Masland Industries

National Labor Relations Board - Board Decisions

May 26, 1993

311 N.L.R.B. 184 (N.L.R.B. 1993)

184
311 NLRB No. 27
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondents contend that the judge failed to give full and fair
consideration to the Respondents’ evidence and that he took ‘‘ex-
traordinary liberty’’ with the evidence in order to reach a decision
consistent with his ‘‘preformed conclusions.’’ We have carefully ex-
amined the entire record, including the judge’s decision, and we are
convinced that the judge’s conduct does not constitute legal preju-
dice or even the appearance of partisanship. There is no basis for
finding that bias or partiality existed merely because the judge re-
solved important factual conflicts arising in the proceeding in favor
of the General Counsel’s witnesses.
In adopting the judge’s finding that the discharge of the Sidney
drivers violated Sec. 8(a)(3) and (1), we do not rely on the Nations
Business article cited in fn. 10 of his decision or on his characteriza-
tion of that article.
In the remedy section of his decision, the judge incorrectly cited
the date of the Board’s decision in F. W. Woolworth Co., 90 NLRB
289 (1950), and incorrectly cited New Horizons for the Retarded,
283 NLRB 1173 (1987).
2 In finding that Plant Manager Abel’s questioning of employee
Donnie Freels violated Sec. 8(a)(1), the judge relied, inter alia, on
Raytheon, Inc., 279 NLRB 245 (1986). Chairman Stephens dissented
in that case and Members Devaney and Oviatt did not participate.
We agree with the judge that the questioning in the instant case was
coercive, but we find Raytheon distinquishable for the following rea-
sons. In Raytheon, there was no background of unlawful conduct or
any showing of employer hostility to union activity, the questioner
was not especially high in the company hierarchy, and he did not
initiate the union discussion. Here, the interrogation of Freels fol-
lowed an unlawful threat by the Respondents to close the trucking
operation, and was accompanied by a coercive statement that there
was ‘‘no future ’’ in the drivers being organized. Further, Abel was
a high management official, and he introduced the topic of the em-
ployees’ union involvement.
3 The recommended Order has been modified to include the
Board’s traditional expunction remedy. We shall also issue a new
notice to employees.
Masland Industries, Inc. and Masland Transpor-
tation, Inc. and Teamsters Local Union No.
908, affiliated with the International Brother-
hood of Teamsters, AFL–CIO. Case 9–CA–
29570
May 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 12, 1993, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents,
Masland Industries, Inc. and Masland Transportation,
Inc., Sidney, Ohio, their officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Remove from their files any reference to the
discharge of the 16 driver-employees and notify each
of them in writing that this has been done and that evi-
dence of the discharge will not be used against them
in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge, subcontract jobs, or other-
wise discriminate against you in order to discourage
you from joining or supporting Teamsters Local Union
No. 908, affiliated with the International Brotherhood
of Teamsters, AFL–CIO (the Union), or any other
labor organization.
WE WILL NOT promise you benefits if you refrain
from choosing the Union, or any other labor organiza-
tion, as your collective-bargaining representative.
WE WILL NOT threaten you with cessation of oper-
ations if you attempt to have a labor organization be-
come your collective-bargaining representative.
WE WILL NOT coercively interrogate you about em-
ployees’ union sympathies.
WE WILL NOT inform you that it will be futile for
you to select the Union or any other labor organization
as your collective-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 offer the 16 driver-employees terminated
on May 2, 1992, employed at the Sidney, Ohio loca-
185MASLAND INDUSTRIES
1 At the hearing, Respondents conceded that the original charge in
this matter was filed by the Union on May 6, 1992, and served on
Masland Industries on May 7, 1992. Respondents further conceded
at the hearing that the amended charge was filed and served on both
above-captioned Respondents on June 11, 1992.
2 Respondents at the hearing admitted that in the 12-month period
preceding the issuance of complaint, Respondent Masland Industries
(M I) in its business of manufacturing automotive carpeting at its
several locations, above described, sold and shipped from such fa-
cilities goods valued in excess of $50,000 directly to points outside
the States of Ohio and Pennsylvania. Moreover, Respondents also
admit that in the same 12-month period, Respondent Masland Trans-
portation, Inc., derived gross revenues in excess of $50,000 from the
transportation of freight for Respondent Masland Industries from its
several locations directly to points outside the States of Ohio and
Pennsylvania. Lastly, Respondents admit, and I find, that at all mate-
rial times, each of the Respondents has been an employer engaged
in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act.
tion, including Wayne P. Borland, Mark Egbert,
Donnie R. Freels, Alfred Grillot, Dennis L. Kitchen,
Frederick D. Poppleman, Ernest L. Vestal, Bill
Broering, Scott R. Egbert, Warren A. Freels, George J.
Grillot, Jack Meinberg, and Neil Schafer, immediate
and full reinstatement to their former positions as driv-
ers at the Sidney, Ohio location or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and WE WILL make each
of them whole, with interest, for any loss of earnings
and benefits each of them may have suffered as a re-
sult of their May 2, 1992 discharge.
WE WILL remove from our files any reference to our
discharge of the 16 driver-employees and WE WILL no-
tify each of them in writing that this has been done
and that evidence of the discharge will not be used
against them in any way.
WE WILL reestablish our trucking operations at Sid-
ney, Ohio, as such operations existed on May 2, 1992,
severing any and all subcontracting agreements and
operations covering the Sidney trucking operation.
MASLAND INDUSTRIES, INC. AND
MASLAND TRANSPORTATION, INC.
Carol L. Shore, Esq., for the General Counsel.
Walter H. Flamm Jr. and Charles V. Curley, Esqs. (Clark,
Ladner, Fortenbaugh & Young), of Philadelphia, Pennsyl-
vania, for the Respondents.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was heard in Dayton, Ohio, on October 28–30, 1992, and
November 9, 1992, on the General Counsel’s complaint,
dated June 19, 1992, as further amended at the hearing,
which alleges, in substance, that the above-captioned
Masland Industries, Inc. and Masland Transportation, Inc., as
a single-integrated employer enterprise (Respondents), inde-
pendently violated Section 8(a)(1) of the Act by statements
of their supervisors and Section 8(a)(3) of the Act by unlaw-
fully terminating the employment of their driver-employees
at Sidney, Ohio, the above events occurring in the months
of February through May 1992.1
Respondents timely filed answers deny certain allegations
of the complaint, admit others, but deny the commission of
unfair labor practices.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to submit posthearing briefs
which had been received and carefully considered.
On the entire record, including the briefs, and on my most
particular observation of the demeanor of the witnesses as
they testified, comparing such testimony with the testimony
of adverse witnesses and the interests of the witnesses, I
make the following
FINDINGS OF FACT
I. RESPONDENTS AS STATUTORY EMPLOYERS AND A
SINGLE EMPLOYER
The complaint alleges, and Respondents at the hearing ad-
mitted, that at all material times, Masland Industries, Inc., a
corporation, has been engaged in the manufacture of auto-
motive carpeting at its facilities in Sidney, Ohio, and Carlisle
and Lewistown, Pennsylvania. Respondents further admit
that, at all material times, Respondent Masland Transpor-
tation, Inc., a separately incorporated common carrier, has
been engaged in interstate transportation of freight, primarily
for the products of customers of Respondent Masland Indus-
tries. Masland Transportation maintains dispatching and of-
fice facilities at Masland Industries’ three above production
facilities, and a driver in Rexdale, Ontario, Canada.
The complaint further alleges, but Respondents deny, that
at all material times, Respondents have been affiliated busi-
ness enterprises with common officers, ownership, directors,
management, and supervision; have formulated and adminis-
trated a common labor policy, shared common premises and
facilities; have provided services for, and made sales to, each
other; have interchanged personnel with each other; and have
held themselves out to the public as a single-integrated busi-
ness enterprise. Respondents further deny that they constitute
a single-integrated business enterprise and a single employer
within the meaning of the Act.2 Respondents concede, how-
ever, that Masland Transportation (M T) is a wholly owned
subsidiary of Masland Industries.
Background
As Respondents observe, the two corporate entities herein
were derived from a publicly held employer entity known as
C. H. Masland and Sons. That entity was engaged in three
separate businesses, one of which was the manufacture of
carpeting for the automotive industry. Although there were
intermediate ownership transactions, by 1990, the publicly
held corporation was taken private and by 1991, the business
of the resulting entity was only the manufacture, sale, and
delivery of automotive carpeting. Thus, up through August
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1991, Masland Industries was engaged in the manufacture of
carpet for the automobile industry which carpet was deliv-
ered by its own trucks and drivers.
In August 1991, Masland Industries spun off its trucking
operations at the above four locations and separately incor-
porated, as a wholly owned subsidiary, Masland Transpor-
tation, Inc. John Rathbun, formally manager of transportation
for Masland Industries, was named vice president of Masland
Transportation (M T), in charge of its trucking operations at
Sidney, Ohio; Lewistown and Carlisle, Pennsylvania; and
Rexdale, Ontario, Canada, and responsible for its financial
performance.
Respondents statement of the law of ‘‘single integrated
business enterprise’’ is, for the most part, unassailable. In
this regard, the General Counsel joins Respondents in citing
the legal precedents determining the establishment of such a
single-integrated enterprise. A single-integrated enterprise,
derived from ostensibly separate corporate entities, is charac-
terized by the absence of an ‘‘arm’s length’’ relationship
found among unintegrated entities. Blumenfeld Theaters Cir-
cuit, 240 NLRB 206, 215 (1979), enfd. 626 F.2d 865 (9th
Cir. 1980); accord: Fedco Freight Lines, 273 NLRB 399 fn.
1 (1984). If there is no arm’s-length relationship between or
among the companies, they may be deemed a single em-
ployer. NLRB v. Browning-Ferris Industries, 691 F.2d 1117,
1122 (3d Cir. 1982).
Respondents concede that M I and M T have a ‘‘close
working relationship’’ (R. Br. 8) and that the Board weighs
four factors in ascertaining whether otherwise discrete busi-
nesses are sufficiently integrated to be treated as a single-in-
tegrated enterprise. Under Radio Union v. Broadcast Service
of Mobile, 380 U.S. 255 (1965), and its progeny, the four
factors are: (1) interrelation of operations; (2) common man-
agement; (3) centralized control of labor relations; and (4)
common ownership or financial control. Although none of
these factors alone is determinative, the Board takes the posi-
tion that the existence of centralized control of labor relations
bears a special weight. Fedco Freightlines, supra at fn. 1;
Sakrete, Inc. v. NLRB, 322 F.2d 902, 905 fn. 4 (9th Cir.
1964), cert. denied 379 U.S. 961 (1965). It should be noted,
however, that merely because M T is a wholly owned sub-
sidiary of M I, that legal relationship does not, of itself,
cause the parent and subsidiary to constitute a single em-
ployer within the meaning of the Act. Esmark, Inc. v. NLRB,
887 F.2d 739 (7th Cir. 1989). The General Counsel, even in
the presence of M T as a wholly owned corporate subsidiary,
must nevertheless prove the existence of a single-integrated
employer relationship on the basis of the four above-estab-
lished Board and Court standards. Ibid.
(1) With regard to common ownership, the relationship of
privately held corporate parent to wholly owned corporate
subsidiary eliminates that issue from contention. There is,
therefore, common ownership. (2) With regard to common
management, at all material times, the management of both
corporate entities, as the General Counsel observes (and as
the Respondents do not contest), has significant similarity:
Bill Branch is president of M I and president of M T. Rich-
ard Krout, M I’s vice president of procurement and supply
is a vice president of M T and, in the line of hierarchy, is
the superior of Vice President Rathbun (not an officer of M
I) who is in daily control of M T. Larry Owen, vice presi-
dent of operations for M I is vice president of M T without
portfolio. Jim Allgyer is vice president of both corporations.
Julia Stout, assistant treasurer of M I, is secretary of M T.
Although M I has officers who are not M T officers, all of
M T’s officers are M I officers. I find that the corporations
have common management. (3) With regard to centralized
control of labor relations, the third component of Board anal-
ysis, Richard Sears, vice president of M I for human re-
sources, not an officer in M T, is nevertheless the actual
chief of all labor relations for both M I and M T. He exer-
cises actual control of (Tr. 777–778) M T’s labor relations
including the negotiation of contracts relating to the wages
and working conditions of M T’s drivers.
Rathbun, vice president of M T for transportation, does not
report on labor relations directly to Sears; he reports to M
I and M T Vice President Richard Krout on labor relations.
As M I Vice President Richard Sears testified, however, al-
though Rathbun might report to Krout on labor relations, M
I-M T Vice President Krout is not experienced in, nor re-
sponsible for, either corporation’s labor relations (Tr. 778).
It is Sears and Sears alone who calls the shots for all labor
relations activities in the various subsidiaries of M I and par-
ticularly in M T. M T Vice President Rathbun erroneously,
but perhaps understandably, believed that M I Vice President
Sears (human relations) was also a vice president and officer
of M T (Tr. 54–55). However, Rathbun’s later testimony (Tr.
57) (contradicting, in substance, Sear’s testimony (Tr. 778))
that ‘‘basically’’ Rathbun himself was in charge of labor re-
lations at M T, was a purposeful but unnecessary lapse in
credibility. As Sears testified, Sears is in charge of all M T’s
(and M I’s) labor relations. I regard Rathbun’s contrary testi-
mony as reflecting unfavorably on his credibility, perhaps de-
signed to defend against proof of the single-integrated nature
of the two corporations. If any other individual was imme-
diately responsible for labor relations at M T, it was, as will
be seen, M I’s plant manager, Richard Abel. The only human
resources representative at the Sidney, Ohio plant dealing di-
rectly with M T’s employees was an employee of M I,
Amelia Pauley, who administered the company benefit plans
for both M I and M T without distinction.
With regard to labor relations involving the instant unfair
labor practices Respondents essentially disregarded the dis-
tinction between M T and M I. In dealing with the M T driv-
er unit at Sidney, Ohio, the participants were M I Vice Presi-
dent Sears; Rathbun (vice president of M T); Abel (plant
manager of M I without any portfolio in M T); John Walden,
M T dispatcher at Sidney; and Amelia Pauley, M I’s human
resources representative at Sidney. In the formation of a joint
management-employee committee for recommendations on
cost cutting, M T’s Rathbun and M I’s Abel chose John
Walden, the Sidney M T dispatcher to work in conjunction
with Amelia Pauley, M I’s human resources’ representative
among the 300 M I employees at Sidney, Ohio. In short,
such disregard of corporate integrity in executing labor rela-
tions hardly supports a conclusion that the two corporations
enjoyed an ‘‘arms’-length’’ relationship. NLRB v. Browning-
Ferris Industries, supra; Blumenfeld Theaters Circuit, supra.
To the extent Rathbun testified that M T uses M I Vice
President Sears’ expertise in labor relations on a consulting
basis for which services M I charges M T, such testimony
was never supported by any evidence showing any such fi-
nancial charges. I do not credit such testimony and find that
187MASLAND INDUSTRIES
such testimony again reflects unfavorably on Rathbun’s
credibility.
I conclude, on the basis of the above evidence, that, with
regard to labor relations, there was centralized control of the
labor relations of the two corporations and, on this record,
a disregard of M T’s corporate independence.
With regard to the fourth element for determining single-
integrated employer status, interrelation of operations, there
is no dispute that no less than 75 percent, and perhaps as
high as 90 percent, of Masland Industries’ product is carried
by Masland Transportation trucks and Masland Transpor-
tation drivers (compare: Tr. 23, 78–79, with Tr. 569). Of this
total, it is immaterial that Masland Industries pays for 35
percent of the cartage business and that Ford Motor Com-
pany, M I’s largest customer, pays for 40 percent (Tr. 22–
23). The record shows that because of peculiarities of Ford’s
‘‘delivery on time’’ production system, it is necessary and
convenient for Masland Industries and Ford Motor Company
to utilize Masland Transportation trucks and drivers to per-
form the delicate service of on-time delivery of Masland In-
dustries product. Ford Motor Company pays Masland Truck-
ing for delivery of goods to its plants manufactured by
Masland Industries. Again, Masland Trucking transports 75
to 90 percent of the goods produced at the three Masland In-
dustries plants.
In addition, with regard to interrelation to operations, I
have already concluded that there is a substantial disregard
of the separate corporate existence of Masland Transportation
and Masland Industries. As noted in the centralized control
of labor relations, M I ’s Sidney, Ohio plant manager, Rich
Abel, jointly with M T Vice President Rathbun, chose the M
T drivers who would deal with M T management in order
to negotiate a reduction of labor cost at the Sidney, Ohio
plant among the M T driver-employees. They also chose the
negotiators for M T: John Walden, the M T dispatcher of the
Sidney drivers; and Amelia Pauley, the M I human resources
representative performing, indiscriminately, personnel serv-
ices for 300 M I production and maintenance employees at
the Sidney plant and M T’s 16 drivers at the Sidney plant.
To the extent that Vice President Sears, Plant Manager
Abel and Pauley, employees only of M I, were important,
sometimes dispositive, players in M T’s labor relations, the
discharges of all 16 M T Sidney drivers, and other corporate
matters, M I was a ‘‘direct participant’’ in the unfair labor
practices herein, Esmark Inc. v. NLRB, 887 F.2d 739 (7th
Cir. 1989) (large-scale disregard of the separate existence of
a subsidiary corporation leads to inference of single-em-
ployer status). For instance, unlike other shippers, M I was
not charged for its delays in loading its products, which cost
was absorbed by M T (Tr. 84). After the formation of M T
in August 1991, the erstwhile M I drivers, now employed by
M T, continued to receive the same rate of pay as they re-
ceived as employees for M I, and were not required to fill
out M T employment applications; there were no changes in
benefits (Tr. 92); their seniority was measured by inclusion
of service with all prior Masland entities. Moreover, after the
formation of M T, the erstwhile M I drivers at Sidney, now
employed by M T, continued to wear their M I uniforms,
carrying the name ‘‘Masland Industries’’ (Tr. 122); the M T
drivers used the drivers’ logbooks issued by Masland Indus-
tries (Tr. 125; G.C. Exh. 4); the M T drivers continued to
use identification cards bearing only the name Masland In-
dustries, rather than Masland Transportation (G.C. Exh. 5;
Tr. 127); and, contrary to industry practice upon changing
employers, the Sidney drivers, upon becoming M T employ-
ees, continued to operate under the 2-year medical certifi-
cation issued by Masland Industries (Tr. 128 et. seq). Lastly,
Masland Transportation has no business stationery (Tr. 710).
In response to this prima facie showing of interrelation of
operations to the point of M I disregarding the corporate in-
tegrity and independence of M T, and directly intervening in
the unfair labor practices, neither M I nor M T sought to
show, for instance, that M T paid rent to M I for the space
it occupied at the several M I manufacturing plants, includ-
ing the plant at Sidney, Ohio. Nor did it seek to show that
the benefit plans administered solely by M I employee Amel-
ia Pauley ever distinguished between M T drivers and M I
production and maintenance employees at the Sidney, Ohio
plant.
M I Plant Manager Abel testified repeatedly that his labor
relations function in dealing with the M T drivers was purely
as a ‘‘consultant.’’ He repeated this word ‘‘consultant’’ so
many times in the hearing that it was evident that the repeti-
tion was for my benefit. His testimony was that he appeared
as a ‘‘consultant’’ at the request of the Sidney, Ohio M T
drivers. There was no proof, however, which drivers, if any,
appointed or requested him as a ‘‘consultant.’’ Abel revealed
no names. And, assuming, arguendo, that he was a ‘‘consult-
ant,’’ for whom was he ‘‘a consultant?’’ Was he the drivers’
consultant, M T’s consultant or M I’s consultant. In fact,
however, I find that he was acting as the joint labor relations
designee of both M I and M T, an agent representing only
the interests of M T and M I.
I conclude, therefore, on the basis of the common manage-
ment of the two corporations, the common ownership of the
wholly owned subsidiary M T, the domination of all labor
relations policies of M T by M I, the interrelation of oper-
ations of M T and M I, and, as will be seen, the direct par-
ticipation of M I in the unfair labor practices herein, that the
two corporations constitute, as alleged, a ‘‘single employer’’
within the meaning of the Act. Radio Broadcast Technicians
Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255,
256 (1965); NLRB v. Emsing’s Supermarket, 872 F.2d 1279
1288–1289 (7th Cir. 1989); Esmark Inc. v. NLRB, 887 F.2d
739 (7th Cir. 1989); Douglas and Shanks, Insulation from Li-
ability through Subsidiary Corporations, 39 Yale L. J. 193,
196–197 (1929).
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondents admit, and I find that
at all material times Teamsters Local Union No. 908, affili-
ated with International Brotherhood of Teamsters, AFL–CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
M I maintains three manufacturing facilities: Carlisle,
Pennsylvania; Lewistown, Pennsylvania; and Sidney, Ohio.
Corporate headquarters are at the Carlisle, Pennsylvania
plant, where M I officers and M T Vice President Rathbun
work, and are about 400 miles from the Sidney, Ohio plant.
At each of these three manufacturing facilities, M T has a
transportation terminal.
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As previously noted, the Sidney manufacturing facility em-
ploys about 300 M I employees; there are, since August
1991 separate incorporation, 16 M T drivers at the Sidney
plant. The Lewistown plant has 9 drivers, Carlisle has 21
drivers, and the Canadian terminal has 1 driver. All drivers
are employed by M T. The plant employees and drivers at
the Lewistown and Carlisle, Pennsylvania plants are rep-
resented in collective bargaining by the Amalgamated Cloth-
ing & Textile Workers Union (Tr. 45–46; G.C. Exh. 3).
None of the 300 Sidney, Ohio M I plant employees or the
16 M T drivers were represented by a labor organization
prior to the organizational campaign hereinafter described.
Because M T’s overall operation had been apparently
showing substantial operational losses, John Rathbun, newly
vice president of M T, by September 1991 undertook a de-
tailed analysis of M T Trucking operations to determine the
cause of the losses. He discovered that, for the year ending
August 199l, M T lost $202,155. A breakdown of driver cost
per mile at each of the terminals showed that the cost of
labor for drivers at the Sidney operation was running 9 cents
per mile higher than that of the Carlisle operation. On Sep-
tember 26, 1991, Rathbun met with and discussed the results
of this investigation with his immediate superior, Richard
Krout, vice president of both M I and M T. Krout directed
Rathbun to ‘‘fix’’ the situation because M T could not be
permitted to continue to operate at a loss. Rathbun and Krout
had been previously aware of losses by the entire fleet but
had not taken action to remedy this situation. Sidney driver
Warren A. Freels and other Sidney drivers credibly testified
that they had been employed at the Sidney terminal since
1988, and that in every year of employment, the employer
complained that it was losing money on the transportation
operation (Tr. 135).
As a result of this September 26, 1991 meeting, Rathbun
directed further studies of the M T operation to discover pos-
sible solutions. On October 28, 1991, Rathbun traveled from
his Carlisle headquarters to Sidney to discuss Sidney’s non-
competitive labor cost situation with M T’s Sidney dis-
patcher, John Walden, and with M I’s Sidney plant manager,
Rich Abel. At subsequent meetings, Rathbun discussed var-
ious options for lowering the Sidney driver operating costs
with officers of both M I and M T: Richard Sears (vice
president, M I); Amelia Pauley (M I human resources rep-
resentative at the Sidney plant); Rich Abel (M I Sidney plant
manager); and Jeff Benjamin (M I plant employee relations
manager, Carlisle plant). Among the options discussed was
switching the method of paying the Sidney drivers from their
hourly pay rate to a pay rate based upon mileage driven. The
hourly pay rate of Sidney’s drivers was unique in the indus-
try. All other carriers paid their drivers on a mileage basis
(Tr. 625–626).
In meetings in late 1991, the subject of M T getting out
of the trucking business entirely was raised but was opposed
by M I Plant Manager Rich Abel. Abel was concerned with
possible interruption of M T’s high quality trucking service
for M I necessary to meet the Ford Motor Company’s de-
mands for specialized delivery service (Tr. 626–627). In a
Carlisle meeting attended by Rathbun, Pauley, Sears, Ben-
jamin, and Abel in December 1991, M I Plant Manager
Abel, consistent with his desire to retain M T as M I’s car-
rier, suggested, and it was agreed, that Rathbun bring the
Sidney drivers into the discussions and get their input on
cost-cutting methods. At the same time, however, Rathbun
explored other means of transportation in order to satisfy and
remedy M T’s continuing losses. These included his contact-
ing other common carriers, ‘‘dedicated carriers,’’ and driver-
leasing companies.
By early January 1992, Rathbun, consistent with exploring
other modes of satisfying M T’s transportation problems, so-
licited a written proposal of costs from a driver leasing com-
pany, Drivers Inc., a subsidiary of Vanguard Services, Inc.
In January, Rathbun, Krout, and Sears, had already decided
that the use of an outside common carrier or even a ‘‘dedi-
cated contract carrier’’ was not desirable because of the re-
maining obligations flowing from Respondents’ long-term
leases held on the many tractors and trailers used by M T.
Furthermore, the use of dedicated or common carriers would
not correct the financial ‘‘hemorrhaging’’ quickly enough
(Tr. 646). They decided, therefore, to pursue the leased-driv-
er Drivers Inc. route and to look further into a proposal
which had been received from Drivers Inc. on or about Janu-
ary 10, 1992. As Rathbun testified, Respondents’ decision in
January 1992 was that M T concurrently pursue two paths:
the leasing of drivers, thereby getting M T out of the em-
ployment of drivers altogether; and also to continue to em-
ploy the drivers but get the Sidney drivers involved and to
try to fix the problem internally (Tr. 647). The continued use
of M T drivers would have the advantage of M T keeping
its own trucks, avoiding the problem of disposing of Re-
spondents’ long-term leases and would also avoid problems
of supervision, payroll and the distribution of benefits to M
T employees (Tr. 626 et. seq.).
As a result of Rathbun’s meetings with Krout and Sears
in Carlisle (Abel and Walden did not attend the Carlisle
meetings), Abel and Walden were notified by Rathbun that
there would be a meeting with the Sidney drivers relating to
M T’s operational losses and particularly the roll of labor
costs of the Sidney drivers in that operational loss (R. Exh.
12).
The February 1992 Meetings with the Sidney Drivers
Present at the February 8, 1992 meeting of management
and the Sidney drivers, held in the Sidney plant, were M I
Plant Manager Abel, M I Vice President Sears, M I Em-
ployee Relation Representative Pauley, M T Vice President
Rathbun, and M T Supervisor (dispatcher) Walden. Also
present were all 16 Sidney M T drivers (15 over-the-road
drivers and 1 ‘‘jockey’’ driver (Tr. 495–496)).
Abel started the meeting by telling the employees that
business was bad but was showing signs of improvement.
Rathbun then took over and, with the aid of overhead slide
projections, discussed business trends, business to be ac-
quired, saving money by cutting administrative positions, the
leasing of new and larger trailers and particularly the
unprofitability of the transportation operation. He dem-
onstrated (R. Exh. 1) that wages constituted the largest single
component in cost-per-mile operation of the fleet as opposed
to the costs of fuel, truck rentals, etc. Rathbun warned the
employees that the Ford Motor Company, Respondents’ big-
gest customer, was reducing the number of carriers from 700
to 100 in a new bidding process; excessive Sidney labor
costs, causing a $200,000 deficit, would not have occurred
had Respondent been paying the 29-cent-per-mile regional
average wages to its drivers. Rathbun told the drivers that M
189MASLAND INDUSTRIES
3 Respondent apparently concedes that Amelia Pauley, an em-
ployee of M I, and having no overt relationship to M T, was never-
theless, along with Walden, a representative of M T (R. Br. 4).
T must not only be service competitive—which it was—but
that it must become cost competitive in order to retain the
Ford business. While stating that the Sidney labor costs were
out of line, he told the employees, in answer to their ques-
tions, that M T could still retain the Ford business by the use
of specialized double-deck trailers and because of M T’s ex-
cellent reputation in delivering goods to Ford on a timely
basis (Tr. 657).
Rathbun then returned the meeting to Plant Manager Abel
who told the employees that the Respondents’ ‘‘game plan’’
was to form a driver committee to solicit driver input on how
to fix the problem. Abel asked the drivers for volunteers. The
evidence is in dispute whether there were any volunteers.
There is no dispute that Abel and Rathbun later picked three
drivers to represent the drivers on the committee: Jack
Meinberg, Donnie Freels, and Scott Egbert. Rathbun and
Abel also chose two employer representatives to join with
the three drivers on the committee: M T Dispatcher John
Walden and M I Human Relations Representative Amelia
Pauley.3
At a committee meeting on February 14, the three drivers
met with Walden and Pauley to discuss cost-cutting meas-
ures. These included unnecessary delay time, insufficient
charges for certain runs, backhaul rates, and the need for im-
proved fuel efficient equipment (Tr. 267–268). Although the
drivers made recommendations to Walden and Pauley, there
were no agreements reached (Tr. 293–294).
Pauley was unable to attend the committee meeting on
February 21, 1992. and M I Plant Manager Rich Abel took
her place. He testified that he appeared merely as a ‘‘consult-
ant’’ but I conclude that he was representing the labor rela-
tions and business interests of both M I and M T. Walden
was also present.
Driver Meinberg recalled that Abel, not present at the first
meeting, was brought up to date. I regard Abel’s testimony
as to what occurred at the February 21 meeting to be unreli-
able although his testimony, in part, corroborates that of the
General Counsel’s witnesses. To the extent that he denies
certain statements by the General Counsel’s witnesses, I do
not credit his denials. To the extent that he testified, with re-
spect to certain alleged antiunion statements recounted in the
testimony of driver Donnie Freels, that he could not recall
making such statements, I do not credit his alleged lack of
recollection.
Rather, I credit the testimony of drivers Meinberg and
Donnie Freels that at the February 21 meeting, they dis-
cussed, as they had at the February 14 meeting, cost-cutting.
Donnie Freels testified that Abel and Walden were not will-
ing to discuss dispatch procedures, the backhaul of freight,
or the use of different equipment but wanted to discuss wage
reductions. Meinberg testified that Donnie Freels finally
asked Abel what was on (management’s ‘‘mind’’ and where
was management going (Tr. 269; Tr. 297). Freels asked Abel
to ‘‘be up front with us about where this was all leading’’
(Tr. 297). Dispatcher Walden recalled that the drivers asked
whether they would be put on a mileage pay rate (Tr. 822).
Abel told the three drivers that M T needed to go to a mile-
age system to bring labor costs in line with other of Re-
spondents’ facilities (Tr. 270; 280; 297). Meinberg then
asked Abel if M T was going to treat the Sidney drivers the
same as it was treating Respondents’ drivers at Carlisle and
Lewistown (where, under a union contract, the drivers are
paid on a mileage basis rather than an hourly basis) and Abel
responded that the Sidney drivers would end up with pretty
much the same as at Carlisle and Lewistown (Tr. 270; 281–
282). Meinberg reminded Abel that at the unionized Carlisle
and Lewistown plants, the drivers are assigned trucks, 1 driv-
er to each truck, and at Sidney, there were only 11 trucks
for 15 drivers doing over-the-road work. He asked Abel
whether M T was planning to get additional equipment to
give each Sidney driver a truck (Tr. 270–271). Abel did not
answer that question (Tr. 271). Meinberg then asked Abel,
since Lewistown and Carlisle were both unionized, how did
M T expect to ‘‘handle that?’’ (Tr. 271.)
Donnie Freels recalled that Meinberg’s mention of the
Union came up when Abel said that M T needed to go to
a mileage system to bring the Sidney operation in line with
the M T costs at the Carlisle and Lewistown facilities. He
credibly testified that Meinberg said that if they were going
to be paid like Carlisle, perhaps the Sidney drivers should be
like Carlisle ‘‘totally’’ (Tr. 297). When Abel asked him what
he meant by that, Meinberg said that ‘‘maybe we should be
union like Carlisle.’’ I do not credit Abel’s denial of this
Meinberg statement notwithstanding that Abel admitted that
there was a comment like that in a later discussion he had
with the drivers (Tr. 577). No such later discussion was ever
particularized. I regard Abel’s testimony as amorphous,
vague, and not credible (Tr. 580). His testimony, that it oc-
curred in April, after the Teamsters organizational activity
became widely known, is rejected.
Both Meinberg and Donnie Freels further credibly testified
that Abel answered Meinberg by stating (Tr. 275; 283):
[If] we went in that [union] direction, it was his opinion
that Masland would overbid the contract with Ford so
that [Masland] did not get [the Ford business] and
would dissolve the fleet . . . the trucking operation.
Meinberg’s testimony on this point was unshaken on cross-
examination (Tr. 283–285).
Donnie Freels’ recollection was that Abel told Meinberg
(Tr. 298–299): that if the Sidney drivers ‘‘were to organize
or to attempt to organize, . . . it was his considered opinion
. . . that Masland would up the bid to Ford and they would
eliminate the fleet . . . by doing that.’’ Donnie Freels then
asked Abel what he meant by that and Abel said (Tr. 299):
Masland felt that there was no need to be organized and
that, in this opinion, any attempt for us to be organized
would result in Masland upping the bid to Ford Motor
Company which would ultimately eliminate the fleet.
In further examination, Freels testified that Abel said that
the response by M T would be to raise the bid to the Ford
Motor Company to eliminate the fleet ‘‘if that was what it
took . . . to stop the union movement . . . eliminate the
fleet, eliminates the Union problem. And that was basically
what he said’’ (Tr. 345). I regard this later Freels’ testimony
as recapitulation rather than what Abel actually said.
I have already noted my dissatisfaction with Abel’s re-
peated description of himself as a ‘‘consultant’’ using that
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
word as some secret verbal amulet or magic word which
would either avoid an inference of his agency representing
M T (or M I, or both) or his avoidance of unfair labor prac-
tices, in general. His testimony on the Meinberg-Freels con-
versation of February 21 gave no support to his general
credibility. Abel admitted that the Sidney plant is the only
nonunion facility of the Masland Industries plants (Tr. 579),
that he was opposed to the unionization of Sidney’s transpor-
tation operations (Tr. 578); that he attended at least four
training sessions in methods of discouraging union activity
among employees (Tr. 578–579), the last as recently as Octo-
ber 1991 (Tr. 579); and that he had been successful in ward-
ing off at least one or two union organizing campaigns at the
Sidney plant (Tr. 579).
Although I would resolve this credibility issue against
Abel both on the quality of his testimony and my observation
of his demeanor as he testified, it is actually unnecessary to
resolve the credibility issue on these grounds. Another ele-
ment favoring the credibility of the General Counsel’s wit-
nesses over Abel’s variable denials, is the presence at the
February 21 meeting of Employer Representative John Wal-
den.
Walden testified that Abel attended the February 21 meet-
ing because Amelia Pauley could not make it (Tr. 823).
When, on direct examination, he was asked whether any of
the drivers at the February 21 meeting asked whether M T
was going to go to the Carlisle pay system, his testimony
was evasive and ended in a lack of recollection whether a
reference to the Carlisle system was made at that meeting
(Tr. 824). He then was specifically asked whether Abel, in
response to a question from a driver, said that if Sidney driv-
ers went to a union, the fleet would be eliminated. His an-
swer was: ‘‘I don’t recall that being said at that meeting’’;
that he did not ‘‘have [a] recollection presently that it was
raised’’ (Tr. 825). It is clear that the detailed, impressive and
mutually corroborative testimony of Meinberg and Donnie
Freels must be credited over Abel’s denials and Walden’s
lack of recollection. I observed and the record shows that
Walden’s testimony was evasive and discursive (Tr. 824–
825), marked by repetitious alleged lack of recollection. A
lack of recollection is a fact just as is any other fact. I do
not credit Walden’s testimony insofar as he testified that he
had no recollection whether the employees at the February
21 meeting said that if they were going to be paid like the
Carlisle employees, they should go to the Carlisle system;
and his lack of recollection whether Abel said that if the Sid-
ney drivers became unionized, the fleet would be eliminated
(Tr. 824–826).
Complaint paragraph 6(b)(i) alleges that on February 21,
1992, Respondents, by Richard Abel, at the Sidney facility,
threatened employees with cessation of fleet operations if
they attempted to have a union become their bargaining rep-
resentative. On the basis of the above-credited testimony and
discussion, I conclude that, as alleged, Abel unlawfully
threatened Meinberg and Donnie Freels with the cessation of
fleet operations if the Sidney drivers attempted to become
unionized. Such a threat violates Section 8(a)(1) of the Act
and I so find.
On or after January 10, 1992, Rathbun received an initial
written presentation from Drivers Inc. as to the cost and
terms of a driver-leasing arrangement. Rathbun, having at-
tended the February 8 committee meeting with the drivers,
and having discussed the matter with Krout and Sears, never-
theless continued along the two avenues to solve M T’s fi-
nancial problems: to see if they could be solved internally
through meetings with the drivers and also to explore the
possibility of using a leased-driver operation. Consistent with
this second path, Rathbun, on February 17, 1992, meet with
Driver’s Inc. representative Ron Robinson and Vangard Serv-
ices official, Ben Lagarde. Rathbun asked them to resubmit
a more formal and detailed proposal than Drivers Inc. had
submitted to M T in January 1992 (R. Exh. 9) and Drivers
Inc. did so. The revised March 6 Drivers Inc. proposal (R.
Exh. 14) was received by Rathbun in or around March 8 or
9th (Tr. 666). Thereafter, having received the early March
proposal, Rathbun contacted Robinson and wanted a further
‘‘cleaned-up proposal’’ (Tr. 674) bearing the proper name of
the lessee (M T) and the proper situs of the operation (Sid-
ney, Ohio rather than Dayton, Ohio) (Tr. 674). About a week
later he received the cleaned-up version (Tr. 675).
March 9; Donnie Freels, John Walden and Rich Abel
in the Sidney Dispatch Office
On or about March 9, Donnie Freels spoke with Plant
Manager Abel in the Sidney dispatch office in the presence
of Dispatcher John Walden (Tr. 300–301). At the committee
meeting of February 21, it will be recalled, drivers Meinberg
and Freels sat across the table from Abel and Walden and
heard Abel threaten that if the Sidney drivers were to orga-
nize or attempt to organize, his ‘‘opinion’’ was that Masland
would, by upping the bid to Ford, price itself out of the mar-
ket and eliminate the fleet to defeat the union; and that Re-
spondents felt that there was no need for the drivers to be
organized (Tr. 298–299, 345, 275, and 283). Two and a half
weeks later, on March 9, in the Sidney dispatch office, Plant
Manager Abel asked Freels ‘‘how the drivers felt about a
union involvement’’ (Tr. 301). Freels told him that he was
not aware how the drivers felt about union involvement.
Abel answered that he ‘‘. . . felt that there was no future in
[us] being organized at Sidney; that Masland took a very dim
view of unions and he felt that there was no purpose in us
being organized there and that we did not need a union to
give away our rights—or take away our rights from us’’ (Tr.
301–302).
While Abel admits having discussed the Union with Freels
in March (Tr. 521), he denies asking him how the drivers felt
about the Union or ‘‘a union’’ (Tr. 523). He testified further
that he had no recollection of whether he told Freels at that
time that the Sidney drivers had ‘‘no future in being orga-
nized.’’ I do not credit Abel’s continued lack of recollection.
He did testify that he told Freels that ‘‘we don’t need a
union in here, in my opinion and that . . . we could commu-
nicate better without a union’’ (Tr. 526–527). During his re-
lationship with Freels, Abel testified that he told this to
Freels at least three times (Tr. 527).
Dispatcher John Walden, who testified with regard to the
February 8, 14, and 21, and April 11 meetings, was not
called to testify on this point: either to corroborate or deny
Freels’ testimony and Abel’s response. Since Walden was at
the meeting, his failure to testify on the point leads to an in-
ference adverse to Abel’s version. International Automated
Machines, 285 NLRB 1122 (1987). With or without such an
adverse inference, I credit Freels’ testimony over Abel’s de-
nial of recollection.
191MASLAND INDUSTRIES
4 The March 17 meeting was devoted to a review of the rec-
ommendations of the drivers’ committee (R. Exh. 16). The rec-
ommendations were that the losses at Sidney were due to the unique
situation of the Sidney transportation environment and Respondent’s
Continued
The complaint, paragraph 6(b)(ii), alleges that Abel, on
March 9, 1992, unlawfully interrogated an employee about
his and other employees’ union sympathies.
Discussion
On February 21, 1992, in a committee meeting, Abel un-
lawfully threatened Meinberg and Donnie Freels with dis-
continuance of the Sidney operations. Freels had not shown
himself to be a supporter of unions. In view of this prior un-
lawful threat, Abel’s March 9 interrogation of one of the ob-
jects of that threat and one of the participants in that con-
versation, Donnie Freels, must be viewed as coercive. The
coercive nature of the inquiry is found in Abel not inquiring
concerning merely Freels’ own union sympathies; rather he
asked him how the other drivers felt about ‘‘union involve-
ment.’’ An inquiry from a hostile chief supervisor to an em-
ployee, not identified as a union supporter, into the union
sympathies of other employees violates Section 8(a)(1) of the
Act. Crown Cork & Seal Co., 308 NLRB 445 (1992);
Raytheon Co., 279 NLRB 245 (1986); Springs Inc., 280
NLRB 284 fn. 2 (1986). A question from a hostile top super-
visor designed to have an employee divulge the extent of the
union activities or union sympathies of coemployees is pre-
cisely the type of information which employees, under the
Act, are privileged and permitted to keep to themselves,
NLRB v. Laredo Coca-Cola Bottling Co., 613 F.2d 1338 (5th
Cir. 1980), cert. denied 449 U.S. 889 (1980). I find that
Abel’s March 9 interrogation of Freels violated Section
8(a)(1) as alleged.
Respondents’ March 17 Meeting
With regard to the results of the February 21 committee
meeting, Rathbun took no action until almost a month later.
On or about March 17, Rathbun met with Walden and Krout
on the driver committee recommendations, compiled by
Abel, concerning mileage pay versus hourly pay, effective
delay time and other committee recommendations (R. Exh.
16). After discussing the matter, Rathbun, Krout, and Sears
told Walden that they would get back to him. They did not
make any response to the findings of the committee. Sears,
Krout, and Rathbun concluded that the committee proposals
were not acceptable because they did not go far enough: the
pay differential in Sidney remained too large; the Sidney
wage cost was still greater than other wages in the fleet oper-
ation (Tr. 685).
While Rathbun merely notes that as a result of this meet-
ing with Sears and Krout, a further meeting for April 11 was
scheduled, Sears and Krout testified with particularity about
this March 17 meeting. Sears testified (Tr. 759) that after
Walden had presented the task force recommendations and
left, Krout and Sears remarked that it was not enough and,
together with Vice President Owen, they held a further meet-
ing that day to review the committee proposal (Tr. 759).
Rathbun was not present. Sears testified that both Krout and
Owen wanted to ‘‘stop the bleeding as soon as possible . . .
to stop the fleet immediately’’ (Tr. 767). Sears opposed them
and said that he wanted to continue the Sidney operation and
pay the Sidney drivers the Carlisle wages plus a slight addi-
tion. Krout and Owen responded that they did not believe
that it would work; that the handwriting was on the wall and
that the Sidney drivers would not accept the change to a
mileage rate. When Sears insisted that they permit the drivers
the opportunity to accept the change, Krout and Owens
agreed to try it (Tr. 768). Owens did not testify.
M I Vice President Sears testified that as a result of the
March 17 discussion between himself, Owen and Krout, they
decided that it was necessary to have a further meeting with
the Sidney drivers at which the employer would spell out, in
detail, the new mileage pay scale. He testified that he there-
after met twice with Walden, Abel, and Pauley, and planned
the presentation for a subsequent meeting, the meeting of
April 11, 1992.
Finally, Sears testified that at the March 17 meeting with
Rathbun, Owen, Krout, and himself, they decided to get out
of the transportation business at Sidney unless there was ‘‘a
resounding acceptance from the drivers’’ at the April 11
meeting of the imposition of a mileage pay rate system. I do
not credit this testimony and conclude that Sears was at-
tempting thereby to bolster and rationalize subsequent actions
of Respondent. These subsequent actions would include the
conclusion that Respondent, commencing as early as March
17, decided to terminate the Sidney drivers and to lease out
the Sidney M T operation to Drivers Inc. On the contrary,
as will be seen, I find that Respondents decided to impose
a mileage pay rate system at the April 11 meeting to become
effective July 1 and to keep the Drivers Inc. option only if
the Sidney drivers rejected the proposed mileage pay plan.
Krout testified (Tr. 791–792) that, at the March 17 meet-
ing, he had made the decision to terminate the Sidney, Ohio
drivers because he had heard that the drivers would be un-
able to accept the changes necessary to make the enterprise
profitable; that he made the decision to get out of the busi-
ness of employing drivers and to lease drivers instead (Tr.
792). Krout emphasized that it was at this March 17 meeting,
devoted exclusively to the problem of the disposition of the
Sidney drivers, that the decision was made, on consultation
with Vice President Owen (operations) and Sears (human re-
lations), to proceed with the option to lease drivers from
Drivers Inc. and to return the fleet to profitability (Tr. 794).
I have concluded that, at the March 17 meeting, Respond-
ent’s vice presidents decided to have a further driver meet-
ing. I reject and do not credit Krout’s testimony that any
definite decision to terminate the drivers was made; rather,
I find that they decided to keep the M T drivers unless they
rejected Respondents’ offer. The group decided to meet with
the drivers one more time with a plan to move to a mileage
system which was roughly equivalent to that of other sec-
tions of the fleet (Tr. 795). It is noteworthy that this decision
to impose the Carlisle mileage pay system at Sidney was al-
legedly made as early as March 17, 1992, with the knowl-
edge that the trucking operations at Carlisle and Lewistown
were either profitable or break-even operations (Tr. 812). Re-
spondents’ witnesses continually referred to the operating
losses at Sidney as ‘‘hemorrhaging’’ or ‘‘bleeding.’’ Sears
allegedly contemporaneous notes, allegedly recorded at this
March 17 meeting disclosed both the decision to have out-
side carriers haul the freight and to ‘‘stop the bleeding
ASAP’’ (R. Exh. 19).4
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inefficient financial management. In particular, the committee de-
cided that the Sidney operation could not compete with common car-
riers because of various advantages that common carriers have over
the Sidney operation; and that common carriers would cause more
expense to the operation.
The committee recommended changes in the gainsharing plan (a
saving of $36,000 per year); a proposal to switch to a mileage pay
system at 32-1/2 cents per mile, 2 cents per mile higher than
Carlisle/Lewistown with $7.50-per-hour pay for delay time (a
$16,000-a-year savings) and various administrative savings ($19,600
per year). Lastly, the Sidney Transportation recommendation in-
cluded improvement in backhaul revenue at a potential saving of
$25,000 per year. This total proposed savings would be about
$96,000 per year. The M T operational losses were running at about
$200,000 per year.
5 While Abel was putting the mileage rate figures on the board,
telling the drivers that they would not lose any significant income
(i.e., average losses of about $1000 per year) from the change in pay
rates, driver Warren A. Freels, on the preceding day, April 10, had
already had a conversation with Dispatcher Walden. Warren Freels
testified, and Walden did not deny, that, on April 10, Walden and
Freels figured out what Freels would earn under the new mileage
pay rate system, based on the miles he had driven in the preceding
year. Walden told Freels that he would lose $3000 per year based
upon the mileage that Freels had driven the previous year (Tr. 253–
254).
Subsequent to the March 17 meeting, Sears went to Sidney
twice and met with Walden, Abel, and Amelia Pauley and
mapped out exactly what the Respondents’ position would be
with regard to the Sidney drivers at this subsequent meeting
to be held on April 11, 1992 (Tr. 770). Like Krout, Sears
testified that M T was to get out of the transportation busi-
ness unless there was an enthusiastic driver exceptance of the
Company’s proposal (Tr. 770). I have rejected such testi-
mony as not credible. I have concluded, above, that Re-
spondents—for reasons previously advanced by Abel decided
to remain as the drivers’ employer unless they rejected the
April 11 offer. Krout, Owen, and Sears also decided that
Rathbun would be the officer to ‘‘sell’’ their compensation
package to the Sidney drivers at the April 11 meeting (Tr.
771–772).
Union Activity and Organization Among the Sidney
Drivers; March 1992
I have found, above, Abel’s unlawful threat of February 21
and unlawful interrogation of March 9.
Sometime in late March, driver Warren A. Freels (no rel-
ative of Donnie Freels) contacted Dave Clemmens, business
agent for Local 908, International Brotherhood of Teamsters,
the Charging Party herein. They arranged a meeting for
March 26 which was attended only by Warren Freels and
Clemmens. Two days later (Tr. 140), March 28, there was
a second meeting, this time attended by Freels, driver Fred
Poppleman, Clemmens and Clemmen’s associate, Business
Agent Matthews, of Local 908. Poppleman and Freels signed
union cards at that time and already knew that Respondents
had scheduled the April 11 driver meeting. They decided to
await the results of the April 11 meeting before telling other
drivers of their contact with the Union (Tr. 142). In the week
prior to the driver meetings with the Union, as above noted,
Abel had memorialized (R. Exh. 16) the results of the Feb-
ruary 21 committee meeting including the proposed imple-
mentation of the mileage rate. Again, as above noted, Abel’s
recommendations were presented by Walden to Rathbun,
Sears, and Krout in Carlisle on March 17. It was at that
meeting, that Respondents, on Vice President Sears’ insist-
ence, agreed to give the Sidney drivers a further chance to
accept Respondents’ mileage rate and other terms and condi-
tions of employment at the meeting of April 11, 1992.
The April 11, 1992 Meeting with the Sidney Drivers
At the meeting of April 11 (Tr. 685), Rathbun (in the pres-
ence of Abel and Walden) presented Respondents’ response
to the committee’s proposal (R. Exh. 16). Rathbun proposed
that the Sidney drivers be put on a mileage pay rate basis
mirroring the wage package in Carlisle and Lewistown, to
become effective July 1 at Sidney (Tr. 786). That rate, 30-
1/2 cents per mile and $7.25 per hour for delay time (Tr.
786), would be the same as the Carlisle unionized mileage
rate which, under the collective-bargaining agreement, would
rise to that level on July 1 (Tr. 686–687).
Abel and Rathbun also discussed eliminating unnecessary
taxes, increased efforts to get more backhaul revenue and
eliminate excessive delays in loading and dispatching (Tr.
529–531). Abel drew on the blackboard a comparison of
hourly pay and mileage pay. He showed that the drivers
would not significantly lose pay on the mileage pay rate sys-
tem which, he said, encouraged drivers to spend time on the
road and discouraged delay time.5
At the meeting, the drivers reminded Rathbun and Abel
that there were 16 drivers and only 11 tractors, and that the
drivers were concerned that the 16 drivers would not drive
enough miles with only 11 tractors to make a full pay check
(Tr. 146). They testified that it would take them a lot more
driving miles to make the same paycheck they made on an
hourly rate if they switched to a mileage rate. Abel told
them, in substance, that there might not be enough work for
some of the drivers. Driver Scott Egbert then asked Abel
what would happen to the five drivers without assigned trac-
tors and, particularly, whether they would get ‘‘bumping
rights’’ back into the plant as plant employees if there was
not enough work for them as drivers. All of the General
Counsel’s witnesses testified credibly that Rich Abel an-
swered that they would be given their seniority rights to
‘‘bump [into] any job [they] could do in the plant’’ (Tr.
150). Abel then looked around at Rathbun seeking confirma-
tion. the General Counsel’s witnesses all testified that
Rathbun, sitting behind Abel, shook his head ‘‘yes,’’ to af-
firm Abel’s statement.
With regard to Egbert’s question concerning the right of
drivers to ‘‘bump’’ back into plant jobs, Abel testified that
he could not recall his exact words but that his response was
that he did not know; and that it was something that he
would have to check out (Tr. 538). Particularly, he testified
that Rathbun and Walden made no responses to the ‘‘ques-
tion’’ of bumping (Tr. 538–539). In view of my observation
of the demeanor of the witnesses, and particularly the clarity,
corroboration, and directness of the General Counsel’s wit-
nesses, together with the pertinence and timing of the ques-
tions posed by the General Counsel’s witnesses to Abel, I
credit neither this further demonstration of Abel’s inability to
recall his exact words nor his additional response that he did
not know whether there were such ‘‘bumping’’ rights.
193MASLAND INDUSTRIES
Rathbun testified that with regard to Egbert’s question to
Abel concerning bumping rights, he recalled that Abel told
Egbert that he would take a look at it if it happened; that
they were at the meeting to discuss ways of making the fleet
viable and that he had every reason to believe that that was
going to come out that way (Tr. 712). I specifically discredit
Rathbun’s testimony concerning bumping rights for the same
reasons that I discredited Abel’s.
Donnie Freels convincingly testified that Egbert’s question
concerning plant bumping rights followed upon the drivers’
observation that there were only 11 tractors for 16 drivers
and Rathbun’s or Abel’s response that the Respondents
would have to look at lowering the number of drivers to
match the number of trucks (Tr. 306–307). It was then that
Egbert raised the question on bumping. Freels recalled that
it was at this point that Abel said that the Sidney drivers had
the same rights that they always had at Masland and, if their
jobs were eliminated, their seniority rights would carry into
the plant at a job they could suitably do (Tr. 306–307).
During a break in the April 11 meeting, Donnie Freels
spoke with Abel in the conference room. Abel asked him if
he thought that the drivers were going to support a union
(Tr. 309–310). Freels again repeated, as he did on March 9,
that he did not know if the drivers would or would not sup-
port a union. Abel told him that there was no future in the
employees being organized. This latter statement, from a
hostile supervisor, of ‘‘no future’’ in employees being orga-
nized is, per se, a declaration of the futility of union rep-
resentation and violates Section 8(a)(1) of the Act. Compare
Montgomery Ward & Co., 222 NLRB 965 (1976), with
Liquitane Corp., 298 NLRB 292, 297 (1990).
I have already found that Abel’s similar question on
March 9 to Donnie Freels was unlawful, coercive interroga-
tion having followed a February 21 threat of the employer
going out of the trucking business if the employees sought
to organize. What I now find, however, is that this April 11
repetition of the March 9 Abel inquiry into driver sympathies
was Respondents’ continued unlawful interest in the possibil-
ity of driver support for a union. I have considered and re-
jected the speculation that this Freels’ testimony was merely
a repetition of his March 9 testimony.
Sometime in the middle of the meeting, when Abel urged
that a mileage pay rate, as opposed to the hourly pay rate,
would encourage greater productivity through greater driver
motivation, driver Poppleman loudly answered that the driv-
ers met demanding time targets and were productive. He
banged his fist on the table and/or kicked his chair in anger
over Abel’s remarks. Rathbun called for the drivers to settle
down. The meeting continued.
No driver said he would insist on remaining at the hourly
pay rate; no driver threatened to quit if the mileage rate was
imposed. Abel testified, however, that other drivers made
statements against the mileage pay system. He named no
driver. I do not credit his testimony. No driver was given the
alternative of accepting Respondents’ terms or quitting.
Further Union Activity After the April 11 Meeting
On Monday, April 13, 2 days after the April 11 meeting
(Tr. 228), driver Warren Freels telephoned Business Agent
Clemmens and told him that he wanted to have a further
meeting to present the Union to the drivers (Tr. 227).
Clemmens said that he would mail letters to the drivers so
that they could have a meeting with the Union (Tr. 229).
Drivers had told Freels that they wanted established work
rules (Tr. 229), were concerned over the diversion of their
work to Carlisle drivers, and wanted the stability of having
a written contract (Tr. 239).
The Union sent letters to the Sidney drivers on April 18,
1992, informing them of a union meeting to be held in Sid-
ney on Saturday, April 25 (G.C. Exh. 12). As early as Tues-
day, April 21, however, Walden telephoned Rathbun (and
personally told Abel) that the drivers were going to have a
union meeting on April 25 (Tr. 581; 720).
The Response to the Drivers’ Union Activity
Abel testified that, starting on the next day (April 22), he
talked to about half the drivers about the approaching union
meeting (Tr. 580). Rathbun started on the following day.
Rathbun and Abel spoke with the drivers concerning the ap-
proaching union meeting, the drivers’ attitudes towards the
Union and management’s position.
Thus, on April 23, the Carlisle dispatcher (Scott Decker)
told Sidney driver Ernest Vestal (working at Carlisle) that
Rathbun wanted to see him. When Vestal hesitated to com-
ply, and said that he had finished work and he was ‘‘out of
[driving] hours,’’ the dispatcher told him: ‘‘I think you’d bet-
ter come over and see him.’’ Vestal had never before been
in Rathbun’s office. Rathbun invited him into the office and
Vestal immediately asked Rathbun ‘‘is this about the meeting
. . . with the Union on Saturday?’’ Rathbun answered: ‘‘yes,
but I can’t comment on that.’’ Rather, Rathbun asked Vestal
how he felt about the April 11 driver meeting. When Vestal
said he had been confused, Rathbun agreed and said that it
had not been informative (Tr. 358). He did not suggest that
the drivers had rejected Respondents’ proposal. Rathbun then
showed him, and they discussed, the drivers’ Operation Pro-
cedures at Carlisle and Vestal said that the procedures were
‘‘pretty good’’ (Tr. 360). Rathbun then told him that the Sid-
ney drivers would ‘‘be getting these benefits. I’m surprised
you guys haven’t received this before’’ (Tr. 360). Vestal an-
swered:
If you’d had this [Carlisle Truck Operating Procedures]
with you at the [April 11] meeting at Sidney . . . per-
haps we wouldn’t be meeting with the union on Satur-
day, because a lot of these things in here we didn’t
have. . . . We have another meeting the morning of
the 25th with just the drivers, not the union. . . . Why
don’t you let me take this document . . . and show the
drivers. And after they see this, perhaps we won’t even
have to worry about voting or signing cards or talking
to the union.
Vestal testified that (1) it was a benefit to the drivers
merely to have a written description of the operating rules;
(2) it would prevent Respondents from imposing illegal driv-
ing on the drivers; and (3) he was not opposed to the mile-
age pay rate (Tr. 385–396).
Rathbun then told Vestal: ‘‘Well, that would be a good
idea, why don’t you do that.’’ He then gave Vestal a copy
of the Carlisle Truck Operating Procedures and also the col-
lective-bargaining agreement covering the Carlisle drivers
(Tr. 361).
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Vestal told Rathbun: ‘‘I wish you had this at the April 11
meeting.’’ Rathbun said ‘‘[yes], I wish I would have brought
[them] . . . and maybe we wouldn’t have this.’’ Rathbun
then told Vestal that he should tell the drivers that he was
giving them his ‘‘word’’ that they would get these benefits
(Tr. 362). Vestal answered that that was ‘‘great’’ and that
once the drivers hear that they had Rathbun’s ‘‘word’’ that
they would get the same benefits as the drivers received at
Carlisle, ‘‘. . . that we might not even have to meet the
union’’ (Tr. 362).
Such a promise of benefits by Rathbun, whether or not
expllicitly coupled with the reciprocal, that the drivers not
sign cards, is an unlawful promise of benefits violating Sec-
tion 8(a)(1) of the Act as alleged in paragraph 6(a) of the
complaint.
On the same day (April 23) that Vestal met with Rathbun
in Carlisle, Plant Manager Abel came out on the Sidney
loading dock where driver Alfred Grillot was backing his
trailer and asked Grillot to come into his office. Grillot en-
tered the office, Abel closed the door and suggested that
Grillot sit. After Abel apologized for having called Grillot
into the office after Grillot had driven all night, Grillot asked
Abel what he wanted. Abel told him that he understood
‘‘that you drivers are going to have a union meeting.’’
Grillot told him that it didn’t hurt to listen and Abel an-
swered that it probably didn’t hurt and added: ‘‘[But] if
[you] were to sign union cards . . . [you] would be giving
up [your] right to voice [your] opinion to management.’’
Grillot protested that the Sidney operation had been mis-
managed; that the drivers had been trying to tell management
of this mismanagement for 2 years; and that management
was seeking to use the drivers as a scapegoat. Abel re-
sponded (Tr. 434–435):
I’m just asking you not to sign the union cards because
you’ll be giving up your rights to voice your opinion
to the Company . . . it could present a problem.
Grillot answered that he could not see how it would present
a problem by merely listening to what the Union had to say
and would not guarantee his signing or not signing a card.
Abel thanked him for his time (Tr. 435).
Sometime between April 11 and 25, Donnie Freels, at Car-
lisle, spoke with Rathbun (Tr. 313–316). Freels asked
Rathbun if Respondents ‘‘made a decision as to what . . .
it was going to be as far as money . . . the money on the
pay rate system at Sidney? Rathbun answered (Tr. 316): [No]
they had not concretely come up with anything yet but . . .
they [were] looking at [paying] 29 cents a mile, $7.25 an
hour . . . and there would have been a 2-cent domicile . . .
bonus . . . because of our operating location.’’ Rathbun then
gave him a copy [G.C. Exh. 9] of the Carlisle Truck Operat-
ing Procedures and told him that as far as pay and operating
procedures, with the exception of the 2-cent domicile bonus
everything else would be the same as at Carlisle.
Union Action
It is undisputed that at the Saturday, April 25 union meet-
ing, 13 Sidney drivers signed union membership application
cards and gave them to Union Business Agent Clemmens.
On the following Monday, April 27, sometime after lunch,
from Columbus, Ohio, Clemmens telephoned Abel in Sidney
to ask for recognition. He spoke to Abel’s secretary (Tr.
459), identifying himself as an agent of the Teamsters Union.
She told him that she knew what the call was about; that
Abel was not going to talk to him; that he should call Rick
Sears in Carlisle, Pennsylvania, and that Clemmens’ ques-
tions could be answered (Tr. 439). Clemmens then tele-
phoned Sears in Carlisle. He did not speak to Sears because
Sears’ secretary said that Sears was on the telephone. She di-
rected Clemmens to call again in a half hour (Tr. 441). As
in the case of the telephone call to Abel, Clemmens had
identified himself, told her that he was with the Teamsters
Union, and had been directed to call Sears to ‘‘answer some
questions that I have’’ (Tr. 441). When Clemmens thereafter
made the second call to Sears, Sears’ secretary told
Clemmens that she knew ‘‘what this is about,’’ and that she
did not ‘‘think Rick is going to talk with you; go ahead and
do whatever you have to do’’ (Tr. 441–442). Clemmens
thanked her and hung up.
After failing to speak with Sears, Clemmens telephoned
his fellow business agent, Dan Mathews, and directed him to
file a petition for an election with the National Labor Rela-
tions Board and to enclose the signed membership cards (Tr.
444; G.C. Exh. 2). The petition, filed by Local 908 in Case
9–RC–16037, shows that it was filed in the Regional office
on the next day, April 28, 1992; that it contains an assertion
that the request for recognition was made and refused on
April 27, 1992; and that a copy of that petition was sent to
Respondents (attention, Rich Abel, Sidney, Ohio) on April
29, 1992. A copy of the petition, sent by certified mail, was
received by Respondent on May 1, 1992 (G.C. Exh. 2).
Respondent’s Actions After the April 11
Employee Meeting
After the April 11 meeting, Rathbun returned to Carlisle
on that Saturday. At the beginning of the following week, he
met with Vice Presidents Sears and Krout to brief them on
what happened at the drivers meeting. He testified he told
them that that meeting had gone ‘‘poorly’’; that there was ‘‘a
lot of discontent’’ and that he was ‘‘very displeased with the
lack of cooperation that was expressed at the meeting by the
drivers’’ (Tr. 696). Rathbun testified that he drew the infer-
ence of extreme driver dissatisfaction with management’s
offer (30-1/2 cents an hour plus $7.25 delay time) from driv-
er Poppleman’s pounding on the table and kicking a chair
(Tr. 697). Although Rathbun admits that driver meetings are
often rowdy, and although there were many questions asked
by the drivers, there was no express physical action of the
drivers other than Poppleman’s banging his fist on the table
and shouting at the management team. While it is unclear
whether he banged his fist on the table or kicked the chair,
or both, his loud statement related to Plant Manager Abel’s
assertion that the mileage pay rate system would motivate
the drivers better than an hourly pay rate system. Poppleman
complained, loudly, about Abel’s implication that the drivers
were not already ‘‘productive.’’ Poppleman reminded Abel
and Rathbun that the drivers came in the terminal in a state
of fatigue, jockey trailers around, met almost impossible de-
livery deadlines at the Ford plants and then were being ac-
cused of not being productive (Tr. 692). None of the drivers
at the April 11 meeting told Abel or Rathbun that they would
insist on retaining the hourly pay rate or would refuse em-
195MASLAND INDUSTRIES
6 The March 17 meeting of Krout, Owen, and Sears at which the
initial alleged decision to subcontract was made was also outside
Rathbun’s presence. Rathbun is the vice president of M T and its
chief operating supervisor.
7 It was in this conversation that Freels speculated with Rathbun
that if the Sidney drivers went for the Union, Respondent would get
rid of the fleet (Tr. 727).
8 On or about April 7, 1992, M T had signed a contract with
Vangard Services covering the employment of a temporary substitute
for one of the Carlisle drivers who was disabled and on workman’s
compensation (Tr. 703–704). This contract was with Vangard rather
than with Drivers Inc. (Tr. 704). Rathbun testified that there had
been a verbal agreement with Vangard on April 7, but the contract
did not get processed until April 22 (Tr. 706; Exh. 17).
ployment if the mileage pay rate system was implemented on
July 1, as Rathbun and Abel stated.
In any event, on Monday, April 13, 1992, Rathbun met
with Sears and Krout regarding the April 11 meeting. Later
that day, outside the presence of Vice President Rathbun,6 in
an ‘‘impromptu’’ meeting in Sears’ office, President Branch,
Vice President Krout, Vice President Larry Owen, and Vice
President Sears allegedly had a meeting in which they re-
viewed the transportation costs and the ‘‘[Sidney] drivers’
ability to accept change.’’ The drivers’ recommendations and
comments showed them that the April 11 proposals, modified
by driver comments would not give Respondents enough
money to continue using Sidney drivers (Tr. 716). They then
allegedly agreed to terminate the Sidney drivers and to pro-
ceed with the ‘‘leased arrangement’’ (Tr. 773), the decision
to terminate the drivers and to go with the ‘‘leased arrange-
ment’’ allegedly based purely on economic considerations
(Tr. 773). Although the record is unclear as to when this de-
cision was made known to Rathbun (Tr. 773–774), it is clear
that Rathbun knew about it prior to April 23 or 24 when he
was telling driver Donnie Freels not to sign a union card and
telling him that Respondents would stand behind the commit-
ment to give the Sidney drivers the same working conditions
that were given to the unionized drivers at Carlisle and
Lewistown (Tr. 726).7 In any event, Respondent asserts that
Rathbun knew of the decision and that the decision was kept
within a very small circle of Respondents’ officers (R. Br.
6; Tr. 726; 773–774).
Rathbun testified, in substance, that on April 13, after he
reported that the April 11 meeting had gone ‘‘poorly,’’ he
was directed to pursue the Drivers Inc. subcontracting pro-
posal (Tr. 699–701). He stated that, on the same day, April
13, he then telephoned Ron Robinson of Drivers Inc. (Tr.
701) and asked him ‘‘how quickly he could put a transition
program in place in Sidney, Ohio.’’ Robinson allegedly told
him it would take 2 weeks and directed Rathbun to contact
the president of Drivers Inc.’s parent corporation, Jim
Malarney, president of Vangard Services (Tr. 702). Rathbun
testified that at that time he told Robinson that things were
getting ‘‘very serious’’ and that he wanted to speak to
Malarney. He spoke to Malarney immediately after speaking
with Robinson (Tr. 702) and told Malarney that ‘‘we were
very interested in making a transition . . . and would like
some reassurance from him that he could smooth the transi-
tion . . . with no disruption whatsoever in our service to our
customers’’ (Tr. 703). As a result of this conversation,
Rathbun directed Malarney to contact Vice President Sears
(human resources) (Tr. 703).8
Within a day or two, apparently on April 15, Rathbun met
allegedly with Krout and told him of his discussion with
Robinson in which Robinson told him that it would take
about 2 weeks to implement Drivers Inc. taking over the Sid-
ney driver operation (Tr. 717). Krout agreed. As a result of
this conversation, Rathbun told Krout that he would get in
touch with Robinson and tell him that ‘‘its a go’’ and to ver-
ify that they could do it in 2 weeks (Tr. 717–718). Rathbun
testified that he then contacted Ron Robinson, told him that
there had been a decision and that they were going to go
with Drivers Inc. and needed reassurance on the exact tim-
ing, particularly how quickly Drivers Inc. could perform (Tr.
718). He also told Robinson that he wanted Drivers Inc. to
give consideration to hiring the erstwhile Sidney drivers for
employment by Drivers Inc. either in the same operation or
‘‘any where else they could utilize them’’ (Tr. 718).
Finally, Rathbun testified that on April 22 or 23, when
Walden told him about the ‘‘rumor’’ of a union meeting
scheduled for Saturday in Sidney, he immediately reported
this to Sears (Tr. 720). He then met with Sears on the same
day and discussed the object of trying to keep Respondents’
business ‘‘as usual’’ (Tr. 721) and to avoid any disruption.
The disruption he sought to avoid was $70,000 per hour
downtime at the Ford assembly plants which could be caused
by untimely deliveries, including deliveries from M I. In par-
ticular, he was concerned about disgruntled drivers and the
‘‘lot of things that can happen’’ with disgruntled drivers
obliged to make on-time delivery (Tr. 721). Rathbun testified
that it was as a result of his conversation with Sears, that he
met with the two drivers (Vestal and Grillot) on April 23 and
asked them not to sign union cards.
Respondents Notify the Sidney Drivers of a
May 2 Meeting
Starting on Wednesday, April 28, 1992, Walden by tele-
phone or in person, commenced contacting the Sidney driv-
ers, telling them of an important and mandatory driver meet-
ing for Saturday, May 2, 1992, at the Holiday Inn in Sidney.
On April 30, 1992, Walden posted a notice of the May 2
meeting. None of the drivers were notified of the May 2
meeting before April 28. Some of the drivers discovered the
meeting on April 29 and one of them on April 30.
The Execution of the Agreement Between Drivers Inc.
and Masland Transportation Allegedly on May 1, 1992
Drivers Inc. commenced its operation at the Sidney termi-
nal on Sunday, May 3, 1992. There is no dispute that all Re-
spondents’ Sidney drivers, as will be hereinafter noted, were
terminated at the Saturday, May 2, 1992 drivers meeting in
Sidney.
The only evidence with regard to the date of actual signing
of the agreement subcontracting the driver work from
Masland Transportation to Drivers Inc. was the testimony of
Vice President Rathbun. He testified (Tr. 86–87) that the
written agreement subcontracting the Masland Transportation
driver work to Drivers Inc. at Sidney, Ohio, was signed on
May 1, 1992. It was with Rathbun on the witness stand and
through his testimony, alone (Tr. 732–735), that the written
subcontracting agreement (R. Exh. 18) between Drivers Inc.
and Masland Transportation was identified, authenticated,
and received in evidence.
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
That document, in fact, consisted of (1) a May 28, 1992
letter from Rathbun to Drivers Inc. president, James
Malarney, wherein Rathbun forwarded to Malarney a copy of
a signed contract, requested by Malarney from Rathbun in a
Malarney letter of May 12, 1992; (2) the May 12, 1992 letter
from Malarney to Rathbun enclosing two contracts, signed
by Drivers Inc., for signature by Masland Transportation. In-
deed, Marlarney’s May 12 letter requests that Rathbun:
‘‘Please return a signed copy of our files’’ (R. Exh. 18, p.
2). The face of the letter states that Marlarney was ‘‘looking
forward to meeting you in the near future.’’ This indicates
to me that, although the document purports to carry
Malarney’s and Rathbun’s signatures, applied on May 1,
Malarney had never met Rathbun as late as May 12, even
after the alleged execution on May 1, 1992, by Rathbun for
Masland Transportation. In any event, Malarney’s May 12
letter to Rathbun, on the face of it, indicates that there had
been no copy signed by M T for Drivers Inc. prior to May
12. Yet the face of the agreement, carrying ‘‘made this 1st
day of May, 1992.’’ carries both Rathbun’s and Malarney’s
signatures. On the record evidence, and without further ex-
planation by Respondents, the M T signature, Rathbun’s, af-
fixed to the Drivers Inc. subcontract, was affixed after May
12, 1992 (R. Exh. 18, p. 2). Indeed, as noted, Malarney had
never met Rathbun prior to May 12, 1992 (R. Exh. 18, p.
2). The one sure fact is that, contrary to his testimony (Tr.
86), Rathbun did not sign the contract on May 1.
Lastly, there is the subcontract agreement itself. The criti-
cal elements of the agreement are (1) it recites that it was
made on the ‘‘first day of May, 1992’’; and (2) it is signed
by James Malarney as president of Drivers Inc. and by John
D. Rathbun, vice president of Masland Transportation, Inc.
The actual signature page is undated.
Consistent with the Rathbun letter to Malarney of May 28,
1992, wherein Rathbun attaches a signed contract pursuant to
Malarney’s May 12 letter; and, consistent with Malarney’s
May 12 letter to Rathbun, requesting that Rathbun return to
Malarney a copy of the subcontracting agreement signed by
Masland Transportation, I specifically find, contrary to
Rathbun’s testimony, that neither Rathbun nor any other rep-
resentative of Masland Transportation or Masland Industries
signed a subcontract with Drivers Inc. on May 1, 1992. Rath-
er, I conclude that the signed agreement was executed on or
after May 12, 1992; that Rathbun’s testimony (Tr. 86) that
it was signed on May 1 was deliberately false; that the pur-
pose of that testimony was to show that there was a signed
subcontracting agreement with Drivers Inc. (a) within the 2-
week period following Rathbun’s April 15 meeting with
Krout where the sub-contracting decision allegedly was final-
ized, followed by the 2-week period allegedly mentioned by
Robinson to Rathbun; and (b) before Masland Transportation
terminated its 16 Sidney drivers on May 2 and before Driv-
ers Inc. took over the operation on Sunday, May 3, 1992. I
find, to the contrary, that Drivers Inc. took over the Sidney
driver operation on May 3 without a signed contract; and that
there was no 2-week period required by Drivers Inc. to take
over the Sidney operation or any such conversation between
Rathbun and Robinson on April 13 to 15.
In any event, the subcontract agreement provides (R. Exh.
18; par. 20, A) that the agreement becomes effective on the
day that Drivers Inc. makes its employees available for M
T’s use; and that the term of the agreement is indefinite but
shall run until canceled by either party on 30 days’ written
notice prior to the date of termination (R. Exh. 18, par. 20,
B).
By schedule A attached to the agreement, Masland Trans-
portation agrees to pay to Drivers Inc. the wages, associated
insurance, taxes, and fringe benefits (including vacations and
holidays) pursuant to the Drivers Inc. contract proposal for-
warded and dated on or about March 13, 1992, to Masland
Transportation (R. Exhs. 15B and 15C). Thus, the wage rates
and other terms agreed to by Masland Transportation (as evi-
denced by R. Exh. 18 integrated with R. Exhs. 15B and C)
demonstrate that Drivers Inc. pays the drivers at a mileage
rate of 29 cents per mile plus a waiting time and loading
time rate of $8 per hour, allowing one-quarter hour pay for
pre and posttrip inspections. The agreement also provides for
Masland Transportation to pay Drivers Inc. for payroll taxes;
workers compensation insurance; 12 paid holidays; vacations
(depending on length of employment at Masland Transpor-
tation); group life, accidental death, and major medical and
dental insurance; a pension plan; and an ‘‘Administrative
Fee’’ of $30 per week per driver (R. Exh. 15(c)).
Rathbun testified that Respondents insisted that there be
included in the subcontracting agreement an obligation on
Drivers Inc. to offer employment, at the Sidney terminal or
elsewhere, to all the terminated Sidney drivers (Tr. 746); that
the reason for this demand was because the Sidney drivers
were ‘‘productive employees’’ (Tr. 747); and that Respond-
ents wanted former drivers to be ‘‘satisfied’’ because M T
was in a service-oriented business and wanted no unhappy
drivers interfering with the smooth and time-sensitive deliv-
ery service offered by M T.
Masland Transportation Terminates the Sidney Drivers
on May 2, 1992
As above noted, Dispatcher Walden, commencing April
28, notified all Sidney drivers of an impending May 2 man-
datory drivers meeting at the Holiday Inn on Saturday, May
2, 1992. He commenced notifying them no earlier than April
28 and notified some of them as late as April 30, 1 day be-
fore the meeting. On April 29 or 30, Rathbun directed Wal-
den to post the notice of the May 2 meeting (Tr. 730).
At the May 2 meeting, with all drivers present, Rathbun
read a prepared statement telling the drivers that, because of
the economic situation and despite attempts of Masland
Transportation to resolve the problems at Sidney, Masland
Transportation was at an impasse with the drivers and it was
no longer able to continue employing drivers at Sidney.
Rathbun then told the drivers that Masland Transportation
had subcontracted, and turned the operation over to, Drivers
Inc.; that Drivers Inc. was present at the meeting and was
prepared to take applications from the erstwhile Sidney driv-
ers and would very seriously consider such applications.
Rathbun then had Walden distribute to the 16 drivers written
individual notifications of their being terminated (G.C. Exh.
8).
Later in the day, on May 2, driver Vestal, terminated
along with the other drivers, telephoned Abel at his home
and asked for a letter of recommendation from Abel for a
prospective job with the City of Dayton or, alternatively, a
job in Respondents’ Sidney plant. Abel told him that there
could be no job in the plant for him ‘‘due to the instructions
he was receiving from Carlisle’’ (Tr. 368). Vestal never got
197MASLAND INDUSTRIES
a job in the plant. Abel never sent him the letter of rec-
ommendation (Tr. 543). Abel testified that he never re-
sponded to either of Vestal’s requests because he was so
busy that he was ‘‘swamped’’ (Tr. 543). I do not credit this
Abel testimony.
Violation of Section 8(a)(3); Respondents’ May 2, 1992
Termination of its 16 Sidney Drivers
Respondents do not deny, and the testimony of Rathbun
and Abel demonstrates, that Masland Transportation and
Masland Industries were dedicated to opposing unionization
of its Sidney drivers. Such a position, of course, is not un-
lawful. In addition, as I have found above, however, Re-
spondents engaged in several acts of independent violation of
Section 8(a)(1) of the Act: unlawful promises to employees
of benefits equal to benefits paid to unionized employees in
Carlisle and Lewistown if they would forego unionization
(John Rathbun); and Plant Manager Richard Abel unlawfully
threatened to close the M T operation, unlawfully informed
drivers of the futility of their organization and coercively in-
terrogated them.
The General Counsel’s Prima Facie Case
To prove a prima facie case of unlawful discharges, the
General Counsel must first demonstrate that a motivating
factor in Respondents’ decision to terminate the 16 Sidney
drivers on May 2, 1992, was their union activities. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transpor-
tation Management Corp., 462 U.S. 393, 400–401 (1983).
Respondents, in defending against such a prima facie case,
must either then rebut the prima facie case by showing that
the facts, as demonstrated by the General Counsel, never
happened; and in this regard, Respondents must bear the bur-
den of proof by a mere preponderance of the credible evi-
dence, Merillat Industries, 307 NLRB 1301 (1992); or, in the
alternative, again by a preponderance of the credible evi-
dence, that Respondents must establish that they would have
taken the same action against the 16 drivers regardless of any
protected activity the drivers engaged in. NKC of America,
Inc., 291 NLRB 683 fn. 4 (1988). In drawing an ultimate in-
ference of the Respondents’ alleged unlawful motivation
under Wright Line, above, that inference, based on a prepon-
derance of credible testimony, may be drawn from the Re-
spondents’ hostility toward the drivers’ union activities and
the coincidence between such union activities and the date of
the discharges. Lemon Drop Inn v. NLRB, 752 F.2d 323 (8th
Cir. 1985); NLRB v. Minette Mills, 139 LRRM 1349 (4th
Cir. 1993), enfg. 305 NLRB 1032 (1991). The employer’s
burden to prove that, notwithstanding the drivers’ union ac-
tivities, it would have terminated their employment regard-
less of such activities, effectively imposes an affirmative ob-
ligation on the employer to convince the trier of fact that the
legitimate motive for the discharges existed and was suffi-
ciently compelling, NLRB v. Horizon Air Services, 761 F.2d
22 (1st Cir. 1985).
The first element in proving an unlawful motive is the
General Counsel’s obligation to prove that Respondents had
knowledge of the employees’ union activities prior to the
May 2 discharges. In the instant case, Rathbun and Sears tes-
tified that as early as the Tuesday (April 21) following the
Union’s April 18 letter informing the drivers of the April 25
meeting, both Sears and Rathbun were told by John Walden
of the impending Saturday, April 25 union meeting. In addi-
tion, Union Agent Clemmens’ two telephone calls requesting
recognition to Abel and Sears on the early afternoon of April
27 also demonstrate that Respondents had knowledge of the
drivers’ Teamsters union activities preceding the May 2 dis-
charges.
Another element often suggested by the Board and the
Courts in determining the existence of unlawful motive is the
existence of employer animus against the employees’ union
activities. I have found that Respondents were dedicated to
obstructing the Sidney drivers from seeking union representa-
tion and committed acts of unfair labor practice in support
of that position. Whether or not Respondents committed
these independent unfair labor practices, however, Respond-
ents admitted to their desire to keep the Union from rep-
resenting the Sidney drivers. I find, however, that Respond-
ents’ union animus spilled over into the above-noted unlaw-
ful acts of coercive interrogation and unlawful threats and
promises. As the Board and Court cases repeatedly observe,
there is also the question of the coincidental timing of the
discharges.
The Question of Timing
In NLRB v. Rain-Ware, Inc., 732 F.2d 1349 (7th Cir.
1984), the court noted that the employer received a union de-
mand for recognition on September 9 and laid off four em-
ployees on September 10 and 11. In that case, the court
found that the employer, as here, had previously engaged in
coercive interrogation and unlawful threats. In view of such
findings, and in view of the coincidental timing of the four
terminations (perfected on the day after and 2 days after the
demand for recognition), the court stated that: ‘‘Timing alone
may suggest anti-union animus as a motivating factor in an
employer’s action’’ [citing cases]; NLRB v. Rain-Ware, Inc.,
732 F.2d at 1354. Similarly, the Board, in Equitable Re-
sources Exploration, 307 NLRB 730 (1992), found that the
timing of the employer’s layoffs of employees (1 week after
the union won an election and 2-1/2 months after the com-
mencement of union organizing activities), in the presence of
independent acts of unlawful restraint and coercion, proved
a prima facie case: that the employees’ union organizing ac-
tivity was a motivating factor in the employer’s decision to
lay the employees off under the Wright Line theory. I there-
fore conclude that, in the instant case, where Respondents
engaged in unlawful interrogation and made unlawful prom-
ises and threats to the drivers in the period commencing Feb-
ruary 21, 1992, and ending on April 23, 1992; and where
Respondents received the Union’s demand for recognition on
Monday, April 27, the timing of the May 2 discharges cre-
ates a prima facie case of unlawful terminations. As noted
in NLRB v. Rain-Ware, Inc., supra, ‘‘timing alone May sug-
gest anti-union animus as a motivating factor.’’ Where, as
here, timing of the discharges, 4 days after receipt of the
Union’s recognition demand, is conjoined with independent
unfair labor practice preceding the discharges, the existence
of a prima facie case cannot be doubted. I therefore find that
the General Counsel proved a prima facie case that Respond-
ents, by virtue of their May 2 discharge of all 16 Sidney,
Ohio drivers, violated Section 8(a)(3) and (1) of the Act, as
alleged.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
An interesting, but not dispositive, question is whether Re-
spondent decided to terminate the employees following its
April 21 acquisition of knowledge of the impending Saturday
union meeting (April 25) or whether it decided to terminate
them only after receiving Union Agent Clemmens’ abortive
demands for recognition on Monday, April 27. For prima
facie case purposes, it is largely immaterial which of the two
events motivated Respondents’ terminating the employees. It
is particularly noteworthy, however, that Respondents, having
acquired actual knowledge on April 21, neither notified the
drivers of any meeting nor posted any notice of any driver
meeting in the period Monday, April 21, 1992, through Sat-
urday, April 25, 1992; nor did they notify any of the drivers
of any meeting on the following Monday (April 27). A more
lengthy notice of the May 2 meeting would not have under-
mined the secret object of the meeting. Respondents had al-
ready allegedly decided to terminate drivers as early as April
15. The telephone calls to the drivers, notifying them of the
May 2 meeting, however commenced April 28, the day after
Clemmens’ telephone calls. Only two events stand out as oc-
curring after Abel’s and Rathbun’s acquisition of knowledge
of the drivers’ union activities on April 21: on April 23 or
24, Rathbun was unlawfully promising to the Sidney drivers
the benefits of Carlisle’s union wages and operating proce-
dures if they would forego signing union cards at the ap-
proaching April 25 union meeting; and, on April 27,
Clemmens twice telephoned recognition requests to Abel and
Sears and was told that the object of his calls was known
and that Clemmens was to ‘‘do what he had to do.’’ Both
Sears and Abel refused to speak to him. The next event,
starting the next day (Tuesday, April 28) was Respondents’
notifying the drivers of the approaching May 2 meeting.
It is not entirely idle speculation, therefore, to conclude,
as I do, that Respondents, possessed of considerable union
animus, were not stampeded into a decision to terminate the
drivers when, on April 21, they learned of the approaching
April 25 union meeting. Rather, it seems to me that Re-
spondents decided to await the outcome of the meeting: to
determine whether the employees, in fact, would sign cards
for the Union or might reject the Union as driver Vestal’s
testimony suggested (April 23 conversation with Rathbun de-
scribing a meeting of drivers before the April 25 union meet-
ing where, after showing the drivers Respondents’ Carlisle
union contract and operating procedures and voicing
Rathbun’s promise of granting unionized benefits, ‘‘we won’t
even have to worry about voting or signing cards or talking
to the union’’ (Tr. 361–362)). This conclusion is also sup-
ported by the testimony of driver Alfred Grillot (conversation
with Abel April 23, ‘‘I don’t see how it can present a prob-
lem if we’re just going to an informational meeting and lis-
ten to what the [union] man has to say’’ (Tr. 435).
But any such dilatory, watchful, and conservative approach
concerning what the Sidney drivers would do (or had done)
on April 25 was eliminated by Union Agent Clemmens’ tele-
phone calls of April 27. On the next day, April 28, Dis-
patcher Walden commenced notifying the drivers of the man-
datory May 2 meeting and on the following day posted the
notice thereof. It would seem to me, therefore, and I find,
that the decision to terminate the drivers was made imme-
diately upon (i.e., the afternoon of April 27 or the morning
of April 28) receipt of Clemmens’ telephone calls on April
27. I find that the absolute proximity between the April 27
or 28 decision to terminate the employees following the
April 27 demands for recognition, alone, establishes a prima
facie case, NLRB v. Rain-Ware, Inc., supra. Respondents
have not rebutted this prima facie case either by showing that
the the General Counsel has not proved facts, on their face,
sufficient to constitute a prima facie case or that Respond-
ents’ evidence has rebutted the veracity and accuracy of the
General Counsel’s witnesses with regard to knowledge, tim-
ing, and union animus. If timing, alone, can create a prima
facie case, as the court held in NLRB v. Rain-Ware, Inc.,
then in conjunction with knowledge, union animus, and inde-
pendent unfair labor practices, the prima facie inference of
unlawful motivation has been proven here by a preponder-
ance of credibly evidence.
Respondents’ Defenses to the Prima Facie Case of the
Unlawful Discharges of May 2, 1992
Respondents defend on three grounds, the first two of
which relate to the General Counsel’s alleged failure to prove
a prima facie case. I have found to the contrary and to that
extent reject Respondents’ defenses. Lastly, and perhaps ba-
sically, Respondents defend on the acceptable theory that,
even if the General Counsel carried the burden of prima facie
proof, the evidence showed that Respondents terminated the
drivers without regard to their union activities (R. Br. 27).
A. Credibility
As a preliminary matter, in observing Respondents’ wit-
nesses and the quality of their testimony, along with the writ-
ten evidence adduced by Respondents, Respondents’ case
was marked by (1) a defense based substantially upon intra-
mural conversations and wholly internal decisions and activi-
ties by Respondents’ officers without contemporaneous out-
ward manifestation of those decisions affecting the employ-
ment of the Sidney drivers. Indeed, Respondents’ defense is
based, in part, on the implicit deceit (justified by alleged
business considerations) of misleading the drivers into be-
lieving that their services would be retained with the imposi-
tion of a mileage pay rate system commencing July 1, while
having already decided on subcontracting; (2) Respondents’
witness Abel’s testimony was marked by repeated lack of
recollection and falsely asserted incomplete memory of the
time and substance of events; the testimony of Rathbun was
marked by false testimony (the date of his signature on the
subcontracting agreement as May 1, 1992); his denial of nod-
ding assent to ‘‘bumping’’ rights; (3) a lack of testimonial
and documentary corroboration by Respondents’ supervisors
present at important occurrences and (4) the general implau-
sibility of Respondents’ version of events. NLRB v. Advance
Transportation Co., 979 F.2d 569 (7th Cir. 1992), enfg. 300
NLRB 569 (1990).
In this regard, there is simply no testimony from Rathbun,
or from any other source, that Rathbun actually signed the
contract on May 1, 1992. The documentary evidence submit-
ted by Respondents demonstrates that this was not true (R.
Exh. 18) and that no Respondent signature was affixed to
any subcontract agreement until after May 12, 1992.
In addition, General Counsel’s witnesses Meinberg and
Donnie Freels testified on Plant Manager Abel’s February 21
threat, the elimination of the M T fleet if the drivers sought
union organization. Abel’s contrary responsive testimony:
199MASLAND INDUSTRIES
that he told them that the loss of the Ford contract would
be due to Respondent’s bidding its true cost of doing busi-
ness, was unconvincing. In addition, there is no legal incon-
sistency between the two versions if, as I have found, Abel
predicated the advent of a new bidding procedure on the
drivers seeking to unionize. The unlawful threat remains. As
the General Counsel notes, Respondents supervisor, Walden,
was a witness to this conversation and was not called to cor-
roborate Abel’s version of bidding on the Ford contract.
Similarly, Walden repeatedly having no recollection, was
also not called to corroborate Abel’s contrary version of
Donnie Freels’ testimony concerning the March 9 coercive
interrogation ending with Abel’s noting no ‘‘future’’ in the
drivers being organized and ‘‘Respondents’ very dim view of
unions.’’
I also was not impressed with Abel’s testimony concerning
the April 11 meeting in which the subject of employee
‘‘bumping into the plant’’ was raised by the drivers. Al-
though he remembered driver Poppleman’s outburst flowing
from Abel’s allusion to, and implied criticism of, the drivers’
‘‘motivation,’’ he could only recall that ‘‘some of the driv-
ers’’ said they did not believe his ‘‘numbers’’ and ‘‘a num-
ber of drivers’’ said that they did not like the mileage system
with reductions in their pay and Respondents’ failure to re-
duce cost (Tr. 535–536). My observation of Abel and my re-
view of the record causes me to disbelieve his testimony that
a number of drivers said any such thing. Abel could not
identify a single driver other than Poppleman, who made any
such remarks. I find that they were not made regardless that
there were frequent, loud remarks. I also discredit his testi-
mony that Poppleman said that he was displeased about
going to the mileage system (Tr. 533).
With regard to ‘‘bumping into the plant,’’ the credibility
of Abel’s testimony is unacceptable. He testified that one of
the drivers asked: ‘‘if we lose our jobs, can I bump into the
plant?’’ (Tr. 538.) Typical of Abel’s equivocal testimony, he
testified that, while he could not recall his exact words, his
response was that he did not know the answer; that he had
never been involved in a situation where a supplier was at
the facility that he managed; and that he would check into
it. I discredit this testimony. The credible testimony of the
General Counsel’s witnesses is that he said that Respondents
would observe the seniority of the employees for purposes of
bumping into the plant; that he turned to Rathbun for acqui-
escence; and that Rathbun, by shaking his head in the affirm-
ative, agreed that the employees could bump into the plant.
In addition, when, because of the anticipated mileage pay
system, the employee raised the question of bumping if there
was not enough work for them as drivers (because there were
more drivers than trucks), Abel first testified that he had no
recollection of such question being raised (Tr. 589). When
the question was repeated (Tr. 589), he admitted that there
was an issue brought up about bumping into the plant (Tr.
590). Most important, Abel denied that the bumping issue
raised by the drivers was ‘‘bumping’’ because there was not
enough work for 16 drivers to drive only 11 trucks (Tr. 590).
He testified rather that he construed that the ‘‘bumping’’ was
brought up, not because the drivers perceived an anticipated
lack of work, but because they wanted an alternative to
working under the new mileage pay rate: that if the drivers
did not ‘‘like your [mileage pay] system do I have another
choice’’ (Tr. 590). While he admits that no driver mentioned
such a question, he testified that that is what he construed
the bumping issue to mean. Such testimony is mere fabrica-
tion. The driver inquired of ‘‘bumping’’ rights because he
feared a lack of work, not a distasteful pay rate.
I have discredited his lack of recollection that the bumping
question was raised; I have discredited his denial that the
bumping issue was raised because an employee was con-
cerned that there might not be enough work for 16 drivers
driving only 11 trucks; and I discredit his improvised expla-
nation as to what he construed the question to mean (Tr.
590). Lastly, I discredit his testimony that he never got back
to driver Vestal who requested a plant job (i.e., ‘‘bumping’’)
because he was ‘‘swamped’’ with work. Contrary to Abel’s
denials and explanations (Tr. 542), I credit driver Vestal’s
testimony that, on May 2, 1992, Abel told him that he could
not bump into the plant ‘‘due to the instructions he was re-
ceiving from Carlisle’’ (Tr. 368). Therefore based upon
Abel’s demeanor, his repeated lack of ability to recall events,
his attempt to think through the consequences of a question
before answering it (Tr. 539), his inability to specify names
of drivers who made incriminating statements, and his re-
peated desire to impress me that, as plant manager for
Masland Industries, he was meddling in the labor relations
of Masland Transportation’s drivers only as a ‘‘consultant,’’
I do not credit any of his testimony, particularly where it is
inconsistent with the testimony of the General Counsel’s wit-
nesses. Rather, such discredited testimony supports the prima
facie case and strengthens the inference of unlawful motiva-
tion.
Respondents’ defense, that regardless of the drivers’ union
activities, it would have terminated them in any event, also
rests on the credibility of the testimony of its witnesses
Krout, Sears, and Rathbun.
B. Respondents’ Argument
Respondents argue that they long ‘‘contemplated’’ the ter-
mination of the drivers and the subcontracting of their jobs.
I agree but stress the word ‘‘contemplated.’’
The substance of Respondents’ defense derives from their
January and March 1992 correspondence, and February and
April conversations, with representatives of Drivers Inc. and
Vangard Services. It also points to the April agreement with
Vangard covering a temporary replacement for a disabled
Carlisle driver. Respondents argue that it therefore was not
suddenly thrust into the arms of Drivers Inc. in order to
evade the drivers’ April unionization effort. The above ac-
tivities allegedly support that argument and Respondents’ in-
nocent execution of the subcontracting agreement with Driv-
ers Inc. sometime in May.
In between, however, is the matter of uncontradicted union
activity: the Saturday, April 18 letter from the Union to the
employees of which Respondents had notice by Tuesday,
April 21; and the April 27 union telephone calls to Respond-
ents requesting recognition, ending with Respondents’ actual
receipt of the Union’s election petition on May 1. In addi-
tion, there were the four meetings (February 8, 14, 21 and
April 11) with unit employee committee wherein Respond-
ents’ sole manifested objective was to retain the M T drivers
by saving money on labor costs: selling them on accepting
the mileage rate. Respondents’ manifested conduct was thus
diametrically opposed to their alternative option of terminat-
ing the drivers and subcontracting their jobs.
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Rathbun admits to deceiving Donnie Freels, in a conversation
after April 11 (and before April 25) wherein Freels asked him (Tr.
316) if Respondents had decided on the money in the new payrate
system. Rathbun said that while there was nothing concrete, it was
generally 29 cents a mile, a 2-cent bonus and $7.25-an-hour waiting
time. Rathbun testified that he purposely refrained from revealing the
decision to terminate the drivers for fear of resulting interference
from disgruntled driver-employees. On this latter point, see infra, in
the text. In any event, Respondents submitted no evidence that on
and after their subcontracting of May 1992 they saved any money
or cut their transportation losses.
Respondents argue that they attempted to retain the drivers
as late as the April 11 meeting when Vice Presidents Owen
and Krout acceded to Vice President Sears’ desire to make
one last effort at gaining driver cooperation. Krout testified
that it was actually a poor risk because, by March 17, they
had already decided to terminate the drivers and subcontract.
First, Respondents argue, on the basis of the wholly intra-
mural testimony of Rathbun, recounting his experiences to
Sears and Krout, that the April 11 meeting was a failure be-
cause the employees rejected Respondents’ final mileage rate
overtures. There is no factual support for the conclusion that
the drivers rejected Respondents’ offer. Poppleman’s loud
displeasure must be measured against (1) no driver rejected
the mileage pay rate; (2) no driver threatened to quit if the
hourly rate was removed; and (3) I doubt that Respondents,
even in the face of open driver resistance, would have failed
to impose the mileage pay rate (and other necessary savings)
on the drivers regardless of their wishes. Krout admitted that
the drivers were never given the choice of accepting Re-
spondents’ terms or face the subcontracting of their jobs. To
the extent that Sears and Krout testified that they would con-
tinue employment of the drivers only if Respondents’ offer
were ‘‘enthusiastically’’ accepted, I do not credit such testi-
mony. Not only are business decisions not ordinarily made
on the basis of employee desires, but Respondents’ pref-
erence to retain their otherwise ‘‘disgruntled’’ exemployees
in the guise of Drivers Inc. employment militates against Re-
spondents’ position. This will be examined below.
Second, there is simply no objective evidence to support
Respondents’ argument that after April 11, they took steps
to execute their March 17 decision to terminate the drivers
and subcontract to Drivers Inc. Support for this argument is
based principally on the testimony of Rathbun, Sears, and
Krout. Rathbun, first meeting with, and recounting the driv-
ers April 11 rejection to, Krout and Sears, points to a subse-
quent lengthy luncheon meeting with Krout on April 14 or
15 at which Krout gave the final word to terminate the driv-
ers and subcontract to Drivers Inc. The most important, and
least convincing, evidence on which Respondents rely to sup-
port this fact is the testimony of Rathbun.9 He testified that
he then immediately contacted Drivers Inc. (Ron Robinson),
and specified Respondents’ decision to subcontract to Drivers
Inc. Rathbun testified that Robinson told him that there
would be a 2-week waiting period before Drivers Inc. could
take over the Sidney operation. It must be emphasized that
such hearsay testimony (what Robinson told Rathbun) is the
keystone in the arch that supports Respondents’ entire de-
fense. If there was no 2-week waiting period, then there was
no reason why Drivers Inc. failed to take over the ‘‘hemor-
rhaging’’ Sidney trucking operation within a few days of
Rathbun’s April 14/April 15 telephone call to Ron Robinson.
Without the alleged 2-week delay, Respondents May 2 dis-
charges are necessarily swallowed up by the timing of the
Union’s April 27 telephone calls and Respondents’ sudden
April 28 notification of the May 2 meeting.
I would ordinarily be reluctant to credit hearsay, in the
face of a strong prima facie case, to prove the essential ele-
ment of a defense, required to persuade by a ‘‘. . . prepon-
derance of the credible evidence.’’ Merrilat Industries, 307
NLRB 1301 (1992). To accord any probative weight, how-
ever, to hearsay on such a critical, indeed vital, element
flowing, as here, from a witness as unreliable as Rathbun
places the point out of the bounds of discretion. While the
establishment of the fact of the alleged ‘‘two week delay’’
imposed by Drivers Inc., under ordinary business cir-
cumstances and common sense, would call for Respondents
to secure (or explain away the failure to secure) the corrobo-
rative testimony of Ron Robinson, or some other competent
Drivers Inc. agent, I draw no adverse inference from this
omission. The rule, as it now stands, still arguably seems not
to permit such an adverse inference, International Automated
Machines, 285 NLRB 1122 (1987); Rangaire Acquisition
Corp., 309 NLRB 1043 fn. 3 (1992); nor do the surrounding
circumstances require an adverse inference to support the
discrediting of Rathbun. I do not credit his hearsay testimony
of what Robinson told him concerning a 2-week delay.
Rathbun testified (Tr. 696–704, 717, 768) at length that,
as above noted, around April 13 or 14, he met with Sears
and Krout, told them of the poor driver reception on April
11 and was told to fix the problem and pursue the Drivers
Inc. proposal. He then, according to his hearsay testimony,
after meeting at lunch with Krout, allegedly telephoned Driv-
ers Inc., spoke to Ron Robinson, received the 2-week delay
information (after inquiring how quickly Drivers Inc. could
take over the Sidney operation) and was told, on the same
day, to contact Jim Malarney, an officer of Vanguard Serv-
ices, Inc. After speaking to Malarney, Rathbun testified that
he put Malarney in touch ‘‘with Mr. Rick Sears, our [sic]
Human Resources vice-president’’ (Tr. 703) (Sears holds no
office in Masland Transportation) and that Sears and Krout
then became involved in the subcontracting operation (Tr.
719). How did they become ‘‘involved’’? Where are the
notes of any conversations, between April 14 and May 1, be-
tween Krout (Rathbun’s superior) and/or Sears and Drivers
Inc./Vanguard Services? If there were no notes, where are
the telephone bills or calendar notations supporting the exist-
ence any such telephone or personal conversations. And Vice
President Sears, charged with all M T’s labor contract nego-
tiations, the alleged inveterate notekeeper (Tr. 764), where
are his notes of conversations with Drivers Inc., or anyone
else, leading to the alleged May 1 subcontract with Drivers
Inc.? In short, the circumstances surrounding Respondents’
post-April 11 conduct do not persuade me that Respondents
decided to terminate the 16 drivers and subcontract the Sid-
ney operation in the period April 14–21, 1992. Nor am I per-
suaded that Respondents made the decision regardless of
their drivers union activities. That was Respondents’ burden
and they failed to support that burden. Wright Line, supra;
NLRB v. Transportation Management Corp., supra.
Further, I do not credit that Respondents’ April 23 actions
in cautioning drivers not to sign union cards constituted mere
prudence in not disclosing that the decision to terminate and
subcontract had already been made. Rather, Abel’s and
201MASLAND INDUSTRIES
10 It is not entirely gratuitous to note that the technique of termi-
nating employees and rehiring them as ‘‘leased’’ workers has been
reported to be, historically, a ‘‘union-busting’’ device. Nations Busi-
ness, November 1992, p. 21.
Rathbun’s April 23 actions are consistent with Respondents’
having not decided to terminate the drivers and having al-
ready agreed to subcontract their jobs.
Moreover, another circumstance is instructive. Respond-
ents, according to Rathbun (Tr. 721), kept the subcontracting
and terminations secret because Respondents feared disrup-
tion in the scrupulously delicate delivery service to Ford. The
disruption, according to Rathbun, would come from M T
drivers who would become ‘‘disgruntled’’ if given the news.
On the other hand, Respondents took pains, in the sub-
contract itself, to require Drivers Inc. to offer employment to
the erstwhile M T drivers on the same routes they had pre-
viously driven. This would insure continued, uninterrupted
service from experienced, capable drivers. But the terms of
employment, at Drivers Inc., particularly the Drivers Inc. 29-
cent-per-mile pay rate, was less than the 30- or 31-cent-per-
mile rate (Tr. 686) Respondents had offered the same drivers
on and after April 11. If the M T drivers actually hired on
with Drivers Inc. at 29 cents per hour, they might be ex-
pected to be less happy than at the 30 cents per mile, pre-
viously offered by Respondents and allegedly rejected by the
same drivers. Apparently, Respondents were not overly con-
cerned with ‘‘disgruntled’’ drivers. But the drivers, whether
disgruntled or happy, were not the ultimate concern. Re-
spondents, though it wanted the M T drivers to be driving
as Drivers Inc. employees, did not want the Union.
Another circumstance points to Respondents’ unexplained
haste following the Union’s demand for recognition (April
27). Assuming, arguendo, that Respondents made the deci-
sion to terminate the drivers on April 15 and knew, by April
15, that Drivers Inc. could not assume the Sidney terminal
operations for 2 weeks, why was the first notice to the driv-
ers of the May 2 meeting given to the Sidney drivers as late
as April 28? Why was notice of the mandatory May 2 meet-
ing not given a week before, i.e. April 25, or even as late
as Monday, April 27? And why not posted on the first day;
why were there only telephone messages on Tuesday, April
28? A full week’s notice of the meeting surely would not
have compromised the secret purpose of the meeting. The
reason for the sudden, hasty telephone notices to the drivers,
beginning oddly on Tuesday, April 28, is Clemmens’ April
27 afternoon telephone calls (demanding recognition). The
decision to terminate the drivers at the May 2 meeting was
made on or after April 27, not on April 15. In the presence
of Respondents’ admitted union animus and consequent inde-
pendent unfair labor practices and their unpersuasive defense,
I again focus on the timing of the discharges. To believe that
the sudden April 28 notices to the drivers and the May 2 dis-
charges were unconnected to the April 27 union demands for
recognition is to believe in ‘‘tooth fairy’’ coincidences.
NLRB v. Horizon Air Services, 761 F.2d 22 (1st Cir. 1985).
I am not obliged to do so Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466 (9th Cir. 1966).
All of the above leads me to conclude that Respondents
were concerned with the annual M T $200,000 transportation
loss, much of which could be traced to the unique hourly pay
rate enjoyed by the Sidney drivers; that Respondents did em-
bark on a two-path solution to the problem: keep the M T
unit drivers at decreased labor costs (i.e., by virtue of the
savings in the mileage pay rate), or terminate the drivers and
use a subcontractor like Drivers Inc.; that, as of the April 11
meeting and thereafter, Respondents made no immediate ef-
fort to contact Drivers Inc.; that they learned of the union
activities of the Sidney drivers on April 21; that, for reasons
previously appearing in this decision, they took no immediate
action but awaited information on the outcome of the April
25 union meeting; that, on April 27, Respondents received
the Union’s request for recognition; and that Respondents
then embarked on the path of immediately securing Drivers
Inc.’s services.10 I further find that the subcontract, bearing
the apparent execution date of May 1, 1992, was executed
on or after May 12, 1992; that the apparent date (May 1)
was used in order to untruthfully conform to and support Re-
spondents’ assertions (1) that there was a 2-week delay in
Drivers Inc. takeover after the April 15 decision to terminate
and subcontract; and (2) that Respondents set in motion the
termination of the Sidney drivers and the subcontracting on
April 15, 1992, long before the onset of the drivers’ April
union activities and, in any case, before Respondents’ April
21 acquisition of knowledge of the approaching April 25
union meeting. I find, therefore, that the preponderance of
credible evidence discloses that it was Union Agent
Clemmens’ April 27 requests for recognition that caused Re-
spondents to terminate the 16 drivers and to subcontract the
Sidney operation rather than the reasons assigned by Re-
spondents and that Respondents’ jointly and severally there-
by violated Section 8(a)(3) and (1) of the Act, as alleged.
Alternatively, even if Respondents’ decision to terminate
and subcontract was prompted by their admitted April 21 ac-
quisition of knowledge of the impending April 25 union
meeting, such a decision, and the actions subsequently taken,
would similarly violate the same sections of the Act.
I necessarily reject Respondents’ defense that they would
have terminated the drivers and subcontracted the Sidney op-
eration regardless of the drivers’ union activities.
CONCLUSIONS OF LAW
1. Masland Industries, Inc. and Masland Transportation,
Inc. and each of them is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Masland Industries, Inc. and Masland Transportation,
Inc., since August 1991, and continuing at all material times,
constitute a single-integrated business enterprise and are a
single employer (Respondents) within the meaning of the
Act.
3. Teamsters Local Union No. 908, affiliated with the
International Brotherhood of Teamsters, AFL–CIO (the
Union) has been and is a labor organization within the mean-
ing of Section 2(5) of the Act.
4. Respondents, by and through their supervisors and
agents Richard Abel and John Rathbun, in the period Feb-
ruary 21 through April 23, 1992, unlawfully promised Re-
spondents’ employees, their Sidney, Ohio drivers, the same
benefits as certain other of their employees if they refrained
from attempting to have the Union become their collective-
bargaining representative; unlawfully threatened employees
with cessation of the Sidney fleet operations if they at-
tempted to have a union become their bargaining representa-
tive; coercively interrogated them concerning the union sym-
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pathies of other employees; and informed them that it would
be futile for them to select a union as their collective-bar-
gaining representative, each of which actions restrained and
coerced employees in violation of Section 8(a)(1) of the Act
5. By discharging, on May 2, 1992, their 16 driver-em-
ployees at their Sidney operation, including Wayne B.
Borland, Mark Egbert, Donnie R. Freels, Alfred H. Grillot,
Dennis L. Kitchen, Frederick D. Poppleman, Ernest L. Ves-
tal, Bill Broering, Scott R. Egbert, Warren A. Freels, George
J. Grillot, Jack Meinberg, and Neal Schaffer, because they,
and each of them, engaged in union activities, and in order
to discourage employees from engaging in such activities,
Respondents have unlawfully discriminated against each of
them and have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
Act.
THE REMEDY
Having found that Respondents engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act,
I shall recommend to the Board that it order Respondents to
cease and desist therefrom and, jointly and severally, to take
certain affirmative action to effectuate the policies of the
Act. In addition to posting notices which prohibit repetition
of Respondents’ violations of Section 8(a)(1) and (3) of the
Act, I shall recommend that Respondents be obliged to offer
immediate reinstatement to all of their 16 Sidney, Ohio driv-
ers, the discriminatees herein, to their former jobs at the Sid-
ney, Ohio location, which, continuing as a transportation ter-
minal, is now operated by Drivers Inc. Masland Transpor-
tation, itself, continues to exist and to employ 21 drivers at
Carlisle and 9 at Lewistown. This is therefore not a case of
reopening a closed terminal or reestablishing a trucking oper-
ation. Mid-South Bottling Co. v. NLRB, 876 F.2d 458 (5th
Cir. 1989). The trucking facility at Sidney, Ohio, exists as
it did before except that Drivers Inc. employs the drivers
rather than Masland Transportation. The rehiring of the 16
drivers by Masland Transportation would not appear to be
‘‘unduly burdensome’’ or ‘‘unfair’’ Teamsters Local 171 v.
NLRB, 863 F.2d 946, 957–958 (D.C. Cir. 1988); Mid-South
Bottling Co. v. NLRB, supra. Certainly, Respondents have
failed to submit evidence thereof before me. Coronet Foods
v. NLRB, 981 F.2d 1284 (D.C. Cir. 1993). The most that can
be said is that Respondents will be obliged to exercise their
rights to cancel their contract with Drivers Inc., as provided
in the agreement, on 30 days’ written notice. The cost of
such cancellation, if any, must be borne by Respondents as
part of the fruits of their engaging in unfair labor practices.
There has been no showing that Respondents’ long-term
leases on the trucks were in any way affected by their sub-
contracting to Drivers Inc. The leases exist; the leased trucks
exist; Respondents’ remain obliged as lessees under the
leases as they were prior to the unfair labor practices and,
to the present time, as far as the record shows. Ultimately,
Respondents are free to urge ‘‘undue hardship’’ in compli-
ance proceedings. Coronet Foods v. NLRB, supra.
Of particular significance, the Board, in Jay Foods, 228
NLRB 423 (1977), found no undue burden in ordering re-
sumption of operations of the employer notwithstanding that,
as in the instant case, resumption required the cancellation of
subcontracts on 30 days’ notice. To not require Respondents
to rehire the employees and reengage in their old business
would effectively permit Respondents, as in Jay Foods,
supra, to be rewarded for their own unlawful actions since
the employees employed by the subcontractor (Drivers Inc.)
are not represented by any labor organization and Respond-
ents would have successfully and unlawfully evaded their
statutory obligation to permit their employees to be union
members pursuant to their expressed desire. As in Jay Foods,
and Schorr Stern Food Corp., 248 NLRB 292, 300 (1980),
the object of requiring the resumption of former operations
is to reestablish that status quo ante to the extent necessary
to provide jobs for the employees who desire reinstatement
and employment, Jay Foods, supra at 424. Since the sub-
contracting here, as in Jay Foods, was unlawfully motivated
and may be avoided without undue hardship on Respondent,
I shall recommend that Respondents cancel the Sidney sub-
contract with Drivers Inc., offer immediate reinstatement to
the discharged drivers in their old jobs or, if those jobs no
longer exist, offer immediate reinstatement to substantially
equivalent jobs, and reestablish their trucking operations in
Sidney, Ohio, as they previously existed as of May 1, 1992.
See, generally St. John’s Construction Corp., 258 NLRB
471, 481–482 (1981).
In addition to obliging Respondents to cancel the May,
1992 Sidney subcontract with Drivers Inc., or any amend-
ment, renewal or modification thereof, to offer reinstatement
to their unlawfully terminated 16 drivers and to resume the
trucking operations as they existed prior to May 2, 1992, I
shall also order that the reinstatement of 16 drivers be with-
out prejudice to their former seniority and other rights and
privileges previously enjoyed. Further, I shall recommend to
the Board that Respondents, jointly and severally, make each
of them whole for any loss of earnings and benefits each of
them suffered because of the unlawful May 2 discharges, less
any net interim earnings. The backpay obligation, however,
shall be measured as follows: Respondents will be obligated
to pay each of the discharged drivers at the rate of the hourly
pay enjoyed by such drivers, together with all benefits, for
the period May 2 through June 30, 1992. I have found,
above, that Respondents lawfully planned to switch to the
mileage pay rate on July 1, 1992. For the period July 1,
1992, and following, Respondents will be obliged to make
whole each of the 16 drivers for any loss of earnings and
benefits based upon mileage pay and benefits which Re-
spondents offered to the 16 Sidney drivers in the April 11,
1992 meeting. Those benefits shall include the plant ‘‘bump-
ing rights’’ which Plant Manager Abel and Vice President
Rathbun delineated at the April 11 meeting as found in the
credited evidence herein.
While the general configuration of Respondents’ April 11
offer to the drivers was at a mileage rate of 30-1/2 cents per
hour with $7.25 per hour for delay time (Tr. 697), a full and
more accurate definition of the April 11, 1992 offer to the
16 Sidney drivers may be made at a compliance proceeding
hearing, if necessary. Backpay, whether based upon the hour-
ly rate between May 2 and June 30, 1992, or the offered
mileage rate commencing July 1, 1992, will be otherwise
computed in the manner established by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
203MASLAND INDUSTRIES
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
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.’’
On these finding of fact and conclusions of law, and on
the above record, I issue the following recommended11
ORDER
The Respondents, Masland Industries, Inc. and Masland
Transportation, Inc., Sidney, Ohio, and each of them, and
their officers, agents, successors, and assigns, jointly and
severally, shall
1. Cease and desist from
(a) Discharging, subcontracting jobs, or otherwise dis-
criminating against, employees in order to discourage them
from joining or supporting Teamsters Local Union No. 908,
affiliated with the International Brotherhood of Teamsters,
AFL–CIO (the Union), or any other labor organization.
(b) Promising employees benefits if they refrain from
choosing the Union, or any other labor organization, as their
collective-bargaining representative; threatening employees
with cessation of operations if they attempt to have a labor
organization become their collective-bargaining representa-
tive; coercively interrogating employees about employees’
union sympathies; or informing employees that it will be fu-
tile for them to select the Union or any other labor organiza-
tion as their collective-bargaining representative.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to each of their 16 driver-employees terminated
on May 2, 1992, employed at the Sidney, Ohio location, in-
cluding Wayne P. Borland, Mark Egbert, Donnie R. Freels,
Alfred Grillot, Dennis L. Kitchen, Frederick D. Poppleman,
Ernest L. Vestal, Bill Broering, Scott R. Egbert, Warren A.
Freels, George J. Grillot, Jack Meinberg, and Neil Schafer
immediate and full reinstatement to their former positions as
drivers at the Sidney, Ohio location or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make each of them whole, with interest,
for any loss of earnings and benefits each of them may have
suffered as a result of Respondents’ May 2, 1992 unlawful
discharge of these employees as set forth in the remedy sec-
tion of this decision.
(b) Reestablish their trucking operations at Sidney, Ohio,
as such operations existed on May 2, 1992, severing any and
all subcontracting agreements and operations covering the
Sidney trucking operation.
(c) Preserve and, on request, make available to the Board,
or its agents, for examination and copying, all subcontracts,
payroll records, bank statements, truck leasing agreements,
notes and records regarding Respondents’ April 11, 1992
wage and benefit offer to their Sidney, Ohio drivers, social
security payment, records, timecards, personnel records and
reports, and all other records necessary to facilitate the effec-
tuation of this Order.
(d) Post at its Sidney, Ohio office, dispatch office, and
manufacturing facility copies of the attached notice marked
‘‘Appendix.’’12 Copies of said notice, on forms provided by
the Regional Director for Region 9 after being duly signed
by an authorized representative of Respondents, shall be
posted by Respondents immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondents to ensure that said notices are not al-
tered, defaced or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of the Order what steps Respondents have
taken to comply.