet in April. In addition, please furnish a list of all
drivers currently employed by Dawn, including each driver’s addresses, rate of
pay, and a description of any fringe benefits or other compensation Dawn
presently provides each.
Subsequent to this letter, Mastroddi had phone and email communications with Sullivan,
and they ultimately scheduled a bargaining session for May. [Tr. 50–51, 58] [R. Exh. 3] The
parties held this one bargaining session and no others. [Tr. 59–60, 75]
In August, Sullivan asked Mastroddi whether an offer to resume work should be made to
the Union or directly to the drivers. Mastroddi responded that the Respondent could contact the
drivers directly. [Tr. 59–64] [ R. Exh. 4]
By letters dated August 30, having been advised that his February offer may not have
been sufficient to terminate backpay, Burey sent new offers to Holness and Thomas. [Tr. 75]
These letters stated [R. Ex. 1-2] [Jt. Exh. 1 ¶ 12]:
This letter is to inform you that we are offering immediate and unconditional
opening of employment with Dawn Trucking Inc. at the same terms and
conditions of employment that you enjoyed when you last worked here. Please
contact us at 718-464-5752 by September 15, 2016 in order to arrange the
details of your return to employment. We anticipate that if you contact us
expeditiously you will be able to return to work by September 15 at the latest. If
we do not hear from you by September 15, 2016, we will assume that you are not
interested in working with us.
Burey testified that he made these new offers of reinstatement because “the previous
offer in February might not have been an offer” and he wanted to terminate the running of
backpay. [Tr. 72–75]
Neither Holness nor Thomas accepted Burey’s August offer to resume work with the
Respondent. [Tr. 27, 44, 75]
Burey testified that the Respondent hired no drivers after November 6, 2015 and, except
the small amount of work performed in November 2015, February, and August, the Respondent
has performed no other trucking work. [Tr. 72, 76–77] The trucks are parked in the yard and the
Respondent has returned the license plates of four of the seven vehicles. [Tr. 77, 80] The
record contains payroll records that show Burey and Karlene remained employed and were paid
by the Respondent from February 14 to April 30. [Jt. Exh. 1 Exhibit B]
ANALYSIS
I. SECTION 10(B) TIMELINESS
As a preliminary matter, I will address the Respondent’s affirmative defense that the
allegations are time barred by Section 10(b) of the Act. The only allegation that was arguably
filed more than 6 months from the date of the alleged unlawful conduct is the allegation that the
drivers were discharged in violation of Section 8(a)(5). On March 17, within the 10(b) period,
Holness filed a first amended charge alleging that the Respondent ceased dispatching work to
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the drivers in violation of Section 8(a)(3) and (1). On April 25, within the 10(b) period, Holness
filed a charge alleging that the Respondent violated Section 8(a)(5), (3) and (1) by, on February
16, dealing directly with employees concerning their terms and conditions of employment and
promising benefits (i.e., employment) in exchange for employees disavowing support for the
Union. On May 23, arguably outside the 10(b) period, Holness filed a second amended charge
alleging that the discharge of the drivers violated Section 8(a)(5) (as well as Section 8(a)(3)).
However, the General Counsel moved in its post-hearing brief to withdraw the 8(a)(5) discharge
allegation and I have granted that motion. Accordingly, the complaint contains no allegation that
was arguably filed outside the 10(b) period.
The Respondent nevertheless contends that Section 10(b) applies because the
complaint refers to the Respondent’s conduct on November 6, 2015, as “discharges” and a
charge did not allege the Respondent’s unlawful conduct as “discharges” until May 23.
However, a complaint is not restricted to the precise language of the charge so long as the
complaint allegation is closely related in fact and law to an allegation in a timely filed charge.
NLRB v. Fant Milling Co., 360 U.S. 301 (1959); Redd-I, Inc., 290 NLRB 1115 (1988); Old
Dominion Freight Line, 331 NLRB 111 (2000). Here, the Respondent’s position amounts to little
more than an exercise in semantics. The March 17 charge accurately described the
Respondent’s conduct as unlawful in that “no employee was dispatch (sic) after November 6,
2015.” The Respondent’s conduct could, alternatively, have been described as “layoffs” (i.e.,
not based on employee misconduct) or “discharges” (i.e., based on employee protected activity)
because it effectively separated the drivers’ employment. Regardless of the specific language,
the facts and law at issue in the violation that was alleged in the March 17 charge are identical
to those at it issue in the violation that was ultimately alleged in the complaint. The Region’s
decision to use the word “discharged” in the complaint instead of “ceased dispatching” or “laid
off” was not confusing or prejudicial, and dismissal of the allegation on that basis would require
the unwarranted elevation of form over substance.
II. DIRECT DEALING AND CONDITIONAL OFFER OF REINSTATEMENT
It is a violation of Section 8(a)(5) and (1) of the Act for an employer to deal directly with
employees regarding reinstatement and the terms thereof without notifying and offering to
bargain with the union that represents those employees. Clemson Brothers, Inc., 290 NLRB
944, 945 (1988) (employer violated Section 8(a)(5) by offering reinstatement to employees upon
terms that were different than those in the collective-bargaining agreement).
It is also a violation of Section 8(a)(3) and (1) of the Act for an employer to condition
reinstatement on an agreement by employees to cease engaging in union activity or to reject
the union and the contractual terms the union has negotiated. Clemson Brothers, Inc., 290
NLRB at 945 (employer “conditioned rehiring of the laid-off employees on their willingness to
waive contractual … benefits. Such actions, as found by the judge, were clearly discriminatory
as well as inimical to the collective-bargaining process”); Vulcan-Hart Corporation, 263 NLRB
477 (1982) (reinstatement offer to local union president was unlawful where it was conditioned
upon his agreement not to run for union office); Kerrville Telephone Company, 209 NLRB 328
(1974) (reinstatement offer was unlawful where it was conditioned upon employee not talking to
other employees about the union).
Here, on February 16, Burey sent a text to three drivers that stated, “I want to start work
again @ $27.00 per hour, no union rates no benefits, no prevailing wage Reply by tomorrow if
interested 2/17/16 by 4.00 pm”. The critical phrase in this text is “no union rates no benefits.”
The General Counsel contends that by conditioning reinstatement on “no union rates no
benefits,” the Respondent communicated an intention to deal directly with the drivers regarding
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their compensation and reject or exclude the Union from that process.
The Respondent contends that Burey’s text, while perhaps not artfully drafted, was
merely a statement of fact and law. That is, there was no union contract in place (at least not
yet) and the Respondent was required by law to maintain drivers’ previous compensation until
negotiations resulted in a good-faith impasse or a collective-bargaining agreement. The
Respondent admits that the text was inaccurate in offering reinstatement to Holness at a wage
rate of $27 per hour instead of the $30 per hour rate he had been earning, but contends that this
was simply an unintentional error.
My initial reaction upon first reading the text in question at the start of trial with limited
context was to interpret the phrase “no union rates no benefits” in the manner asserted by the
General Counsel. The literal meaning of “no union rates” is “rates not negotiated by a union.”
However, the context must be considered in evaluating the Respondent’s contention that Burey
merely confirmed the status quo with no reference to the Union’s future participation in setting
drivers’ wages.
That context supports the literal meaning of the statement and the General Counsel’s
theory of the case. Prior to the election, the Respondent issued a document to drivers which
stated that the Respondent was more competitive without union work rules and did not possess
a “client base that will continue to retain the company if the union is voted in.” According to
Thomas, whom I credit, Burey verbally reiterated that he had no connections to obtain union
work, would have no work for the drivers if they went union, and would rather shut down than go
union. Thus, the Respondent’s message was fairly clear that the company would not and
probably could not continue in business if drivers elected the Union. That being Respondent’s
position, and there being no indication to the contrary in Burey’s February 16 text, it would be
reasonable for the drivers to interpret the offer of “no union rates” as a permanent condition of
reinstatement (otherwise, according to the Respondent, it could not stay in business). This
interpretation of the text was even more likely in the context of Burey’s comment to Thomas (in
late-January) that only certain drivers were being offered reinstatement because he (Burey)
found out who “the terrorists were” (inferring that Burey was attempting to exclude from the
workforce those drivers who were most responsible for the organizing effort).
The Respondent relies on U.S. Ecology Corp., 331 NLRB 223 (2000), where in different
circumstances the Board found other bargaining violations but dismissed an allegation of direct
dealing. The instant case is distinguishable with regard to the direct dealing allegation. In U.S.
Ecology Corp., the employer sent a letter to striking employees (not their union) in response to
employee inquiries about returning to work. This letter stated that strikers could return to work
with their former wages and benefits. However, the employer only offered reinstatement on
such terms “for the time being,” whereas the Respondent did not indicate that “no union rates”
was a temporary condition and subject to bargaining. Further, the employer in U.S. Ecology
Corp. had an established bargaining relationship with the union when it responded directly to
employee inquiries, whereas here the Respondent did not.6 Indeed, the union in U.S. Ecology
Corp. accepted the offer of reinstatement on behalf of employees the day after the letter was
sent by the employer. Finally, in U.S. Ecology Corp., the employer’s letter contained no
inference that the union was being excluded from the bargaining process (unlike here where the
Respondent referred to “no union rates”).

6 On November 12, 2015, Sullivan sent an email to Mastroddi that stated, ““We are not sure yet
where we are going on Dawn.” The email was vague and Sullivan did not commit to engaging in
negotiations with the Union. Further, the Respondent was not responding to driver inquiries.
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In sum, unlike in U.S. Ecology Corp., the drivers in this case were much more likely to
interpret Burey’s text as an offer of reinstatement that permanently conditioned employment on
the acceptance of wage rates not negotiated by the Union. This would tend to erode the
Union’s position as the drivers’ exclusive bargaining representative. Accordingly, the
Respondent violated Section 8(a)(5), (3) and (1) of the Act by dealing directly with the drivers
regarding their terms of employment and conditioning their employment on exclusion of the
Union from the bargaining process.
III. DISCHARGE OF THE DRIVERS
The General Counsel contends that the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging the drivers when it stopped dispatching them for work after November 6,
2015. The Respondent asserts as defenses that its conduct amounted to a lawful closure of its
business or a lawful lockout. I reject both defenses for the reasons described below.
A. CLOSURE
An employer may cease doing business entirely even if the decision to do so is based on
antiunion considerations. Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 270 (1965). An
employer may exercise this right to completely liquidate its business more out of “spite against
the union than by business reasons.” Id. at 272. Further, a partial closure only violates Section
8(a)(3) if it is motivated by a purpose and can reasonably be foreseen to chill unionism in the
employer’s remaining operations. Id. at 275. However, a closure or partial closure will violate
the Act if it is not permanent.7 Plaza Properties of Michigan, Inc., 340 NLRB 983, 989 (2003).
The Supreme Court made clear in Darlington Mfg. Co. that it was not authorizing “a shutdown
where the employees, by renouncing the union, could cause the plant to reopen.” 380 U.S. at
273. Indeed, “[s]uch cases would involve discriminatory employer action for the purpose of
obtaining some benefit in the future from the employees….” Id.
Here, the Respondent does not vigorously deny that its conduct was based on union
considerations and the evidence supports a finding that the Respondent stopped assigning work
to the drivers because they elected the Union as their bargaining representative.8 Prior to the

7 As discussed below, the Respondent argued at trial that its conduct amounted to a lawful lockout.
Such an assertion is factually incongruent with the Respondent’s defense that it permanently went out of
business. Lockouts are undertaken by an employer to compel a union to accept a bargaining position or
to avoid disruption of the business. See Wayneview Care Center, 356 NLRB 154 (2010). Either way, the
purpose assumes an intent to continue in business. However, for reasons discussed below, I find that the
Respondent did not, in fact, lock out the drivers. Accordingly, I do not rely on the Respondent’s assertion
that a lockout occurred as a reason for rejecting the defense of partial closure.
8 The Respondent relies on Darlington Mfg. Co. in arguing that its conduct was lawful regardless of
any antiunion animus. The General Counsel, citing NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33
(1967), asserts that the Respondent’s conduct is so “inherently destructive” of employee rights that no
evidence of motivation is necessary to find a violation. However, I find it unnecessary to rule on this
issue. See Century Air Freight, Inc., 284 NLRB 730 (1987) (Board refused to pass on whether conduct
was “inherently destructive” because employer admitted that it subcontracted its trucking operation and all
unit work in order to avoid a potential strike). Here, as in Century Air Freight, Burey virtually admits that
he stopped assigning work to the drivers because they elected the Union and he was concerned about
the Union disrupting his business. Where a discriminatory motive is admitted, it is redundant to find it
inherent. However, I do note that, if the Respondent’s conduct were considered “inherently destructive”
under the Great Dane analysis, its business justification would weigh little against the comparative impact
Continued
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election, the Respondent threatened to shut down if employees elected the Union. Burey
admits he told Thomas they “would not be going forward” if the Union won the election because
he (Burey) was concerned about a strike or some other business complication caused by the
Union. After the election, Burey did, in fact, stop assigning work to the drivers. Indeed, Burey
called Thomas the evening immediately after the election and said, “straight across the board,
we’re done.”
Based on the foregoing, it is clear that the Respondent stopped assigning work to drivers
on the basis of antiunion considerations. However, this does not render the Respondent’s
conduct per se unlawful because, as noted above, an employer may completely close its
business for any reason or partially close its business if it is not done to chill the union activity of
employees in the remainder of its operations. Perhaps surprisingly, the law appears to grant an
employer the nuclear option of refusing to employ employees at all if to do so would require the
employment of employees who are unionized. Textile Workers v. Darlington Mfg. Co., 380 U.S.
263, 275 (1965).
However, the evidence does not support a finding that the Respondent intended to
exercise the nuclear option. On February 16, Burey texted three drivers and offered to start
assigning them work with “no union rates no benefits” Thus, Burey revealed that the shutdown
was only temporary and he unlawfully conditioned the resumption of work on drivers’ rejection of
the Union (and any wages and benefits the Union might negotiate on their behalf). As noted
above, the Supreme Court was clear in stating that an employer acts unlawfully by closing
temporarily and conditioning the resumption of work on rejection of the union. Textile Workers
v. Darlington Mfg. Co., 340 NLRB at 983. Further, Burey told Thomas in late-January that only
certain drivers would be offered reinstatement because he found out “who the terrorists were”
(which I infer to be a reference to drivers that Burey perceived as primarily responsible for the
organizing effort). Thus, the partial closure was not only a temporary closure, but implemented
in a discriminatory manner that could be expected to chill the union activity of employees. By
this conduct, the Respondent violated Section 8(a)(3) and (1) of the Act.
In so finding, I specifically conclude that the Respondent maintained an unlawful object
from November 6, 2015 to (at least) February 16. I do not credit Burey’s testimony that he was
in the process of retiring before the Union came on the scene, acted in accordance with that
intention by not assigning work to the drivers after the election, and only offered employees
reinstatement on February 16 to limit backpay. The evidence does not indicate that the
Respondent was winding down its business before the election.9 Rather, the Respondent’s
written communication to drivers during the organizing campaign indicated a desire to remain in
business with an unrepresented workforce. Further, Burey specifically testified that he only took
action to terminate the running of driver backpay once he learned that a charge had been filed
with the NLRB. The first charge was not filed until March 7. Accordingly, while this rational (i.e.,
limiting backpay) may have been the reason why the Respondent offered to reinstate drivers in
August, it was not the reason for offering to reinstate drivers in February. Rather, I believe the
Respondent was simply acting upon an ongoing desire to remain in business on a nonunion
basis in selectively offering reinstatement to certain drivers with “no union rates no benefits.”
_________________________
of its antiunion conduct because the Union was not actually planning a strike or any other action.
Hawaiian Dredging Construction Co., Inc., 362 NLRB No. 10 (Feb. 9, 2015) (under Great Dane, Board
weighs destructive impact against asserted business justification of alleged unlawful conduct).
9 The fact that the Respondent returned a newly purchased truck does not indicate that it was
winding down the business. It may indicate that Burey thought twice about expanding the business, but
not that he was in the process of retiring.1
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Although Burey did indicate before the election that he would rather shut down if drivers
voted for the Union, he tied this alleged intent to an inability to obtain work. The evidence did
not establish that the Respondent had any difficulty obtaining work after the election and the
Respondent had no significant contact with the Union before February 16. Accordingly, the
Respondent did not actually have any reason to close and Burey could easily have believed it
was still possible to rehire drivers without dealing with the Union. Once the charge was filed
and the Union sent a letter reminding the Respondent of the Union’s status as drivers’
bargaining representative, the Respondent may have decided to terminate the business except
for the attempt to resume in August (to limit backpay). As noted below, the remedy in this case
may ultimately reflect such a pivot in the Respondent’s position. However, the evidence
indicates that the Respondent, at least from November 6, 2015 through February 16,
maintained an unlawful object of continuing in business with drivers as employees but without
the Union that was elected to represent them.
B. LOCKOUT
As indicated above, I find that the Respondent did not, in fact, lock out the drivers.
Burey did not notify the drivers or the Union that he was implementing a lockout. Burey did not
tell anyone what he wanted to accomplish by refusing to dispatch the drivers after the election
or what the Union could do to bring an end to this alleged lockout. On cross-examination, when
Burey was questioned about the “lockout,” he testified regarding his alleged desire to retire and
close. The legality of the Respondent’s asserted closure is addressed above.
Even if the Respondent’s conduct could be considered a lockout, it was not a lawful one
and would not make out a valid defense. “The Board has held, with judicial approval, that an
employer violates Section 8(a)(5) and (1) of the Act when it locks out employees for the purpose
of evading its duty to negotiate with their bargaining representative or compelling acceptance of
its unfair labor practices.” Royal Motor Sales, 329 NLRB 760 (1999). A lockout may also
violate Section 8(a)(3) if it was implemented with a desire to discourage union membership. Id.
Thus, partial lockouts are unlawful if they are based upon employees’ respective union activity
or otherwise lack a legitimate business justification. Wayneview Care Center, 356 NLRB 154
(2010) citing Field Bridge Associates, 306 NLRB 322, 334 (1992) enfd. 982 F.2d 845 (2d Cir.
1993), cert. denied 509 U.S. 904 (1993). Further, “a fundamental principle underlying a lawful
lockout is that the Union must be informed of the employer's demands, so that the Union can
evaluate whether to accept them and obtain reinstatement.” Dayton Newspapers, Inc., 339
NLRB 650, 656–658 (2003), enfd. In rel. part 402 F.3d 651 (6th Cir. 2005).
Here, the Respondent stopped assigning work to the drivers before negotiations began
and, therefore, the alleged lockout was not in support of a bargaining proposal. Further, the
Respondent’s conduct was not a legal “defensive lockout” designed to preempt union action that
might disrupt the business. Although Burey expressed concern about a strike or some other
union obstruction, the record is devoid of any evidence that such union action was forthcoming.
Wayneview Care Center, 356 NLRB 154 (2010) (defensive lockout not lawful where there was
no evidence that the union was planning a strike or picketing). Moreover, when Burey offered
certain drivers their jobs back, it was based upon his perception of their respective union activity
and conditioned upon their acceptance of terms that would not be negotiated by the Union.
Such a partial lockout based on discriminatory considerations and unilaterally established terms
of employment would not be exculpatory under the Act.
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CONCLUSIONS OF LAW
1. The Respondent, Dawn Trucking Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Building Material Teamsters Local 282, International Brotherhood of
Teamsters, is a labor organization within the meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has violated Section 8(a)(3)
and (1) of the Act:
(a) Discharging employees because they elected the Union as their bargaining
representative.
(b) Conditioning offers of reinstatement to employees upon rejection of the Union as
their bargaining representative.
4. By bypassing the Union and dealing directly with its employees with regard to
offers of reinstatement upon terms not negotiated by the Union, the Respondent has violated
Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act, which shall include a mailing to drivers of the attached notice
marked “Appendix.”
Having concluded that the Respondent unlawfully discharged Mickoy Holness, Clayton
Thomas, Damion Coore, Jose Perez, Juan Rosario and Kevin Wittier on November 6, 2015, it
must offer them reinstatement and make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them (subject to the observations below).
The make whole remedy shall be computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In
accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), the Respondent shall
compensate Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario and
Kevin Wittier for search-for-work and interim employment expenses regardless of whether those
expenses exceed their interim earnings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay, with interest at the rate prescribed in
New Horizons, supra., compounded daily as prescribed in Kentucky River Medical Center,
supra. In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014), the Respondent shall compensate Mickoy Holness, Clayton Thomas, Damion Coore,
Jose Perez, Juan Rosario and Kevin Wittier for the adverse tax consequences, if any, of
receiving lump sum backpay awards, and, in accordance with AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), the Respondent shall, within 21 days of the date the amount of
backpay is fixed either by agreement or Board order, file with the Regional Director for Region
29 a report allocating backpay to the appropriate calendar year for each employee. The
Regional Director will then assume responsibility for transmission of the report to the Social
Security Administration at the appropriate time and in the appropriate manner.
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In ordering that the drivers be made whole, I am mindful that there was a significant
reduction of driver work after the election and that just one person (Burey) performed it all.
However, a reduction of available work will not be grounds for reducing backpay if the reduction
of work was the result of conduct that constitutes an unfair labor practice. In re Weldun Intern,
Inc., 340 NLRB 666 (2003). Here, Burey testified that he was uncomfortable accepting work
once his drivers unionized and I have found this conduct, in refusing to assign work to the
drivers, unlawful. Accordingly, the reduction of available work following the November 5, 2015
election was the result of the Respondent’s unlawful conduct and should not be used as a basis
for reducing the backpay obligation owed to the drivers.
Likewise, the Respondent’s February 16 reinstatement offer to drivers shall not
terminate the entitlement of those drivers to backpay and reinstatement because the offers were
conditional and unlawful. A.P. Painting & Improvements, Inc., 339 NLRB 1206 (2003) (“a
reinstatement offer containing what amounts to a violation of the Act is not a valid offer”).10
Although the Respondent was not relieved through February 16 of an obligation to make
the drivers whole and reinstated them, the evidence indicates that the Respondent has not
performed trucking work since about August and made additional offers of reinstatement (which
were not accepted) on August 30. Regardless of the events from November 2015 to February
16, the Respondent does retain the right to go out of business entirely and the rejection of an
unconditional offer to return work will terminate an employee’s right to reinstatement and
backpay. Accordingly, to the extent backpay and reinstatement may be impacted by the August
30 offers of reinstatement and/or the Respondent’s apparent termination of its business, those
issues may be explored in a subsequent compliance proceeding. An order requiring the mailing
of the notice to employees, as referenced above, is appropriate because the continuation of the
Respondent’s business is uncertain.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The Respondent, Dawn Trucking Inc., Rosedale, New York, its officers, agents,
successors, and assigns, shall

10 Since I have found the February 16 offers of reinstatement to be unlawful, I have not addressed
whether the offers were otherwise invalid as a basis for terminating the running of backpay. It could be
argued that the February 16 offer to Holness was invalid because Holness was not offered reinstatement
at his previous wage rate ($30 per hour). It could also be argued that all the February 16 offers were
invalid because drivers were only given until 4:00 p.m. the next day to accept. If the Board were to
overturn my finding that the February 16 offers of reinstatement were unlawful, these issues regarding the
impact of the February offers on the backpay remedy may be addressed in subsequent compliance
proceedings.
11 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended 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.
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1. Cease and desist from
(a) Discharging or otherwise discriminating against employees for supporting the
Building Material Teamsters Local 282, International Brotherhood of Teamsters or any other
union.
(b) Conditioning offers of reinstatement to employees upon rejection of the Building
Material Teamsters Local 282, International Brotherhood of Teamsters as their bargaining
representative.
(c) Bypassing the certified bargaining representative, Building Material Teamsters Local
282, International Brotherhood of Teamsters, and dealing directly with bargaining unit
employees with regard to the terms and conditions of their employment.
(d) In any other manner interfering, 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 effectuate the policies of the Act.
(a) Within 14 days from the date of the Board's Order, offer Mickoy Holness, Clayton
Thomas, Damion Coore, Jose Perez, Juan Rosario and Kevin Wittier reinstatement to their
former positions or, if that position no longer exists, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario
and Kevin Wittier whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy section of this decision.
(c) Submit the appropriate documentation to the Social Security Administration so that
when backpay is paid to Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan
Rosario and Kevin Wittier it will be allocated to the appropriate periods.
(d) Compensate Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan
Rosario and Kevin Wittier for search-for-work and interim employment expenses regardless of
whether those expenses exceed their interim earnings.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, 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.
(f) Within 14 days after service by the Region, post at its Rosedale, New York facility
copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by

12 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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the Regional Director for Region 29, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material.
(g) Within 14 days after service by the Region, duplicate and mail, at its own expense,
after being signed by the Respondent's authorized representative, copies of the attached notice
marked “Appendix” to all current and former unit employees employed by the Respondent at
any time since November 1, 2015.
Dated: Washington, D.C. February 8, 2017
_____________________
Benjamin W. Green
Administrative Law Judge
JD(NY)-03-17
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW UNDER SECTON 7 OF THE NATIONAL LABOR RELATIONS ACT GIVES
YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge, lay off, refuse to assign work or otherwise discriminate against any of
you for supporting the Building Material Teamsters Local 282, International Brotherhood of
Teamsters or any other union.
WE WILL NOT deal directly with you when you are represented by a union such as the Building
Material Teamsters Local 282, International Brotherhood of Teamsters for purposes of collective
bargaining.
WE WILL NOT offer you reinstatement that is conditioned upon your rejection of a union such as
the Building Material Teamsters Local 282, International Brotherhood of Teamsters as your
exclusive bargaining representative or offer you reinstatement that is conditioned upon
acceptance of wages that have not been negotiated by a union such as the Building Material
Teamsters Local 282, International Brotherhood of Teamsters as your exclusive bargaining
representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer full reinstatement to Mickoy Holness,
Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario and Kevin Wittier to their former
jobs or, if those jobs no longer exist, to a substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously enjoyed.
WE WILL make Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario and
Kevin Wittier whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate quarters.
WE WILL compensate Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan
Rosario and Kevin Wittier for the adverse tax consequences, if any of receiving one or more
lump-sum backpay awards covering periods longer than 1 year.
JD(NY)-03-17
DAWN TRUCKING INC.
(Employer)
Dated:_______________ By: _______________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
2 Metro Tech Center
100 Myrtle Avenue
5th Floor
Brooklyn, NY 11201-4201
Phone: 718-330-7713
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–171337 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (718)765-6190.