Oak Harbor Freight Lines, Inc.

National Labor Relations Board - Board Decisions

May 16, 2012

358 N.L.R.B. 328 (N.L.R.B. 2012)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 41
328
Oak Harbor Freight Lines, Inc. and Teamsters Locals
81, 174, 231, 252, 324, 483, 589, 690, 760, 763,
839, and 962 and Teamsters Local 174. Cases
19–CA–031797, 19–CA–031827, 19–CA–031865,
19–CA–032030, 19–CA–032031, 19–CA–031526,
19–CA–031536, 19–CA–031538, and 19–CA–
031886
May 16, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
On January 5, 2011, Administrative Law Judge John J.
McCarrick issued the attached decision. The Acting
General Counsel filed limited exceptions and a support-
ing brief, and the Respondent filed an answering brief.
The Charging Party filed exceptions and a supporting
brief, the Respondent filed an answering brief, and the
Charging Party filed a reply brief. The Respondent filed
cross-exceptions and a supporting brief, the Acting Gen-
eral Counsel and the Charging Party each filed answering
briefs, and the Respondent filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings,12 findings, and conclusions as

1 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(3) and (1) of the Act by refusing to reinstate employ-
ee Jeff Gibson to his former position. After the issuance of the judge’s
decision, the parties entered into a non-Board settlement agreement
with respect to the Gibson allegations. By Order dated April 18, 2011,
the Board severed and remanded Case 19–CA–032001 to the Regional
Director for further processing pursuant to that settlement. According-
ly, Case 19–CA–032001 is no longer before the Board.
2 At the hearing, the Unions sought to introduce rebuttal evidence in
order to establish that the Respondent’s Director of Labor Relations and
Human Resources Robert Braun had never negotiated changes to trust
fund subscription agreements (SAs) or employer union pension certifi-
cations (EUs) covering the Respondent. The parties stipulated that the
proffered exhibits were authentic, but the judge rejected them, finding
that they were not “appropriate rebuttal at this point in time.” Tr. 1583.
The Unions except to the judge’s refusal to admit the proffered evi-
dence, asserting that it is relevant to establishing that the Respondent’s
SAs and EUs do not reflect a bargained-for waiver of the Unions’ bar-
gaining rights. They request that the exhibits be included in the record
and that, in the event of a remand, they be allowed to present testimony
concerning those exhibits.
We find, without regard to whether the judge erred in not admitting
the proffered evidence, that the result in this case would not change
even if the evidence had been admitted. The cancellation language in
the documents clearly and unambiguously privileges the employer to
discontinue trust contributions after expiration of the collective-
bargaining agreement and after written notice of its intent to cancel the
contribution obligation, and the documents were agreed to and signed
by the parties. Therefore, even assuming that the cancellation language
had been dictated by the Funds and was not specifically bargained over
modified, and to adopt the recommended Order as modi-
fied and set forth in full below.3
We agree with the judge, for the reasons he states, that
the Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally implementing its company health care
plan for unit employees at the conclusion of the strike4
and, thereafter, refusing to bargain in good faith with
regard to health benefits. We also agree with the judge
that the Respondent did not violate Section 8(a)(5) and
(1) by unilaterally ceasing its payments into the Wash-
ington Teamsters Welfare Trust, the Western Conference
of Teamsters Pension Trust Fund, and the Retirees Wel-
fare Trust. Consistent with the judge’s findings, we find
that the signed cancellation language in the Subscription
Agreements (SAs) for the Washington Teamsters Wel-
fare Trust and the Retirees Welfare Trust, and in the em-
ployer union pension certifications (EUs) for the Western
Conference of Teamsters Pension Trust Fund, constituted
a waiver. Specifically, we find that the Unions waived
their right to bargain with the Respondent concerning its
cancellation of contributions into the funds upon the ex-
piration of the parties’ collective-bargaining agreement.
The judge additionally found that the Unions had
waived their right to receive trust payments for the Ore-
gon Warehouseman Trust (Oregon Trust). In reaching
that conclusion, the judge found that the Oregon Trust
required that the parties execute SAs or EUs and that
Local Unions 81, 324, and 962 had signed the requisite
SA and EU agreements for the Oregon Trust in Novem-
ber 2005. We disagree with these findings and accord-
ingly find that the Respondent violated Section 8(a)(5)
and (1) by unilaterally ceasing its payments into the Ore-
gon Trust.
Unlike the other three funds at issue in this case, the
Oregon Trust did not require an SA or EU agreement.
Mark Coles, co-account executive for the Oregon Trust,
testified that “the Oregon Trust does not require a sub-

by the parties, the signed documents establish that the Unions waived
their right to bargain over the Respondent’s cessation of fund payments
upon notice after the expiration of the parties’ contract. See Cauthorne
Trucking, 256 NLRB 721 (1981), remanded on other grounds 691 F.2d
1023 (D.C. Cir. 1982).
3 We shall modify the judge’s conclusions of law, remedy, Order,
and notice to delete references to severed Case 19–CA–032001 pertain-
ing to the failure to reinstate Jeff Gibson, and to conform to the viola-
tions found. For the reasons stated in his dissenting opinion in J. Picini
Flooring, 356 NLRB 11 (2010), Member Hayes would not require
electronic distribution of the notice.
4 The Respondent excepts to the judge’s finding that the unlawful
implementation of the Respondent’s company health plan occurred on
February 17, 2009, rather than February 26, 2009, when the strikers
returned to work. We agree with the Respondent and shall correct the
implementation date.
OAK HARBOR FREIGHT LINES

329
scription agreement.”5 Further, the Respondent has not
produced any documentary evidence that the Unions
executed one for that fund. Because no cancellation lan-
guage, as set forth in the SAs and EUs, applied to the
Oregon Trust, the Unions did not waive their right to
bargain about the Respondent’s unilateral stoppage of
payments into the Trust. Accordingly, the Respondent
violated Section 8(a)(5) and (1) by taking that action
without providing the Unions with notice and the oppor-
tunity to bargain over its decision to stop its payments.
The Respondent asserts that, even if no such cancella-
tion language applied to the Oregon Trust, the Unions
should be equitably estopped from challenging its stop-
page of payments into the Trust based on its prior acqui-
escence in the Respondent’s actions. Specifically, the
Respondent relies on the fact that, during the events at
issue, the Oregon Trust or the Unions never denied the
existence of an SA for that fund, despite Respondent’s
requests for clarification about whether such an SA had
been signed.
It is clear that, at the time of the events in this case,
none of the parties appear to have understood whether
the parties had signed an SA or EU for the Oregon
Warehouseman Trust. Respondent’s attorney John
Payne testified that when he attempted to confirm with
the Oregon Trust in September 2008, that an SA for that
fund had been executed, he was told by the trust adminis-
trators that they “were almost sure” that a signed SA ex-
isted.6 Further, Oregon fund administrator, Coles, admit-
ted that neither he nor administrator, Linda Philbrick,
ever notified the Respondent that no Oregon-based SA
existed.7 Even in response to Payne’s September 23,
2008 conditional Notice of Intent to Cancel, and Payne’s
follow-up letter of September 24 asking whether the fund
would accept contributions in light of the conditional
Notice of Intent to Cancel, the fund did not notify the
Respondent that no SA—and therefore no relevant can-
cellation language—existed. Instead, the fund attorney,
Jerome Buckley, rejected contributions for crossovers
without providing any explanation.
Despite the existence of confusion concerning whether
a SA existed for the Oregon Trust, we reject the Re-
spondent’s equitable estoppel argument. When the Re-
spondent ceased its contributions to the Oregon fund
pursuant to its conditional cancellation notice, it acted
without having clear knowledge of its contractual author-
ity to do so. Although neither the Unions nor the Oregon
Trust administrators informed the Respondent of its er-
ror, the Respondent nevertheless acted at its peril in dis-

5 Tr. 903.
6 Tr. 986.
7 Tr. 921–923.
continuing fund payments based on cancellation lan-
guage that it was not certain even existed. Because no
such termination or cancellation language existed, we
agree with the Acting General Counsel and the Unions
that the judge erred in finding clear and unmistakable
waiver as to the Oregon Trust. We therefore find, con-
trary to the judge, that the Respondent was not entitled to
unilaterally discontinue contributions to the Oregon Trust
and that it violated Section 8(a)(5) and (1) by unilaterally
ceasing its payments into that fund.
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Oak Harbor Freight Lines, Inc., is
an employer within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Teamsters Locals 81, 174, 231, 252, 324, 483, 589,
690, 760, 763, 839, and 962 are labor organizations with-
in the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(5) and
(1) of the Act by unilaterally discontinuing required con-
tributions to the Oregon Warehouseman Trust.
4. The Respondent has violated Section 8(a)(5) and
(1) of the Act on and after February 26, 2009, by unilat-
erally implementing its company health care plan for
bargaining unit employees, and thereafter failing and
refusing to bargain in good faith with regard to health
care benefits.
5. The unfair labor practices committed by the Re-
spondent are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not otherwise violated the Act.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully discon-
tinued contributions to the Oregon Warehouseman Trust,
we shall order the Respondent to make whole its unit
employees covered by the Oregon Trust by making all
delinquent Oregon Trust fund contributions on behalf of
those employees, including any additional amounts due
the fund in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979).8 Further, the Re-
spondent shall be required to reimburse its unit employ-
ees for any expenses ensuing from its failure to make the
required contributions to the Oregon Trust, as set forth in

8 Because the provisions of employee benefit fund agreements are
variable and complex, we leave to the compliance stage the question of
whether the Respondent must pay any additional amounts into the
benefit fund in order to satisfy our “make whole” remedy. Merry-
weather Optical Co., supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

330
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), including all
medical expenses that were not covered by the Respond-
ent’s medical plan but would have been covered by the
Oregon Trust. Such amounts should be computed in the
manner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010), enf.
denied on other grounds sub nom. Jackson Hospital
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).9
Having unilaterally implemented its company health
care plan for unit employees, the Respondent shall be
ordered to restore the status quo ante by ceasing to give
effect to its unilaterally implemented company health
care plan for unit employees and by bargaining in good
faith with the Unions over health care benefits. Further,
we shall order the Respondent to restore the status quo
ante in the expired collective-bargaining agreement with
respect to the Oregon Trust and to continue to make con-
tributions to that fund pursuant to the expired collective-
bargaining agreement until the Respondent negotiates in
good faith to a new agreement or to a lawful impasse.10
ORDER
The Respondent, Oak Harbor Freight Lines, Inc., Cali-
fornia, Oregon, Washington, and Idaho, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally discontinuing required contributions
into the Oregon Warehouseman Trust.
(b) Unilaterally implementing terms and conditions of
employment, including its company health care plan,
without having reached a genuine impasse with the Un-
ions, and refusing to bargain in good faith with the Un-
ions with respect to health care benefits for employees in
the following appropriate bargaining unit:

All truck drivers, helpers, dockmen, warehousemen,
checkers, power-lift operators, hostlers, and other such
employees as may be presently or hereafter represented

9 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respond-
ent will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
10 In light of our finding that the Respondent’s obligations to the
Washington Teamsters Welfare Trust were lawfully cancelled in Sep-
tember 2008, we shall not order a return to the terms of the expired
collective-bargaining agreement with respect to that trust or a monetary
remedy for the failure to make contributions to that trust after its can-
cellation.
by each Local Union as referenced in Appendices A, B,
C, and D, engaged in local pick-up, delivery and as-
sembling of freight, within the jurisdiction of the Local
Union and office-clerical and shop employees em-
ployed by the Respondent excluding however, the clas-
sifications set forth immediately below in section 1.04.

1.04 The following classifications of employees
are specifically excluded from the coverage of this
Agreement:
(a) confidential employees, supervisory and pro-
fessional employees within the meaning of the Labor
Management Relations Act of 1947, as amended;

(b) employees already covered by an existing un-
ion contract not included in this agreement;
(c) office supervisors exercising independent
judgment with respect to the responsibility for di-
recting the work or recommending hiring and firing;
and
(d) nonbargaining unit employees.

(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Restore the status quo ante as it existed prior to
February 26, 2009, by ceasing to give effect to the Re-
spondent’s health care plan for bargaining unit employ-
ees, and bargain in good faith with the Unions over
health care benefits.
(b) Make unit employees covered by the Oregon
Warehouseman Trust whole by paying all delinquent
contributions to the Oregon Warehouseman Trust, as
well as any additional amounts due to the fund, restore
the status quo ante in the expired collective-bargaining
agreement with respect to that fund, and continue to
make contributions to that fund until the Respondent
negotiates in good faith to a new agreement or to a law-
ful impasse.
(c) Reimburse unit employees covered by the Oregon
Warehouseman Trust, with interest as provided in the
amended remedy section of this decision, for any ex-
penses resulting from its failure to make the required
payments to the Oregon Warehouseman Trust.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amounts due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in the States of California, Oregon, Washing-
OAK HARBOR FREIGHT LINES

331
ton, and Idaho, and mail a copy thereof to each laid-off
bargaining unit employee,

copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms
provided by the Regional Director for Region 19, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since February 26, 2009.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected
activities.

After a trial at which we appeared, argued and presented
evidence, the National Labor Relations Board has found that
we violated the National Labor Relations Act and has di-
rected us to post this notice to employees in both English
and Spanish and to abide by its terms.
Accordingly, we give our employees the following as-
surances:

WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT unilaterally implement terms and condi-
tions of employment, including our own health care plan,
without having reached a genuine impasse with the Un-
ions and WE WILL NOT refuse to bargain in good faith
with the Unions with respect to health care benefits for
our employees in the bargaining unit:

All truck drivers, helpers, dockmen, warehousemen,
checkers, power-lift operators, hostlers, and other such
employees as may be presently or hereafter represented
by each Local Union as referenced in Appendices A, B,
C, and D, engaged in local pick-up, delivery and as-
sembling of freight, within the jurisdiction of the Local
Union and office-clerical and shop employees em-
ployed by us excluding however, the classifications set
forth immediately below in section 1.04.

1.04 The following classifications of employees
are specifically excluded from the coverage of this
Agreement:
(a) confidential employees, supervisory and pro-
fessional employees within the meaning of the Labor
Management Relations Act of 1947, as amended;
(b) employees already covered by an existing un-
ion contract not included in this agreement;
(c) office supervisors exercising independent
judgment with respect to the responsibility for di-
recting the work or recommending hiring and firing;
and
(d) nonbargaining unit employees.

WE WILL NOT unilaterally discontinue required contri-
butions to the Oregon Warehouseman Trust.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed by Section 7 of the Act.
WE WILL restore the status quo ante as it existed prior
to February 26, 2009, by ceasing to give effect to our
company health care plan for our employees in the
above-described bargaining unit and WE WILL bargain in
good faith with the Unions over health care benefits.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

332
WE WILL make unit employees covered by the Oregon
Warehouseman Trust whole by paying all delinquent
contributions to the Oregon Warehouseman Trust, as
well as any additional amounts due to the fund, and WE
WILL restore the status quo ante in the expired collective-
bargaining agreement with respect to that fund and con-
tinue to make contributions to that fund until we negoti-
ate in good faith to a new agreement or to a lawful im-
passe.
WE WILL reimburse unit employees covered by the Or-
egon Warehouseman Trust, with interest, for any ex-
penses resulting from our failure to make the required
payments to the Oregon Warehouseman Trust.

OAK HARBOR FREIGHT LINES, INC.

Irene Hartzell Botero, Esq., Daniel Apoloni, Esq., and Helena
A. Fiorianti, Esq., for the General Counsel.
Nelson Atkin, Esq. (Barran Liebman LLP), of Portland, Oregon,
for the Respondent.
Michael R. McCarthy, Esq. and David Ballew, Esq. (Reid,
Pedersen, McCarthy & Ballew, LLP), of Seattle, Washing-
ton.
John M. Payne, Esq., Christopher L. Hilgenfeld, Esq., and
Selena C. Smith, Esq. (Davis Grimm Payne & Marra), of
Seattle, Washington.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Seattle, Washington, from July 6 to 16, and 20,
2010, upon the fourth order consolidating cases, fourth amend-
ed consolidated complaint (complaint), as amended,1 and notice

1 At the beginning of the hearing, GC Exh. 1(xx) replaced the fourth
paragraph of complaint par. 17 which sets forth the remedy for Re-
spondent’s alleged violation of Sec. 8(a)(5) of the Act for failure to
apply the expired collective-bargaining agreement’s health and welfare
and pension benefits to returning strikers. At the hearing, counsel for
the General Counsel moved to delete complaint pars. 1(i) and (o), 11(b)
and (e) as to alleged discriminatee Tuttle, (f) and (h). The complaint
was further amended by the written stipulation of the parties (Jt. Exh. 3)
to reflect the non-Board settlements reached during the hearing of
several charges and complaint allegations. The parties jointly moved to
sever complaint pars. 1(k), (l), (m), (n), 11(g) and (i) and the portions of
paragraph 15 related to employees Gentry and Dyche and that Case 19–
CA–032030 be remanded to the Regional Director to process the set-
tlement. In addition the parties moved to sever complaint allegations
1(e), (f), and (g), 12, 13(b) and the portion of 13(c) referring to 13(b)
the portion of 13(d) referring to 13(b), the portion of 15 referring to 12
and the portion of 16(b) referring to 13(b) and that Case 19–CA–
031827 be remanded to the Regional Director to process the settlement.
The parties further moved to sever complaint allegations 1(h), 11(d)
and the portions of 11(e) and (f) and 15 related to employee Neubauer
and that Case 19–CA–031865 be remanded to the Regional Director to
process the settlement. The motion was granted. After the hearing the
parties filed a joint motion to sever complaint pars. 6, 7, 14, 16, and
those portions of 17 making reference to pars. 6, 7, 14, and 16. The
motion was granted.
of hearing issued on May 24, 2010, by the Regional Director
for Region 19.
The complaint, as amended, alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by suspending and discharg-
ing striking employee Jeff Gibson from his former or substan-
tially equivalent position of employment because he assisted
the Union and engaged in protected concerted activities.
The complaint, as amended, further alleges that Respondent
violated Section 8(a)(5) and (1) of the Act by failing to apply
the terms of the expired collective-bargaining agreement to the
Employee Benefit Trust Funds and the Pension Trust and by
applying its own health care plan to striking employees after
the Unions’ unconditional offer for the strikers to return to
work.
Respondent filed a timely answer to the complaint stating it
had committed no wrongdoing and raised several affirmative
defenses including:

. . . .
7. Without conceding that Respondent is obligated to
adhere to the terminated and expired collective bargaining
agreement in all sections, Respondent has followed and
acted in compliance with the enforceable provisions of the
expired collective bargaining agreement and the Act.
8. Any change in business operations which Respond-
ent implemented were done for substantial legitimate
business justifications and were in compliance with the
provisions of the expired collective bargaining agreement
and the Act.
9. Any alleged unilateral changes made by Respond-
ent were lawfully accomplished in accordance with the
Act, including prior good faith notice to the Unions and an
opportunity to bargain.2
ISSUES
As noted in footnote 1 most of the issues herein were re-
solved during the course of the hearing by settlement. The
remaining issues for resolution are:

1. Did Respondent violate Section 8(a)(1) and (5) of
the Act by unilaterally ceasing to make payments into the
trust funds?
2. Did Respondent violate Section 8(a)(1) and (5) of
the Act by unilaterally implementing its health care plan
for returning strikers?
3. Did Respondent violate Section 8(a)(1) and (3) of
the Act by suspending, terminating and failing to reinstate
striker Jeff Gibson?

2 At the end of its case in chief, Respondent moved to amend its an-
swer to allege an additional affirmative defense that the parties had
reached impasse on the issue of benefits for returning strikers. Since
the case had been fully litigated at the time Respondent offered its
motion, the motion was denied.
OAK HARBOR FREIGHT LINES

333
FINDINGS OF FACT
Upon the entire record3 herein, including the briefs from the
counsel for the General Counsel, Charging Party, and Respond-
ent, I make the following findings of fact.
I. JURISDICTION
Respondent admitted it is a State of Washington corporation
with offices and places of business located throughout the
States of California, Idaho, Oregon, and Washington where it is
engaged in the business of transporting freight. Annually, Re-
spondent in the course of its business operations derived gross
revenues in excess of $500,000 for the transportation of freight
from the States of California, Idaho, Oregon and Washington
directly to points outside the States of California, Idaho, Ore-
gon, and Washington.
Annually, Respondent in the course of its business opera-
tions purchased and received goods valued in excess of $50,000
at its facilities in the States of California, Idaho, Oregon, and
Washington directly from points located outside the States of
California, Idaho, Oregon, and Washington.
Based upon the above, Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
Respondent admitted and I find that Teamsters Locals 81,
174, 231, 252, 324, 483, 589, 690, 760, 763, 839, and 962 are
labor organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The Respondent’s business and bargaining history
Respondent is engaged in the business of transporting freight
from over 30 terminals located in California, Idaho, Oregon,
and Washington. Respondent’s director of labor relations and
human resources is Robert Braun (Braun). Respondent’s
Mount Vernon, Washington terminal manager is Michael Apo-
daca (Apodaca). In its answer to the complaint Respondent
admitted that the above-named individuals are supervisors or
agents within the meaning of the Act.
Respondent has had a long term collective-bargaining rela-
tionship with the above captioned Teamsters Local Unions,
collectively the Unions, whose jurisdictions include Respond-
ent’s terminals in Washington, Oregon, and Idaho, and has
memorialized that collective-bargaining relationship in a series
of collective-bargaining agreements (CBA), the latest of which
was effective from November 1, 2004, to October 31, 2007.4
Over the years the 12 local Unions have engaged in joint bar-

3 Counsel for the Acting General Counsel filed a Motion to Correct
Record on September 30, 2010. On October 4, 2010, Respondent filed
a letter indicating it had no opposition to the Motion to Correct Record.
In its brief Charging Party essentially agreed with counsel for the Act-
ing General Counsel’s Motion. The Motion to Correct Record is grant-
ed.
4 GC Exh. 2.
gaining with Respondent, resulting in one collective-bargaining
agreement signed by each local.
Paragraph 1.03 of the expired CBA provides for the bargain-
ing unit of the Respondent’s employees covered by the con-
tract:

Scope of Agreement:

1.03 The execution of this Agreement on the part of the Em-
ployer shall cover all line haul and pickup and delivery opera-
tions of the Employer that are covered by this Agreement, and
shall only have application to the work performed by the fol-
lowing designated unit of employees:

All truck drivers, helpers, dockmen, warehousemen, checkers,
power-lift operators, hostlers, and other such employees as
may be presently or hereafter represented by each Local Un-
ion as referenced in Appendices A, B, C, and D, engaged in
local pick-up, delivery and assembling of freight, within the
jurisdiction of the Local Union and office-clerical and shop
employees employed by the Employer excluding however,
the classifications set forth immediately below in section 1.04.

1.04 The following classifications of employees are specifi-
cally excluded from the coverage of this Agreement:

(a) confidential employees, supervisory and professional em-
ployees within the meaning of the Labor Management Rela-
tions Act of 1947, as amended;

(b) employees already covered by an existing union contract
not included in this agreement;

(c) office supervisors exercising independent judgment with
respect to the responsibility for directing the work or recom-
mending hiring and firing; and

(d) nonbargaining unit employees.

The most recent CBA at paragraphs 17 and 18 provide that
Respondent is obligated to make contributions for bargaining
unit employees to the Washington Teamsters Welfare Trust, the
Oregon Warehouseman Trust, the Western Conference of
Teamsters Pension Trust Fund and the Retirees Welfare Trust.
In order to implement the CBA trusts described above, the
parties must execute subscription agreements (SA) or employer
union pension certifications (EU). These form agreements
provide, inter alia:

COLLECTIVE BARGAINING AGREEMENT

. . . . Upon expiration of the current or any subsequent bar-
gaining agreement requiring contributions, the employer
agrees to continue to contribute to the trust in the same man-
ner and amount as required in the most recent expired bar-
gaining agreement until such time as the undersigned either
notifies the other party in writing (with a copy to the trust
fund) of its intent to cancel such obligation five days after re-
ceipt of notice or enter into a successor bargaining agreement
which conforms to the trust policy on acceptance of employer
contributions, whichever occurs first. . . .

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

334
ACCEPTANCE OF TRUST AGREEMENT

The undersigned further acknowledge that with each succes-
sive collective bargaining agreement to the one identified
above that provides for contributions to continue to be made
to (appropriate trust listed), the parties agree to continue to be
bound by the terms of the trust agreement and any subsequent
amendments thereto. This subscription agreement will auto-
matically continue until such time as contributions are no
longer required to be made to the trust under a collective bar-
gaining agreement between the parties; . . . . 5

Respondent and the various local Unions signed the requisite
SA and EU agreements in November 2005.
2. 2007–2008 Prestrike bargaining for a new contract
The parties commenced bargaining for a new collective-
bargaining agreement in 2007. Respondent was represented
during the course of negotiations by its attorney John Payne
(Payne) and it’s Director of Labor Relations and Human Re-
sources Robert Braun. The local Unions were represented by a
representative of each local and were led by a variety of union
officials including John Hobart (Hobart). Hobart was president
of Teamsters Joint Council 28 and was the Unions’ chief
spokesman from August 2008.
3. The strike and cancellation of the trust EU
and SA agreements
On September 22, 2008, Respondent’s employees in the unit
represented by the various Teamsters Locals commenced a
work stoppage. Respondent hired strike replacements and a
number of current unit employees chose to continue working
and crossed the picket line. Between September 23 and 26,
2008, Payne advised the Unions and the Trusts that Respondent
intended to cancel its subscription agreements and employer
union pension certifications.6
The letters provided:

Please be advised that this constitutes Notice of Intent
to Cancel Obligations to the (appropriate trust stated), five
(5) days after receipt of this notice.
This notice is being provided pursuant to the (appro-
priate trust named) Subscription Agreement (or Employer-
Union Pension Certification), regarding Oak Harbor
Freight Lines.

In addition on September 24, 2008, Payne sent letters7 to the
Trusts advising that Respondent was obligated under the Act to
continue making trust fund contributions for employees who
chose not to strike but crossed the picket lined and continued to
work. The letters provide:

Under the NLRA, Oak Harbor Freight Lines is required to
continue to make (the appropriate trust named) and other ben-
efit contributions on behalf of current bargaining unit em-
ployees who choose not to strike and instead decide to cross
the picket line at Oak Harbor Freight Lines. Oak Harbor
Freight Lines will continue to make such contributions under

5 GC Exhs. 36–41.
6 GC Exhs. 42–45(a).
7 GC Exhs. 46–49.
medical plans that were in place under the expired agreement
for these current employees who cross the picket line. These
are current Oak Harbor employees who did not join the strike,
but chose instead, to cross the picket line and continue work-
ing (“crossovers”).
By contrast, Oak Harbor Freight Lines does not intend
to make benefit contributions to the (appropriate trust
named) on behalf of strike replacements. This is what
caused Oak Harbor Freight Lines to send the Notice of In-
tent to Cancel which is dated September 23, 2008.
Please let me know whether the Trust fund will accept
such contributions and process the claim of the crossovers.
Additionally, Oak Harbor will make the October 10, 2008
contribution for September hours.

The trusts each replied that they would not accept contribu-
tions from Respondent.8 Payne admitted that at the time he
sent his September 24 letter he was aware that the Western
Conference of Teamsters Pension Trust required contributions
on behalf of all bargaining unit employees, including strike
replacements and crossovers. Payne likewise admitted that the
purpose of the cancellation of the SA and EU agreements was
so that he could provide different benefits to strike replace-
ments.
As a result of the Trusts’ response, on October 3, 2008 Payne
wrote9 the Union advising that Respondent proposed for cross-
over employees:

1. Pension. We propose that contributions would be
placed in an Oak Harbor escrow account on behalf of
crossovers. We will hold these contributions in abeyance,
depending upon the outcome of the strike.
2. Health & Welfare. The WTWT and Oregon team-
sters Local 206/Employers Trust won’t pay claims after
October 31. Therefore, the Employer proposes to tempo-
rarily cover its crossovers (after October 31) under its
Company medical plan (during the strike), so that they do
not go without coverage. This would be an interim meas-
ure pending the outcome of bargaining and of the strike.
3. Retirees Welfare. The Washington Retirees Trust
will not accept contributions for crossovers after Septem-
ber hours, October contributions. Oak Harbor proposes to
place post-October contributions in an escrow account
pending the outcome of negotiations and the strike.
4. Bargaining during the strike

On October 9, 2008, the parties met to bargain over a succes-
sor collective-bargaining agreement. Prior to this meeting on
September 22, 2008, Respondent had given the Union its last,
best, and final offer.10 The Union brought its counterproposal
to Respondent’s last, best and final offer to the October 9, 2008
meeting.11 At this meeting Respondent’s attorney Payne asked
Union spokesman Hobart if he had a response to his letter of
October 3 dealing with trust payments for crossovers. Hobart
agreed to escrow pension and retirees contributions for crosso-

8 GC Exhs. 50–53.
9 GC Exh. 54.
10 GC Exh. 55.
11 GC Exh. 56.
OAK HARBOR FREIGHT LINES

335
vers and noted that crossovers were covered by Respondent’s
medical plan. No agreement was reached concerning poststrike
coverage for strikers under Respondent’s medical plan or for
poststrike continued escrow of returning strikers’ pension and
retiree trust funds.
During the October 9, 2008 meeting Payne asked Hobart
what it would take to end the strike and Hobart reviewed the
terms of the Union’s counterproposal noting particularly the
importance of maintaining health and welfare and pension ben-
efits. Later, Payne indicated Respondent was withdrawing its
5-year duration of contract proposal and noted that Respondent
would review the Union’s latest proposal.12
The next bargaining session took place on November 7,
2008, after the parties exchanged correspondence discussing
bargaining issues. At this meeting the Union made a presenta-
tion on a different health and welfare plan the Union considered
a compromise between its proposal for health and welfare and
Respondent’s proposal for its own medical plan.
At about the same time an issue arose concerning vacation
pay and concomitant trust contributions for strikers. In a letter
to Hobart dated October 24, 2008, Payne stated that it was Re-
spondent’s practice to pay its employees vacation pay in Janu-
ary. However, trust contributions were not made until the vaca-
tion time was requested.13 Payne noted that at least one striker
was requesting vacation time in the near future and that the
trust funds were not accepting contributions. Payne suggested
that since the trusts were not accepting Respondent’s contribu-
tions that on an interim basis Respondent make the trust contri-
butions directly to the striking employee and that pension con-
tributions be held in escrow. In response by letter14 dated Oc-
tober 29, 2008, Hobart agreed that the vacation benefits accrued
in January 2008 were due to the trusts but that Pension Trust
contributions could be held in escrow.
The issue of vacation pay for strikers was again raised by
Payne in his November 7, 2008 letter.15 Payne stated that Re-
spondent had striking employees who were not paid vacation
pay before September 30, 2008, now requesting vacation time
off. Payne suggested the Respondent pay Trust contributions
directly to the employees and to escrow their pension contribu-
tions on an interim basis. By letter16 dated November 17, 2008,
Hobart agreed to this proposal.
5. Return to work and poststrike bargaining
On February 12, 2009, the Union made an unconditional of-
fer17 to return to work. On February 17, 2008, the parties met
to discuss the terms of striking employees’ return to work. At
the meeting Payne presented the Union with a letter18 that stat-
ed all striking employees would be returned to work on Febru-
ary 18, 2009, that some employees would be suspended pend-
ing investigation of strike misconduct, and that some employ-
ees would be laid off due to lack of work. During this meeting

12 GC Exh. 57.
13 GC Exh. 60(b).
14 GC Exh. 61.
15 GC Exh. 65.
16 GC Exh. 66.
17 GC Exh. 74.
18 GC Exh. 24.
Payne gave the Union another letter19 stating Respondent’s
understanding of the “status quo” for returning strikers’ wages
and benefits:

Oak Harbor proposes to continue the status quo regarding
wages and benefits. The benefits proposal is based on the fact
that the Trust funds (i.e., Pension, Health & welfare, and
Washington Retirees H&W) have consistently refused to ac-
cept contributions for returning strikers.

Thus, the status quo is the wage rate in the terminated CA. It
also includes the agreement reached with the Union in early
October 2008 regarding Pension, Washington Retirees Health
& Welfare, and Teamsters Health & Welfare for returning
strikers. Oak Harbor would continue to follow the agreed up-
on status quo for returning strikers, which is as follows:

*Health & Welfare: Oak Harbor will cover the return-
ing strikers under its Company Plans pending a different
agreement with the Union on Health & Welfare. (This
will allow these employees to have coverage.)
*Pension: Oak Harbor will place the monthly contri-
butions into an escrow account pending some other
agreement on the subject.
*Washington Retirees Health & Welfare: Oak Harbor
will put the monthly contributions into an escrow account
pending a different agreement on this subject.

Hobart expressed his disagreement with Payne’s understand-
ing of the status quo as to wages and benefits for returning
strikers as expressed in Paynes’ letter. Payne asked Hobart if
the Union was placing conditions on the strikers return to work
and Hobart replied that the strikers return to work was in neu-
tral.
On February 18, 2009, Hobart sent a letter20 to Payne which
reiterated that the strikers had made an unconditional offer to
return to work. Hobart stated further that the health and wel-
fare and pension trusts would accept trust contributions if the
parties signed an “interim agreement” stating, “that the parties
agree to continue their participation in the funds during the
period in which they are negotiating a collective bargaining
agreement to replace the expired contract.” Hobart attached the
emails21 from the trusts to his February 18 letter. The email
from the Washington Teamsters Welfare Trust and Retirees
Welfare Trust stated:

The Washington Teamsters Welfare Trust and Retirees Wel-
fare Trust will accept a written interim agreement between the
parties to participate in the Trusts provided that the agreement
complies with each Trust’s operating rules and the parties also
execute a new Subscription Agreement for each trust.

The email from Western Conference of Teamsters Pension
Trust stated:

Al, you have asked whether or not participation under the
Western Conference of Teamsters Pension Trust could be ac-
ceptable on the basis of an interim collective bargaining

19 GC Exh. 25.
20 GC Exh. 75.
21 GC Exhs. 75(c) and (d).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

336
agreement. The short answer is yes, provided that the agree-
ment provides for the continuation of Pension Contributions
at the same rate as previously contained in the last acceptable
pension agreement. Further, the Trust would require an exe-
cuted Employer-Union Pension Certification form to be sub-
mitted along with the new collective bargaining agreement.

It should be noted that the interim agreement must conform to
the Trust’s policies for the Acceptance of Employer Contribu-
tions found in the agreement and Declaration of Trust. Final-
ly, it is critical that the effective date for the commencement
date of contributions be clear. The Trust does not permit a
“gap” in the payment of Pension Contributions except for pe-
riods of strike where the bargaining parties agree that no con-
tributions are due. As a result, contributions to the Trust
would have to resume effective with the bargaining unit’s re-
turn to work.

Between February 19 and 25, 2009, phone conversations
took place between Payne and Union Attorney David Ballew
(Ballew) concerning Respondent’s position on the status quo as
to wages and benefits for returning strikers. During a conversa-
tion on February 20, 2009, Payne contended that Respondent’s
position (apparently as expressed in his February 17, 2009 let-
ter) regarding the trusts was to maintain the status quo and
Ballew contended that the status quo was the terms of the ex-
pired collective-bargaining agreement.
During the course of these conversations Payne offered a
middle ground as an alternative to his February 17 status quo
letter that Respondent would agree to the Union’s Pension
Trust. Ballew said the Union could not accept this proposal.
In a February 25, 2009 conversation, Payne told Ballew that
he was no longer authorized by Respondent to discuss bargain-
ing with Ballew. Payne also said that Respondent and the Un-
ion were making progress toward a collective-bargaining
agreement.
The striking employees returned to work on February 26,
2009, under the terms outlined in Payne’s February 17, 2009
letter.
6. The Trusts’ position on receiving contributions
At the hearing Mark Coles, an account executive with
Northwest Administrators, who manages the Retirees Trust
testified that an interim labor agreement was not necessary to
support trust contributions as the expired CBA would be suffi-
cient together with a new SA. Likewise Michael Sander (Sand-
er), vice president of Northwest Administrators and the admin-
istrative manager of the Western Conference of Teamsters Pen-
sion Trust, explained that the trust could not accept pension
contributions from Respondent for crossovers if Respondent
did not make contributions for strike replacements as this
would violate selectivity rules. Sander also explained that the
trust would accept contributions in the absence of an EU or SA
and with an expired CBA. In additional Sander testified that
the pension trust would accept trust contributions based solely
on the expired CBA and an order from the administrative law
judge herein. This position was confirmed by Rick Dodge,
chairman of the Pension Trust.22
7. Strike misconduct—Jeff Gibson
Jeff Gibson (Gibson) worked for Respondent as a delivery
driver at its Mt. Vernon, Washington terminal. Gibson was one
of the striking employees who was suspended pending investi-
gation into strike misconduct. Gibson went on strike with fel-
low employees in September 2008 and engaged in picketing at
the Mt. Vernon terminal. Gibson also engaged in ambulatory
picketing in which he followed Respondent’s trucks and pick-
eted at customers’ sites.
When the strike ended, Gibson reported for work at Re-
spondent’s Mt. Vernon terminal where he was told that he had
been suspended.
A few weeks later an investigatory interview into Gibson’s
alleged strike misconduct was conducted by Respondent.
There were 11 incidents of strike misconduct attributed to Gib-
son by Respondent. During the investigatory interview Gibson
was given an opportunity to respond to each of the 11 allega-
tions. On March 16, 2009, Gibson was discharged for strike
misconduct.23
While Braun had a list of 13 employees from Respondent’s
terminal managers who had engaged in strike misconduct, other
than the allegations leveled against Gibson, no other evidence
of strike misconduct was offered at trial. Braun was the ulti-
mate decisionmaker concerning discipline for those accused of
strike misconduct. In making his decision concerning Gibson,
Braun relied solely upon a package of information that was
supplied to him by the law firm hired by Respondent to investi-
gate the alleged misconduct.24 That evidence is set forth below
together with Gibson’s testimony at the hearing.
8. The strike misconduct incidents involving Gibson
a. Mike Apodaca
Toward the end of the strike when Gibson was on the picket
line, Mt. Vernon terminal manager, Mike Apodaca (Apodaca),
got out of his car about 20 feet from Gibson on the terminal
property. Gibson admitted that he asked Apodaca about Re-
spondent’s owner, Ed Vander Pol cheating on his wife and that
he then called Apodaca a “real piece of shit.” Braun did not
consider this incident alone sufficient to terminate Gibson.
b. Bruce Miller
Bruce Miller (Miller) was Gibson’s coworker at the Mt.
Vernon terminal. Gibson and Miller were friends. On the first
day of the strike Miller had a phone conversation with Gibson
in which Gibson said that if Miller crossed the picket line he
would not live to see retirement. Miller advised Apodaca of
Gibson’s threat and on February 20, 2009 gave an affidavit
concerning the Gibson threat. Gibson denied threatening Miller
but admitted saying if Miller crossed the picket line, their
friendship was over. I found Gibson to be an evasive witness
whose recollection lacked specificity. I will credit Miller.

22 GC Exh. 91.
23 GC Exh. 35.
24 R. Exh. 36.
OAK HARBOR FREIGHT LINES

337
Braun did not consider this incident alone sufficient to termi-
nate Gibson.
c. Joe Velasco—delivery at a customer
Joe Velasco (Velasco) was Gibson’s coworker at Respond-
ent’s Mt. Vernon terminal. While Velasco was making a deliv-
ery in November 2008 at a customer’s facility in Bellingham,
Washington, he saw Gibson getting out of a small pickup truck.
Velasco did not notice any sign indicating the Union was on
strike. Gibson approached Velasco and called him a scab and
said Velasco would lose his job. A short time later, Gibson told
Doug Jensen, the customer’s employee, not to take the delivery
from Velasco. Jensen told Gibson to leave the property and
Gibson left. Velasco reported this incident to Respondent and
later filled out a declaration. According to Gibson, he entered
the customer’s property to engage in ambulatory picketing for
informational purposes and so advised the customer who asked
Gibson to leave the property. Velasco admitted in his declara-
tion and testimony at trial that he advised the customer that
Gibson was there because of a labor dispute with Oak Harbor.
There was no evidence in the report Braun reviewed, including
Velasco’s declaration, to reflect that Gibson yelled or acted
rudely toward the customer. Indeed Velasco testified that Gib-
son, “had some respect for the customer, even though he did get
in his face.”25 Braun considered this conduct serious enough to
warrant a suspension. In its brief Respondent concedes that this
incident did not constitute serious misconduct.
d. Joe Velasco—driving on Guide Meridian Road
In January 2009, Velasco was driving Respondent’s truck on
Guide Meridian Road in Bellingham, Washington. In the area
he was driving the road was one lane in each direction due to
road construction. Velasco saw a small pickup truck coming in
the opposite direction toward him. The pickup swerved into
Velasco’s lane and then swerved back out. Velasco estimated
that the closing speed of both drivers as they approached each
other from opposite directions was 90 to 100 mph. Velasco
identified the driver as Gibson. Gibson denied this allegation.
Contrary to Respondent’s assertion in its brief, Gibson denied
he had or drove a small pickup truck. The only pickup truck
Gibson admitted he owned was a 1973 full size 3/4 ton red
Chevrolet. Gibson stated the truck was not insured and was not
driven. The only evidence Braun had concerning this incident
was Velasco’s declaration which stated:

13. Sometime in November, 2008, I was driving northbound
in the Bellingham area through a construction zone, a small,
pick-up truck suddenly pulled in front of me. I noticed it was
Jeff Gibson in front of me. He smirked at me and then moved
back into the lane to my right. I believe he was trying to get
me to brake suddenly and lose control of my truck.26

Apparently, Velasco did not consider this incident serious
enough to file a report to the police or to Respondent.
In view of Gibson’s denial that he owned or drove a small
pickup truck and the difficulty Velasco would have identifying
anyone coming head on at 100 mph, I do not credit Velasco’s

25 Tr. at 1411, LL. 4–7.
26 R. Exh. 36, at 18.
testimony that it was Gibson who swerved into Velasco’s lane.
Moreover, Velasco’s declaration does not state that Gibson
swerved into Velasco’s lane of traffic as Respondent contends.
Rather it appears Gibson was passing not coming head on at
Velasco. If Gibson was coming head on he would have pulled
back into the lane to Velasco’s left to avoid hitting Velasco.
Braun said that he considered this incident serious enough
alone to warrant Gibson’s termination.
e. Videos
During the course of the strike Gibson videoed various inci-
dents that he considered to be safety violations by Respondent’s
drivers as well as security guards videoing strikers. Eight of
these videos were posted on YouTube.com. Braun gave this
little weight in his decision to terminate Gibson.
f. Shane Brantner—driving on Guide Meridian Road
Toward the end of the strike, on about November 26, 2008,
Gibson was driving on Guide Meridian Road in Bellingham,
Washington, when he saw one of Respondent’s trucks ahead of
him which was driven by Respondent’s replacement driver
Shane Brantner (Brantner). According to Brantner’s testimony,
he slowed to let the car pass because the car was only one to 2
feet behind his truck for a few seconds. The car passed Brant-
ner and as it did the driver gave Brantner the finger. The car
then pulled in front of Brantner and the driver continued to give
Brantner the finger while repeatedly putting on its brakes while
not coming to a full stop. Brantner was forced to apply his
brakes in response to the car in front of him but was able to
control his truck despite Gibson’s driving. The evidence Braun
used to decide Gibson’s fate consisted of Brantner’s declaration
which did not indicate Gibson was tailgating nor that Gibson
pulled six to seven feet back in front of Brantner, as Brantner
testified. When the car and Brantner’s truck reached the next
stop light, Gibson got out of his car jumped on Brantner’s run-
ning board and asked Brantner if he was the guy who wanted to
beat him up. Brantner said no and Gibson said that the drivers
at Oak Harbor had to watch out for him. Brantner reported this
incident to Respondent and later gave a declaration. Braun
only considered the erratic driving incident to be serious. Gib-
son denied tailgating Brantner or driving in an erratic fashion
but admitted asking if Brantner was the person who threatened
him and told Brantner to tell the drivers to watch what they say
because word gets around. I found Gibson to have a hostile
attitude during the course of his testimony. His recollection
was lacking in specifics and there was inconsistency in his
testimony concerning prior discipline. On the other hand
Brantner at the time of his testimony had not been working for
Respondent for at least a year and thus had no motivation to
distort his testimony. Brantner’s testimony was given without
hostility and was detailed and consistent. I will credit Brantner
over Gibson.
g. Donald Timm—NAPA delivery
Near the end of the strike in a NAPA auto parts parking lot,
Respondent’s replacement driver Donald Timm (Timm) was
parked in one of Respondent’s trucks. Gibson saw Respond-
ent’s truck and parked his car next to the truck. According to
Timm, Gibson said, “How would you like it if somebody came
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

338
to your house and fucked your wife.” Timm replied he would
not like that. Gibson told Timm that was what he was doing by
taking strikers’ jobs. About 10 days later at Respondent’s Mt.
Vernon terminal Gibson repeatedly said to Timm, “Hey,
where’s your wife because I’m going to come over [sic] fuck
her like you’re fucking me.” Timm reported this incident to
Respondent and gave a declaration. According to Gibson he
asked Timm if he would like it if someone was doing his wife
while he was at work. I found Timm to be a credible witness
whose recollection was detailed and consistent. I found Gibson
to be an angry witness with less than a good memory. I will
credit Timm’s testimony.
There is no evidence that anyone tried to follow Timm or
any other employee to their houses or attempted to locate
Timm’s or any other employees’ house. Braun said he consid-
ered this a serious incident warranting termination.
h. Jim McDonald incident leaving the Mt. Vernon terminal
Jim McDonald (McDonald), Respondent’s driver, said that
during the strike he was leaving the Mt. Vernon terminal in
Respondent’s tractor-trailer when he observed Gibson standing
about 6 to 8 feet from the trailer. When McDonald started to
turn left to enter the road, he lost sight of Gibson, causing him
to slam on his brakes because he could not tell where Gibson
was. When he left the truck cab, McDonald saw Gibson stand-
ing a foot away from his rear tires. There is no evidence that
Gibson lunged at McDonald’s truck. All McDonald was able
to say is that he lost sight of Gibson while he was making a left
turn, that he stopped his truck and that when McDonald got
down from his cab, he observed Gibson a few feet away from
the left end of the trailer.
Braun said this was a serious incident that alone warranted
suspension and when considered with the other strike miscon-
duct warranted Gibson’s termination. Gibson denied jumping
in front of or touching Respondent’s trucks when entering or
leaving Respondent’s facilities.
i. Threats of union lawsuits
Gibson admitted twice telling crossover employees that the
Union would sue them and recover the money they were mak-
ing during the strike. While Braun considered this a serious
incident, it alone was not enough to warrant Gibson’s termina-
tion.
j. Remarks to security guards
During the strike, at the Mt. Vernon terminal while he was
picketing, Gibson admitted making crude remarks to Respond-
ent’s security guards. Braun said that these incidents were
given no weight in his decision to terminate Gibson.
In making his decision considering Gibson’s discipline,
Braun considered the totality of the alleged strike misconduct
as set forth in Respondent’s Exhibit 36, which included a sum-
mary of Gibson’s interview into the strike misconduct allega-
tions.
k. The postdischarge conduct of Gibson
Lavance Ross, an African-American, was hired by Respond-
ent in September 2008 as a strike replacement. After Gibson’s
termination in March 2009, in October 2009, Ross was making
a delivery at Respondent’s customer, Wallace Farm. While at
the Wallace Farm loading dock, Gibson from about 30 feet
away said to Ross, “Hey, scab master funk.” After some addi-
tional conversation and after Gibson had gotten closer to Ross,
Gibson said “You scabs caused me to lose my job and I lost
everything. I worked for Oak Harbor for 16 years and I was
going to retire in 8 years.” Gibson appeared angry and had his
finger about 6–8 inches from Ross’s face. Ross is a large man,
significantly bigger than Gibson.
Braun recalled two incidents where Respondent had disci-
plined employees in the past 3 years for racial comments. In
one case a Caucasian mechanic called an African American
driver “nigger” twice in one week. The employee was sus-
pended for 1 week. On another occasion a Caucasian employ-
ee referred to an African American employee as “boy.” The
offending employee was suspended for 1 week. Braun, who is
Caucasian, believes the term “scab master funk” was a pejora-
tive term that violated Respondent’s antidiscrimination policy
because the term refers to odors emanating from African Amer-
icans.
B. The Analysis
1. The Trust Fund payments
Complaint paragraph 10(c) alleges that Respondent and the
Locals entered into an agreement on or about October 9, 2008,
in which Respondent promised to:

(ii) Provide coverage under its medical plan to its eligible
crossover employees represented by the Locals, for claims
made after October 31, 2008.

The complaint describes the terms agreed to in paragraph
10(c) as “Temporary Benefit Changes.”
Complaint paragraph 13(a) alleges that on or about February
26, 2009, after the Locals’ unconditional offer for the strikers
and/or sympathy strikers to return to work, Respondent failed
to apply the terms of the expired CBA as it related to the Em-
ployee Benefit Trust Funds and the Pension Trust, and, instead,
applied the Temporary Benefits Changes to the single unit
and/or units of employees, including returning strikers and/or
sympathy strikers.
Counsel for the General Counsel contends that Respondent
was obligated under the terms of the expired 2003–2007 CBA
to continue making trust fund payments on behalf of its em-
ployees and its failure to make contributions to the various
trusts and its unilateral implementation of its own health care
plan and its escrow of funds to the various trusts violated Sec-
tion 8(a)(5) of the Act. As a remedy counsel for the General
Counsel seeks an order requiring Respondent to pay all trust
fund payments due the various trusts since February 12, 2009,
and reimbursement for medical bills not covered by Respond-
ent’s medical plan.
We start with the proposition that after a collective-
bargaining agreement expires, an employer must maintain the
status quo on all mandatory subjects of bargaining until the
parties either agree on a new contract or reach a good-faith
impasse in negotiations. Triple A Fire Protection, Inc., 315
NLRB 409, 414 (1994); Kingsbridge Heights Rehabilitation &
Care Center, 353 NLRB 631 (2008). This status quo obliga-
OAK HARBOR FREIGHT LINES

339
tion includes making contributions to fringe benefit funds
“specified in the expired collective bargaining agreement.” N.
D. Peters & Co., 321 NLRB 927, 928 (1996). An employer
may not implement its own terms and conditions of employ-
ment absent impasse or waiver by the Union. In case of im-
passe, the employer must implement the exact terms of its final
offer. In case of waiver by the union, it must be clear and une-
quivocal. Tampa Sheet Metal Comp., 288 NLRB 322, 326
(1988). Carpenter Sprinkler Corp., 238 NLRB 974 (1978).
Provena St. Joseph Medical Ctr., 350 NLRB 808, 811 (2007).
Whether a bargaining impasse exists is a matter of judgment
which relies on factors like bargaining history, the good faith of
the parties, the length of the negotiations, the importance of the
issue(s) as to which there is disagreement, and the contempora-
neous understanding of the parties as to the state of negotia-
tions. Taft Broadcasting Co., 163 NLRB 475 (1969).
During overall negotiations for a new CBA, an employer
may not justify the unilateral implementation of a proposal on a
particular subject, on the ground that it gave the union notice
and an opportunity to bargain. Bottom Line Enterprises, 302
NLRB 373, 374 (1991).
2. The parties did not reach impasse on February 17, 2009
In this case there was no impasse in overall negotiations for a
collective-bargaining agreement. The parties began bargaining
for a new collective-bargaining agreement in 2007. Bargaining
continued up to the strike in September 2008, throughout the
strike, and after the strike ended.
On about September 22, 2008, Respondent provided its best,
last, and final offer to which the Union responded with its
counterproposals on October 9, 2008. During the October 9,
2008 meeting Payne asked Hobart what it would take to end the
strike and Hobart reviewed the terms of the Union’s counter-
proposal noting particularly the importance of maintaining
health and welfare and pension benefits. Later, Payne indicated
Respondent was withdrawing its 5-year duration of contract
proposal and noted that Respondent would review the Union’s
latest proposal.
The next bargaining session took place on November 7,
2008, after the parties exchanged correspondence discussing
bargaining issues. At this meeting the Union made a presenta-
tion on a different health and welfare plan the Union considered
a compromise between its proposal for health and welfare and
Respondent’s proposal for its own medical plan.
On February 12, 2009, the Union made an unconditional of-
fer to return to work. On February 17, 2009, the parties met to
discuss the terms of striking employees’ return to work. At the
meeting Payne presented the Union with a letter that stated all
striking employees would be returned to work on February 18,
2009, that some employees would be suspended pending inves-
tigation of strike misconduct, and that some employees would
be laid off due to lack of work. During this meeting, Payne
gave the Union another letter which stated that Respondent
would place returning strikers under its own health care plan
and place contributions to the various trust funds into an escrow
account. Hobart expressed his disagreement with Payne’s un-
derstanding of the status quo as to wages and benefits for re-
turning strikers as expressed in Paynes’ letter.
Between February 19 and 25, 2009, phone conversations
took place between Payne and Union attorney David Ballew
(Ballew) concerning Respondent’s position on the status quo as
to wages and benefits for returning strikers. During the course
of these conversations Payne offered a middle ground as an
alternative to his February 17 status quo letter that Respondent
would agree to the Union’s Pension Trust. Ballew said the
Union could not accept this proposal.
In a February 25, 2009 conversation Payne told Ballew that
he was no longer authorized by Respondent to discuss bargain-
ing with Ballew. Payne also said that Respondent and the Un-
ion were making progress toward a collective-bargaining
agreement.
Clearly as of February 17, 2009, the date Respondent unilat-
erally implemented its health care plan and escrowed trust fund
payments, there was no impasse. Even though Respondent had
submitted what it termed its last, best, and final offer on Sep-
tember 22, 2008, on and after February 17, 2009, the parties
were still exchanging proposals and there was movement on
various terms and conditions of employment. Payne admitted
on February 25, 2009, that the parties were still making pro-
gress toward a contract.
Thus, I find that as of February 17, 2009 no impasse existed
between the parties.
3. Waiver
While otherwise unlawful unilateral acts may be justified in
certain circumstances, including waiver or acquiescence by the
Union, such waiver of bargaining rights by a union is not to be
lightly inferred and must be clearly and unequivocally con-
veyed. Provena St. Joseph Medical Ctr., 350 NLRB 808, 811
(2007).
At no time, during collective bargaining for a new contract,
did the Union agree that terms and conditions of work for re-
turning strikers included Respondent’s health plan and an es-
crow of trust fund payments. It is clear that the Union agreed
only to such terms and conditions of employment for crossover
employees during the term of the strike. From the terms of
Payne’s October 3, 2008 proposal it is clear that Respondent’s
health plan and escrowed funds applied only to crossover em-
ployees during the pendency of the strike. This was not intend-
ed as an overall provision of the new collective-bargaining
agreement. Such an interim agreement cannot be considered a
waiver of the Union’s right to bargain over health and welfare
and trust payments for an overall CBA.
However, Respondent argues that the Union has waived its
right to receive trust fund contributions as a result of the con-
tract language contained in the SA and EU agreements. Re-
spondent contends that the SA and EU agreements give it the
unilateral right to discontinue benefit payments upon expiration
of the CBA upon 5 days written notice to the Union and the
Trust. The relevant EU and SA agreement contain the follow-
ing language:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

340
COLLECTIVE BARGAINING AGREEMENT

. . . . Upon expiration of the current or any subsequent bar-
gaining agreement requiring contributions, the employer
agrees to continue to contribute to the trust in the same man-
ner and amount as required in the most recent expired bar-
gaining agreement until such time as the undersigned either
notifies the other party in writing (with a copy to the trust
fund) of its intent to cancel such obligation five days after re-
ceipt of notice or enter into a successor bargaining agreement
(emphasis added) which conforms to the trust policy on ac-
ceptance of employer contributions, whichever occurs first. . .
.

The Board has found a waiver of the union’s right to receive
trust contributions from the contractual language in a pension
agreement in Cauthorne Trucking, 256 NLRB 721 (1981). The
parties’ pension agreement provided:

IT IS UNDERSTOOD AND AGREED that at the expiration
of any particular collective bargaining agreement by and be-
tween the Union and any Company’s obligation under this
Pension Trust Agreement shall terminate, unless, in a new
collective bargaining agreement, such obligation shall be con-
tinued. [Id. at 722.]

The Board held that this provision constituted a waiver. The
Board concluded that this language, explicitly stating that all
company obligations under the pension agreement shall “termi-
nate” upon expiration of the contract, expressed a clear intent to
relieve the employer of any obligation to make payments after
contract expiration. The Board premised its finding of a waiver
on the fact that the contract language explicitly addressed the
obligation to provide the benefits and the statement in the con-
tract that the obligation would terminate.
Subsequent cases distinguishing Cauthorne confirm that the
Board will only find a clear and unmistakable waiver of the
obligation to continue providing trust payments where there is
explicit contract language authorizing an employer to terminate
its obligations.
In Allied Signal Aerospace, 330 NLRB 1216, 1228 (2000),
the Board and administrative law judge found the following
contract language failed to clearly and unequivocally waive the
union’s right to receive trust payments:

This Effects Bargaining Agreement shall be effective as of
May 30, 1994, and shall remain in effect until midnight on
June 6, 1997, but not thereafter unless renewed or extended in
writing by the parties. It is understood that expiration of this
Agreement shall not foreclose the post-expiration payment to
employees of bonuses or other benefits which accrued to them
because of layoff during the term of this Agreement, or the
post-expiration presentation in a timely fashion of claims re-
garding matters arising out of the application of its terms prior
to the expiration date.

The administrative law judge concluded that this language dealt
solely with the question of whether the effects bargaining
agreement remained in effect as a contract after June 6, 1997
and made no provision about the termination of any duties or
obligations on the part of Respondent to continue providing
fringe benefits.
In Natico, Inc., 302 NLRB 668, 685 (1991), the respondent
argued that the following language relieved it of its obligation
to make pension contributions:

[Section] 5.16 It is agreed that the pension program effective
April 1, 1976 will remain in effect for the term of this agree-
ment with the following changes.
Effective 12/16/83 Add 5/Hr. = 20 cent Total
Effective 12/16/84 Add 5/Hr. = 25 cent Total

The administrative law judge concluded that in section 5.16,
the parties agreed not to disturb the pension program effective
1976 except for two 5-cent-per-hour increases. However, the
contractual language did not provide that the pension program
would terminate on the expiration of the contract. The adminis-
trative law judge, with Board approval, found that language to
that effect is required either in the collective-bargaining agree-
ment or in the underlying pension agreement to satisfy a waiver
condition.
In Schmidt-Tiago Construction Co., 286 NLRB 342 (1987),
the Respondent argued that the Union had waived its right to
bargain regarding the Respondent’s cessation of payments into
the pension trust fund, after expiration of the current collective-
bargaining agreement by the following language of the pension
certification and declaration of trust:

[Respondent] and [Union] hereby certify that a written labor
agreement is in effect between the parties providing for con-
tributions to the Western Conference of Teamsters Pension
Trust Fund [Trust Fund] and that such agreement conforms to
the trustee policy on acceptance on Employer contributions
and is not otherwise detrimental to the plan, and further pro-
vides that, the [Union] and [Respondent] agree to be bound by
the Western Conference of Teamsters Agreement and Decla-
ration of Trust and Pension Plan as now constituted or as
hereinafter amended.

The pension certification and the declaration of trust each con-
tained the following provision:

It is the policy of the Trustees of the Western Conference of
Teamsters Pension Trust Fund to accept as Employer Contri-
butions only payment made in accordance with a Pension
Agreement that is not detrimental to the Plan. The determina-
tion of whether or not a Pension Agreement is detrimental to
the Plan shall be made by the Trustees in their sole discretion.
However, the list of provisions that follows is furnished as an
illustration of those whose inclusion in a Pension Agreement
may result in a determination by the Trustees that the Pension
Agreement is detrimental to the Plan.

Section 9, article I of the trust declaration, entitled “Defini-
tions,” defines “Employer Contributions” as follows:

The term Employer Contributions as used herein shall mean
payments to the Trust Fund by an employer in accordance
with a Pension Agreement. Any contribution to the Trust
Fund which are discovered not to have been made pursuant to
a valid pension agreement, or which are subsequently discov-
ered to be unacceptable for any other reason, shall be with-
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341
drawn from the Trust Fund and credited to a Segregated Ac-
count pending the determination of the person or persons enti-
tled thereto.

Section 10, article I of the trust declaration, entitled “Defini-
tions,” defines “Pension Agreement,” as follows:

The term Pension Agreement as used herein shall mean a
written agreement between any Union and any Employer
which, among other thing[s], requires payments to the Trust
Fund on behalf of employees of such Employer who are rep-
resented by such Union. Such agreement may not provide for
payments to the Trust Fund with respect to employees not so
represented. The term Pension Agreement shall include any
extension, renewal or replacement thereof. A Pension
Agreement shall be considered as being in effect on any date
if it provides for Employer Contributions to be made to the
Trust Fund with respect to employment on such date.

The administrative law judge, as affirmed by the Board,
found that there was an inadequate basis for implying the exist-
ence of a waiver in the above-described language of the pen-
sion certification and declaration of trust. The judge found that
this language does not on its face, as in Cauthorne Trucking,
specifically state that Respondent’s obligation to contribute to
the pension trust fund ends with the expiration of the current
collective-bargaining contract.
In another case involving waiver of trust payments, KBMS,
Inc., 278 NLRB 826 (1986), the Respondent contended that
article III, section 2 of the agreement and declaration of trust
prohibited contributions after the expiration of the bargaining
agreement. This section provides:

ARTICLE III. Contributions to the Funds

SECTION 2. Effective Date of Contributions.

All contributions shall be made effective as of the date speci-
fied in the collective bargaining agreements between AFTRA
and the Producers, and said contributions shall continue to be
paid as long as a Producer is so obligated pursuant to said
collective bargaining agreements. [Emphasis added.]

The administrative law judge found that the declaration of
trust language did not constitute a clear and unmistakable waiv-
er since that section did not purport to deal with the termination
of the employer’s obligation to contribute to the funds particu-
larly in view of Section 1 of that same article which provided
“Nothing in this Trust Agreement shall be deemed to change,
alter or amend any of said collective bargaining agreements.”
Finally, in American Distributing Co., 264 NLRB 1413,
1415 (1982), the administrative law judge concluded that the
pension certification did not constitute a waiver.
Pertinent language from the pension certification provides:

The undersigned employer and Union hereby certify that a
written pension agreement (in most cases a Teamsters collec-
tive bargaining agreement) is in effect between the parties
providing for contributions to the Western Conference of
Teamsters pension trust fund and that such pension agreement
conforms to the trustee policy on acceptance of employer con-
tributions (as reproduced on the reverse of this form) and is
not otherwise detrimental to the plan. A complete copy of the
pension agreement (labor contract) is attached or, if not yet
available, will be furnished to the area administrative office as
soon as available. The undersigned further certify that the fol-
lowing information is true and correct and accurately reflects
the provisions of the pension agreement. . . .

The judge held that this language did not make reference to a
contract termination date and was not a clear or unequivocal
waiver of Respondent’s obligation to make trust fund pay-
ments.
It appears that the pertinent language in the EU and SA
agreements herein, “. . . the employer agrees to continue to
contribute to the trust in the same manner and amount as re-
quired in the most recent expired bargaining agreement until
such time as the undersigned either notifies the other party in
writing (with a copy to the trust fund) of its intent to cancel
such obligation five days after receipt of notice. . . .” is similar
to the pension agreement language in Cauthorne Trucking,

IT IS UNDERSTOOD AND AGREED that at the expiration
of any particular collective bargaining agreement by and be-
tween the Union and any Company’s obligation under this
Pension Trust Agreement shall terminate, unless, in a new
collective bargaining agreement, such obligation shall be con-
tinued.

Like the pension agreement in Cauthorne Trucking, the EU
and SA agreements in this case explicitly state that Respond-
ent’s obligations under the trust agreements pursuant to the
expired bargaining agreement will continue until one party
notifies the other of its intent to cancel such obligation. This
contract language expresses a clear intent to relieve Respondent
of its obligation to make payments after contract expiration and
notice to cancel trust payments. The language of the EU and
SA agreements is explicit in stating when Respondent’s trust
payment obligation ceases unlike the language in Allied Signal
Aerospace, Natico, Inc., Schmidt-Tiago Construction Co.,
KBMS, Inc., or American Distributing Co., supra. I find that
the EU and SA language operate as a waiver of the union’s
right to receive trust contributions. Respondent exercised the
right to cease making trust contributions by its notices of Sep-
tember 23–26, 2008.
4. The unilateral implementation of Respondent’s
health care plan
However, the question remains, given the Union’s waiver of
the right to receive trust contributions at the expiration of the
most recent CBA, whether this waiver permitted Respondent to
unilaterally apply its health care plan to returning strikers.
The waiver in the SA and EU agreements is limited to per-
mitting Respondent to terminate its trust payments. Nothing in
the SA or EU language explicitly permits Respondent to unilat-
erally implement its own health care plans. As noted above, an
employer must maintain the status quo on all mandatory sub-
jects of bargaining until the parties either agree on a new con-
tract or reach a good-faith impasse in negotiations. Triple A
Fire Protection, Inc.; Kingsbridge Heights Rehabilitation &
Care Center, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

342
Respondent appears to contend that it reached impasse on the
trust fund contributions and health care benefits during the
strike or during the Payne-Ballew negotiations at the end of the
strike and that it accordingly made no unilateral changes. Thus
when the strike ended, the employer was legally permitted to
place the strikers in its company plans. Respondent’s argument
is misplaced since the agreement between Respondent and the
Union for benefit contributions for crossovers was only a tem-
porary agreement for the duration of the strike and did not ap-
ply to modify the extant CBA. Moreover, even assuming ar-
guendo that there was an impasse in discussions between Payne
and Ballew concerning the definition of the status quo for bene-
fits for returning strikers, any impasse reached on a single issue
such as benefits payments for returning strikers does not justify
implementation of Respondent’s proposal in the absence of
overall impasse in negotiations for an overall CBA. Bottom
Line Enterprises, supra. Respondent’s cites St. Gobain Abra-
sives, 343 NLRB 542 (2004); Nabors Alaska Drilling, Inc., 341
NLRB 610 (2004); and Brannon Sand & Gravel Co., 314
NLRB 282 (1994), for the proposition that an employer may
implement individual proposed changes before an impasse was
reached in bargaining for a collective-bargaining agreement as
a whole. These cases are distinguishable. Each case cited by
Respondent involved an employer who had a preexisting annu-
al process of reviewing and adjusting its benefits programs.
Accordingly, the employers were not obligated to refrain from
implementing their proposed changes regarding benefits until
an impasse was reached in bargaining for a collective-
bargaining agreement as a whole. Here implementation of
Respondent’s health care plan for all bargaining unit employees
was introduced for the first time after the strike. The interim
agreement reached during the strike for health care coverage
clearly applied only to crossover employees for the duration of
the strike. Respondent had no preexisting program of adjusting
the benefits programs of its employees. Health care benefits
were paid to Respondent’s employees through the Trusts as a
result of Respondent’s contributions established in the parties’
CBA. Likewise Dixon Distributing Co., 211 NLRB 241, 244
(1974), is not apposite as the alleged unilateral changes did not
occur in the context of bargaining for an overall collective-
bargaining agreement.
Having found the parties were not at impasse as of February
17, 2009, by unilaterally implementing its own health care plan
on that date, Respondent has violated Section 8(a)(5) and (1) of
the Act.
5. The Jeff Gibson termination
Complaint paragraph 11(c) alleges that on or about February
26, 2009, Respondent suspended and, since that time, has failed
and refused to reinstate striking and/or sympathy striking em-
ployee Jeff Gibson, employed within the jurisdiction of Local
231, to his former or substantially equivalent position of em-
ployment.
The General Counsel contends that even if Gibson’s accusers
testimony is credited, his conduct is not serious misconduct that
would disqualify him as a striker from reinstatement, or permit
his discharge, under the test set forth by the Board in Clear
Pine Mouldings, 268 NLRB 1044, 1046 (1984), enfd. 765 F.2d
148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986).
In Clear Pine Mouldings, the Board held:

Section 7 of the Act gives employees the right to peacefully
strike, picket, and engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion. Section 7 also grants employees the equivalent right to
“refrain from” these activities. [Id. at 1045.]

The Board also noted that certain conduct engaged in strikers
during the course of a strike may deprive an employee of the
protection of the Act if they engage in:

[S]erious acts of misconduct which occur in the course of a
strike may disqualify a striker from the protection of the Act.
[Id. at 1045.]

Respondent argues that under the Universal Truss, Inc., 348
NLRB 733, 735–736 (2006), test it properly discharged Gibson
because it had an honest belief that Gibson engaged in serious
misconduct that would reasonably tend to coerce or intimidate
employees. Respondent also contends that Gibson’s poststrike
conduct involving Lavance Ross warrants Respondent not rein-
stating Gibson because his conduct violates Respondent’s anti-
discrimination policy.
In Universal Truss, the Board set forth a test to determine if
an employer lawfully discharged an employee for strike mis-
conduct. The employer must first prove that it had an honest
belief that the discharged employee engaged in strike miscon-
duct of a serious nature. The Board then defined serious strike
misconduct as:

[T]hat which under the circumstances existing . . . may rea-
sonably tend to coerce or intimidate employees in the exercise
of rights protected under the Act. [Id. at 734.]

The Respondent’s honest belief may be based on hearsay
sources, such as the reports of nonstriking employees, supervi-
sors, and security guards.
When the Respondent has proven that it has an honest belief
that the striker engaged in serious strike misconduct, the burden
shifts to the General Counsel to show either that the striker did
not, in fact, engage in the alleged misconduct or that the con-
duct was not serious enough for the employee to forfeit the
protection of the Act. Id. at 735.
In determining whether specific misconduct is serious
enough to warrant discharge, it is appropriate to consider all of
the circumstances in which the alleged misconduct occurs,
including, other instances of vandalism, threats, and violence
occurring during the course of the strike. Id. at 735.
The Board stated that where violence, property damage, and
other egregious misconduct directed at nonstriking employees
have occurred earlier in a strike, threats to inflict similar harm
in the future are likely to have a greater coercive impact. Id. at
735.
In Hotel Roanoke, 293 NLRB 182, 207 (1989), the Board,
citing the Supreme Court decision in Milk Wagon Drivers Un-
ion v. Meadowmoor Dairies, 312 U.S. 287, 293 (1941), noted
that during strikes, employees sometimes engage in “moments
of animal exuberance.” Thus, name calling, minor threats,
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343
mass picketing, and the like are generally not deemed sufficient
to deny employees their statutory protection. However, when
the striker has stepped over the line and engaged in serious
threats of physical violence, actual physical violence or proper-
ty damage, such has a coercive effect on the rights of other
employees. Id.
In Service Employees Local 87 (Pacific Telephone), 279
NLRB 168, 178 (1986), the Board adopted an administrative
law judge’s finding that strikers’ remarks such as “we know
where you live,” “we’re going to get you,” “I’m waiting for
you,” ‘We’re going to kill the scabs,” “Kill the scabs,” “getting
even,” “we’ll fix you,” and “I’ll whip your ass,” reflected “an-
imal exuberance,” rather than threats meant to be taken serious-
ly. However, where one such statement was made by a large
man, capable of carrying out the threat, the Board found the
threat to be violation of Section 8(b)(1)(A) of the Act.
Let us now turn to the specific instances of conduct Re-
spondent relied upon to form its honest belief that Gibson en-
gaged in serious strike misconduct. Initially it should be noted
that there is no evidence that Gibson engaged in actual physical
violence or property damage. Moreover, Braun admitted that
he did not consider the statements to Apodaca, Miller, and the
security guards, the videos and threat of lawsuits, standing
alone, serious misconduct warranting discipline. Respondent
conceded in its brief that Gibson’s conduct with Velasco and
the customer was not serious misconduct. That leaves the two
incidents of alleged dangerous driving involving Brantner and
Velasco, the statements to Timm involving his wife and the
incident involving getting too close to McDonald’s truck.
a. Dangerous driving incidents
(1) The Velasco incident
As noted above, I have not credited the testimony of Velasco
that Gibson dangerously swerved head on into Velasco’s lane
and only at the last minute swerved back into his own lane.
The only evidence Braun had of this alleged incident of serious
misconduct was Velasco’s declaration that is ambiguous at best
and suggests that Gibson passed Velasco then “moved back
into the lane to my right.” This describes the act of passing not
coming head on at Velaco. If Gibson was coming head on he
would have pulled back into the lane to Velasco’s left to avoid
hitting Velasco.
This evidence Braun relied upon in firing Gibson is insuffi-
cient in itself to support a good faith belief that Gibson was
engaged in serious strike misconduct because the only evidence
Braun acted on suggests Gibson passed Velasco rather than
trying to cause an accident.
(2) The Brantner incident
In Altorfer Machinery Co., 332 NLRB 130, 143 (2000), the
Board agreed with the administrative law judge that a striker
had not engaged in tailgating misconduct, because the testimo-
ny was limited to general assertions that “the green truck stayed
behind me most of the time” but without specific testimony
labeling the conduct as tailgating. In Otsego Ski Club–Hidden
Valley, 217 NLRB 408 (1975), the Board affirmed the adminis-
trative law judge who found that strikers who harassed and
tailgated a supervisor employee on between 2 and 5 consecu-
tive days did not engage in serious misconduct where the driv-
ing may have been annoying but did place passengers in dan-
ger.
Respondent cites both Universal Truss, Inc., 348 NLRB 733,
735–736 (2006), and Aztec Bus Lines, 289 NLRB 1021, 1029,
1073 (1988), for the proposition that Gibson’s driving in the
Brantner incident was serious strike misconduct justifying his
discharge. In both Universal Truss and Aztec there was perva-
sive evidence of egregious conduct by strikers including wide-
spread property damage, severe assaults on nonstrikers, manag-
ers and security guards, and following of nonstrikers home.
These incidents were accompanied by threats to other nonstrik-
ers and managers, including threats to rape or kill female em-
ployees and the wives of male workers, threats to beat nonstrik-
ers and following nonstrikers home.
The incident involving Brantner was isolated and at best
suggests Gibson may have tailgated Brantner’s truck for a few
seconds. Gibson passed Brantner and repeatedly put on his
brakes causing Brantner to put on his brakes. There is no evi-
dence that Brantner was unable to control his vehicle or was in
danger of hitting Gibson. The incident here is distinguishable
from the facts in Universal Truss or Aztec. Unlike Universal
Truss or Aztec, there was no car chase at high speeds that en-
dangered the drivers or passengers of the vehicles. Like the
facts in Altorfer, Gibson’s driving may have been annoying but
did not rise to a level where life or property was in danger.
Respondent did not have evidence sufficient to form a good
faith belief that this incident involved serious misconduct.
b. Standing near the truck
Further, in Limestone Apparel Corp., 255 NLRB 722, 739
(1981), the Board affirmed an administrative law judge’s find-
ing that employees who ran alongside a company truck going
into the employer’s plant, and then stood in front of it did not
engage in strike misconduct outside the protection of the Act.
The judge found that the strikers’ activity in lying down in front
of a truck was certainly an unintelligent action, and was a form
of misconduct. However, the judge found that there was no
actual or implied threat of harm to the truckdriver or to the
truck. The judge concluded that this conduct was not of such a
serious nature as to disqualify them from their right of
reemployment.
In this case there is no evidence that Gibson lunged at the
truck or even put himself in a position where he could be
harmed. The only evidence Braun had before him was that
McDonald lost sight of where Gibson was located and that after
McDonald got down from the truck cab, Gibson was near the
rear of the truck. There is simply no evidence that Gibson at-
tempted to harm the truck, McDonald, or himself. I find that
this evidence does not support a good-faith belief that Gibson
engaged in serious misconduct sufficient to disqualify him from
the right of reemployment.
c. The Timm incident
In Universal Truss, the Board found that threats to “fuck
[somebody’s] mother” conveyed a reasonable discernible threat
of rape and sexual violence. Universal Truss, 348 NLRB at
739–740. In addition the Board concluded that striker’s threats
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

344
to rape a nonstriker’s wife and threats to rape or kill an em-
ployee’s daughter were serious strike misconduct that justified
failure to reinstate and termination. However, it must be noted
that in Universal Truss, the Board found these threats to rape
were credible and serious because they occurred in the context
of pervasive violence, including the severe beating of a non-
striker, multiple incidents of property damage, multiple threats
of bodily harm to nonstrikers and following nonstrikers by
striking employees.
In the instant case no evidence of pervasive property damage
was shown. No evidence of assaults to nonstrikers by striking
employees was established. No evidence was presented sug-
gesting strikers followed nonstriking employees home.
According to Timm, Gibson said, “How would you like it if
somebody came to your house and fucked your wife.” Gibson
told Timm that was what he was doing by taking strikers’ jobs.
Gibson later told Timm, “Hey, where’s your wife because I’m
going to come over [sic] fuck her like you’re fucking me.” I do
not find that these were credible threats by Gibson. They oc-
curred in the context of Gibson comparing what strike replace-
ments were doing to him and were hyperbole in very bad taste.
However, absent evidence that strikers or Gibson in particular
engaged in violence toward nonstrikers or nonstrikers family
members, I do not find that Gibson’s conduct was serious strike
misconduct justifying his termination.
d. The other incidents
Braun found that the Miller threat, the threat of lawsuits and
the statements to Apodaca were not alone enough to warrant
Gibson’s termination. I find that even in the aggregate these
incidents are insufficient to justify Gibson’s termination.
I find that Gibson’s name calling comments to Apodaca were
what the Board and Supreme Court termed “moments of animal
exuberance” that would not support termination for strike mis-
conduct. Milk Wagon Drivers Union v. Meadowmoor Dairies,
312 U.S. 287, 293 (1941); Hotel Roanoke, 293 NLRB 182, 207
(1989). Moreover, the statement to Miller that if he crossed the
picket line he would not live to see retirement, was not a credi-
ble threat given their past friendship and the absence of vio-
lence directed by strikers to nonstrikers. This threat would not
support termination for strike misconduct. Finally, Gibson’s
threats that the Union would sue nonstrikers and recover the
money they were making during the strike is yet another exam-
ple of “animal exuberance” that does not support Gibson’s
termination.
e. The post termination incident with Ross
It was Braun’s subjective opinion that the term “scab master
funk” had some pejorative racial connotation. Ross also opined
that the term was related to his race. However, these subjective
opinions were unsupported with any objective evidence as to
the meaning of the term. The dictionary definition of the noun
“funk” is defined in the Encarta Dictionary as (noun) 1. musical
style; 2. earthy musical quality; 3. lack of worldliness; 4. mel-
ancholy; 5. bad smell. There is no reference to any racial con-
notation. Other than Braun and Ross’s subjective belief, the
term does not appear to be a racial epithet.
Moreover, Respondent’s 1-week suspension of other Cauca-
sian employees who called African American employees “nig-
ger” and “boy” suggests Respondent’s disparate treatment of
Gibson is a belated attempt to concoct a defense to justify its
action terminating Gibson because of his protected activity.
I conclude that Respondent was not justified in terminating
and failing to rehire Gibson and that he was terminated for his
Section 7 activity in violation of Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent, Oak Harbor Freight Lines, Inc., is an
employer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Teamsters Locals 81, 174, 231, 252, 324, 483, 589, 690,
760, 763, 839, and 962 are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(5) and (1) of the
Act subsequent to February 17, 2009, by unilaterally imple-
menting its company health care benefits to returning strikers
who are bargaining unit members of the Union and thereafter
failing and refusing to bargain in good faith with regard to such
benefits.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by refusing to reinstate Jeff Gibson to his former or sub-
stantially equivalent position of employment.
5. The unfair labor practices committed by Respondent are
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent will be ordered to offer reinstatement to Jeff
Gibson who it unlawfully denied reinstatement following the
close of the strike, and make him whole for any wages or other
rights and benefits he may have suffered as a result of the dis-
crimination against him in accordance with the formula set
forth in F. W. Woolworth Co, 90 NLRB 289 (1950), with inter-
est as provided for in New Horizons, 283 NLRB 1173 (1987),
and Kentucky River Medical Center, 356 NLRB 6 (2010).
Having unilaterally implemented its company health care
plan Respondent shall be ordered to bargain in good faith with
the Unions over such benefits and cease giving effect to its
unilaterally implemented health care plans.
[Recommended Order omitted from publication.]