Oak Harbor Freight Lines, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 5, 2011

19-CA-031797 (N.L.R.B. Jan. 5, 2011)

JD(SF)–54–10
States of WA, OR, ID,
and CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
OAK HARBOR FREIGHT LINES, INC.
and Cases 19–CA–31797
19–CA–31827
19–CA–31865
19–CA–32001
19–CA–32030
19–CA–32031
TEAMSTERS LOCALS 81, 174, 231, 252,
324, 483, 589, 690, 760, 763, 839, and 962
and Cases 19–CA–31526
19–CA–31536
19–CA–31538
TEAMSTERS LOCAL 174 19–CA–31886
Irene Hartzell Botero, Esq. and Daniel Apoloni, Esq.
and Helena A. Fiorianti, Esq. for the General Counsel.
Michael R. McCarthy, Esq. and David Ballew, Esq.
(Reid, Pedersen, McCarthy & Ballew, LLP)
of Seattle, Washington.
John M. Payne, Esq., Christopher L. Hilgenfeld, Esq.
and Selena C. Smith, Esq. (Davis Grimm Payne & Marra),
of Seattle, Washington.
Nelson Atkin, Esq. (Barran Liebman LLP),
of Portland, Oregon, for the Respondent.
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
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amended consolidated complaint (complaint), as amended1, and notice 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)(1) and (3) of
the Act by suspending and discharging striking employee Jeff Gibson from his former or
substantially 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)(1)
and (5) 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 Respondent implemented were done
for substantial legitimate business justifications and were in compliance with the
provisions of the expired collective bargaining agreement and the Act.

1 At the beginning of the hearing, GC Exh. 1(xx) replaced the fourth paragraph of complaint
paragraph 17 which sets forth the remedy for Respondent’s alleged violation of Section 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–32030 be remanded to the Regional Director to process the settlement. 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–31827 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–31865 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
paragraphs 6, 7, 14, 16, and those portions of 17 making reference to pars. 6, 7, 14, and 16.
The motion was granted.
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9. Any alleged unilateral changes made by Respondent 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 resolved 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?
FINDINGS OF FACT
Upon the entire record3 herein, including the briefs from the counsel for the General
Counsel, Charging Party, and Respondent, 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, Respondent 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, Oregon, and Washington.
Annually, Respondent in the course of its business operations 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.

2 At the end of its case in chief, Respondent moved to amend its answer 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.
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 Acting General Counsel’s Motion. The Motion to Correct Record is granted.
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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 Apodaca (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 relationship with the above
captioned Teamsters Local Unions, collectively the Unions, whose jurisdictions include
Respondent’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 bargaining with Respondent, resulting in one collective-
bargaining agreement signed by each local.
Paragraph 1.03 of the expired CBA provides for the bargaining unit of the Respondent’s
employees covered by the contract:
Scope of Agreement:
1.03 The execution of this Agreement on the part of the Employer shall cover all line
haul and pickup and delivery operations of the Employer that are covered by this
Agreement, and shall only have application to the work performed by the following
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 Union 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 specifically excluded from the
coverage of this Agreement:
(a) confidential employees, supervisory and professional employees within the meaning
of the Labor Management Relations Act of 1947, as amended;

4 GC Exh. 2.
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(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 recommending 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 bargaining agreement requiring
contributions, the employer agrees to continue to contribute to the trust in the same
manner and amount as required 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 or enter
into a successor bargaining agreement which conforms to the trust policy on acceptance
of employer contributions, whichever occurs first. . . .
ACCEPTANCE OF TRUST AGREEMENT
The undersigned further acknowledge that with each successive 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 automatically continue until such time as contributions are no longer
required to be made to the trust under a collective bargaining 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 Resources 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.

5 GC Exhs. 36–41.
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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 (appropriate 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 benefit contributions on behalf of current bargaining
unit employees 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 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 working (“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 Intent 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 contributions 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 replacements.

6 GC Exhs. 42–45(a).
7 GC Exhs. 46–49.
8 GC Exhs. 50–53.
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As a result of the Trusts’ response, on October 3, 2008 Payne wrote9 the Union advising
that Respondent proposed for crossover 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 teamsters Local 206/Employers Trust
won’t pay claims after October 31. Therefore, the Employer proposes to temporarily
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 measure
pending the outcome of bargaining and of the strike.
3. Retirees Welfare. The Washington Retirees Trust will not accept contributions for
crossovers after September 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 successor 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
crossovers 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 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.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
presentation 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
Respondent’s practice to pay its employees vacation pay in January. However, trust
contributions were not made until the vacation time was requested.13 Payne noted that at least

9 GC Exh. 54.
10 GC Exh. 55.
11 GC Exh. 56.
12 GC Exh. 57.
13 GC Exh. 60(b).
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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 contributions that on an interim basis Respondent make the trust contributions
directly to the striking employee and that pension contributions be held in escrow. In response
by letter14 dated October 29, 2008, Hobart agreed that the vacation benefits accrued in January
2008 were due to the trusts but that Pension Trust contributions could be hold in escrow.
The issue of vacation pay for strikers was again raised by Payne in his November 7,
2008 letter.15 Payne stated that Respondent 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
contributions 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 offer17 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 stated all striking employees
would be returned to work on February 18, 2009, that some employees would be suspended
pending investigation of strike misconduct, and that some employees would be laid off due to
lack of work. During this meeting 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 accept
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 upon status quo for returning
strikers, which is as follows:
*Health & Welfare: Oak Harbor will cover the returning 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 contributions 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.

14 GC Exh. 61.
15 GC Exh. 65.
16 GC Exh. 66.
17 GC Exh. 74.
18 GC Exh. 24.
19 GC Exh. 25.
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Hobart expressed his disagreement with Payne’s understanding 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 neutral.
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
welfare 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 Welfare 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 acceptable on the basis of an interim collective
bargaining agreement. The short answer is yes, provided that the agreement 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 executed
Employer-Union Pension Certification form to be submitted 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 Contributions found in the agreement and Declaration of Trust.
Finally, 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 periods of strike where the bargaining parties agree that no contributions are due. As
a result, contributions to the Trust would have to resume effective with the bargaining
unit’s return 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 conversation on February 20, 2009,
Payne contended that Respondent’s position (apparently as expressed in his February 17, 2009
letter) regarding the trusts was to maintain the status quo and Ballew contended that the status
quo was the terms of the expired 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.

20 GC Exh. 75.
21 GC Exhs. 75(c) and (d).
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In a February 25, 2009 conversation Payne told Ballew that he was no longer authorized
by Respondent to discuss bargaining with Ballew. Payne also said that Respondent and the
Union 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 sufficient together with a new SA.
Likewise Michael Sander (Sander), vice president of Northwest Administrators and the
administrative manager of the Western Conference of Teamsters Pension 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
investigation into strike misconduct. Gibson went on strike with fellow 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 picketed at customers’ sites.
When the strike ended, Gibson reported for work at Respondent’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 Gibson
by Respondent. During the investigatory interview Gibson was given an opportunity to respond
to each of the 11 allegations. 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 ultimate 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 investigate the alleged misconduct.24 That evidence is set forth
below together with Gibson’s testimony at the hearing.

22 GC Exh. 91.
23 GC Exh. 35.
24 R. Exh. 36.
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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 Respondent’s owner, Ed Vander Pol
cheating on his wife and that he then called Apocaca 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. Braun did not consider this incident alone sufficient to
terminate Gibson.
c. Joe Velasco—delivery at a customer
Joe Velasco (Velasco) was Gibson’s coworker at Respondent’s Mt. Vernon terminal.
While Velasco was making a delivery 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 declaration 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 Gibson, “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

25 Tr. at 1411, LL. 4–7.
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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
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 Velaco. 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 incidents 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 two feet behind his truck for a few seconds. The car passed Brantner 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
running 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. Gibson 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

26 R. Exh. 36, at 18.
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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
Respondent’s truck and parked his car next to the truck. According to Timm, Gibson said, “How
would you like it if somebody came 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
considered 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 six to eight 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 standing 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 misconduct 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 making during the strike. While Braun considered this a serious
incident, it alone was not enough to warrant Gibson’s termination.
j. Remarks to security guards
During the strike, at the Mt. Vernon terminal while he was picketing, Gibson admitted
making crude remarks to Respondent’s security guards. Braun said that these incidents were
given no weight in his decision to terminate Gibson.
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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
summary of Gibson’s interview into the strike misconduct allegations.
k. The postdischarge conduct of Gibson
Lavance Ross, an African-American, was hired by Respondent 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
additional 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 disciplined 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 suspended for 1 week. On another
occasion a Caucasian employee 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 pejorative term that violated Respondent’s antidiscrimination policy
because the term refers to odors emanating from African Americans.
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 Employee 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
employees 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
Section 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 Respondent’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
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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 obligation 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
employment absent impasse or waiver by the Union. In case of impasse, the employer must
implement the exact terms of its final offer. In case of waiver by the union, it must be clear and
unequivocal. 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 contemporaneous understanding of the
parties as to the state of negotiations. 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 counterproposal 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
presentation 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 offer 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
investigation 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
understanding of the status quo as to wages and benefits for returning 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
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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 bargaining with Ballew. Payne also said that Respondent and the
Union were making progress toward a collective-bargaining agreement.
Clearly as of February 17, 2009, the date Respondent unilaterally 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 September 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 progress 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 conveyed. 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 returning strikers included Respondent’s health plan and an
escrow 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 employees during the pendency of the strike. This
was not intended 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 contract language contained in the SA and EU agreements.
Respondent 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 following language:
COLLECTIVE BARGAINING AGREEMENT
. . . Upon expiration of the current or any subsequent bargaining agreement requiring
contributions, the employer agrees to continue to contribute to the trust in the same
manner and amount as required 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 or enter
into a successor bargaining agreement (emphasis added) which conforms to the trust
policy on acceptance of employer contributions, whichever occurs first. . . .
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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 between 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 continued. 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
“terminate” 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 contract 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 regarding 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 agreement 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 administrative law judge, with Board approval, found that
language to that effect is required either in the collective-bargaining agreement or in the
underlying pension agreement to satisfy a waiver condition.
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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 contributions 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 provides that, the [Union] and
[Respondent] agree to be bound by the Western Conference of Teamsters
Agreement and Declaration of Trust and Pension Plan as now constituted or as
hereinafter amended.
The pension certification and the declaration of trust each contained the following provision:
It is the policy of the Trustees of the Western Conference of Teamsters Pension
Trust Fund to accept as Employer Contributions only payment made in
accordance with a Pension Agreement that is not detrimental to the Plan. The
determination 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 “Definitions,” 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 discovered to
be unacceptable for any other reason, shall be withdrawn from the Trust Fund
and credited to a Segregated Account pending the determination of the person or
persons entitled thereto.
Section 10, article I of the trust declaration, entitled “Definitions,” 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
represented 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 existence of a waiver in the above-described language of the
pension certification and declaration of trust. The judge found that this language does not on its
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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 specified 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 waiver since that section did not purport to deal with the
termination of the employer’s obligation to contribute to the funds particularly 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 collective 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 contributions (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 following 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
payments.
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
required 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 between the Union and any Company’s obligation under
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this Pension Trust Agreement shall terminate, unless, in a new collective bargaining
agreement, such obligation shall be continued.
Like the pension agreement in Cauthorne Trucking, the EU and SA agreements in this
case explicitly state that Respondent’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 September
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 permitting Respondent to
terminate its trust payments. Nothing in the SA or EU language explicitly permits Respondent to
unilaterally implement its own health care plans. As noted above, 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.;
Kingsbridge Heights Rehabilitation & Care Center, supra.
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 temporary agreement for the duration of the strike and
did not apply to modify the extant CBA. Moreover, even assuming arguendo that there was an
impasse in discussions between Payne and Ballew concerning the definition of the status quo
for benefits 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 Abrasives, 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
annual 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
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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)(1)
and (5) 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 employee Jeff Gibson, employed within the jurisdiction of Local 231, to his former or
substantially equivalent position of employment.
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
protection. 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 reinstating 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 misconduct. The employer must first prove that it had an
honest belief that the discharged employee engaged in strike misconduct of a serious nature.
The Board then defined serious strike misconduct as:
[T]hat which under the circumstances existing . . . may reasonably 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, supervisors, and security guards.
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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 conduct 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 Union 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, 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 property
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 “animal
exuberance,” rather than threats meant to be taken seriously. 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 Respondent relied upon to form its
honest belief that Gibson engaged 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.
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This evidence Braun relied upon in firing Gibson is insufficient 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
testimony 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 administrative law judge who
found that strikers who harassed and tailgated a supervisor employee on between 2 and 5
consecutive days did not engage in serious misconduct where the driving may have been
annoying but did place passengers in danger.
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 pervasive evidence of egregious conduct by strikers including
widespread property damage, severe assaults on nonstrikers, managers and security guards,
and following of nonstrikers home. These incidents were accompanied by threats to other
nonstrikers and managers, including threats to rape or kill female employees and the wives of
male workers, threats to beat nonstrikers 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 evidence 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 endangered 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 finding 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
attempted 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.
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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 to rape a nonstriker’s wife and
threats to rape or kill an employee’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 nonstriker, 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
suggesting 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 occurred
in the context of Gibson comparing what strike replacements 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 Apocaca
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 the 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 misconduct. 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 credible threat given their
past friendship and the absence of violence 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
example 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. melancholy; 5. bad smell.
There is no reference to any racial connotation. Other than Braun and Ross’s subjective belief,
the term does not appear to be a racial epithet.
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Moreover, Respondent’s 1 week suspension of other Caucasian employees who called
African American employees “nigger” 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)(1) and (3) 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 meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (5) of the Act subsequent to
February 17, 2009, by unilaterally implementing 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)(1) and (3) of the Act by refusing to reinstate
Jeff Gibson to his former or substantially 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 unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
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 discrimination against him in
accordance with the formula set forth in F. W. Woolworth Co, 90 NLRB 289 (1950), with interest
as provided for in New Horizons for the Retarded, 283 NLRB 1173 (1987), and Kentucky River
Medical Center, 356 NLRB No. 8 (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.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended27

27 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
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ORDER
The Respondent, Oak Harbor Freight Lines, Inc., California, Oregon, Washington, and
Idaho, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Unions as the duly designated representative of a
majority of its employees in the bargaining unit appropriate for purposes of collective bargaining,
within the meaning of Section 9(b) of the Act:
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 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 specifically excluded from the
coverage of this Agreement:
(a) confidential employees, supervisory and professional employees within the
meaning of the Labor Management Relations 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 recommending hiring and firing; and
(d) nonbargaining unit employees.

Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
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(b) Unilaterally implementing terms and conditions of employment during the course
of collective bargaining without the parties having reached a genuine impasse.
(c) Refusing to reinstate employees because they engage in concerted protected
activity.
(d) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Jeff Gibson to his former job or, if that
job no longer exists, to a substantially equivalent position, without loss of seniority or other
privileges and make him whole with interest as provided in the Remedy section of this decision.
(b) Remove from its files any reference to the unlawful suspension and termination of
Jeff Gibson and notify him, in writing, that this has been done and that the suspension and
termination will not be used against him in any way.
(c) Restore the status quo ante as it existed prior to February 17, 2009, by ceasing to
give effect to Respondent’s health care plan for bargaining unit members and bargain in good
faith with the Unions over such benefits.
(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 records,
timecards, personnel records and reports, and all other records necessary to analyze the
amount of backpay 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, Washington, and Idaho, and mail a copy thereof to each bargaining unit
member laid off subsequent to February 17, 2009, copies of the attached notice marked
“Appendix.” 28 Copies of the notice, on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, 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 17, 2009.

28 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, Washington, D.C. January 5, 2011
____________________
John J. McCarrick
Administrative Law Judge
JD(SF)–54–10
States of WA, OR, ID,
and CA
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
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 directed
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 assurances:
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT unilaterally implement our own health care plan without having reached a genuine
impasse with the Unions and WE WILL NOT refuse to bargain in good faith with the Unions with
respect to those 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 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 specifically excluded from the
coverage of this Agreement:
(a) confidential employees, supervisory and professional employees within the meaning
of the Labor Management Relations 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 recommending hiring and firing; and
(d) nonbargaining unit employees.
JD(SF)–54–10
States of WA, OR, ID,
and CA
WE WILL NOT suspend, terminate, or refuse to reinstate employees for engaging in activities
protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees 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 17, 2009 by ceasing to give
effect to our own health care plan for our employees in the above-described bargaining unit.
WE WILL offer striking employee Jeff Gibson reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position of employment without any loss of rights and
benefits, and WE WILL make him whole for any loss of wages or other benefits he may have
suffered as the result of the discrimination against.
WE WILL notify Jeff Gibson that we have removed from our files any reference to his suspension
and termination and that the suspension and termination will not be used against him in any
way.
OAK HARBOR FREIGHT LINES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Phoenix, Arizona Regional office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
915 2d Avenue, Room 2948, Seattle, Washington 98174-1078
(206) 220-6300, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (206) 220-6284.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS
JD(SF)–54–10
States of WA, OR, ID,
and CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
OAK HARBOR FREIGHT LINES, INC.
and Cases 19–CA–31797
19–CA–31827
19–CA–31865
19–CA–32001
19–CA–32030
TEAMSTERS LOCALS 81, 174, 231, 252, 19–CA–32031
324, 483, 589, 690, 760, 763, 839, and 962
and Cases 19–CA–31526
19–CA–31536
19–CA–31538
TEAMSTERS LOCAL 174 19–CA–31886
Table of Contents
Statement of the Case 1
Issues 3
FINDINGS OF FACT 3
I. JURISDICTION 3
II. LABOR ORGANIZATION 4
III. THE ALLEGED UNFAIR LABOR PRACTICES 4
A. The Facts 4
1. The Respondent’s business and bargaining history 4
2. 2007–2008 Prestrike bargaining for a new contract 5
3. The strike and cancellation of the trust EU and SA agreements 6
4. Bargaining during the strike 7
5. Return to work and post-strike bargaining 8
6. The Trusts’ position on receiving contributions 10
7. Strike misconduct—Jeff Gibson 10
8. The strike misconduct incidents involving Gibson 11
a. Mike Apodaca 11
b. Bruce Miller 11
c. Joe Velasco—delivery at a customer 11
d. Joe Velasco—driving on Guide Meridian Road 11
e. Videos 12
f. Shane Brantner—driving on Guide Meridian Road 12
g. Donald Timm—NAPA delivery 13
h. Jim McDonald incident leaving the Mt. Vernon terminal 13
i. Threats of union lawsuits 13
j. Remarks to security guards 13
k. The postdischarge conduct of Gibson 14
B. The Analysis 14
1. The Trust Fund payments 14
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and CA
2. The parties did not reach impasse on February 17, 2009 15
3. Waiver 16
4. The unilateral implementation of Respondent’s health care plan 20
5. The Jeff Gibson termination 21
a. Dangerous driving incidents 22
(1) The Velasco incident 22
(2) The Brantner incident 23
b. Standing near the truck 23
c. The Timm incident 24
d. The other incidents 24
e. The post-termination incident with Ross 24
CONCLUSIONS OF LAW 25
REMEDY 25
ORDER 26
APPENDIX