Matheson Fast Freight, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1989

297 N.L.R.B. 63 (N.L.R.B. 1989)

MATHESON FAST FREIGHT 63
Matheson Fast Freight, Inc., a wholly-owned subsidi-
ary of R. B. Matheson Postal Services, Inc.
and Teamsters Union Local 287, International
Brotherhood of Teamsters, Chauffeurs Ware-
housemen & Helpers of America, AFL-CIO.
Case 32-CA-9642
October 18, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On June 15, ' 1989, Administrative Law Judge
Joan Wieder issued the attached decision The Re-
spondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER ,
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Matheson
'The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us they are Incorrect Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu . 1951) We
have carefully examined the record and find no basis for reversing the
findings
In the absence of exceptions, we adopt pro forma the judge's finding
that the Respondent's unilateral change of drivers working hours subse-
quent to the election did not violate the Act
In adopting the judge's findings that General Manager Hanna had cre-
ated an impression of surveillance, we note that Hanna s statements about
suspected union organizing activity extended only to employees Johnson,
Lisemby, and Chandler
In adopting the judge's finding that statements in the Respondent's em-
ployees handbook, when read in conjunction with the provisions on the
acknowledgement of receipt page, violated Sec 8(a)(1) of the Act, we
disavow any reliance on the timing of the handbook's distribution We
also find the facts in the instant case more analogous to those presented
in Heck's Inc , 293 NLRB 1111, 1120 (1989), than to those in La Qumta
Motor Inns, 293 NLRB 57 (1989), and thus rely primarily on Heck's in
support of the finding of an 8(a)(1) violation Specifically, we note in the
introduction to the Respondent s handbook, the entire publication is la-
beled, "Personnel Policies Manual ' After the 'Welcome" and the "In-
troduction," the manual contains eight major sections, subtitled in the
order presented "General Information , General Employment Poli-
cies", Employee Classification , 'Salaries and Wages, Payroll, Work
Schedules, and Overtime Practices , "Leaves of Absence', and "Em-
ployee Conduct and Work Rules" The last page of the manual, entitled
"Acknowledgement of Receipt, provides space for an employee's dated
signature after a paragraph that states
This is to acknowledge that I have received a copy of the personnel
policies manual of Matheson Fast Freight, Inc , and that I have read
and understand the policies contained in the manual I agree to ob-
serve these policies in all respects
We find that the statements in the Acknowledgement of Receipt" sec-
, tion refer to the policies expressed in the entire manual and do not ex-
clude the "General Information" section, where the subsection entitled
'Company Operations" states the Respondent's antiunion position
297 NLRB No 8
Fast Freight, Inc , a wholly-owned subsidiary of
R B Matheson Postal Services, Inc , San Jose,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order
Gary M Connaughton, Esq , for the General Counsel
Joseph E Wiley, Esq and Sharon J Grodm, Esq (Corbett
& Kane), of Oakland, California, for the Respondent
Kenneth C Absalom, Esq (Beeson, Tayer, Silbert &
Bodine), of San Francisco, California, for the Charging
Party
1 DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge This case
was tned by me on January 18 and 19, 1989,' at San
Jose, California The charge was timely filed on May 23
and amended July 6 and August 19, by the Teamsters
Union Local 287, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of Amenca,
AFL-CIO (the Union) This amended charge resulted in
the issuance of a complaint on July 13, which was
amended several times thereafter The amended com-
plaint alleges that Matheson Fast Freight Inc, a wholly-
owned subsidiary of R B Matheson Postal Service, Inc
(Respondent or Company), violated Section 8(a)(1), (3)
and (5) of the National Labor Relations Act
The Respondent, in its answer to the complaint, as
amended, conceded, inter aim, that it meets one of the
Board's jurisdictional standards, 2 but denies committing
any unfair labor practices Respondent also admits, and I
find, the Union is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act
On the entire record, including my observation of the
witnesses, and after careful consideration of the posttnal
bnefs filed by counsel for the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent is the wholly-owned subsidiary of R B
Matheson Postal Services, Inc, which is a division of
R B Matheson Trucking, Inc, owned by R B
(Brownie) Matheson, president R B Matheson Truck-
ing, Inc has had other divisions, as here pertinent, a
truck repair facility, a low bed division, and a water
truck division
Respondent is a less-than-truckload (LTL) operation
with terminals in Sacramento, Fresno, Redding, Santa
Rosa, and San Jose, California, and Reno, Nevada It
commenced operations January 3, 1984 The Company
'All dates are in 1988 unless otherwise stated
2 Based on this admission, I find Respondent is an employer within the
meaning of Sec 2(2) of the Act, engaged in commerce within the mean-
ing of Sec 2(6) and (7) of the Act
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
consolidates freight at a facility located in Sacramento,
California, and then distributes the consolidated ship--
ments to various distribution terminals for local pickup
and delivery (PUD) operations The San Jose terminal
manager is Craig Millard Millard and all other terminal
managers reported to Tom Hanna, the general manager
of the fast freight operation Hanna was discharged on
April 1 Hanna reported directly to Tim Kinnerly, vice
president of R B Matheson Trucking, Inc
Respondent had admitted, and I find, Matheson, Kin-
nerly, Hanna, and Millard are supervisors and/or agents
as defined in the Act Also working at the San Jose ter-
minal is Sam Caccamo whom Respondent claims is a
lead worker and not a supervisor The General Counsel
asserts Caccamo is a supervisor and/or agent of Re-
spondent and Respondent is responsible for any violation
of the Act Caccamo has committed
In early 1988, the Union was engaged in an organizing
campaign at Respondent's San Jose terminal The Union
was attempting to represent the drivers employed at the
terminal The Company admitted actively opposing the
organizational campaign There are two categories of
drivers at this facility, line haul drivers and PUD
(Pickup and delivery) drivers The PUD drivers report
to work at the terminal in the morning and assist dock-
workers in the loading of their trucks The loading is
performed in a manner that permits the articles to be of-
floaded according to a delivery schedule, the first stop is
the last item loaded Also considered in the loading is
safety which, among other factors, includes weight dis-
tribution Deliveries are usually made in the mornings In
the afternoons, the PUD drivers pick up shipments from
customers that are to be delivered elsewhere
After completing the scheduled pickups, the PUD
drivers return to the San Jose terminal where dockwork-
ers, without the participation of the drivers, unload the
freight The freight which is not destined for distribution
out of the San Jose terminal, is reloaded by the dock-
workers onto trailers and trucked to Respondent's Sacra-
mento terminal by line haul drivers At the Sacramento
terminal, the freight is unloaded and consolidated into
shipments for delivery to various Matheson terminals for
reconsolidation the following morning
Respondent employs 16 PUD drivers and 4 line dnv-
ers at the San Jose terminal The Company also employs
approximately seven dockworkers at the San Jose facili-
ty The dockworkers have a split shift, reporting to work
at 5 a m until done with unloading the line haul trailers
and loading the trailers driven by the PUD drivers,
which is around 9 or 10 a m They report back to work
at 5 p m where they unload the freight picked up by the
PUD drivers and reload the material destined to the Sac-
ramento break bulk facility, which takes until 9 or 10
p m, and on occasion 11 p m, depending on the amount
of freight involved The line drivers report for work in
the evening and the PUD drivers in the morning As
later discussed in greater detail, the PUD drivers have
had a variety of start times
B Union Organizing Campaign
On November 27, 1987, the Union filed a petition to
represent Respondent's drivers Following an election
conducted on February 25, the Union was certified as
the collective-bargaining representative of the drivers on
March 4, 1988 The unit certified as appropriate is
All full-time and regular part-time line, pick-up and
delivery drivers, dispatchers, and fuelers employed
by the Respondent at its terminal located in San
Jose, California, excluding all other employees,
office clerical employees, professional employees,
dock workers, guards, and supervisors as defined in
the Act
In a related case, Matheson Fast Freight, 292 NLRB No
38 (Jan 11, 1989) (not reported in Board volumes), the
Board granted the General Counsel's Motion for Summa-
ry Judgment and found that Respondent violated Section
8(a)(5) and (1) of the Act by refusing the Union's request
to bargain and refusing to bargain
The General Counsel alleges that shortly before the
representation election, Respondent engaged in a cam-
paign to coerce the employees into not supporting the
Union by threatening plant closure, interrogating em-
ployees about their own and other employees' union ac-
tivities, creating the impression that it was futile to select
the union, creating the impression of surveillance, and
soliciting grievances The General Counsel also alleges
that after the Union won the representation election, Re-
spondent continued its coercive actions by threatening
plant closure and, additionally, retaliated against the
driver who was the Union's observer during the repre-
sentation election The complaint also alleges Respond-
ent unilaterally made changes in the PUD drivers' start-
ing times and also altered wages and other benefits of
unit employees while refusing to bargain with the Union
Finally, the complaint claims Respondent distributed a
personnel manual to its employees, directed them to sign
a statement agreeing to all the policies contained in the
manual, thereby creating the impression that a term of
their employment was agreeing to not engage in activi-
ties in support of a labor organization _
C Alleged Violations of Section 8(a)(1)
1 Alleged statements by Matheson
Matheson admittedly visited the San Jose terminal
three times in the month before the representation elec-
tion in attempts to convince the employees to vote
against the Union It was during these visits he allegedly
made coercive statements in violation of Section 8(a)(1)
of the Act
The first meeting was with all or most of the drivers
During the first meeting Matheson discussed his experi-
ence with unionized companies Respondent admitted
that Matheson described to the employees during these
meeting the failure of two of the companies he owned,
the low-bed division and the water truck division The
low bed division, which was unionized, closed in March
1988 The reason given for the closure was the inability
of the company to compete with nonunion companies
According to Johnson, Matheson opined he also had to
close the water truck division because of high labor costs
MATHESON FAST FREIGHT 65
under the union contract and a decline of business in the
industry
Matheson testified he had experienced difficulties with
unionized companies in the past The low bed division
operated out of Concord, California, and had an agree-
ment with Teamsters Local 315 from the date it com-
menced operation in 1968 until it ceased operation
around March 1988 He closed the low bed division be-
cause it became uncompetitive, its rates were too high to
bid competitively for business Everyone of its competi-
tors were nonunion The water truck division com-
menced operations in 1962 and ceased operation at the
close of 1987 The water truck division had agreements
primarily with Teamsters Local 315 The decision to
close was directly related to wages, which Matheson
said were too high, so they could not compete in the in-
dustry Matheson also stated that because he was obliged
to use the union hiring hall he was unable to maintain
the high quality of drivers over the years, which added
to the Company's problems One current employee of
Respondent, Martin Lisemby, recalled that Matheson not
only made reference to the water truck and low bed di-
visions but other trucking companies like Milmy [sic] and
Neilson, which went out of business because they could
no longer compete in the market place due to the high
costs and restrictive work rules associated with union
contracts
The postal service facility had a union organizing
drive in 1975 which resulted in representation of some of
the employees by a Teamsters local There was a strike
after negotiations broke down Strike replacements were
hired, and, according to Matheson, matters got "nasty"
The strikers never returned to work and Matheson lost
the contract with the Postal Service Shortly thereafter,
Matheson closed their San Francisco postal facility
The second and third visits by Matheson were a series
of meetings with small groups of drivers The second
visit was around February 1 The third visit was Just 4
or 5 days before the representation election According
to Harold Johnson, a current employee and the only al-
leged discnminatee, the second meeting occurred around
7 10 a m at the loading dock and was also attended by
fellow drivers Marty Lisemby, Bill Chandler, Michael
Hunt, and Steve Davis In addition to Matheson, Kinner-
ly and Hanna were present for management for at least
part of the meeting
According to Johnson, Matheson did most of the talk-
ing during this 40 minute meeting, asking the drivers to
vote no .
He was telling us how the company would not
be able to survive under the Union's restrictive
work rules and I believe at that meeting he gave us
some examples of companies that had gone out of
business that were union companies 3
3 Respondent admitted that Matheson described to the employees
during these meetings the failures of two of the companies he owned, the
low bed division and the water truck division The low bed division,
which was unionized, closed in March 1988 The reason given for the
closure was the inability of the Company to compete with nonunion
companies Similarly, Matheson said he closed the water truck division
for the same reason, inability to compete with nonunion companies Ac-
.
And then in closing or close to the closing of
that meeting he made a statement that if the Union
won the election that, of course, the company
would bargain in good faith but they would not be
able to reach an agreement with the Union, there-
fore we would go on strike, they would hire perma-
nent replacements, we would follow and picket the
trucks, the customers would kick them out, and
they would have to leave the Bay area service area
for good, tucking their tails between their legs,
going back to Sacramento, was the phrase he used
Johnson also testified on cross-examination as follows
I recall that he said that we were going to have
an election He was urging us to vote no but—you
know—it was—well, I guess it was our choice, yes
He urged us to vote no and he said there would be
an election and afterwards and so forth
He did not testify Matheson said it was the employees'
choice Johnson's version of the meeting was corroborat-
ed by Lisemby, who is also a current employee of Re-
spondent 4 Lisemby appeared to be trying to answer the
questions fully and not tailor his testimony, based on de-
meanor I find his testimony creditable
Matheson admitted talking about strikes during this
meeting He recalled his comments as follows
Q To the best of your recollection, what was
said in that meeting9
A I was encouraging them to vote in the compa-
ny's behalf in the upcoming election
Q Do you recall what you said to them9
A I recall—I recalk that we spoke about—I
spoke about my desire fOr them to vote in favor of
the way I was asking them to vote for non-union,
and that I was asking them to give me an opportu-
nity to build the company in the non-union manner
that I had set up to do
And I spoke on the fact that I knew that they
had an opportunity to have a re-election after a
year, if they would just give me a year, and I spoke
on the problems that could occur if they did go to a
union—vote for a union
Q Could you tell us what you told them those,
problems might be9
cording to Johnson, Matheson opined he would have to close the water
truck division because of high labor costs under the union contract and a
general business decline in the Industry
' According to Usemby, the meeting lasted 30 to 45 minutes Mathe-
son conducted the meeting and Matheson
said that he wanted to explain his feelings on the Union and that
he wanted us to vote our conscience, whether It be yes and prefer-
ably no, but let me tell you what s going to happen if you vote yes
We would negotiate and negotiations would eventually break
down and at that time you would go on strike, and you would have
to—we would have to hire strike workers, strike breakers, and then
you would be following our trucks around, going to a certain place
and you d put up picket signs, and naturally It would upset the cus-
tomer and then the customers would wind up calling them, and
eventually we would wind up having to close up and pull out of the
Bay Area
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A Well I described the problems that I had had
in San Francisco that we were talking about a few
minutes ago And I said—
Q What did you say to them about that Mr
Matheson9
A Well I said that I thought that if it went to
the union—to this teamsters union in this strike
here that I saw difficulties in negotiations that
could very likely lead to an impasses [sic] which
could very possibly lead to something similar as to
what had happened in San Francisco striking, pick
ets at the gate and that kind of thing And I wanted
to avoid that if possible, because I wanted to avoid
problems with customers, problems with our own
drivers And think it was along—I d say it was
along that type of talking that I was doing
At the third meeting which occurred 4 or 5 days
before the representation election Matheson said he felt
ill so the meeting was very brief Matheson told the dnv
ers he wished to urge them to support him and vote
against the Union and offered to answer any questions
Both Johnson and Lisemby did not recall Matheson
saying he would respect the choice of the dnvers at this
or any other meeting I find Johnson and Lisemby credi
ble their demeanor appeared candid and forthright and
their accounts of Matheson s statements demonstrated
good recall and were plausible
On February 23 or 24, Matheson had a conversation
with a driver named Michael Hunt while Hunt was load
mg his trailer Hunt believes both Hanna and Kmnerly
were also present After exchanging pleasantnes Mathe
son said he wanted to see how Hunt was doing and what
he thought about his job Hunt replied he liked the job
and showed Matheson a picture of his child and said his
wife was pregnant Matheson then said Well what do
you think about unions') Hunt replied Well they re a
good idea and if it happens it happens if it doesn t well
hey, I m here to do my job
Matheson recalled the conversation and claims he said
Q What did you say to him9
A Well I can t remember the exact words but it
would have been along the lines of encouraging him
to vote in my behalf, you know Well I hope that
you know what I want and vote for what I m
asking you for and spoke something about his
boy, the boy growing up and becoming a truck
driver
Q At any time in that conversation did you ask
Mr Hunt words to the effect What do you think
about the union?
A What do you think about the umon 9 No
Q Any words to that effect at all?
A No
Matheson admitted he felt very strongly about keeping
the Union out and believed that if Respondent had to
pay union scale it could not compete in the industry
There was no financial or other evidence adduced which
established unionization or the prevailing union wage
scale and/or benefits would jeopardize Respondent s fi
nancial viability
Hunt was terminated on or about March 3 for a series
of infractions including two accidents a paint spill im
proper safety check speeding in the yard, and improper
handling of hazardous materials Hunt s termination
letter was signed by Millard From his demeanor he did
not appear to hold any grudge against Respondent be
cause of his termination he testified in an open and
forthright manner Matheson 5 on the other hand at
tempted to volunteer information and appeared to be
trying to present evidence in a light most favorable to
his case rather than attempting to present the facts as
fully as he could recall Matheson s demeanor was not
credible Matheson did not appear to be attempting to
tell the whole story regardless of the consequences to his
interests
Discussion
In determining if Respondent violated the Act in com
mentmg upon strikes and their consequences the pnnci
pies contained in Eagle Comtronics, 263 NLRB 515 516
(1982), apply The Board held that an employer does not
violate the Act by informing employees correctly about
their being subject to permanent replacement in the
event of an economic strike However if the employer s
statement could be fairly understood as a threat or re
pnsal against employees or is explicitly coupled with
such threats it is not protected by Section 8(c) of the
Act 6 See also Gino Moreno Enterprises 287 NLRB 1327
(1988)
The Court in NLRB v Gissel Packing Co 395 U S
575 (1969) explained that, Any assessment of the pre
cise scope of employer expression must be made in con
text of its labor relations setting Thus an employer s
rights cannot outweigh the equal rights of the employees
to associate freely, as those nghts are embodied in Sec
bon 7 and protected by Section 8(a)(1) and the proviso
to Section 8(c) The Court also attempted to distinguish
predictions from threats stating
[a] prediction must be carefully phrased on the basis
of objective fact to convey an employer s belief as
to demonstrably probable consequences beyond his
control If there is an implication that an em
ployer may or may not take action solely on his
own initiative for reasons unrelated to economic ne
cessities and known only to him the statement is no
longer a reasonable prediction based on available
a Millard tried to corroborate Matheson s denials but admitted that he
missed portions of the first meeting and did not participate in any of the
discussions Matheson had with employees the second and third times
Matheson came to the terminal There is no convincing evidence Millard
was present at any of these meetings when the allegedly coercive state
menu were made Accordingly I find his testimony concerning Mathe
son s statements not corroborative and unpersuasive in establishing a con
vincing refutation of the employees allegations Millard was a new man
agement employee who was patently attempting to please his employer in
his testimony
° Par 8(c) of the Act provides
The expressing of any views argument or opinion or the dissenuna
lion thereof whether in wntten pnnted graphic or visual form
shall not constitute or be evidence of an unfair labor practice under
any of the provisions of this Act if such expression contains no
threat of repnsal or force or promise of benefit
MATHESON FAST FREIGHT 67
facts but a threat of retaliation based on misrepre-
sentation and coercion and as such without the pro-
tection of the First Amendment Id at 618
[The employer] can easily make his views known
without engaging in brinkmanship At least he
can avoid conscious overstatements he has reason to
believe will mislead his employees Id at 620
I find that Matheson's statements exceeded the bounds
of mere predictions The verbiage utilized did not even
pretend to be a forecast of events based on belief, rather
there were statements that as a consequence of selecting
the Union the Company would not, under any circum-
stances, be able to reach an agreement with the Union,
and as a result there would be a strike, the employees
would loose their jobs to permanent replacements and
the facility would be closed when customers were pick-
eted These statements go further than "predicting the
economic results which would necessarily [or predict-
ably] follow from the advent of the union, over which
the employer had no control" Suprenant Mfg Co v
NLRB, 341 F 2d 756 (6th Cm 1964), Adscon, Inc , 290
NLRB 501 (1988)
Based on the credited testimony, I find Matheson's ref-
erences to other companies he owned suffering similar
fates does not change his statements into predictions for
there was no caveat or other mitigating circumstances
that he described that gave the employees any indication
that voting for the Union would not unquestionably
result in failure to reach accord on a collective-bargain-
ing agreement, strike, permanent replacement, and plant
closure These blanket and unqualified statements clearly
implied the employees were gravely jeopardizing their
jobs if they voted for the Union in the representation
election Pacific Isle Packaging, 292 NLRB 1050 (1989)
Also based on the above findings of fact concerning
Matheson's statement, I conclude Matheson informed the
employees that their organizing campaign was a futility
for no agreement would be reached, resulting in a strike,
permanent replacement, picketing of customers, and clo-
sure of the facility Even though Matheson said he
would bargain in good faith, there was an absolute claim
that no collective-bargaining agreement would be
reached or that there was any hope of retaining employ-
ment at the facility Considering this was the chief execu-
tive officer of the Company who announced the futility
of their organizing efforts, I find these statements of futil-
ity constitute a violation of Section 8(a)(1) of the Act
Pioneer Concrete Go, 282 NLRB 749 (1987), citing Kona
60 Minute Photo, 277 NLRB 867 (1985)"
I also credit the testimony of Hunt based on demean-
or, that on the day before or the day of the representa-
tion election, Matheson asked Hunt while Hunt was
loading his trailer, what Hunt thought about unions
After Hunt indicated he favored unions Matheson en-
7 The Board noted in the Kona decision at 869 that "Respondent's re-
fusal to bargain in good faith, is analogous to that of a threat to bargain
in bad faith so as to force a strike, and amounts to a veiled threat of dis-
charge" In the Instant proceeding, the threat of job loss was not veiled,
Matheson told the employees there would be a strike and concomitant
plant closure and resultant job loss
couraged Hunt to vote against the Union and referred to
Hunt's son growing up and becoming a truckdnver
I find Matheson's question and subsequent comments
constituted an unlawful interrogation Hunt was not
shown to be an open union supporter Matheson, the
highest company official, who rarely visited the facility
but did come immediately prior to the representation
election to campaign against unionization, did not seek
general information, rather, he specifically sought to de-
termine if Hunt supported unionization while Hunt was
loading his trailer, his work station rather than a less
formal setting, in the presence of two other managers,
Kinnerly and Hanna Then reference was made to Hunt's
son's future as a truck driver in conjunction with Mathe-
son's request that Hunt vote against the Union, which
could reasonably be seen as a threat of reprisal, and
which followed meetings where plant closure and other
unlawful coercive statements were made Under all these
circumstances, I conclude that Matheson's questions and
actions reasonably tended to coerce employees in the ex-
ercise of rights guaranteed by the Act in violation of
Section 8(a)(1) Rossmore House, 269 NLRB 1176 (1985),
Sunbeam Corp, 287 NLRB 996 (1988)
'
2 Alleged statements by Hanna
Hanna was a general manager with Respondent who
was discharged April 1, 1988 Hanna did not appear and
testify It was not claimed he was unavailable Most of
the testimony about Hanna's alleged violative statements
came from Angel Castro, who worked for Respondent
from March 5, 1987, until October 11, 1988 Castro was
discharged by Respondent for driving with a suspended
license Castro did not appear to resent Respondent or
Hanna because he was discharged and did not seem to be
dissembling because he had been fired He was open and
honest about his discharge and did not exhibit any ani-
mosity toward Respondent or any of its employees I
therefore credit his unrefuted testimony concerning
Hanna
Castro claimed that he had a lengthy conversation
with Hanna at a bar in Oakland, California Also present
were Caccamo and an employee named Dave Tnpiano 8
According to Castro, Hanna and Caccamo were talking
about a diminution in business when Hanna said that "he
wanted to find out who the guys were that were bring-
ing in the Union," organizing the Union Hanna then
asked Castro
[h]e wanted to know if I knew who was—who was
the organizers and I told him that I didn't know,
and then he came out and said that, "Do you think
that Keith or Tim," a couple of drivers, "would be
the organizers" And I said, "I wouldn't have no
idea if they were or not"
and then he told me, "I sure would like to
know who it is so I can give them the axe [sic]," or
something like that, he said, that he'd terminate
8 Tnpuinno, an admitted supervisor, did not testify His absence was
unexplained
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
them or something, and I told him that I really
didn't know who it was
So he kept talking, talking about winding down
the company's business so it'd get so slow that in-
stead of our drivers from San Jose making the pick-
ups here in the Bay Area that he—he said that he'd
bring in drivers from Sacramento to make the pick-
ups
And he kept talking about that and he said if it
came to a point where they had to go on strike if
we get the union in there that he'd just close down
the terminal and just work it out of Sacramento
A few minutes later, Hanna reiterated his desire to
know who the union organizers were and opined other
employees trying to organize the facility were Hal John-
son, Marty, 9 and Bill Chandler Then Hanna told Castro
"he was going to make sure that he changed everybody's
routes, especially Hal Johnson's because he didn't
like Hal Johnson being down south" Hanna continued
talking about "winding down" the San Jose operation
and getting rid of Marty, Johnson, and Chandler
The next subject raised by Hanna was an "open door
policy" According to Castro, Hanna said
[Hanna] told me that anytime that I had any
problems or—with the company or something like
that to get a hold [sic] of him and call him up in
Sacramento and just talk to him
That was the first time I ever heard about an
open door policy in that company
Tom Hanna told me that he was going to make sure
that he changed Hal Johnson's route, that he
wouldn't be down south
[Hanna] told me that he didn't like [Johnson] and
in one way and in another way he told me that he
didn't want him down south because he was spend-
ing to much time delivering
Hanna further indicated that he was also considering
changing the route assignments of Lisemby and Chandler
because they too were taking too much time Hanna also
mentioned Mike Hunt, whom he said "was sitting on the
fence ready to fall off, he was going to fall off on the
wrong side"
The last subject discussed that Castro could recall was
Matheson's position, as follows
[Hanna] continued talking about that the "old
man," which I guess was R B Matheson, didn't
want the Union in there because he didn't want
nobody to come in there and tell him how to run
his company He wanted to run it himself without a
Union being in there
As previously noted, Hanna had been discharged from
Respondent's employ and was not called as a witness by
any of the parties Caccamo testified on behalf of Re-
9 Castro did not know Marty's last name and Hanna did not mention
his last name It appears to be a reference to Usemby
spondent but never testified about Hanna's comments
concerning the union organizing campaign made in the
Oakroom bar Caccamo admitted going to the bar with
Castro, Hanna, and Tnpianno about twice a month
I find Castro to be a credible witness even though he
had been discharged by Respondent He appeared open
and honest in his attempts to fully relate the facts to the
best of his ability He did not attempt to color his state-
ments, even when relating the basis for his termination
His testimony was unrefuted Caccamo did not claim he
was not present during these discussions, he simply did
not testify about them Accordingly, I credit Castro's tes-
timony and find Hanna made the statements attributed to
him by Castro
Discussion
I find Hanna's questions of Castro seeking identifica-
tion of union organizers, in the totality of the circum-
stances, is an unlawful interrogation in violation of Sec-
tion 8(a)(1) of the Act The bar setting was indeed infor-
mal, however, Hanna was a highly placed manager and
asked the question more than once after Castro indicated
he did not know Hanna initiated the inquiries There
was no evidence Castro was an open and active union
supporter There was a history of employer hostility
toward the Union and during the conversation Hanna
clearly indicated he sought the information so he could
discharge union activists
In addition to this threatened retribution, Hanna also
threatened "winding down the business" to justify
closing the San Jose terminal and having employees from
the Sacramento facility perform the work Further,
Hanna said that he thought that in addition to drivers
Keith and Tom, he believed Johnson, Lisemby, and
Chandler were the employees trying to organize the fa-
cility He did not state the basis for these beliefs The
General Counsel contends these statements created the
impression of surveillance I agree Hanna did not dis-
close his source or how he obtained the information and
there is no evidence any of the named employees active-
ly and openly solicited on behalf of the Union Based on
the credited and uncontroverted testimony of Castro, I
find that Respondent violated Section 8(a)(1) of the Act
by creating the impression that employees' concerted
protected union activities were under surveillance Berk-
Tek, Inc , 285 NLRB 300 (1987), citing California Dental
Care, 272 NLRB 1153, 1156 (1984)
I also find that Hanna threatened to change the routes
of the those drivers he thought were organizing for the
union, for one reason because they were taking too much
time on their routes However, Hanna also expressed a
dislike for Johnson in particular, in conjunction with
comments which described Johnson, Lisemby, and Chan-
dler as the employees responsible for the union organiz-
ing campaign and statements that R B Matheson did
not want the Union representing the employees, he
wanted to run the terminal himself without having to
deal with the Union
The conversation, in addition to containing the unlaw-
ful impression of surveillance and threatening plant clo-
sure, contained statements that the three employees sus-
MATHESON FAST FREIGHT 69
pected of organizing on behalf of the Union were going
to be transferred There was no claim or other evidence
that either Lisemby or Chandler were considered by
other managers as being too slow in their performance of
their duties The unsupported claim that all three em-
ployees were too slow in the performance of their duties
was raised only after they were suspected of organizing
on behalf of the Union The Company presented no evi-
dence supporting any claim that Chandler and Lisemby
were slow in performing their duties Under these cir-
cumstances, the statement is a threatened reprisal because
of these employees protected concerted activities in vio-
lation of Section 8(a)(1) of the Act
As noted above, Hanna also threatened closure of the
facility if the employees voted for representation by the
Union for Matheson did not want to deal with the
Union This statement was unqualified and could reason-
ably be considered a threat of reprisal if the employees
voted for the Union, in violation of Section 8(a)(1) of the
Act
Castro also testified, without refutation, that for the
first and only time during his employment with the Com-
pany, he was encouraged to call Hanna with any prob-
lems he had with the Company, "[t]hat was the first time
I, [Castro] ever heard of an open door policy in that
company" As the Board held in Reliance Electric Co,
191 NLRB 44, 46 (1971)
Where, as here, an employer, who has not previous-
ly had a practice of soliciting employee grievances
or complaints, adopts such a course when unions
engage in organizational campaigns seeking to rep-
resent employees, we think there is a compelling in-
ference that he is implicitly promising to correct
those inequities he discovers as a result of his in-
quiries and likewise urging on his employees that
the combined program of inquiry and correction
will make union representation unnecessary [Foot-
note omitted ]
The Board also found in Reliance Electric that the fail-
ure of the employer or its representative to commit to
specific corrective action did not abrogate the anticipa-
tion of improved conditions expectable from employee
opposition to the union I find that Hanna, by his com-
ments, sought to convince Castro that Respondent would
remedy his complaints and there was no need for the
Union I also conclude that the Company Personnel Poli-
cies Manual which states the employees should feel free
to discuss their problems directly with their supervisors
and facility managers does not alter the nature of
Hanna's actions Their is no evidence that Hanna ever
actively sought or invited any employee to relate their
gripes to him or other official, no less during a conversa-
tion which related Employer dissatisfaction over the
union organizing efforts and threatened plant closure, job
loss to employees engaged in union organizing and other
unlawful conduct Accordingly, I conclude this inquiry
unlawfully encouraged Castro to not support the Union
in violation of Section 8(a)(1) of the Act
3 Alleged statements by Millard
Hunt testified that about 1 week before the representa-
tion election, Millard called him into his office after he
finished his route, about 5 p m and said
I'm trying to get together with the drivers to find
out what they think about the Union, what are their
main gripes and complaints and what they could do
to make it a better place to work
[H]e told me that regardless of how I felt about the
Union it was my business He said that he had been
told that there would not be a contract at Matheson
Fast Freight
Millard recalled having an individual conversation
with Hunt but denies ever telling Hunt there would not
be a contract with the Union or that he was trying to
find out what his gripes were so that he could remedy
them He did say "I'm there as terminal manager and I
have to learn what all the employees are interested in
That's what I told him"
Millard did not clearly differentiate between soliciting
complaints and "learning what all the employees are in-
terested in" He did not give any examples of employee
"interests" that were the subject matter of this discus-
sion Further, Millard did not identify any other employ-
ees he similarly interviewed This lack of detail and dif-
ferentiation, I find, does not convincingly refute Hunt's
testimony, which I have previously concluded to be
credible
I find under the circumstances, Millard did unlawfully
interrogate Hunt Hunt was formally called into the ter-
minal managers office, hence this cannot be deemed as
casual questioning There was no evidence Hunt was an
open and active participant in the unionization campaign
There was a history of employer hostility to the union
campaign and the inquiry was accompanied by the state-
ment "that there would not be a contract at Matheson
Fast Freight" This made the nature of the questioning
more hostile and threatening There was no evidence
that Millard and Hunt were friends or other circum-
stances which mitigate the coercive nature of the ques-
tioning Accordingly, I conclude that Millard's question-
ing of Hunt was in violation of Section 8(a)(1) of the
Act Rossmore House, 269 NLRB 1176, affd 760 F 2d
1006 (9th Cir 1985), Blue Flash Express, 109 NLRB 591
(1954)
I also find Millard's admitted request that Hunt relate
the drivers "main gripes" so he could remedy them, is an
unlawful solicitation of grievances in violation of section
8(a)(1) of the Act There is no evidence Millard encour-
aged similar actions in the past, even though the Compa-
ny's Personnel Policies Manual states "Employees
should feel free to discuss their problems directly
with their supervisors and facility managers" There was
no practice shown that supervisors and facility managers
actively sought employee grievances, no less implied
they would be remedied Reliance Electric Co, supra 191
NLRB at 44, 46
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Alleged statements of Caccamo
The status of Caccamo as a supervisor and/or agent of
Respondent is contested Caccamo is alleged to have had
several conversations with drivers about the Union in
December 1987 and January February and March 1988
Lisemby testified he had daily contact with Caccamo
and always assumed he was one of his supervisors Cac
camo has directed or ordered him to perform tasks such
as moving a trailer or some freight on numerous occa
sions According to Lisemby [Caccamo] runs the yard
He directs where the freight [sic]] directs some drivers
and directs the dock crew, and helps in the office some
times does some dispatching 10 Lisemby observed Cac
camo verbally discipline a worker on the dock one
morning When he has problems loading a truck he goes
to Caccamo In addition to Caccamo, there is a lead
worker on the dock crew who directs the other dock
workers inventories the equipment in the morning and
reports to Caccamo This lead worker spends most of his
time on the dock
Lisemby had numerous conversations with Caccamo
about the union The first conversation occurred in De
cember when the Company was notified the Union filed
a petition Bill Chandler was also present during this
conversation Chandler and Lisemby asked Caccamo
what he thought was going to happen with the pending
petition Caccamo replied I think he d close it up Li
semby understood he referred to Matheson and the
it referred to the San Jose terminal Lisemby and Cac
camo conversed about the Union about once or twice a
week while at work
The second conversation Lisemby could recall oc
curred after Christmas but before the representation elec
tion According to Lisemby Caccamo said
that the company has cancelled the orders for
the new equipment and he said—then I said Well
why? And he said Because of the pending elec
non that they re not sure of what s going to
happen
And I said Well isn t that rather strange to
cancel an order that was placed five or six months
earlier? That s kind of hard to do
Lisemby understood Matheson had ordered 10 new trac
tors and about 40 new trailers Matheson admitted plac
mg an equipment order in the fall or winter of 1987 or
1988 which was never canceled
Caccamo denied telling Lisemby and/or any other em
ployee that Browny Matheson was going to close the
barn [or the facility] if the drivers supported or voted for
the union He admitted that in February or March he
commented that if the terminal does not make a profit
the company can close it in response to a statement by
Lisemby that if the terminal went Union Respondent
cannot close it Caccamo denied ever telling Lisemby
that Matheson Fast Freight cancelled an equipment
order
10 The dispatcher is not a supervisor he is a member of the unit Cac
camo has never been deemed a member of the unit
Hunt similarly testified that about February 1 he had a
conversation with Caccamo on the dock in the presence
of Johnson and he believes Steve Davis During the
conversation, Lisemby raised the subject of the represen
tation election which was scheduled to be held in a
couple of weeks Caccamo commented Yes if you
guys go union Brownie will probably just close the
barn Brownie is R B Matheson and the barn is the
terminal As noted above Caccamo denied making this
statement Hunt was not questioned concerning Cacca
mo s status as a supervisor and/or agent of Respondent
Johnson said he had a conversation with Caccamo in
late March 1988 in the presence of Lisemby and Chan
dler During the conversation there were complaints
concerning how the drivers starting times and routes
had been changed and the attitude of management
toward the drivers had deteriorated
you know the harassment intimidation and
that type of thing
And then I [Johnson] made some reference to the
fact that once we got organized and got the Union
and got a contract that things like seniority and that
type of thing would be respected and Mr Caccamo
laughed
I mean he laughed and said The old man s al
ready said he 11 close this place before you 11 ever
get a contract here He will not sign a contract with
the Union or let them in
Caccamo denied making these statements
Johnson testified Caccamo, whom he observes daily
for about 1 hour each morning and in the evening when
he returns from his PUD duties directs the operations of
the dock, assigning the drivers a dockworker to assist in
loading the trailers or assisting them locate the freight
When there is a dispute between a dockworker and
driver, it is resolved by Caccamo Johnson opined Cac
camo spends about 50 percent of his time on the dock
and the other 50 percent of the time he observed him he
is in a large office area where the dispatch desk sales
desk and terminal managers offices are located Cac
camo does not usually do the same tasks as the dock
workers
While Caccamo has never disciplined Johnson he has
observed Caccamo discipline dockworkers For example
he saw Caccamo discipline John Dueber by grabbing
Dueber s arm and shaking a finger in his face while in
structing Dueber to never argue with a driver Johnson
admitted no one ever told him Caccamo had authority to
discipline him Johnson never saw Caccamo wnte a dm
ciplmary warning When Caccamo gives Johnson direc
tions he complies because he considers Caccamo to be a
supervisor and, if there was no other supervisor present
he would go to Caccamo for direction There is a lead
dockworker who is Caccamo s assistant who does handle
freight If Caccamo was a leadman there was no expla
nation why he would be in charge of another leadman
for a crew of about six or seven dockworkers
MATHESON FAST FREIGHT 71
According to Castro, he had a,conversation with Cac-
camo before the election in the presence of dockworkers
wherein
Sam Caccarno 'told me that—he was talking
about the Union coming in there and I told him
"Well, what's wrong if the Union comes in?"
And he said—he told me that the old man wouldn't
sign a Union contract He [Matheson] would never
sign a contract He would rather close the barn
down than sign it [Caccamo also said] that he was
bringing the Sacramento dnvers to pick up all of
their freight and stuff, to work it out of Sacramen-
to
A few days to a week after the election, Castro had
another conversation with Caccamo and Caccamo reiter-
ated this statement Caccamo denied making these state-
ments
a Supervisory status of Caccamo
In support of Respondent's position that he is not a su-
pervisor, Caccamo claims he does not have the authority
required in Section 2(11) of the Act, as follows
In the interest of the employer, to hire, transfer, sus-
pend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsi-
bly to direct them, or to adjust their grievances, or
effectively recommend such action, if in connection
with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but re-
quires the use of independent judgement
These statutory indicia are in the disjunctive and only
one need be present to confer supervisory status on Cac-
camo Albany Medical Center, 273 NLRB 485 (1984)
As Administrative Law Judge William J Pannier
noted in Hydro Conduit Corp, 254 NLRB 433 (1981), the
criteria of Section 2(11) are not mechanically applied
Rather, supervisory status exists only if the power is
exercised with independent judgement on behalf of
management, and not in a routine or clerical
manner the statute expressly insists that a su-
pervisor (1) have authority (2) to use independent
judgement (3) in performing such supervisory func-
tions (4) in the interest of management These latter
requirements are conjunctive NLRB v Security
Guard Service, Inc , 384 F 2d 143, 147-148 (5th Cir
1967) Moreover, "the burden is on the party alleg-
ing supervisory status to prove that it, in fact, exists
" Commercial Movers, Inc , 240 NLRB 288,
290 (1979) Further, in making determinations re-
garding supervisory status, "the Board has a duty to
be alert not to construe supervisory status too
broadly because the employee who is deemed a su-
pervisor is denied employee rights which the Act is
intended to protect" Westinghouse Electric Corpora-
tion v NLRB, 424 F 2d 1151, 1158 (7th Cir 1970),
cert denied 400 US 831
Statutory supervisory authority is not lost simply because
it is infrequently exercised or only one or a few employ-
ees are under their supervision Jack Holland 41 Son, 237
NLRB 263, 265 (1978)
Prior to beginning work for Respondent, Caccamo
was retired He commenced his employment as a dock-
worker and then was promoted to dock supervisor re-
porting to Millard, the terminal manager According to
Caccamo, it takes only about 2 weeks to train a dock-
worker to load and unload the vehicles, thereby inferring
that Caccamo's supervisory duties are merely routine
This inference is countered by the overall authority Cac-
camo has in determining how the vehicles are loaded,
which includes significant safety considerations Cac-
camo does tell the drivers if he thinks the freight is prop-
erly loaded However, he disclaims having any authority
to direct the drivers or issue warning reports to them
Caccamo only does the same work as the dockworkers
when he is short an employee In addition to Caccamo,
there are six dockworkers They report to work at 5 a m
and work until they completed loading, which depends
upon the amount of freight to be handled, usually be-
tween 9 30 and 10 a m The dockworkers report back to
work at 5 p m and remain until they are finished, which
depends upon the amount of freight they must handle, so
it vanes from 9 to 11 p m The terminal manager does
not report to work until between 7 and 8 a m and Mil-
lard leaves the facility at about 7 p m ," which leaves
Caccamo in charge of the terminal for about 2 hours in
the morning and 2 hours every evening
Respondent asserts Caccamo cannot hire or fire em-
ployees, the terminal manager has that authority He
admits he can correct them during the course of their
work and he has signed employee warning reports Cac-
camo was the only individual that signed on the line des-
ignated "supervisor" on the employee report form on
several of these disciplinary actions issued to John
Dueber by Respondent in August 1987
Dueber was given about 20 such disciplinary warnings
by Caccamo during his employment at the Company
from July 1987 until August 1988 when he was dis-
charged It is undisputed that normally three written
warnings result in termination There was no explanation
offered for the exception in Dueber's case Dueber was
also given oral warnings by Caccamo, the last being the
week he was discharged Dueber observed Caccamo dis-
cipline other dockworkers Dueber received all of his in-
structions and explanations of company policy from Cac-
camo If a problem arose when Caccamo was the only
supervisor present such as early in the morning or late at
night, he never told Dueber that he would have to await
the return of the manager before it was addressed For
example, Caccamo issued written warnings to him when
there was no terminal manager
"The dispatcher leaves work about 3 or 4 p m and Dueber testified
without refutation that sometimes Caccamo arrives in the morning before
the dispatcher Caccamo claims the dispatcher opens the terminal in the
morning The parties stipulated that the dispatcher is not a supervisor, so
his presence is not a consideration in determining Caccamo's supervisory
status
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After Millard was hired Millard also signed the writ
ten warning notices Dueber did not believe Caccamo
had to get prior approval before issuing a wntten warn
mg to an employee The only thing Caccamo told him
about discipline was that if he received one more warn
mg he would be out the door No one else from man
agement was present when Caccamo made these com
ments
When Dueber was terminated Caccamo told him Mil
lard wanted to speak to him in his office and it was Mil
lard who informed him he was discharged When he was
hired, he was interviewed by Caccamo and the then ter
mmal manager Dueber did not know which of these in
dividuals made the decision to hire him There was a
period of several months when there was no terminal
manager and Caccamo hired dockworkers and disci
plmed them on his own initiative After Millard was
hired Caccamo claims he no longer had the authority to
hire or discipline dockworkers
Caccamo testified that he does not have authonty to
hire or fire employees change their start time approve
vacation requests authorize overtime on the timecards
order supplies, sign checks or transfer employees to an
other position or location He also asserts he does not
attend any companywide staff meetings or terminal man
ager staff meetings Yet he admittedly can direct both
drivers and dockworkers in the safe loading of the vehi
cies and effectively recommend discipline Caccamo s
name appears as a supervisor on all the employee warn
ing reports issued to dock workers even after Millard
became terminal manager Caccamo s name never ap
pears as a supervisor on a warning report issued to a
driver
Caccamo admitted to being able to effectively recom
mend discipline albeit claiming the form of the discipline
would be decided by Millard He admitted having au
thonty to correct dockworkers in the performance of
their duties without consulting Millard If the problem
persists Caccamo then raises the issue with Millard"
who determines if the employee receives a verbal or
written warning Caccamo s name appears on the wntten
warnings because he is usually the one that observes the
error, and thus the reports are prepared with his name
on them as the supervisor
I find that Caccamo can effectively recommend disci
pline and has in the past done so without consulting a
superior His job functions are more than a mere report
mg of incidents Compare Passavant Health Center 284
NLRB 887 (1987) Millard s claim he independently in
12 1 do not credit Millard s testimony that he checks at all times with
the dockworkers concerning discipline This self serving testimony is
contradicted by Caccamo who said Millard only checks his recommenda
bons for discipline occasionally and is contradicted by Dueber who re
ceived about 20 written warnings and he only saw Millard on the dock
when Millard was coming and going to his office Not one employee tea
titled Millard discussed a written or oral warning with them Millard did
not testify in a forthright and candid manner he appeared to be tailoring
his testimony to benefit his employer s case rather than attempting to
present a truthful picture For example he testified Caccamo never had
any role in hiring employees at the San Jose facility yet Caccamo admit
ted he hired employees when the terminal manager s position was vacant
and Dueber testified without refutation that Caccamo participated in his
job interview
vestigates the incidents reported by Caccamo is not cred
ited He never related an incident involving Dueber who
received many written warnings Dueber s uncontrovert
ed testimony that Caccamo gave him all warnings lends
support to this finding There was no showing that cor
rective action following the issuance of warning reports
was not part of a system of progressive discipline On
the contrary Dueber s testimony is undisputed that three
written warnings usually lead to discharge
The record supports the conclusion that the employer
has a policy that receipt of three warnings would result
in discharge The failure to follow this policy in
Dueber s case does not alter Caccamo s status consider
ing the record in this case I conclude that the wntten
warnings issued by or based upon Caccamo s recommen
dations are part of a progressive disciplinary system uti
lized by Respondent Dueber was fired based on these
wntten warnings It is clear they led to further disci
pline Thus the wntten warnings were not minor disci
pline Northwoods Manor 260 NLRB 854 (1982)
Wedgewood Health Care 267 NLRB 525 (1983)
Here the situation is more analogous to the facts
present in Pine Manor Nursing Center 270 NLRB 1008
(1984) in which the written warnings were issued based
on the disputed employees recommendations without a
superior routinely conducting independent investigations
The warnings in Dueber s case were the basis for his dm
charge and can not be considered mere incident reports
The written warnings in this case are disciplinary actions
and Caccamo s authonty to effectively recommend their
issuance without an independent investigation being con
ducted by Millard leads me to conclude Caccamo is a su
pervisor as defined in Section 2(11) of the Act Formco
Inc 245 NLRB 127 129 (1979) Wesco Electrical Co
232 NLRB 479 (1977)
Other mdicia of his supervisory status include issuance
of discipline with his name on the form as the supervisor
Respondent further holds Caccamo out to be a supervi
sor by the card it provides Caccamo which gives his title
as Dock Supervisor At times Caccamo gives his card
to customers Caccamo admitted holding himself out as a
supervisor for Respondent to both the employees and the
Company s customers The Company in addition to des
ignatmg him as a supervisor on the cards it gives him
also denominated him as the dock supervisor in the Ter
mmation Report Millard gave Hunt Respondent has
clearly identified Caccamo as part of management
Another manifestation of his status is the fact that he is
salaried and is not paid for overtime unlike the dock
workers who are paid at an hourly rate Further Cac
camo is paid if he is off work due to illness while the
dockworkers are not paid if they are not at work due to
illness Unlike the dockworkers Caccamo does not
punch a timeclock and he is not on the dock all the time,
he is in the office 3 or more hours a day Accordingly I
find the record clearly demonstrates that Caccamo s
working conditions are significantly different from those
of the dockworkers
Caccamo testified he does not have authority to hire
or fire employees change their start time approve vaca
tion requests authonze overtime on the time cards order
MATHESON FAST FREIGHT 73
supplies, sign checks, or transfer employees to another
position or location He also asserts he does not attend
any companywide staff meetings or terminal manager
staff meetings Yet he admittedly can direct both drivers
and dockworkers in the safe loading of the vehicles and
effectively recommend discipline Caccamo's name ap-
pears as a supervisor on all the employee warning re-
ports issued to dock workers, even after Millard became
terminal manager
Caccamo admittedly is the senior employee present
early in the morning and after 7 p m so for as much as 4
or more hours a day he is the only individual on site in
charge of dock operations There is evidence he possess-
es sole authority to direct the dockworkers and resolve
any problems that arise There was no claim Caccamo is
instructed to call any superior in the event difficulties
arise when he is in charge early in the morning or after 7
p m This sole charge of the loading and unloading oper-
ation, which involves important safety matters, requiring
the extensive exercise of independent judgment, leads me
to conclude that Caccamo responsibly directs employees,
including a leadman, who assists him in his duties
The evidence also supports a finding that Caccamo is
in complete charge of the dockworkers throughout the
day, Millard has never been shown to direct any of the
dockworkers in their performance of their duties The
employees who worked at the dock, both dockworkers
and drivers, understood Caccamo to be the supervisor of
all loading and unloading activities These employees un-
derstood his orders were to be obeyed This authority is
another reason to find that he is a supervisor within the
meaning of Section 2(11) of the Act
The unrefuted evidence also demonstrates that Cac-
camo was involved in the hiring process Caccamo was
present at Dueber's employment interview along with
Millard's predecessor When the terminal manager's posi-
tion was vacant, Caccamo had singular authority to hire
and discipline The evidence does not support a finding
his authority changed significantly when Millard became
terminal manager
Assuming arguendo Caccamo is not a supervisor, I
find that in the circumstances of this case the employees
could reasonably believe he spoke for management and
Respondent is responsible for his coercive statements to
the employees The test is "whether, under all the cir-
cumstances, the employees would reasonably believe that
the nonsupervisory employee was reflecting company
policy and speaking and acting for management" Com-
munity Cash Stores, 238 NLRB 265 (1978), Delta Hosiery,
259 NLRB 1005 (1982), and Sears Roebuck de Puerto
Rico, 284 NLRB 258 (1987) The strict principles of
agency are not applied in determining an employer's re-
sponsibility under the Act for the conduct of others
NLRB v Arkansas-Louisiana Gas Go, 333 F 2d 790, 796
(8th Or 1964), Assn of Machinists v NLRB, 311 U S 72,
80 (1946) .
Section 2(13) of the Act, provides in part, as follows
In determining whether any person is acting as an
"agent" of another person so as to make such other
person responsible for his acts, the question of
whether the specific acts performed were actually
authorized or subsequently ratified shall not be con-
trolling
As the Board held in Hampton Merchants Assn, 151
NLRB 1307, 1308 (1965)
It is a familiar rule of agency that a principal is re-
sponsible for the acts of its agents done in further-
ance of the principal's interest and within the scope
of the agent's general authority, even though the
principal may not have authorized the specific act
in question It is enough if the principal has empow-
ered the agent to represent it in the general area in
which the agent acted
In analyzing the facts of this case I find Caccamo is at
least an agent of Respondent within the meaning of the
Act Respondent authorized Caccamo to relay company
policies to employees As Dueber testified without refu-
tation, Caccamo was the individual who related compa-
ny policies to him The record clearly demonstrates that
Caccamo spent a substantial portion of his time in the
office and did not usually participate in the day-to-day
toil of the dockworkers The Company gave him a job
title with the term "supervisor" in it Respondent never
informed its employees that Caccamo was not a supervi-
sor On the contrary, Respondent also permitted Cac-
camo to hold out to customers that he was a supervisor
by imprinting that appellation on the business card it pre-
pared and gave him Lott's Electric Go, 293 NLRB 297
(1989)
It is clear that C,accamo regularly assigned dockwork-
ers to their duties and directed them in the performance
of those duties The drivers regularly sought his advice
and had the established practice of having him resolve
all disputes between themselves and the dockworkers
Caccamo signed disciplinary notices which indicated he
was a supervisor and was participating for management
in the disciplinary action He took part in the hiring of
Dueber Early in the mornings and after 7 p m, Cac-
camo supervised independently and was in sole com-
mand of the operation Under these circumstances, it was
reasonable for the employees to believe he was vested
with managerial authority and spoke for management
Accordingly, I find the employees, reasonably believed
he was reflecting company policy and speaking and
acting for Respondent
b Discussion of alleged violations by Caccamo
Although Caccamo denied making any of the state-
ments attributed to him by present and past employees, I
find the similarity of the testimony of these employees
cojoined with their convincing demeanor and apparent
candor, persuasive I conclude that Caccamo, who is a
supervisor and clear agent, authorized to speak on Re-
spondent's behalf by the Company which holds him out
to be a supervisor, made statements that represented the
Company's chief executive officer canceled equipment
orders and threatened plant closure if the employees se-
lected the Union as their collective-bargaining represent-
ative, which is violative of Section 8(a)(1) of the Act
Daniels Cadillac, 270 NLRB 466 (1984)
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I further find that Caccamo told Castro that Matheson
would not sign a collective-bargaining agreement, he
would rather close the terminal than sign an agreement,
which is also a violation of Section 8(a)(1) of the Act in
these circumstances This statement is a threat attributa-
ble to Respondent and involves retaliation at the work-
place by the Respondent because the employees engaged
in activity protected by Section 7 of the Act These
threats to close the operation and cancel equipment
orders were to discourage support for the Union and are
violative of Section 8(a)(1) of the Act Cf Lou's Electric
Go, supra
5 The personnel policy manual
The facts concerning this issue are primarily uncontro-
verted About January, Respondent, by Millard, distrib-
uted the personnel policy manual called "Matheson Fast
Freight Manual," to the dnvers at the San Jose terminal
At the time of distribution, the drivers were instructed to
read the manual and sign the last page of the manual and
give the document to Millard
The portion of the manual called "Company Oper-
ations" states
The Company is a pro-people employer operated by
non-union employees It has been this way from its
inception, and we plan for the Company to remain
this way
This section of the manual appears on page one under
the major heading "I General Information"
The last page of the manual is entitled "Acknowledge-
ment of Receipt" and provided
This is to acknowledge that I have received a copy
of the personnel policies manual for Matheson Fast
Freight, Inc and that I have read and understood
the policies contained in the annual I agree to ob-
serve these policies in all respects
Even though the drivers were instructed to execute the
document and give it to Millard, several employees re-
fused to comply with this instruction and were not disci-
plined or otherwise pressured to sign the statement
Respondent asserts that the General Counsel will
argue that the controlling case in determining if they vio-
lated the Act by requesting or instructing the employees
to sign an agreement to "observe these policies in all re-
spects," is determined by the decision in La Quinta
Motor Inns, 293 NLRB 57 (1989) The General Counsel
did not cite La Quinta, however no decision in opposi-
tion to La Quinta, has been cited, and as the most recent
case on this issue, I find it applicable to the question of
whether Respondent's statement in the personnel policy
manual, which the drivers were instructed to read and
sign, constitutes a threat in violation of Section 8(a)(1) of
the Act
I find that the requirement the employees sign the
"Acknowledgement of Receipt" after the Union filed the
representation petition and prior to the representation
election, and during the month Respondent has been
found to have coercively threatened employees to induce
them to vote against the Union, clearly conveys a threat
of discipline for failure to abide by all the policies" in-
cluded in the manual The "Introduction" to the manual
begins as follows
This manual is provided for employees' use as a
summary of the Company's personnel policies, pro-
cedures, work rules, and benefits Employees should
read the manual promptly after receiving it and
keep a copy of the manual for review and reference
as needed
The Company may change, add to, delete, or
depart from the policies and procedures summarized
in this manual without notice as it deems necessary
in its sole discretion
The Company clearly indicated to its employees they
should read and follow the policies contained in the
manual in the "Introduction" and the "Acknowledge-
ment" The "Acknowledgement" contains a promise to
observe the policies contained in the manual "in all re-
spects" The "Acknowledgement" contains, in bold cap-
italized letters, the followings statement on the bottom of
the page "THIS PAGE IS TO BE MAINTAINED IN
THE EMPLOYEE'S PERSONNEL FILE" The sec-'
tion immediately preceding the "Acknowledgement" in
the manual is the section dealing with employee conduct
and work rules The last two subsections before the "Ac-
knowledgement" are "Involuntary Termination at
any time for any reason, with or without prior notice or
warning "and "Final Paycheck"
The "Company Operations" statement clearly de-
scribes as company policy the operation of Matheson
Fast Freight by nonunion employees because unioniza-
tion would destroy the "one-on-one relationship" em-
ployees are to enjoy with their supervisors and manag-
ers The policy is not described as permissive or even as
the desideratum The Company is operated by nonunion
employees and the "Acknowledgement" requires a
promise that all policies be followed in all respects This
promise immediately follows the policy of termination
for any reason This location emphasizes the importance
of the employee following all the policies, including the
nonunion employee provision There is no indication any
of the policies are permissive This finding is not altered
by the failure of Respondent to discipline or otherwise
require the employees who failed and/or refused to sign
the "Acknowledgement" It is clear Respondent intended
its employees to read and comply with the provisions of
the manual shortly before the representation election, as
mandated in the "Acknowledgement"
13 As noted in the La Quinta decision, policy is defined in Webster's
New World Dictionary, 2d College Ed, The World Publishing Co, New
York and Cleveland, 1972, as here pertinent, as "2 wise, expedient, or
prudent conduct or management, 3 a principle, plan, or course of action
as pursued by a[n] organization
The Oxford English Dictionary, Oxford University Press, Oxford,
England, 1985, defines the word 'policy," as here pertinent, as In
reference to conduct or action generally Prudent, expedient, or ad
vantageous procedure, prudent or politic course of action, also as a
quality of the agent, sagacity, shrewdness, artfulness A course
of action adopted and pursued by a government, party, ruler, states-
man, etc, any course of action adopted as advantageous or expedi-
'ent
MATHESON FAST FREIGHT 75
I therefore conclude that the "Acknowledgement,"
combined with the "General Information Statement" that
the Company is operated by nonunion employees, consti-
tutes a threat of discipline if the employee engages in
union organizing activities thereby tending to interfere
with their free exercise or the rights guaranteed in Sec-
tion 7 of the Act, in violation of Section 8(a)(1) of the
Act
D Alleged Violations of Section 8(a)(3) and (1) of the
Act
1 The change of Johnson's route
The complaint alleges a discnmmatory change in
Johnson's PUD route Johnson was hired by Respondent
about June 1986 and was assigned the Salinas route
around May 1987 He continued serving that route until
February 25, 1988 Prior to being assigned the Salinas
route, Johnson worked for a period of time as a line
driver until the spring of 1987 when the Company deter-
mined from the instruments in his vehicle that he had
been speeding by driving 56 to 57 miles an hour instead
of 55 Another reason for the reassignment was Johnson
had a license which was restricted against the transporta-
tion of hazardous materials, and this precluded him from
being a line driver At the time he was hired he showed
Respondent his license which contained the hazardous
matenals restriction When he was first transferred to
become a PUD driver, he initially worked in the San
Jose area for several months before being assigned the
Salinas route Johnson was the Union observer during
the representation election on February 25 The election
concluded about 10 am At approximately 10 10 am,
immediately after the ballots were counted, Johnson was
informed by Millard that he was reassigned to another
route for the day because the Company did not know
when he ' would be finished with his duties as observer
for the Union Sometime later, Johnson asked why he
was removed from the Salinas route and was told Re-
spondent wanted to try another driver on the route For
about 3 months, Johnson was assigned to other routes,
and only drove the Salinas route a few times until late
May when he was permanently reassigned to the Salinas
route
Discussion
The General Counsel bears the burden of establishing
a prima facie case to support an inference that protected
conduct was a "motivating factor" in the action taken by
an employer Having established a prima facie case, the
employer has the burden of establishing that the same
action would have been taken even in the absence of the
concerted protected conduct Wright Line, 251 NLRB
1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) In this
case, I find that Respondent has not successfully rebutted
the General Counsel's prima facie case
Millard testified he decided to change Johnson's route
because he felt Johnson was taking too long on the
route, it took him too many hours to handle the volume
of freight I do not credit Millard's testimony based pri-
marily on demeanor Millard did' not appear to be frank
in his testimony, he seemed evasive and unsure Also his
testimony lacked convincing details For example he
claimed he discussed performance problems with John-
son about two times before he changed his route assign-
ment on February 25 Millard did not particularize what
he said When asked if he explained to Johnson why the
change was being made on February 25, Millard replied
he thought so but again did not detail what he said and
could not recall what, if any, response Johnson gave
Millard denied the reason for the route change was be-
cause the employees voted for the Union I find this tes-
timony demonstrates poor recall and insufficient detail to
be convincing I conclude there is no persuasive evi-
dence that Millard told Johnson on February 25 or prior
thereto that he was taking too much time on the Salinas
route 14 This finding leads me to determine that the rea-
sons advanced by Millard for the route change is a pre-
text indicating proscribed motive
The conclusion of unlawful motive in the reassignment
of Johnson is buttressed by the statements of Respond-
ent's supervisors dunng the company campaign to defeat
the Union's organizing drive As found above, on or
about February 4, Hanna told Castro he thought Johnson
was one of the drivers trying to organize the Company
and Hanna "was going to make sure that he changed
everybody's routes, especially Hal Johnson's because he
didn't like Johnson being down south" Then Hanna
talked about "winding down the freight and trying to get
rid of three drivers which was Marty [Lisemby] and Hal
[Johnson] and Bill Chandler," whom he suspected of or-
ganizing for the Union Later in the conversation Hanna
said, "he was going to make sure that he changed Hal
Johnson's route, that he wouldn't be down south"
Another reason given by Hanna for changing John-
son's route was "because he was taking too much time
making his deliveries" Hanna also said he was consider-
ing changing the routes of Lisemby and Chandler be-
cause he considered they took too much time serving
their routes also There is no claim Respondent gave Li-
semby and/or Chandler new route assignments, even
though they were considered "too slow" like Johnson
There was no clear and persuasive testimony that any
of these asserted union adherents were warned or other-
wise informed by Respondent that they were too slow in
servicing their routes This failure to previously warn
these employees combined with the timing of the state-
ment and the change in Johnson's route require the con-
clusion the change was made because of Johnson's con-
certed protected activity Respondent has failed to dem-
onstrate that it would have changed Johnson's route if
he had not supported the Union and acted as it's observ-
er, for it did not show by persuasive evidence that it rou-
14 I also do not credit Millard s testimony that he reassigned Johnson
to the route only after talking to him and informing him that the other
drivers were doing the route faster and Johnson said he would like to
have the route back and Ill show you a change Respondent admitted-
ly had customer complaints about their service after Johnson was re-
moved from the Salinas route Respondent tried to Infer the complaints
were generated by Johnson who had a relative working for one of the
customers on the route but the person who received the complaint or
complaints for Respondent did not testify There was no evidence pre-
sented that Johnson generated or influenced the complaints by any action
other than providing better service than the driver who replaced him
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tinely altered the routes of other drivers it felt were too
slow or, that in fact Johnson was slow The perform
ance records of Johnson s predecessors and replacement
were not placed in evidence
Johnson was returned to the route and there is no evi
dence his performance altered or improved from his pre
February 25 level In sum I conclude Johnson s job per
formance was not the real reason for his transfer and
based on timing and other evidence determine a moti
vating factor for transferring Johnson was because of his
concerted protected activities and Respondent failed to
demonstrate he would have been transferred absent his
protected concerted conduct in violation of Section
8(a)(1) and (3) of the Act Dick Gidron Cadillac 287
NLRB 1107 (1988) Lou s Electric Co supra
E Alleged Unilateral Changes in Violation of Section
8(a)(5) and (1)
It is uncontroverted that Respondent made several
changes in drivers starting times including on March 23
when the start time was changed from 8 a m to 9 a m
This change caused a reduction in the numbers of hours
worked by the drivers and a concomitant reduction in
wages
Respondent also admitted distributing at the San Jose
terminal on or about April 12 a written announcement
detailing changes in wages and benefits for all employ
ees including the drivers effective July 1 Specifically
the notice detailed the following changes wages were in
creased for tractor trailer and straight truckdnvers and
dockworkers Thanksgiving was added as a paid holiday
and the Company increased its pension contribution The
notice also indicated there may be a change in the medi
cal plan The parties stipulated that the announced
changes were implemented on July 1 Also the parties
stipulated the announcement and implementation of the
changes were made without notification to or negotiation
with the Union
In general the law requires employers to bargain with
the employees collective bargaining representatives con
cernmg all matters relating to wages hours and other
terms and conditions of employment, Section 8(d) of
the Act In this case there is no claim of impasse or loss
of majority status of the Union as the employees collec
tive bargaining representative As correctly noted by the
General Counsel, the Board holds that in making mate
nal and substantial unilateral changes in terms and condi
tions of employment while testing the validly of a certifi
cation through Board and Court proceedings an employ
er acts at its peril such changes being automatic viola
tions of Section 8(a)(1) and (5) St Johns Hospital 281
NLRB 1163 (1986) and cases cited therein
Respondent argues that it did not have an obligation to
bargain over the change in starting times because such
changes were routine responses to business fluctuations
and were the status quo ante Citing NLRB v Katz 369
U S 736 (1962) Castro Lisemby and Johnson all testi
fled that since July 1987 Respondent routinely altered
starting times in relation to business If business was
slow starting times were set later When business in
creased starting times were set earlier There is no evi
dence this routine was altered or any other event oc
curred which required Respondent to negotiate with the
Union over this established ...ractice Johnson candidly
admitted when he was in managerial positions during his
more than 20 years in the industry he made similar
changes in start times in response to fluctuations in busi
ness
The General Counsel argues the changes in start times
is discretionary with the terminal manager and thus the
change must be negotiated with the Union Citing Hanes
Corp 260 NLRB 557 (1982) and quoting Oneita Knitting
Mills 205 NLRB 500 fn 1 (1973) as follows
What is required is a maintenance of preexisting
practices i e, the general outline of the program
however the implementation of the program (to the
extent that discretion has existed is determining the
amounts of the increases), becomes a matter to
which the bargaining agent is entitled to be consult
ed
I find continuation of this past practice of making dy
namic economically motivated changes in start times
does not constitute an unlawful change in terms and con
ditions in employment 15 Compare Advertisers Mfg Co
280 NLRB 1185 (1986) There was no evidence demon
strating that the managers had sole discretion to ignore
the changes in business and continue certain start times
when there was insufficient work available or set an un
necessarily early start time not justified by the amount of
business The evidence clearly demonstrated that start
times were changed in direct response to fluctuations in
the amount of traffic handled by the terminal and was
not subject to arbitrary or unwarranted changes Under
these circumstances I find the maintenance of this
policy, a condition of employment obtaining well before
any bargaining obligation arose is not an unlawful umlat
eral change in terms and conditions of employment
There was no change in employee terms and conditions
of employment Compare Waters Edge 293 NLRB 465
(1989) Accordingly I recommend that this allegation in
the complaint be dismissed
I further find that the distribution of the announcement
that wages and other terms and conditions would be
changed after the union representation election whereby
the Union was certified as the representative of an ap
propnate unit and then changing them without affording
the Union an opportunity to bargain and without bar
gaining with the Union constitutes a clear violation of
Section 8(a)(5) and (1) of the Act Dynamic Machine Co
221 NLRB 1140 (1975) enfd 552 F 2d 1195 (7th Cir
1977) Mike 0 Conner Chevrolet 209 NLRB 701 (1974)
Respondent failed to claim or demonstrate these changes
were compelled by business considerations There is no
claim of waiver or other meritorious exculpatory factors
Whitexood Maintenance Co, 292 NLRB 1159 (1989)
15 As stated in Gorman Basic Text on Labor Law Unionization and Col
lecttve Bargaining 400 (1977)
A so called unilateral change in wages or working conditions is also
usually condemned as per se Illegal although it is clear that such
action is lawful when for example it is consistent with a dynamic
status quo or is authonzed by a collective bargaining agreement or
within a limited range of circumstances is required by statute
MATHESON FAST FREIGHT 77
I also find that there is no persuasive evidence these
July 1 changes in pay and benefits were a continuation of
the status quo ante There were no pay records or other
evidence beyond bare claims made by witnesses who
were not found credible The lack of corroboration by
documentary evidence in the control of Respondent,
such as payroll records, further buttresses these credibil-
ity findings Misericordia Hospital, 246 NLRB 351, 356
(1979) However, even if the testimony is credited, there
is no evidence the increases in wages were automatic On
the contrary, Matheson admitted the amount of any
wage increases were determined by review of the market
place and consideration of suggestions from managers
There is similarly no evidence Matheson committed the
Company to a designated wage increase or any other
change prior to the Um= petition and organizing cam-
paign In sum, I conclude these changes were unlawful
"material and substantial unilateral changes in terms and
conditions of employment," in violation of Section
8(a)(1) and (5) of the Act St Johns Hospital, supra
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and the Board's exercise of jurisdiction in this pro-
ceeding will effectuate the purposes and policies of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 Respondent has violated Section 8(a)(1) of the Act
by
(a) Threatening its San Jose terminal employees re-
peatedly with closure of that facility if they chose the
Union as their collective-bargaining agent
(b) Threatening employees with loss of employment if
they chose the Union as their collective-bargaining
agent
(c) Threatening employees with route changes because
they engaged in collective protected activity
(d) Telling employees that if they supported the
Union, bargaining would be futile
(e) Soliciting grievances and implying resolution of the
problems raised in order to induce employees to not sup-
port or abandon the Union
(f) Creating an impression that it has engaged in sur-
veillance of the concerted protected activities of its em-
ployees
(g) Coercively interrogating its employees about their
union activities
(h) Coercively including in the Matheson Fast Freight,
Inc , Personnel Policies Manual provisions entitled
"Company Operations" and "Acknowledgement of Re-
ceipt" which together reasonably tend to threaten to dis-
cipline employees if they fail to adhere to the Company's
position of not having any union represent its employees
(i) Threatening an employee with changing the routes
of employees thought to be engaging in union activities
4 Respondent has violated Section 8(a)(3) and (1) of
the Act by discriminatorily changing the route of em-
ployee Harold Johnson
5 Respondent has violated Section 8(a)(5) of the Act
by announcing on or about April 12, 1988, that it was
going to change wages and certain fringe benefits and on
July 1, 1988, unilaterally implementing these changes in
wages and other terms and conditions of employment
without prior notice to the union and without affording
the Union an opportunity to negotiate and bargain about
these matters and their effects
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
7 Respondent has not engaged in any other unfair
labor practices other than those specifically found above
for the reasons set out in this decision
THE REMEDY
Having found that Respondent Matheson Fast Freight,
Inc has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1), (3), and (5)
of the Act, I shall recommend that it cease and desist
therefrom, and that it take certain affirmative action nec-
essary to remove the effect of the unfair labor practices
and to effectuate the policies of the Act
Having found that Respondent discriminatorily
changed the route assignment of Harold Johnson, I rec-
ommend that Respondent reinstate him to his former
route, the Salmes route, or substantially equivalent posi-
tion and make him whole for any loss of pay or other
employment benefits he may have suffered as a result of
this transfer, to be computed in the manner described in
F W Woolworth Co, 90 NLRB 289 (1950), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987)
I also direct that Respondent remove from its files any
reference to the unlawful route transfer of Harold John-
son and notify him in wntmg that this has been done and
that these matters will not be used against him in any
way
I also recommend that Respondent be ordered to
afford the Union the opportunity to bargain with the
Employer about wages and other terms and conditions of
employment and, if requested, the Employer rescind the
unilateral changes, and to make whole any employees
who incurred a monetary loss as a result of this unilateral
implementation of these changes Such reimbursement, if
any, is to be with interest as provided in New Horizons
for the Retarded, id
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' 6
ORDER
The Respondent, Matheson Fast Freight, Inc , San
Jose, California, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
16 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Threatening its San Jose terminal employees re
peatedly with closure of that facility if they chose the
Union as their collective bargaining agent
(b) Threatening employees with loss of employment if
they chose the Union as their collective bargaining
agent
(c) Threatening employees with route changes because
they engaged in collective protected activity
(d) Telling employees that if they supported the
Union bargaining would be futile
(e) Soliciting grievances and implying resolution of the
problems raised in order to induce employees to not sup
port or abandon the Union
(f) Creating an impression that it has engaged in sur
veillance of the concerted protected activities of its em
ployees
(g) Coercively interrogating its employees about their
union activities
(h) Coercively including in the Matheson Fast Freight,
Inc personnel policies manual provisions entitled Com
pany Operations and Acknowledgement of Receipt
which together reasonably tend to threaten to discipline
employees if they fail to adhere to the Company s posi
tion of not having any union represent its employees
(i) Threatening an employee with changing the routes
of employees thought to be engaging in union activities
(j) Failing and refusing to notify and bargain with
Teamsters Union Local 287 International Brotherhood
of Teamsters Chauffeurs Warehousemen and Helpers of
America AFL-CIO by notifying employees of unilateral
changes in wages and other terms and conditions of em
ployment and then implementing these changes without
bargaining with the union which is the collective bar
gaining agent of its employees in the following unit
All full time and regular part time line pick up and
delivery drivers, dispatchers and fuelers employed
by the Respondent at its terminal located in San
Jose California excluding all other employee
office clerical employees professional employees
dock workers guards and supervisors as defined in
the Act
(k) Discriminatorily changing employees routes be
cause they engaged in protected concerted activity
(1) In any like or related manner interfering with, re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Notify and on request bargain with Teamsters
Union Local 287 International Brotherhood of Team
sters, Chauffeurs Warehousemen and Helpers of Amer
ica, AFL-CIO as the exclusive representative of all em
ployees in the above described unit with respect to rates
of pay, wages hours and other terms and conditions of
employment and if an understanding is reached embody
such understanding in a signed agreement
(b) On request rescind the changes in wages and other
terms and conditions of employment instituted on July 1
1988, and reinstate the terms and conditions of employ
ment prior to July 1 1988 and make whole the unit em
ployees for any wages and/or benefits lost to them by
this unilateral conduct
(c) Offer Harold Johnson immediate and full reinstate
ment to the Salinas route or if that job no longer exists
to substantially equivalent employment and make him
whole for any loss of pay he may have suffered as a
result of the discrimination practiced against him in the
manner set forth in the remedy section of this decision
(d) Remove from its files any reference to the unlaw
ful transfer of Harold Johnson and notify him in writing
that this has been done and that evidence of his unlawful
transfer will not be used as a basis for future personnel
action against him
(e) Rescind our policy requiring employees to promise
to abide by our Personnel Policies Manual that we do
not want our employees represented by a Union and
remove from our files any Acknowledgement of re
ceipt signed by employees in which they agreed to be
bound by the present company position of operation only
with nonunion employees
(f) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards,
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(g) Post at all facilities and place of business, in San
Jose Califrma, copies of the attached notice marked
Appendix 17 Copies of the notice on forms provided
by the Regional Director for Region 32 after being
signed by the Respondent s authorized representative,
shall be posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in conspic
uous places including all places where notices to employ
ees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered defaced or covered by any other material
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint be dis
missed insofar as it alleges violations of the Act not spe
cifically found
17 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 Nation
al 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
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
Section 7 of the Act gives employees these rights
• MATHESON FAST FREIGHT 79
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT expressly or impliedly threaten our em-
ployees with plant closure and/or discharge because they
supported Teamsters Union Local 287, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, and/or engaged in
concerted protected activity
WE WILL NOT threaten employees with loss of em-
ployment if they chose the Union as their collective-bar-
gaining agent
WE WILL NOT threaten employees with route changes
because they engaged in collective protected activity
WE WILL NOT tell employees that if they supported
the Union, bargaining would be futile
WE WILL NOT solicit grievances from you and imply
resolution of the grievances raised in order to induce em-
ployees to not support or abandon the Union
WE WILL NOT create an impression that we are engag-
ing in surveillance of union or other concerted protected
activities
WE WILL NOT coercively interrogate our employees
about their union activities
WE WILL NOT coercively include in the Matheson Fast
Freight, Inc , Personnel Policies Manual provisions enti-
tled "Company Operations" and "Acknowledgement of
Receipt" which together reasonably tend to threaten to
discipline employees if they fail to adhere to the Compa-
ny's position of not having any union represent its em-
ployees by engaging in activities on behalf of a union
WE WILL NOT threaten employees with changing the
routes of employees thought to be engaging in union or
other concerted protected activities
WE WILL NOT fail and refuse to notify and bargain
collectively with Teamsters Union Local 287, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, AFL-CIO by notifying
employees of unilateral changes in wages and other
terms and conditions of employment and then imple-
menting these changes on July 1, 1988, without bargain-
ing with the union which is the collective-bargaining
agent of its employees In the following unit
All full-time and regular part-time line, pick-up and
delivery drivers, dispatchers, and fuelers employed
by the Respondent at its terminal located in San
Jose, California, excluding all other employee,
office clerical employees, professional employees,
dock workers, guards, and supervisors as defined in
the Act
WE WILL STOT discriminatorily change employees'
routes because they engaged in protected concerted ac-
tivity
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act
WE WILL rescind our policy requiring employees to
promise to abide by our Personnel Policies Manual that
we do not want our employees represented by a union
WE WILL remove from the files of all employees, any
"Acknowledgement of Receipt" signed by employees in
which they agreed to be bound by the present Company
position of operating only with nonunion employees
WE WILL offer Harold Johnson full and immediate re-
instatement to the Salinas route or, if that position no
longer exists, to a substantially equivalent position, WE
WILL make him whole for any loss of earnings he has
suffered by reason of the discrimination practiced against
him, and WE WILL remove from our personnel records
any entries which reflect this discriminatory treatment of
employees and notify him this discriminatory action will
not be used against him in any way
WE WILL, on request, rescind the changes in wages
and other terms and conditions of employment instituted
on or about July 1, 1988, and reinstate the terms and
conditions of employment that existed prior to that date,
and make the employees whole for any wages and/or
benefits lost to them by this unilateral conduct, with in-
terest
WE WILL, on request, bargain with Teamsters Union
Local 287, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO as exclusive representative of all the employ-
ees in the above-described unit with respect to rates of
pay, wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
such understanding in a signed agreement
MATHESON FAST FREIGHT, INC , A
WHOLLY-OWNED SUBSIDIARY OF R B
MATHESON POSTAL SERVICES, INC