Quickway Transportation, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 12, 2008

05-CA-033111 (N.L.R.B. Sep. 12, 2008)

JD–50–08
Landover, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
QUICKWAY TRANSPORTATION, INC.
and 5-CA-33111
5-CA-33257
5-CA-33446
5-CA-33497
DRIVERS, CHAUFFEURS & WAREHOUSEMEN TEAMSTERS
LOCAL UNION NO. 639 a/w INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
James C. Panousos, esq., and
Daniel Heltzer, esq., counsel for the
General Counsel
Philip Giles, of Washington D.C.
for the charging party,
James H. Hanson, esq., and
A. Jack Finklea, esq.,
of Indianapolis, Indiana for the
Respondent
DECISION
Statement of the Case
Eric M. Fine, Administrative Law Judge. This case was tried in Washington, D.C., on
October 3 to 5, November 26 to 30, and December 3 to 5, 2007. The initial charge was filed on
March 13, 2006, and the last charge was filed on March 8, 2007.1 All charges were filed by filed
by the Drivers, Chauffeurs & Warehousemen Teamsters Local Union 639 a/w International
Brotherhood of Teamsters (the Union or Local 639) against Quickway Transportation, Inc.
(Respondent). The issues in this case include Section 8(a)(1) allegations of surveillance, the
creation of the impression of surveillance, interrogation; Section 8(a)(3) allegations of unlawful:
discharge, refusal to accept the unconditional offer to return to work of unfair labor practice
strikers, the lockout of unfair labor practice strikers; and Section 8(a)(5) allegations of direct
dealing and diversion of bargaining unit work without bargaining in good faith.2

1 All dates are 2006 unless otherwise specified.
2 At the close of his case in chief, counsel for the General Counsel made a motion to
withdraw complaint allegations set forth in then paragraph 9 that Respondent informed
employees that it would be futile for them to select the Union as their collective bargaining
representative; in then paragraph 10 that Respondent required employees to resign from the
Union and related remarks; in paragraph 11 that Respondent discharged employee Angelo
Jackson in violation of Section 8(a)(1) and (3) of the Act. That motion is granted except for the
withdrawal of the discharge allegation pertaining to Jackson which is discussed in detail herein.
At the outset of the hearing, Respondent admitted that Chris Cannon’s title was regional vice
Continued
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs3 filed by the General Counsel and the Respondent, I make the
following4
Findings of Fact
I. Jurisdiction
Respondent, a corporation, with its main office in Nashville, Tennessee, has been
engaged in transporting dairy products from warehouses and dairies to grocery stores in various
portions of the country, including from the Marva Maid Dairy (MMD) in Landover, Maryland to
Giant Food stores in the greater Washington, D.C. metropolitan area. Since around April 2006,
when it commenced its operations for MMD, Respondent has derived gross revenues in excess
of $50,000 on an annual basis from the transportation of freight from Maryland directly to points
located outside of Maryland. Respondent admits and I find it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Respondent is a transportation company primarily transporting dairy products and
groceries for food chains. Respondent’s corporate office is in Nashville, Tennessee.
Respondent uses about 675 to 700 drivers throughout its 17 terminals nationwide. About
500 of those drivers are company drivers. Out of the 17 locations, five are organized by
various Teamsters affiliates, they are: Landover, Detroit, Indianapolis, Shelbyville and
Lynchburg. Respondent has contracts with the Teamsters at all but the Landover facility.
William Prevost has been the president of Respondent since February 2004, when
he began working at the company. Prevost testified Respondent completed a handshake
agreement as of the week prior to his testimony on a five-year contract extension for the
bargaining unit at the Shelbyville terminal. Cannon has been employed by Respondent
_________________________
president and that prior to that he had been a terminal manager. Respondent admitted that:
Cannon has been a supervisor and agent of Respondent since July 19, 2005; William Cantrell
has been a supervisor and agent since December 18; Harry O’Neal Crabtree has been a
supervisor and agent since September 18; John Hoover was a supervisor and agent from
August 25, 1997, until September 30; Michael Ortt was a supervisor and agent from September
31, 2005 to January 12, 2007; David Taylor was a supervisor and agent from December 31,
1998, to July 25; and David Wilburn has been a supervisor and agent since July 29.
3 At the close of the hearing, the parties were given the option of filing reply briefs. The
Respondent filed such a brief and it has been considered. The record was also left open for
Respondent to complete a summary which it filed in the form of R. Amended Exh. 34 (R.A. Exh
34) on February 14, 2008. The General Counsel objected to an earlier version of R. Exh. 34,
but lodged no objection against the amended version, which has been received into evidence.
The record has been closed upon the receipt of R. A. Exh. 34.
4 In making the findings herein, I have considered all the witnesses’ demeanor, the content
of their testimony, and the inherent probabilities of the record as a whole. In certain instances, I
have credited some but not all of what a witness said. See NLRB v. Universal Camera
Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951).
Further discussions of the witnesses’ testimony and credibility are set forth later herein.
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since July 19, 2004. Cannon was a terminal manager from July 2004 until July 2006. In
July 2006, he became the Atlantic regional vice-president until August 2007, when he
became the northern regional vice-president.
Cannon became involved with Respondent’s start up of the Landover terminal in
January 2006 when he began visiting the terminal to gather information concerning area
wages and deliveries. At that time, Giant owned the dairy, and deliveries to the Giant
stores were being made by drivers employed by Giant Transportation. In January 2006,
negotiations were ongoing between MMD and Giant for MMD’s purchase of the dairy, and
MMD had already selected Respondent to be its primary carrier from Landover. Cannon
testified that Mike Miller, Respondent’s director of pricing and business analysis, had
created a pre-opening model as to how it would operate the Landover terminal. The
model was based on 21 drivers, 21 trucks, 46 trailers, one yard jockey truck, with two yard
drivers. Under the model, drivers were supposed to run two loads a day. Respondent
signed a contract on March 3 with MMD for the delivery of the dairy products out of
Landover, with a March 27 startup for the deliveries. Respondent selected Michael Ortt as
the terminal manager for the Landover operation. In March, Cannon was terminal
manager for Newark, Ohio, but he continued to assist with the Landover start up. David
Taylor, the then Atlantic regional vice president also assisted in the startup.
Cannon testified Respondent began advertising for company drivers in mid January
and they began to hire drivers before the operation started. The hiring process including
running a motor vehicle report on the driver’s application for no more than two moving
violations in the past three years, the driver having two years of current tractor trailer
experience, an interview, no past convictions or DUI’s, a drug screen and a physical.
Cannon testified it took 6 to 7 business days from the time a driver first called until he was
hired. At time of the sale of the dairy to MMD, Giant laid off about 75 drivers and
Respondent had former Giant drivers apply for employment. Cannon knew that Giant
drivers were union members. Cannon testified that prior to operations starting on March
27, Respondent committed to hiring about three former Giant drivers, including Angelo
Jackson and Kenneth Tucker. Cannon testified that over a two to three month period they
hired about seven or eight former Giant drivers. Cannon testified that more applied than
were hired. Cannon testified the company drivers based in Landover were guaranteed
$1000 a week at the start up of the operations for a six week period, while Respondent’s
dispatchers became acclimated to the routes out of the Landover terminal. When the
guarantee ended the company drivers were paid $.45 a mile and $15 a stop. For
detention at a stop after an hour, the driver also received $20 an hour paid in 15 minute
increments.5
Cannon testified Respondent also received a list from MMD, which MMD had
received from Giant, of area agencies for the supply of temporary drivers. Cannon
testified Respondent started using temp agencies from day one of the Landover operation,
and was using them six days a week. Cannon testified that from the end of March 2006
until the strike in January 2007, Respondent probably used temporary drivers almost every
day. He testified that on the slowest days, Tuesday, Wednesday and Thursday, there may
have been a few days that they did not require temporary drivers. Cannon testified if
Respondent hired enough permanent drivers to handle the peak days which are Saturday

5 Cannon testified for about a month and one half to two months, Respondent flew in
about 20 to 25 drivers from other terminals on two week rotations to help with the
Landover start up.
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and Monday, there would not have been enough work Tuesday through Friday to keep all
of the drivers active. Cannon testified all Respondent’s company drivers were full time.
A. The Union campaign
Kenneth Tucker applied to Respondent through a friend Angelo Jackson in early
March for a job as a truck driver. Tucker’s job application is dated March 8. Tucker and
Jackson had previously worked for Giant as drivers. Tucker began driving loads for
Respondent at the Landover facility on March 27. Tucker’s initial assignment with
Respondent was helping to train other drivers, including drivers Respondent hired and
drivers Respondent had brought in from other terminals to help start the Landover
terminal. Tucker performed the training before the operation started. Tucker showed the
drivers how the procedures were handled at the stores, with the loading and unloading of
the milk and dollies. Jackson also conducted training for these individuals.6
Tucker testified that on March 20, Tucker and Jackson met with Cannon and Ortt at
the Landover facility. Tucker provided trip tickets from his prior work week at Giant Food
to show Cannon and Ortt the wages he would have earned with the miles and stops pay
Respondent was offering. In response, Cannon said he would drop the mileage and stops
pay rate for four weeks, and would pay $1,000 per week, until they figured something out
with the pay. Tucker testified he presented the paper work because of a concern, “That
you wouldn't be able to make half the money that they say you would be able to make
running on those terms.” Jackson had a concern over the same issue. Tucker testified
that Cannon later said the $1000 guarantee was extended to six weeks. The drivers at
Giant had been paid by the hour, not by miles and stops.7
Tucker testified to the following: Jackson called Tucker in May 2006, and Jackson
said that he wanted to seek union representation for Respondent’s employees. Jackson
said he was going to contact Phil Giles of the Union. Later on that evening or the next
day, Jackson called Tucker and stated Jackson had spoken with Giles. Jackson said he
wanted to meet with Giles on May 7 and that all who wanted to attend were welcome.
Tucker attended the May 7, meeting at the Teamsters hall in Washington, D.C. Present
were Giles and Respondent employees Tucker, Jackson, Mark Duncan, and Mike Wilkins.
During the meeting, Giles discussed the need to distribute authorization cards to the
employees, and having those cards signed and returned to Giles.8 Giles gave cards out to

6 Jackson did not testify at this proceeding. Accounts of Jackson’s union activities were
gleaned from the testimony of Tucker and Union official Phil Giles. I have found Tucker and
Giles to have been credible witnesses during this proceeding. They testified in a straight
forward fashion to the extent their memories would permit.
7 Cannon confirmed that Jackson and Tucker met with Ortt and Cannon and they expressed
a concern over Respondent’s stop and mileage pay formula. Cannon confirmed that, during the
meeting Cannon and Ortt gave the guarantee of $1,000 a week gross to Tucker and Jackson.
8 Giles testified that: Giles was contacted by Jackson in mid April 2006 to initiate the
union campaign. Giles and Jackson initially met alone, and then Jackson arranged a
meeting between Giles and other drivers who would be on the organizing committee.
Giles confirmed Tucker’s description of those who attended the meeting and the events
that transpired there including Tucker’s designation as a liaison between Giles and the
employees for the collection of signed authorization cards. Giles placed this meeting on a
Sunday at the end of April. However, I have credited Tucker that it occurred on Sunday, May 7,
as his recollection was more specific as to the date.
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each of the men in attendance. Tucker was designated as the go between to collect
signed cards from the men who attended the meeting and return them to Giles. All of the
employee attendees at the meeting subsequently obtained signed cards and returned
them to Tucker to return to Giles. Jackson had four to five cards signed. Former
Respondent driver Roger Branch identified a card Branch signed on May 9. The Union
filed a petition for election with Region 5 for Respondent’s employees on May 17.
Tucker testified that during the union campaign Respondent campaigned against
the Union by showing videos, paycheck distributions, and bulletin board postings.
Respondent distributed a memo dated June 1, under the signature of Ortt to company
drivers and hostlers informing them that there had been recent organizing activity at
Respondent, and that a secret ballot election was scheduled for June 22. The employees
were reminded of their right to vote no. It was stated, “If you give me a chance to show
you what you and Quickway can accomplish without the interference of the union, I am
confident you will come to the same conclusion that several other Quickway terminals (and
92% of America’s workers) have reached- the union is not in anyone’s best interest.”
Tucker identified other anti union distributions he received from Respondent. Respondent
also stipulated at the hearing that it ran a campaign opposing the Union.
B. The surveillance, Jackson’s discharge,
and the creation of impression of surveillance
1. Creation of impression of surveillance
Tucker credibly testified at follows: Tucker attended a meeting with Jackson, Taylor
and Cannon on May 25, at around 3 or 4 p.m. Tucker had just turned in his paper work
upon the completion of his shift when Taylor asked Tucker to attend the meeting. After
the door was closed, Taylor told Jackson he was being terminated. Taylor read from a
letter providing Jackson the reasons for his discharge. Tucker testified that, “They had
read the letter and told him that was it, you know, and didn't give him a chance to
respond.” Tucker testified that Jackson attempted to respond. Tucker testified that, “he
wanted to try to explain the issue that they were talking about, but they didn't let him.”
Tucker testified the issue was “Something about him being followed and videotaped at a
store and taking too much time and falsifying a document.”9 Tucker testified that, during
the meeting, Taylor read from another memo explaining to Jackson the reasons he was
discharged. Taylor provided Jackson with a copy of this memo upon Jackson’s request.
Tucker credibly testified Jackson left and Tucker was about to leave, when Cannon
asked Tucker to have a seat. Cannon pulled his chair within inches of Tucker’s chair.
Tucker testified Cannon said, “he knew that I was a leader and a professional and that he
heard that I was involved in starting the union up.” Tucker responded that he was not part
of it. Tucker testified that Cannon then stated, “that the guys who-- that were opposing the
union had told him that I was one of the guys helping to start the union up.” Tucker again
denied it. Tucker testified that during the exchange, Cannon said, “that they did not need
a union. They thought that their open door policy was good enough. They did not need a
third party and that, you know, all unions do is milk companies and employees out of
money.” Cannon stated the drivers were saying that Tucker was in the middle between

9 In Tucker’s affidavit of July 7, 2006, It states Jackson took his discharge paper and
left, that he did not ask any questions, and Taylor and Cannon did not give Jackson a
chance to respond. They did not give him a chance to give his side of the story.
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the drivers and the company, and that Cannon stated Tucker should not be in the middle.
Tucker denied being in the middle.10
Tucker credibly testified that, during the May 25 meeting, after Jackson left, Taylor
stated Respondent would be issuing a letter the next morning to the drivers. Taylor
showed Tucker a typewritten document under Taylor’s signature addressed to all drivers.
The letter stated that, “As many of you may already know a Quickway Driver was
terminated today for being dishonest when filling out his route sheet.” The document went
on to caution drivers about the importance of filling out their route sheets. Tucker testified
that Taylor said that about 10 drivers were followed that week and that on that particular
day, Jackson and Tucker were followed and Tucker conducted himself like a professional.
a. Respondent’s witnesses
Cannon testified he received training on what a supervisor could and could not do
during the union campaign. Cannon identified a campaign instruction sheet that Prevost
gave Cannon, Taylor and Ortt entitled, “Remember These Tips.” (Tips sheet). Cannon
testified he participated in a conference call with Taylor and Prevost in which Prevost
reviewed the Tips sheet.
Cannon testified he arrived at the Landover terminal on May 25, having flown in
from Columbus, Ohio. Cannon was changing positions with Taylor at the terminal on a
weekly basis, and it was Cannon’s turn to be there and Taylor’s to go home. When
Cannon arrived, Taylor invited Cannon into the office to meet with Jackson and Tucker.
Cannon testified Jackson’s termination took place and then Jackson left, and Tucker
remained in the office with Cannon and Taylor. Cannon testified Taylor and Tucker then
had a conversation, but Cannon could not recall what they discussed. Cannon testified
that, at one point in time, Cannon took over the conversation.
Cannon testified, in explanation, that around a week before the May 25 meeting,
Tucker had pulled Cannon aside seeking help in that Tucker told Cannon that the other
drivers were coming to Tucker with complaints. Cannon could not recall what type of
complaints they were. Cannon testified Tucker did not want to play the middleman
between the drivers and management. Cannon testified he told Tucker that he needed to
take himself out of that position of being the go-to or fix-it person. Cannon testified that on
May 25, Cannon wanted to revisit that conversation and that Cannon initiated the
discussion. Cannon testified, “That's when I took over the conversation with David Taylor
and Kenny Tucker. So I just wanted to revisit with that and somewhat reiterate that,
Kenny, you don't have to be in this position to be the sounding board for the drivers.
We've got office personnel that-- that has that responsibility and has that duty to take care
of any type of problems that the driver may have. I conveyed to him that his response to
the drivers, if they did have any complaints, would be, you need to go see management

10 In response to Cannon’s assertions during Cannon’s testimony, Tucker credibly denied
having a conversation with Cannon about being in the middle with the drivers prior to the
May 25 meeting. Tucker testified he never complained to Respondent’s managers or
supervisors that other drivers were coming up to him with complaints. Tucker testified it
was Cannon who first raised the issue on May 25 stating that Tucker was part of forming a
union. Tucker denied making that assertion during the conversation. Tucker testified
Respondent never offered to move him into an office or a dispatch position, and that they
never offered him any thing besides being a truck driver.
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about that.” Cannon testified that Tucker, “did bring up that another complaint, that
everybody was pointing their finger at him, as far as starting the union. And me and David
Taylor both stopped him right there and said, Kenny, let's make it very well known that no
one is pointing the finger at you, as far as starting the union.”
Cannon testified that during the May 25, meeting, Cannon brought up the possibility
of Tucker becoming as dispatcher as they had noticed leadership qualities in Tucker,
particularly during his training of office personnel. Cannon testified Tucker liked the
compliments they were giving him stating he was interested. Cannon testified that during
the May 25, meeting, Taylor told Tucker that Tucker had also been followed but that
Tucker did “a fantastic job.”11
Cannon denied telling Tucker that Cannon had received reports from other drivers
that Tucker was involved in union organizing. Cannon testified he did not know Tucker
was involved in union organizing at that point in time, although he learned later on that
Tucker was involved. When asked when he learned, Cannon testified, “I can't recall. Just
with, you know, the-- they talked back and forth from driver to office personnel. It
eventually did come out, but putting to a calendar and what date, I can't recall.” However,
Cannon testified he was sure he did not know at the time of the May 25 meeting. Cannon
testified that as of the time of the May 25 meeting, he knew it was illegal to engage in
surveillance of union activities. He denied stating anything that would give drivers the
impression that he was engaging in surveillance of their union activities. He denied asking
Tucker whether he was involved in union activities because Cannon knew it was illegal to
do so based on the training he had received from Prevost.
Cannon could not recall if the Union’s petition for election had been filed at the time
of the May 25, conversation. However, Cannon testified he knew about the union activity
at the facility as of May 25, stating that, “I picked up a few rumors, that's about it.”
Cannon testified the first indication was from Walt Aumen, the general manager of the
dairy plant. Cannon testified he could not recall the date, but Aumen came into the dairy
one morning and a group of drivers were standing in front of the dairy. Cannon testified
when Aumen passed by “he caught a few key words pertaining to union.” Cannon testified
the other rumors were from other drivers to Ortt or Cannon stating “Just union talk.”
Cannon explained, “Nothing in particular or any detailed subject matter. It was just,
they're talking about union, from what we hear.”
Prevost testified that he ordered the driver surveillance because of performance
issues at the Landover facility. Prevost claimed he only became aware there was union
organizing drive at Landover, after Respondent received notice that the men had
submitted cards to have an election. Prevost testified this was probably the last week of
May 2006. Prevost testified as soon as he learned there was a pending election, he
requested his labor counsel to prepare the Tips sheet instructions in terms of what
management could and could not say in communicating with employees during an
organizing campaign. Prevost testified he issued the sheet to Taylor, Cannon, John
Hoover and the other people in the organization that had contact with the Landover
terminal. Prevost testified as soon as he received the sheet he emailed it to Cannon and
Taylor, and he had a training session with them over the phone. Prevost testified that

11 Cannon testified Taylor was no longer employed by Respondent and had left about a
year and a half prior to the hearing. Cannon testified that at the time of the hearing Taylor
was residing in Georgia. Taylor was not called as a witness during this proceeding.
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during the training session they discussed the TIPS memo that they would not threaten,
interrogate, make false promises to employees to try to get them to vote against the union,
and Respondent would not spy on employees during the organizing campaign. Prevost
testified that during the union campaign, Respondent presented information to the
employees as to why they did not need a union at Landover. He testified that, “our
preference would've been to have run without it, but we were fine with it.” Prevost testified
that Respondent started distributing materials about the Union around early June.
Prevost initially testified that he did not have any knowledge of reports of the
number of employees for or against the union during the campaign. He testified that “most
of the employees we hired had been laid off from a union company, so I was not surprised
when the petition came across and I was not surprised when the vote was in favor of the
election.” He then testified that he received reports from the facility that, “They thought
the majority was for the union. There was six or seven guys that did not want it, but the
bulk of them had worked in union organizations before and wanted it.” Prevost denied
receiving reports as to who the union leaders or contacts were.
I do not credit Prevost’s claim that he was unaware of union activity at Landover
until after the Union filed its petition for election. Similarly, I do not credit Cannon’s claim
that he was unaware that Tucker was one of the union leaders at the time of the May 25
meeting. Respondent’s counsel stated the following as part of his opening statement,
“After about a month of operating, we began to hear that there were rumors of union
organizing going on. We were aware of it. We opposed it. We engaged in a campaign,
once the petition was filed, to try and defeat that organizing attempt and it was
unsuccessful.” Since Respondent started operating on March 27, counsel’s remarks place
Respondent’s knowledge of the union campaign at the end of April or early May.12
Along these lines, Cannon testified that he knew about the union activity at the time
of the May 25, meeting stating that, “I picked up a few rumors, that's about it.” Cannon
testified the first indication was from the general manager of the dairy plant who heard
employees were talking about the Union and who passed that knowledge on to
Respondent’s officials. Cannon testified that other rumors of the union activity came
directly from the drivers to Ortt and Cannon. Cannon testified that on May 25, he had just
returned to the terminal after a week’s absence, yet he admitted knowing about the Union
campaign prior to the May 25, meeting. Clearly, as Respondent’s counsel admitted,
Respondent’s officials gained knowledge of the campaign early on, and I have concluded
this information was quickly passed to Prevost, despite his claims to the contrary.
While Cannon admitted knowing about union activity prior to the May 25, meeting,
he disingenuously claimed that he did know Tucker was involved in union organizing as of
May 25. He admitted to obtaining knowledge of Tucker’s pro-union stance from the
drivers later on, but could not recall a date. He could only state it was after May 25.
Cannon testified that as of the time of the May 25 conversation, he knew it was illegal to
engage in any type of surveillance of union activities, to give drivers the impression he
was engaging in surveillance of their union activities, or to question Tucker about his union
activities, because he received training from Prevost on the Tips sheet prior to the May 25.
Prevost incredibly claimed he only became aware there was union organizing drive
at Landover, when he received notice of the Union’s filing of its May 17, petition for

12 The drivers first obtained authorization cards for distribution on May 7.
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election. Prevost estimated this was probably the last week of May 2006. Prevost
testified that when he became aware of the campaign, he had his counsel prepare the Tips
sheet, which he emailed and discussed by phone with Cannon and Taylor. Cannon’s
testimony as to the timing of the Tips trainings reveals that Prevost was aware of the union
activity some time prior to Jackson’s May 25, discharge. Like his denial of knowledge of
the union campaign prior to ordering the surveillance, Prevost initially testified that he did
not have any knowledge of reports of the number of employees for or against the union
during the campaign. He then testified that he received reports from the facility that, “They
thought the majority was for the union. There was six or seven guys that did not want it,
but the bulk of them had worked in union organizations before and wanted it.” Despite
receiving these reports, Prevost denied receiving reports as to who the union leaders or
contacts were, although Cannon admitted to receiving those types of reports at least
pertaining to Tucker.
In view of the admission by Respondent’s counsel that Respondent was aware of
the Union campaign around a month after the operation started, as well as Cannon’s
testimony that he received reports about union activity from both dairy personnel and from
drivers, I do not credit Prevost’s claim that he did not learn of the union campaign until
after the petition was filed. Cannon’s claim that he did not recall whether the petition was
filed at the time of the May 25 meeting is also clearly disingenuous. He claimed that he
received training as to what he could say to employees prior to the May 25, meeting as
part of his defense to allegations made by Tucker. Yet, Prevost testified the training was
only initiated due to the filing of the petition. Therefore, if either are to be credited then
Prevost learned of the petition prior to the May 25 meeting, consulted with counsel, had
Respondent’s Tips memo distributed to Cannon and Taylor and had a conference call with
them prior to the May 25, termination meeting. If all of this occurred as their testimony
indicates, I find it highly unlikely that Cannon would not have been told by Prevost that a
petition for election had been filed which Prevost claimed was the basis for the training. I
also find it highly unlikely, that Cannon, who impressed me as an intelligent individual
would not have recalled he was aware of such information at the time he participated in
the meeting where Jackson was terminated.
I have concluded based on the credible testimony, admissions, and the record as a
whole that four of Respondent’s employees met with Giles on Sunday, May 7, due to a
meeting initiated by Jackson. They thereafter began distributing cards to the remainder of
the unit of about 27 employees for signature beginning the week of May 8. I have
concluded, as admitted by counsel and based on Cannon’s testimony, that Respondent’s
officials received reports of this activity shortly after it began from the dairy officials and
from drivers themselves. I also have concluded that this information was quickly relayed
to Prevost who was a hands on manager and who was opposed to the facility being
organized. Thus, I discredit his claim that he only first became aware of the union activity
after petition was filed on May 17. I also discredit Cannon’s claim that he did not know
Tucker was one of the Union leaders at the time of the May 25 meeting. Rather, I find
they both became aware of the union activity shortly after it began at Landover, and they
quickly learned from reports from the drivers that Jackson and Tucker were leaders of that
activity. Any doubt as to this conclusion is confirmed by Tucker’s credible testimony that
Cannon accused him of helping to start the union campaign on May 25, and that Cannon
had been informed of it by drivers opposing the union.
Clearly, Respondent was receiving information from the drivers and dairy officials
and monitoring the status of the Union’s support at the facility. Both Jackson and Tucker
had worked for Giant, which had been organized by the Union, and they concertedly met
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with Cannon and Ortt on March 20, to protest Respondent’s system of pay, and their
protest resulted in a short term change of the system in that their meeting resulted in their
receiving wage guarantees during the start up of the operation. Both Ortt and dispatcher
Horner testified Respondent’s method of pay was a source of complaints among
employees. I have concluded that Respondent’s officials knew early on from reports they
received from drivers, and from their own surmise were aware that Jackson and Tucker
were leaders in the union campaign, and that it was no accident that Tucker was asked to
attend Jackson’s discharge meeting or that Cannon had a heart to heart talk with Tucker
immediately following Jackson’s discharge.
Concerning the conversation that took place during the May 25, meeting, I have
credited Tucker’s version of events over that of Cannon’s. Tucker, considering his
demeanor, testified in a calm and straight forward fashion about the conversation with
good recall. On the other hand, Cannon’s story was somewhat convoluted and did not
make sense considering the record as a whole. Tucker’s and Giles testimony revealed
that Jackson contacted the union, and during the union meeting on May 7, it was agreed
that Tucker would serve as the intermediary between the other drivers and Giles in terms
of the solicitation of union cards. Tucker, along with Jackson, had prior to the union
campaign met with Cannon and Ortt to protest Respondent’s pay policy. Following the
selection of the Union, Tucker continued his course of conduct by serving on the Union’s
negotiating committee and attended all the meetings with Respondent’s officials. The
notes of the meetings reveal that Tucker was not afraid to speak and let his feelings be
known during the negotiation sessions. Thus, I do not credit Cannon’s claim that about a
week before the May 25, meeting, that Tucker approached Cannon for help, that Tucker
told Cannon that the other drivers were coming to Tucker with complaints and that Tucker
did not want to play middleman between Respondent and the drivers. I do not find this
claim, which was denied by Tucker to be credible. Tucker concertedly complained to
Respondent about wages with Jackson, voluntarily placed himself as intermediary
between the drivers and Giles in terms of card solicitation, and he served on the Union’s
negotiating committee. He voluntarily placed himself in the middle, and I do not find it
believable, considering the demeanor of the two witnesses that he elected to complain
about his role to Cannon during the middle of the union drive.13
b. Analysis
Cannon testified he initiated a conversation with Tucker on May 25, in that Cannon
wanted to “reiterate that, Kenny, you don't have to be in this position to be the sounding
board for the drivers. We've got office personnel that-- that has that responsibility and has
that duty to take care of any type of problems that the driver may have. I conveyed to him
that his response to the drivers, if they did have any complaints, would be, you need to go
see management about that.” Thus, Cannon instructed Tucker not to engage in concerted
activity by telling him to tell drivers if they had any complaints rather than speak to Tucker
they should go see management. This is akin to instructing Tucker not to discuss work
related problems with other drivers, and I find the remark to be violative of Section 8(a)(1)
of the Act. See, Jeanette Corp., 217 NLRB 650, 656-657 (1975), enfd. 532 F.2d 916 (3d Cir.

13 I do not credit Cannon’s claim, which Tucker denied, that Cannon brought up the
possibility of Tucker becoming a member of the office staff or a dispatcher on May 25. Of
interest, although Tucker continued work as a driver for Respondent until the January 12,
strike, there was no claim by Respondent that he was ever offered another position or that
the matter was ever raised again.
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1976); and K Mart Corp., 297 NLRB 80, fn. 2 (1989).
In Bridgestone Firestone South Carolina, 350 NLRB No. 52, slip op. at 2 (2007), the
Board stated:
In determining whether an employer's statement has created an unlawful impression
of surveillance, the test is “whether the employees would reasonably assume from the
statement that their union activities had been placed under surveillance.” Flexsteel
Industries, 311 NLRB 257, 257 (1993); United Charter Service, 306 NLRB 150 (1992)
The standard is an objective one, based on the perspective of a reasonable employee.
Flexsteel, supra. The General Counsel has the burden of establishing, by a
preponderance of the evidence, that the employer unlawfully created the impression of
surveillance. Grouse Mountain Lodge, 333 NLRB 1322, 1323 (2001).
Not all employer statements about employees' union activities are unlawful. An
employer does not create an unlawful impression of surveillance where it merely reports
information that employees have voluntarily provided. See, e.g. Rock-Tenn Co., 315
NLRB 670, 682 fn. 19 (1994), enfd. 69 F.3d 803 (7th Cir, 1995), and overruled on
another point by Chelsea Industries, 331 NLRB 1648 (2000), enfd. 285 F. 3d 1073 (D.C.
Cir. 2002). As we recently reaffirmed in North Hills Office Services, “The gravamen of an
impression of surveillance violation is that employees are led to believe that their union
activities have been placed under surveillance by the employer.” 346 NLRB No. 96, slip
op. at 6 (2006) (emphasis in original). Thus, merely informing employees that their
coworkers have volunteered information about ongoing union activities does not create
an impression of surveillance, particularly in the absence of evidence that management
solicited that information. Id.
In Bridgestone Firestone, supra, the plant manager issued a letter to employees in which he
thanked employees for informing him that a union was attempting to organize the facility. In
concluding the respondent did not create the impression of surveillance by the letter the Board
explained the respondent relayed to employees only that certain coworkers had had voluntarily
provided information about the existence of the union campaign. It was stated reasonable
employees would not discern from the letter the respondent learned of their activities through a
program of unlawful surveillance. Bridgestone Firestone South Carolina, supra., slip op. at 3,
In North Hills Office Services, 346 NLRB 1099, 1101 (2006), the complaint alleged two
instances of the creation of the impression of surveillance. On one occasion, a supervisor told
an employee that two of her coworkers reported that the employee drove them to a union
meeting. The supervisor did not deny making the statement but testified he never asked any
employee to provide him with information. In the other instance, an employee testified that
during a meeting in which she was given a discriminatory warning for distributing union literature
on company time the operations manager told her two of her coworkers informed him that she
was distributing union literature during working hours. The operations manager did not deny
making the statement. In dismissing the Section 8(a)(1) allegations, the Board majority held
that volunteering information concerning an employee’s union activities by other employees, in
the absence of evidence that management solicited that information does not create an
impression of surveillance.
However, in Flexsteel Industries, 311 NLRB 257 (1993), the Board majority stated:
The judge found that the Respondent created the impression of surveillance when its
personnel manager, Don McFarland, on two occasions, informed employee Leroy Clark
that he had heard rumors about Clark's union activity. Specifically, in early December
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1991, McFarland told Clark he had heard a rumor that Clark had instigated the union
campaign. Thereafter, in late December 1991 or early January 1992, McFarland told
Clark that he heard a rumor Clark was passing out authorization cards. The judge found
that McFarland's disclosures would tend to coerce and restrain Clark from continuing this
kind of protected activity. We agree.
* *
It was stated in Flexsteel that “an employer creates an impression of surveillance by indicating
that it is closely monitoring the degree of an employee's union involvement. See Emerson
Electric Co., 287 NLRB 1065 (1988).” Id at 257. In Flexsteel it was noted that in two separate
occasions in statements coupled with interrogations and implicit threats, McFarland related his
knowledge of ‘rumors’ to Clark, thereby informing him clearly that management was aware not
only that Clark may have been a union supporter, but was also taking note of the reported
manifestations of that support by asserting that Clark may have instigated the union campaign
and that Clark had been passing out authorization cards. It was stated that McFarland's
statements, on their face, reasonably suggested to Clark that the Respondent was closely
monitoring the degree and extent of his organizing activities, and that these types of statements
would reasonably lead Clark to believe that his protected activity was under surveillance, and
this would tend to discourage this protected activity. Flexsteel Industries, supra. at 258.
Similarly, in his partial dissent in Flexsteel Industries, member Oviatt stated in
agreement with the majority that the respondent there did unlawfully create the impression of
surveillance pertaining to another employee when a supervisor told that employee that he knew
the employee was getting people to sign authorization cards because people had told the
supervisor that he was doing so. Flexsteel Industries, supra. at 260. In Emerson Electric Co.,
supra at 1085, the Board, in finding that a plant manager unlawful created the impression of
surveillance during a one on one meeting with an employee, stated:
Gilbert stated not only that he knew that Alsup had attended union meetings, but also
indicated that he knew the extent of this involvement. As set forth above, Gilbert said
that he knew that Alsup had “expressed an interest in the union,” but that Gilbert did not
consider Alsup to be a “pusher” for or against the union effort. These statements would
reasonably suggest to Alsup that the Respondent was closely monitoring the degree of
his union involvement. For these reasons we find that the Respondent created the
impression of surveillance in violation of Section 8(a)(1) of the Act.
The Board reached a similar result in finding a violation in United Charter Service, 306 NLRB
150, 151 (1992), wherein it was stated, “even if it were common knowledge that the employees
were attempting to organize, Vieira's comments went beyond permissible limits. Not only did he
tell the employees that he knew of their organizing efforts, he also went into detail about the
extent of the activities and the specific topics they discussed at the meetings.” It was found,
Vieira's statements reasonably suggested to the employees that the respondent “was closely
monitoring the degree and extent of their organizing efforts and activities.”
I find Respondent unlawfully created the creation of the impression of surveillance
by Cannon’s remarks to Tucker during the May 25 meeting. Tucker and Jackson, the two
leading union adherents were instructed to attend the meeting. At the outset of the
meeting, Jackson was told he was being terminated and had the allegations for his
termination read to him by Taylor, which related to Jackson being followed, videotaped at
a store, taking too much time, and falsifying a document. Jackson was not permitted to
defend himself against the allegations. Jackson then left, and Tucker was alone with
Cannon and Taylor. Cannon pulled his chair within inches of Tucker’s chair. Cannon told
Tucker he knew Tucker was a leader and a professional and that he heard Tucker was
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involved in starting the union start up. Tucker responded he was not part of it.14 Cannon
stated that the guys who were opposing the Union had told him that Tucker was one of the
guys helping to start the union up. Tucker again denied it. Cannon said, “they did not
need a union. They thought that their open door policy was good enough.” Cannon stated
they did not need a third party and that all unions do is milk companies and employees out
of money. Cannon stated the drivers were saying Tucker was in the middle between the
drivers and Quickway. Cannon stated Tucker should not be in the middle. Tucker
responded he was not in the middle. Cannon, in fact, admitted his remarks went further
testifying he told Tucker, “you don't have to be in this position to be the sounding board for
the drivers. We've got office personnel that-- that has that responsibility and has that duty
to take care of any type of problems that the driver may have. I conveyed to him that his
response to the drivers, if they did have any complaints, would be, you need to go see
management about that.” During the meeting, Taylor told Tucker that 10 drivers were
followed including Tucker. Cannon’s comments to Tucker, in the context of this meeting,
conveyed to him that Respondent was closing monitoring the extent and nature of his
union activities thereby creating the impression of surveillance in violation of Section
8(a)(1) of the Act. See, Flexsteel Industries, 311 NLRB 257 (1993); Emerson Electric Co., 287
NLRB 1065 (1988), and United Charter Service, 306 NLRB 150, 151 (1992).
2. The surveillance and discharge of Angelo Jackson
In Benjamin Franklin Plumbing, 352 NLRB No. 71 (2008), in finding that the discharge of
two employees violated Section 8(a)(1) of the Act, the Board approved the use of a Wright Line
analysis for Section 8(a)(1) allegations that turn on motive. See also, General Motors Corp., 347
NLRB No. 67 fn. 3 (2006) (“Wright Line applies to all 8(a)(3) and 8(a)(1) allegations that turn…
on employer motivation”). In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). Approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 395 (1983), the Board established a framework for deciding cases turning
on employer motivation. To prove that an employer action is discriminatorily motivated and
violative of the Act, the General Counsel must first persuade, by a preponderance of the
evidence, that an employee's protected conduct was a motivating factor in the employer's
decision. The elements commonly required to support such a showing are union activity by the
employee, employer knowledge of that activity, and antiunion animus on the part of the
employer. Wal-Mart Stores, 340 NLRB 220, 221 (2003). If the General Counsel is able to make
such a showing, the burden of persuasion shifts “to the employer to demonstrate that the same
action would have taken place even in the absence of the protected conduct.” Wright Line,
supra, at 1089.
In the instant case, on March 20, Tucker and Jackson met with Cannon and Ortt to
protest Respondent’s wage policy, resulting Cannon contacting Prevost and Respondent
temporarily instituting a guaranteed wage rate for the drivers at the Landover facility.
Jackson contacted the Union towards the end of April, and he arranged a meeting
attended with Tucker, Giles and two other drivers on May 7, at the Union hall. During the
May 7, meeting, Jackson, Tucker and the two other drivers were given union authorization
cards for distribution amongst the bargaining unit members. At the May 7, meeting,

14 Tucker’s denial of his involvement with the Union to Cannon could only be seen as matter
of self preservation, given the fact that Jackson, the person who initiated the campaign had just
been followed by Respondent’s officials and then fired in the same meeting. It is likely, that
being told of Cannon’s knowledge of Tucker’s union activities, that Tucker could presume that
Cannon and Respondent had a similar knowledge of Jackson’s pro-union status.
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Tucker agreed to serve as the intermediary between the drivers and Giles in terms of the
collection of union cards. Thereafter, union cards were distributed amongst Respondent’s
drivers by Jackson, Tucker and the two other drivers. On May 17, the Union filed a
petition for election. On May 22, Respondent had Jackson followed. On May 25,
Respondent discharged Jackson in Tucker’s presence without allowing Jackson to defend
himself against the allegations against him. Tucker was also told he had been followed.
After Jackson left, Cannon told Tucker he knew Tucker was a leader and that he had been
informed by other drivers that Tucker had help start the Union. Tucker denied the
allegation, but Cannon persisted and stated the guys who were opposing the Union had
told Cannon that Tucker was one of the guys helping to start the Union. Tucker again
denied it. Cannon told him they did not need a union, their open door policy was good
enough, they did not need a third party, and that all unions do is milk companies and
employees out of money. Cannon told Tucker that the drivers said that Tucker was in the
middle between the drivers and management, and he stated that Tucker should not be in
the middle. Tucker he responded that he was not in the middle. Cannon testified that, he
initiated the conversation with Tucker and that, “I conveyed to him that his response to the
drivers, if they did have any complaints, would be, you need to go see management about
that.” I have concluded that Respondent received reports and concluded from its own
surmise that Jackson and Tucker were the leading union adherents. I have concluded that
Cannon unlawfully created the impression of surveillance, and that he unlawfully
instructed Tucker not to engage as a middleman between Respondent and the employees
thereby instructing him not to engage in protected concerted activities. There is evidence
of knowledge, timing and anti-union animus with respect to Respondent’s surveillance of
its drivers. Under the Board’s Wright Line analysis the burden shifts to Respondent to
establish that they would have engaged in the driver surveillance absent the union activity.
This they have failed to do.
Prevost testified Respondent’s operational model for Landover was initially was set
with 21 trucks and 21 drivers with a six day a week operation using a first and second shift
deliveries. Prevost testified during the first couple of months the start up at Landover was
not making money, and the actual business application was not matching the model.
Prevost testified they were not getting the projected utility out of the men or the equipment
they had anticipated going into the business. Prevost testified that to service the
customer, Respondent had to rent extra equipment and extra drivers, and they were not
able to hire enough local drivers. Prevost testified that after a month or six weeks, they
made a decision to do driver observations to determine where they had a modeling
problem. Prevost testified he directed Taylor, Cannon, Lyman Helms, then Safety Director
John Hoover, and Hoover’s assistant Anna Thomas to be involved in the Landover driver
observation. Prevost testified Respondent would have received the financial reports
around the second week of May, so the conversation would have been around May 10 to
May 15. Prevost testified the primary conversation was with Taylor, but he also spoke
with Hoover, and they spoke to the others who were involved. However, the referenced
financial reports were not submitted into evidence, thus the decision and timing to commit
the surveillance were based solely on Prevost’s testimony, part of which I have already
discredited in terms of his claim of lack of knowledge of the employees’ union activities.
Concerning the actual observations, Prevost testified that he thought six drivers
followed. Prevost testified the observers were given the most efficient route from the
dispatch in terms of selecting which drivers were to be observed. Prevost testified he
received several verbal reports about the study. Prevost testified it was concluded based
on the observations that the drivers, due to traffic congestion, could not do double loads
as Respondent originally anticipated in its model. Prevost testified Respondent adjusted
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the model to go from 21 to 26 drivers, due to traffic. Prevost testified he only received a
negative report about one of the six drivers and the rest were performing as they were
instructed. Prevost testified there were no other changes made to the model.
I find Prevost’s explanation as to the timing and the cause of the observation not be
supported by record evidence. Respondent’s payroll records as summarized in R.A. Exh.
34 reveal that by week ending April 22, Respondent already had hired 24 company
drivers, and by week ending May 13, it was up to 25 drivers. Thus, the model of 21
drivers was adjusted upward before Respondent conducted the surveillance. Moreover,
Cannon testified the company drivers started with a four week guarantee of $1000 a week,
which was extended to six weeks. However, Respondent’s records reveal that the drivers
were being paid uniform rates per day, as opposed to Respondent’s mileage and stops
formula until May 20. (R. A. Exh. 34, p. 6). Since the drivers were given a uniform rate per
day, then it is unlikely that a driver spending extra time at a store, impacted on his pay, or
that he had a reason to do so.
On May 22, when the pay guarantee ended, Respondent followed Jackson, and
shortly thereafter Tucker, the two leading union adherents. While Jackson apparently did
not fill out his log sheet as accurately as Respondent would have liked, Cannon testified
that at as of May 22, recording the reason for the delay probably was not required
because it was still a new operation. Thus, Cannon acknowledged as Respondent’s
records confirm that Respondent was in a transition period with respect to its operation
and pay system, so the drivers, except for the two leading union adherents were not being
monitored very closely as to how they filled in the pay forms. Yet, Jackson was followed
on May 22, and fired on May 25, without being allowed to explain the accusations against
him.15 Respondent’s claims become all the more untenable in that while there were two
discrepancies on Jackson’s May 22 trip sheet, only one of two of those misfilings cost
Respondent or its customer money. Cannon testified it amounted to a 20 minute overage,
which rounded down cost to Respondent and or its customer $5 in extra pay for Jackson.
Thus, although Prevost testified Respondent was having a hard time retaining drivers, it
discharged Jackson who had helped train its other drivers with no warning, or chance for
an explanation, for what was in essence a $5 overage. Respondent’s extreme reaction of
discharge by failing to at least give Jackson a warning against future conduct, in the
circumstances here, signals that Respondent was motivated by something other than the
inaccurate filling out the form and a $5 overage. That Respondent’s discharge of Jackson
was premeditated and in furtherance of Respondent’s anti union cause is further
substantiated by Tucker’s testimony that during the same meeting in which Jackson was
discharged Taylor showed Tucker a pre-drafted memo to all drivers announcing Jackson’s
termination. Thus, as Tucker credibly testified whatever ever Jackson had to say did not
matter as Respondent was intent on firing him. More than that Respondent was intent on
making sure that the employee who had initiated the union campaign had been summarily
discharged and that the discharge served as a warning to other employees.
The circumstances, behind the actual surveillance also smack of pretext. Despite
Respondent’s contention that it was just a random list of drivers to be followed, Hoover,
who along with Thomas did the actual surveillance, testified that the day when he and

15 The only other record of a driver for which Respondent produced as the results of its
surveillance was Garner, who appeared to have to at least two discrepancies between his trip
sheet and the surveillance report, yet there is no claim that Gardner was disciplined or even
talked to.
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Thomas arrived at the hotel in Landover from the airport, Ortt came to their hotel, and
said, “here's the guy I want you to follow,” in reference to Jackson. Hoover testified
Thomas was present for the conversation. Hoover testified Ortt only gave them one driver
to follow the first day of their observation and that was Jackson. Hoover testified that Ortt
gave him other drivers the next day. Hoover testified that they only followed three or four
different drivers, and he could only recall the names of two of them, Jackson and Tucker.16
Hoover testified he could recall these two drivers because Jackson’s performance did not
make sense, in that Jackson would sit in the parking lot both before and after making
deliveries. Hoover testified Jackson would sit for no reason and read the paper although
Jackson had an empty dock. Hoover testified when they followed Tucker, he was “Mr.
Perfect,” in that he did everything by the book. As a result of Tucker’s good work, Hoover
testified they followed him twice, just in case the first time was not accurate.17
Thomas’ testimony varied from Hoover’s. She said nothing about Ortt meeting
them at the hotel the first day they were there, or Ortt’s only naming Jackson as the driver
they were to follow the first day. Contrary to Hoover, Thomas testified she was not
involved in any meetings the day of her arrival at Landover “other than we all decided that
we would meet at a certain time the next morning, and then all went to our separate
rooms.” Thomas testified the people who were going to carry out the observation met
early the next morning and that someone had a list of the drivers. She testified they
divvied the list up among two teams of surveillors. She testified they each took a couple
of driver’s names, and left. Thomas then changed her testimony stating it was not really a
list, but a packet, and when she opened the packet she saw there were three drivers in her
packet. Thomas testified the other team was also handed a packet, but she did not see
the driver names in that packet. Thomas testified both packets were about the same size.
When asked how many drivers were on the list, Thomas testified, “I couldn't tell you that. I
believe we got a list of three or four, and I'm sure that's probably what the other team got.
I don't know for sure.” Thus, Thomas testimony changed from the amount of drivers she
observed from a couple, to three, then to three or four. Thomas testified the first day
Arthur and Hoover were on her team and they went out together. She testified Lyman and
Fred Long were on the other team. Thus, Thomas did not mention anything about their
just following Jackson the first day as Hoover testified; and Hoover did not testify about
there being two teams of observers as Thomas claimed.
Moreover, Respondent did not provide a consistent story to either Tucker or in the
testimony its witnesses as to the number of drivers that were actually followed. Tucker
credibly testified that on May 25, Taylor told him ten drivers were followed. However,
Prevost testified it was only about six drivers who were followed. Ortt gave a differing
opinion stating that he provided the list of drivers to be followed and there were only four

16 Hoover, upon having his recollection refreshed, testified Respondent’s officials also
followed Gardner, as he recalled Thomas filled out a report concerning Gardner.
17 I do not credit Hoover and Thomas’ testimony that they were not aware there was a union
campaign at the facility at the time of the surveillance. Prevost testified he circulated a copy of
the Tips sheet to Hoover. I have concluded, contrary to Prevost’s testimony, as admitted by
Respondent’s counsel, that its officials became of aware of the union campaign shortly after it
started and that the Tips sheet was created and distributed shortly thereafter. Thus, I have
concluded since Prevost testified he gave Hoover a copy of the Tips sheet that he gave it to him
before Hoover went to Landover, for Hoover would have had no need for the sheet after he
returned to Nashville following the surveillance, for there is no contention that he ever revisited
the facility during the course of the union campaign.
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or five drivers that were followed. Hoover testified they only followed three or four drivers,
and did not mention a second team of observers. Thomas testified there were two teams
of observers, and then varied her testimony stating that from two to four drivers as being
the number that her team observed.
Respondent could also provide only limited documentary evidence as to the driver
observations. Aside from evidence pertaining to Jackson, only one other written report
was provided relating to driver Andrew Garner.18 Cannon stated he received Garner’s
report from Taylor, there is no explanation as to why if other reports existed that Taylor did
not provide Cannon with all of the reports. Cannon testified that Jackson was fired for,
“Falsification of legal document,” referring to Jackson’s, Monday May 22, trip sheet.19
Cannon testified that on the May 22, trip sheet Jackson reported he arrived at store 342 at
12 noon and left at 1:20 p.m. Cannon testified Jackson would have received $5 detention
pay for the 20 minutes over the hour, since the pay is rounded down. Cannon testified
upon reviewing a written report from Taylor, the times Jackson arrived and departed from
store 342 were false on Jackson’s trip sheet.20 Cannon testified this was a legal
document, the falsification of which was cause for termination. Cannon testified this was
the only reason Jackson was terminated. Cannon testified he is not aware of Respondent
terminating any other driver for falsification of legal documents. Thus, despite its
operation of 17 terminals, Respondent put forth no evidence of any other driver being
discharged or even disciplined for misstating information on their route sheet.
A report written by Taylor to Jackson, dated May 25, states he was observed
arriving at his first stop on May 22 at 6:30 a.m. and that he backed into the dock to unload
at 7:40 a.m. He was then observed pulling out of the dock and parking in the store lot at
7:50 a.m. and sitting in his tractor and reading the paper until 8:15 a.m. It is stated that on
his dispatch route sheet Jackson he wrote down that he arrived at the store at 7 a.m. and
departed at 8 a.m. It is stated therein that on his last stop of his four stop route, he was
observed arriving at the store at 11:50 a.m. and backing directly into the dock to make his
delivery, and that he pulled away from the dock and parked his vehicle in the parking lot at
11:59 a.m., with his delivery completed. He was then observed of sitting in his tractor until
12:50 p.m. and leaving the area. On his dispatch route sheet he wrote that he arrived at
12 noon and departed at 1:20 p.m. It stated on the report that his actions were two acts of
dishonesty and constituted falsification of company records as reflected on page 38 of
Respondent’s handbook which subjected Jackson to immediate termination. Taylor stated
Jackson’s actions at the last stop required Respondent to pay him 20 minutes for delay
time at the last store. Taylor also wrote that Jackson’s actions were constituted

18 Garner’s name appears alternatively as Gardner on the record but there is no dispute
between the parties that Gardner and Garner is the same individual.
19 Cannon testified that when a driver arrives at a store he is paid $15 for the stop for
the first hour. Anything beyond the first hour, he is paid $20 an hour in 15-minute
increments for delay time, and the clock starts running for delay time at the time the driver
arrives at the store. Respondent is reimbursed for those payments by its customer MMD.
If the driver is at the store for an hour and 15 minutes, he would receive an extra $5. In
order to get the detention time a driver must record the reason for the delay on his trip
sheet. Cannon testified this is required by MMD. However, Cannon testified that at as of
May 22, recording the reason for the delay probably was not required because it was still a
new operation.
20 Cannon testified there was another time pointed out in the statement that was false,
but he could not recall it at the time of testimony.
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unauthorized absence from duty during regularly scheduled work hours citing page 39 of
the handbook which is the subject of immediate termination. It is stated because of his
actions Jackson was terminated immediately. However, despite the two reasons, listed in
Taylor’s letter, Jackson’s typed termination report reflects that he was terminated on May
25, as approved by Ortt on June 2, with only the only stated reason on the report being for
“Falsifying Company Documents.”
Respondent produced in response to the General Counsel’s subpoena request a
handwritten memo dated May 25, with Gardner written at the top, which Cannon testified
looked to be a report on an observation of driver Andrew Garner. Cannon became aware
of the report through Taylor. Cannon testified after Taylor resigned from the company,
Cannon took over his position; and Taylor gave Cannon all of his files. Garner recorded
on his May 25 trip sheet that he arrived at the third store 108 at 7:45 and departed at 8:50.
He placed at the bottom of the sheet that for store 108, “Docks blocked for 1 hour.”
However, the observation report for Garner states “arrived at 7:36 and immediately docked
then talked to another guy (Giant driver) for 15 minutes, then went inside, pulled out 8:45.
The last paragraph on the Garner observation report states, “we left at 11.18 to last store
arrived at 11:33 –we proceeded to conduct a grid search to no avail. At 11:54 a.m. a
telephone contact attempt was made. We were informed driver had not made his delivery
yet. We call Elcott store and they said he was there between 11:00 & 11:30--- At 12:03 he
still had not made his delivery. Waited until 1:15 no show called terminal and they said he
called in empties at quarter till 1:00. The arrival and departure time Garner reported on
his trip sheet for the last store was 12:01 to 12:40. Cannon testified he never confronted
Garner for falsification of documents. He testified he was not aware if Ortt did.
In sum, the credited testimony reveals that on May 22, just five days after the
petition for election was filed, Respondent began conducting a surveillance of its drivers.
Included in the surveillance were leading union adherents Jackson and Tucker. Hoover’s
testimony, reveals Respondent’s officials were so anxious to have Jackson watched that
Ortt came to their hotel room on the day of their Landover arrival, a Sunday when the
terminal was closed, and gave them Jackson’s name stating “here's the guy I want you to
follow.” On May 25, Jackson and Tucker were called into a meeting, and Jackson was
summarily discharged without being given a chance to defend himself. During the same
meeting, Tucker was told Respondent had received reports that he had helped start up the
Union, and that he was serving as a middle man between drivers and management.
Tucker was told Respondent was opposed to the Union, and that he was to stop serving
as a middle man, and to instruct the drivers to take their complaints directly to
management. In response to the evidence of timing, animus, and knowledge, the
testimony of Respondent’s officials differed as to the number and names of drivers
watched other than Tucker, Jackson, and Garner, and records were only produced for
Garner and Jackson with a claim that records for other drivers could not be located since
Taylor was no longer employed there. Yet, Garner, who appeared to have as many
deviations in his report as Jackson was not disciplined over the incident. Respondent
officials Hoover and Thomas also gave inconsistent descriptions as to how the
surveillance was conducted. I have also discredited Prevost’s testimony as to his
knowledge of union activity at the facility at the time he ordered the surveillance and his
reasons for ordering the surveillance were not supported by the documentary evidence as
Respondent submitted no records in support of Prevost’s testimony concerning the
financial status of Landover, and Respondent had already hired more drivers than the
original model called for prior to initiating the surveillance. The discharge of Jackson was
further undercut by the fact that Respondent had only recently changed its system of
payment for the drivers, and Cannon’s admission that the drivers were not being
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scrutinized for their accuracy in filling out the trip sheets at the time because Respondent
was in a transition period. Accordingly, Respondent has not established that it would have
engaged in the surveillance of its drivers absent their union activity and I find that
surveillance to be violative of Section 8(a)(1) of the Act.
Jackson’s May 25, discharge was a direct result of the surveillance which I have found to
be unlawful. Jackson was terminated shortly after Respondent ended its guaranteed pay
system, at a time when Cannon testified the driver’s accuracy in filling out their trip sheet was
not being strictly enforced. Jackson was discharged by Taylor, the regional vice president,
although Cannon testified it would normally be the terminal manager’s job to make such a
decision to discharge the employee. Jackson’s overage was only $5 and he was given no
warning or chance to defend himself at time when Prevost testified Respondent was having
difficulty in securing drivers. Hoover testified the first day he was there he was giving specific
instructions by Ortt that Jackson was the one Ortt wanted Hoover to watch. The Board has long
held that when an employer adopts discriminatory rules as a result of a union campaign, the
discipline or discharge of employees pursuant to those rules is unlawful. See, Tuscaloosa
Quality Foods, Inc., 318 NLRB 405, 411 (1995); Hyatt Regency Memphis, 296 NLRB 259
(1989); and Baptist Memorial Hospital, 229 NLRB 45 (1977), affd. 568 F.2d 1 (6th Cir. 1977). I
find counsel for the General Counsel’s motion to withdraw the complaint allegation over
Jackson’s discharge at the end of his case in chief does not preclude an unfair labor practice
finding here since the surveillance allegation remained part of the complaint and was found to
be unlawful. I find that in these circumstances, Jackson’s May 25, 2006, discharge was fully
litigated, in that it came about as a result of the unlawful surveillance, and the discharge was
violative of Section 8(a)(1) and (3) of the Act. See, Sheet Metal Workers Local 162 (Dwight
Lang’s Enterprises), 314 NLRB 923, fn. 2 (1994), holding the General Counsel does not have
unlimited discretion to withdraw complaint allegations after presenting evidence. This concept is
especially applicable here because the circumstances concerning Jackson’s discharge were
fully litigated as part of the lawfulness of the surveillance involving Jackson and Tucker.
C. The interrogations
General Counsel witness Kevin Cook worked for Respondent as a company driver
out of Landover from March to January 2007.21 Cook testified he had one conversation
with Cannon and one with Taylor on how he was going to vote in the union election. He
testified the conversation with Taylor occurred first. It was about two or three weeks prior
to the June 22, election. Cook testified, after he completed his run that day, Ortt asked
Cook if he needed a ride home. Cook stated he was waiting for Tucker to come back
because they were riding together. Ortt said Tucker was gone, and Taylor offered Cook a
ride. Taylor took Cook home in Taylor’s car. Cook testified that during the drive, “We both
was talking and then he started on about the-- about the union election is coming up and
he said that he knew he had lost all the Giant drivers and he was hoping that he had my
support and vote a no with the union-- and I told him that he had my support.” Cook later
stated when he told Taylor that Taylor had Cook’s support that Taylor said, “good guy or
something.” Cook testified Taylor patted Cook on the knee and then started talking about
Taylor’s father. Cook testified he did not tell Taylor the truth when he told him he had his
support with a no vote. Cook testified he did not tell Taylor the truth, “Because then he'd
want them to terminate me or something.” He testified he was afraid Taylor would
terminate him, “Because he was the vice president of the company.” Cook was aware the
company was against the Union.

21 At the time of the hearing, Cook was working for MMD as a yard jockey.
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Cook testified he had a conversation with Cannon around a week before the election
outside the office in the Landover plant. The conversation took place when Cook returned from
one of his runs. Just Cannon and Cook were present. Cook testified he came in from his run,
turned in his paperwork and made his copies. Cannon asked if he could speak to Cook and
Cook agreed. Cook testified, “He walked out of the office and asked how I was doing, and I said
I'm doing okay. He said that he hoped that he had my support with the election, and I said
yeah, you got my support, because I was against the union. And he said, good guy, and he
patted me on my shoulder and that was it.”
In determining whether a supervisor's questions to an employee constitutes an unlawful
interrogation, the Board examines whether under all the circumstances, the questioning tends to
interfere with, restrain, or coerce employees in the exercise of Section 7 rights. Rossmore
House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). In making this assessment,
the Board reviews various factors, including whether the employee is an open union supporter,
the employer's background (whether there is a history of employer hostility and discrimination),
the nature of the information sought (whether the interrogator appeared to be seeking
information on which to base action against individual employees), the identity of the questioner
in terms of how high they are in the company hierarchy, the place and method of the
interrogation, and the truthfulness of the reply. The Board will determine whether under all the
circumstances the questioning at issue would reasonably tend to coerce the employee at whom
it is directed so that he or she would feel restrained from exercising rights protected by Section
7 of the Act. Carroll & Carroll, 340 NLRB 1328, 1332 (2003). The Board will also find
statements that are not phrased as questions to constitute unlawful interrogations when they are
designed to elicit responses from employees about their union sentiments. Medcare Associates,
Inc., 330 NLRB 935, 941 fn. 21, citing NLRB v. McCullough Environmental Services., Inc., 5
F.3d 923, 929 (5th Cir. 1993).
Respondent argues that I should not credit Cook because he stated that Taylor
patted him on the knee showing approval for his anti-union stance during the first
conversation, and he stated that Cannon patted him on the shoulder during the second
conversation. Respondent contends Cooks’ testimony that both Taylor and Cannon had
similar reactions to Cook’s anti union response undermines Cook’s credibility.
Respondent also argues that Cook’s testimony as to his remarks about the use of owner
operators during the October 15 meeting when the strike vote was taken undermines
Cook’s overall credibility.
Having considered Respondent’s arguments, I am nevertheless persuaded that
Cook should be credited concerning his encounters with Taylor and Cannon.22
Respondent called both Ortt and Cannon as witnesses. Ortt did not deny Cook’s assertion
that around three weeks before the election, Ortt helped arrange a ride home for Cook
with Taylor. Moreover, Cannon did not deny having the conversation with Cook in the
manner Cook testified. Finally, Prevost admitted that he received reports from the facility
that the majority of the employees were for the union in that most of the employees had
worked in union organizations before and wanted it. In a clear reference to Giant, Prevost
testified that most of the employees Respondent hired were laid off from a union company.
Thus, Prevost’s testimony serves to corroborate Cook’s testimony that Respondent’s
officials, including Taylor, were keenly aware that the ex-Giant drivers supported the

22 Respondent did not call Taylor, who no longer worked at the company at the time of
the hearing, as a witness.
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Union. Cook also testified in a credible and consistent fashion about his conversations
with Taylor and Cannon, and his testimony is undenied on the record by Respondent’s
witnesses who did appear at the hearing.
I find that both Taylor and Cannon violated Section 8(a)(1) of the Act by
interrogating Cook. The union filed a petition for election on May 17. On May 22,
Respondent for the first time at this facility began to follow drivers, including leading union
adherents Jackson and Tucker. On May 25, Respondent discharged Jackson, and during
the same meeting told Jackson and Tucker that they had been followed. Tucker was
informed by Cannon in Taylor’s presence that Respondent was a aware Tucker helped
start the union, Tucker was serving as a middle man between the drivers and the
Respondent, and Tucker should cease acting in that capacity. On May 26, Taylor issued a
memo dated May 25, in all capital letters notifying the drivers of Jackson’s discharge.
While Jackson’s name was not specifically mentioned in the memo, Taylor acknowledged
news traveled fast amongst the drivers by starting the memo out, “AS MANY OF YOU
ALREADY KNOW A QUICKWAY DRIVER WAS TERMINTATED TODAY…”. In early June
Respondent began to distribute campaign literature against the union.
Viewed against this backdrop, I do not find Taylor’s conversation with Cook to
constitute a mere permissible campaign statement by one of Respondent’s officials.
There is no contention that prior to the conversation, Cook had broadcast his sentiments
about the union to Respondent’s officials. Taylor, a regional vice president, was a high
level official with Respondent. Terminal manager Ortt had helped arrange for Taylor to
give Cook a ride home in Taylor’s car. Thus, Cook was a captive audience for a one on
one meeting with Taylor. During the ride home, a conversation about the upcoming union
election ensued, and Taylor told Cook that he had lost all the Giant drivers and he was
hoping he had Cook’s support with a no vote for the union. Cook responded that Taylor
had his support. I find Taylor’s remarks were coercive. First they served to create the
impression of surveillance in that Taylor related that Respondent was keeping track of
employees’ union sentiments when he stated he knew he had lost the Giant drivers.
Second, his remark that he hoped he had Cook’s support, placed Cook in the Hobson’s
choice of not responding thereby creating the inference that he supported the Union, or
responding as he did by assuring Taylor that Taylor had Cook’s support. Given the
circumstances of the conversation, and its content, I find Taylor interrogated Cook in
violation of Section 8(a)(1) of the Act. Given Jackson’s recent discharge, which
Respondent broadcast to the drivers by memo, it was reasonable for Cook to fear reprisal
as he testified if he announced his pro union position to Taylor during the car ride.
Similarly, I find Cannon’s encounter with Cook to constitute a coercive interrogation
violative of Section 8(a)(1) of the Act. While Cannon was not a regional vice president at
the time of the conversation, his testimony revealed that he had been alternating with
Regional Vice President Taylor in supervising the Landover start up. Cannon was also
present, along with Taylor, for Jackson’s termination meeting. Thus, just a week before
the election, Cannon requested a one on one meeting with Cook, outside of Respondent’s
office. Respondent had conducted a campaign against the Union, and Cannon told Cook
that he hoped he had Cook’s support with the election. Cook responded that Cannon had
his support and that he was against the Union. Cook was again placed in a position where
he had to respond to a high level official, in a one on one situation, about Cook’s union
sentiments. That Cook felt compelled to misinform Cannon that Cannon had Cook’s
support because Cook was against the Union reveals that Cook felt coerced by Cannon’s
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inquiry. I have concluded, given the circumstances, Cook’s feelings were reasonable.23
D. The diversion of bargaining unit work
1. The use of temporary drivers
Respondent began making deliveries out of Landover on March 27, to about 200
Giant stores and 10 Stop and Shop stores. The Stop and Shop stores were in southern
New Jersey. These deliveries did not require the drivers to layover. Respondent had 17
company drivers during the week of March 27.24 The parties stipulated Respondent also
used temporary drivers on an on going basis from the outset of the Landover operation.
The number of temporary drivers Respondent used varied on a daily basis. For example,
during the week of June 1, Respondent used four temporary drivers on Monday, one each
on Tuesday, Wednesday, and Thursday, three on Friday, and five on Saturday.
Respondent paid the temporary agencies by the hour, including overtime, for the use of
the temporary drivers. The temporary drivers were compensated by the temporary
agencies for their pay and benefits. The temporary drivers could change from day to day
as referral of the drivers was based on the discretion of the temporary agency, subject to
Respondent’s right to reject a particular driver. Respondent generally used a greater
number of temporary drivers on Mondays and Saturdays, with Saturdays being the highest
usage. The temporary drivers drove the 21 cabs Respondent originally rented from Ryder
to begin its operation. Respondent would also rent additional cabs as needed from Ryder
on a daily basis for the heavier work days, Mondays and Saturdays, for the temporary
drivers. The temporary drivers pulled the same trailers as the company drivers.
The NLRB election was held on June 22, and a certification of representative was
issued for the Union on July 10, in the following unit:
All full-time and regular part-time company driver employees and hostlers employed
by the Employer making deliveries from its domicile at 5 S. Club Drive, Landover,
Maryland; but excluding all office clerical employees, professional employees,
managerial employees, guards and supervisors as defined in the Act.
Following the election, Respondent continued to use the temporary drivers on a weekly
basis. For example, during the week of July 10, Respondent used four temporary drivers

23 I do not view Respondent’s reliance on BI-LO, 303 NLRB 749, 764 (1991), enfd. 985 F.2d
123 (4th Cir. 1992) to warrant a different result. There the judge after refusing to rely on an
employee’s testimony about an alleged interrogation, merely speculated that the manager said
that he hoped he could count on an employee for support. Such, speculation would not be the
foundation for a Section 8(a)(1) finding, nor would it provide the context in which such a remark
may have occurred. Similarly, Diamond Hosiery Corporation, 105 NLRB 532, 533, (1953), enfd.
21 F2d 262 (4th Cir. 1954), where a supervisor accused two employees of being ringleaders
from the union does not require a different result. There the Board held the statement was not
in the form of a question, and it was not the type of remark which was intended to elicit a reply
concerning union activity. For the reasons set forth above, I have concluded Taylor and
Cannon’s remarks were intended to elicit a reply from Cook, and that they succeeded in doing
so. See, Medcare Associates, Inc., supra, at 941 fn. 21; and NLRB v. McCullough
Environmental Services., Inc., supra., at 929.
24 By the week of April 3, the number of company drivers had increased to 19, and by the
week of April 10, there were 23 company drivers. (See R. A. Exh. 34)
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on Monday, four on Tuesday, four on Wednesday, four on Thursday, six on Friday, and
eight on Saturday. During the week of August 7, Respondent used four on Monday, three
on Tuesday, four on Wednesday, four on Thursday, three on Friday, and six on Saturday.
During the week of September 18, Respondent used four temporary drivers on Monday,
three on Tuesday, two on Wednesday, one on Friday, and three on Saturday. During the
week of October 9, Respondent used a temporary driver on Monday, and three on
Saturday. During the week of October 16, Respondent used one temporary driver on
Monday, two on Wednesday, one on Thursday, three on Friday, and four on Saturday.25
2. Bargaining unit driver Branch is offered
to convert to be an owner operator
Roger Branch was hired by Respondent as a company driver around April 16.26
Branch interviewed for the job as company driver with Cannon and Ortt. Branch credibly
testified to the following: During the interview, Branch told Cannon that Branch owned a
company with his own truck, and that he wanted to work for Respondent as an owner
operator. Cannon replied they could not do that at the time, but if Branch took a job as a
company driver, Respondent could take him on as an owner operator later and Branch
could then drive his own truck. Branch testified, “I accepted.” Branch testified Cannon did
not give Branch a specific time as to when he could become an owner operator, nor did
they discuss what the compensation would be for an owner operator at that time.27
Branch was hired by Respondent on April 17 as a company driver at $.45 a mile,
$15 a stop, and if there was delay time at the stores $20 an hour broken down into 15
minute increments. Branch testified after he started working for Respondent, he continued

25 The above are just sample weeks extracted from Respondent’s routing records which
were tendered into evidence as GC Exh. 69, along with a summary entered into evidence
showing the names of the temporary drivers used by Respondent.
26 Branch converted to become an owner operator for Respondent on October 13 and
he ceased driving a truck for Respondent on May 18, 2007.
27 Cannon confirmed there was a conversation with Branch prior to Branch’s start date
where Branch stated he would like to lease his truck on with Respondent. Cannon
testified he told Branch that Respondent was not looking for owner operators, that Cannon
did not know what the future would bring but they would keep it in mind to consider at a
later date. Cannon testified during the course of Branch’s employment every time Cannon
made a visit to Landover and Branch saw him, Branch asked Cannon if they were ready to
start negotiating about leasing Branch’s truck. Cannon testified his reply every time was
that they were not leasing owner operators. Ortt similarly testified they told Branch when
he applied that Respondent had owner operators throughout the company but that they did
not know if the operation was going to go that route at Landover.
I have credited, Branch’s version of the hiring conversation over that of Cannon and
Ortt. Branch impressed me as a credible witness, who would have had a greater reason
to recall the events leading to his employment with Respondent than both Cannon and
Ortt, who each dealt with multiple drivers. Moreover, Cannon and Ortt had an incentive to
convey to Branch the strong possibility of his becoming an owner operator as an
inducement for him to accept their then current job offer as a company driver. Finally,
Cannon conceded that Branch repeatedly approached him asking him if they were ready
to start negotiating about his being an owner operator. Thus, I have concluded as Branch
credibly testified, that Respondent’s officials conveyed the belief to Branch at the time of
his hiring that he would eventually be able to convert his status to owner operator.
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to ask Ortt and Cannon about becoming an owner operator. Branch testified he and
Cannon had a conversation in June 2006, about rates if Branch were to convert to an
owner operator. The conversation took place in Respondent’s office and that he thought
Ortt was also present. Branch testified in response to a leading question that he was
approached by management about the conversation. Branch testified that, during the
meeting, Cannon showed Branch three of Branch’s trip sheets dated June 5, 12, and 19,
which contained Cannon’s handwriting. Cannon had used Branch’s mileage and stops for
each of those weeks to show Branch what he would have earned as an owner operator for
Respondent rather than being a company driver. Branch testified the numbers Cannon
told him he would be paid as an owner operator were $1.13 a mile, $18 dollars a stop, and
$.33 a mileage surcharge, which is a fluctuating number to offset the cost of fuel to the
driver. Branch testified Cannon’s calculations were already on the sheets prior to time the
meeting started. Branch testified the mileage for the week of June 19 presented by
Cannon was based on Branch’s mileage totals ending on June 24. Branch testified that
since Cannon had Branch’s mileage figures as current as of June 24 at the meeting that
the meeting with Cannon took place after the June 22 union election.28
Cannon initially testified that an announcement had been made at Landover that
Respondent was to be receiving new northern New Jersey (NNJ) runs, and that
Respondent was going to lease owner operators.29 Cannon testified that once the word
got out that Respondent was going to be picking up the new freight and going to lease
owner operators, Branch phoned Cannon at the Newark terminal and inquired whether it
was time for them to talk about Branch being an owner operator. Cannon testified Branch
stated he heard Respondent was getting some business and that he was still interested in
being an owner operator. Cannon stated he would probably be out there in the near future
and they could talk about it then.
Cannon testified that he went to Landover, met with Branch, and they went over the
contract for owner operators. Cannon testified they discussed rates Branch could make
upon becoming an owner operator. Cannon did not know the date he met with Branch, but
estimated that it was a few weeks before the Union was certified. Cannon testified they
talked about pay regarding dollar per mile, stop pay, what insurance was available through
the company, and what insurance was required by an owner operator. He testified they
discussed the other requirements in that the owner operator would have to maintain at
least a $1,000 escrow account, and the possibilities of purchasing a license plate for the
truck through Respondent. Cannon testified he took what Branch had made in the past
days or even weeks on his mileage and stops when he was running around Washington
and Baltimore and applied it to the owner operators pay scale. Cannon identified his
handwriting on the trip tickets he presented to Branch during the meeting testifying he
wrote the calculations on the sheet regarding Branch’s pay. Cannon testified he told
Branch they were going to start the NNJ runs at the end of August or beginning of

28 The parties stipulated Branch was a member of the bargaining unit for a period of time.
29 However, Cannon later testified he did not make an announcement at the facility
about the acquisition of the NNJ stores and the use of owner operators, but that he just
had casual discussions with drivers when they were told about it on a one on one basis.
Cannon testified there was no special visit by Cannon to make an announcement. Cannon
was not sure when he informed the drivers about the new runs, stating the runs were
initially supposed to start at the end of August, but they were postponed several times.
Cannon testified he visited the facility when they had negotiations and he may have had a
conversation with the drivers then. However, negotiations did not begin until August 8.
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September. However, the start date of the NNJ runs was pushed back several times until
the actual date of October 16. Cannon testified Branch signed the owner operator
agreement on October 13, because he told Cannon he did not want to become an owner
operator until Respondent started the NNJ runs.30
Giles identified a document entitled, “Independent Contractor Agreement,” with
Respondent listed as the carrier. Giles testified Branch gave Giles the document at the
union hall on July 16, following a union meeting on that date.31 Giles testified Branch told
Giles that Respondent had talked to Branch about being an owner operator. Branch
asked Giles what he thought of it, and Giles said not much. Giles asked Branch what the
rates were and Giles told him that he did not think much of the rates. Guiles testified that,
“He told me he had talked to Mr. Cannon about this in the prior week I believe.”
On July 17, Giles sent by fax and first class mail a letter to Taylor. Giles sent the
letter because of the information Branch had provided Giles. In the letter, Giles stated:
As you also may know, the National Labor Relations act (NLRA) prohibits an
employer from diverting bargaining unit work from employees in the certified
bargaining unit to other employees, or from otherwise converting bargaining unit
work to non-bargaining unit work. Furthermore, the NLRA prevents an employer
from unilaterally changing wages, hours and other terms and conditions of
employment without bargaining over such proposed changes with the Union.
It has come to our attention that Quickway intends to offer or already has offered
bargaining unit work to drivers and hostlers on an independent contractor, or
owner-operator basis. Such improper diversion of bargaining unit work would

30 Ortt testified he was not present for a meeting with Branch and Cannon when Branch
was shown some of his trip sheets and it was calculated what he would make as an owner
operator. Rather, Ortt claimed once Branch found out the New Jersey freight was coming,
Branch approached Ortt about it. Ortt testified it was approximately in August, or
September when Branch came to the office. Ortt testified Branch wanted to know if they
were going to hire owner operators for the NNJ runs, and if Branch would have a shot of
leasing his truck on. Ortt testified the only other conversation he recalled was that Ortt
approached Cannon and asked him if they were bringing owner operators on if Branch
was eligible to bring his tractor on. Ortt testified Respondent had been looking for owner
operators prior to the NNJ runs and ran ads in Baltimore Washington area newspapers
which Branch saw. Ortt testified there were ads in July 2006 for owner operators for
Landover. I do not find Ortt’s testimony credible here as Cannon and Branch’s testimony
reveals that Cannon met with Branch at the end of June or early July, and told Branch
about the NNJ runs, gave him the rates, and offered him a position as an owner operator
at those rates, which Branch declined until the NNJ runs actually started. Thus, Ortt’s
claim that Branch asked Ortt in early August if Respondent was going to hire owner
operators to run the NNJ runs makes no sense in terms of the sequence of established
and admitted events. I also find that Ortt was present for the meeting between Branch and
Cannon as Branch testified. I do not credit, Ortt’s claim that Cannon bypassed the
terminal manager when he met with Branch to offer to convert Branch to an owner
operator position.
31 Giles recalled the date by reviewing the meeting sign in sheet. Branch testified that right
after the union meeting, Branch shared the information Cannon had given him about being
an owner operator with Giles. Branch testified Guiles looked at the information and told
Branch that it was not worth doing. Giles said the rates were garbage.
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violate federal labor law and demonstrate bad faith on the part of Quickway in
refusing to bargain with its certified collective bargaining representative.
*.*.*
The Union also demands that Quickway immediately engage in good faith collective
bargaining over any proposed change in Quickway’s operations, as well as to
commence the forming of a collective bargaining agreement between Quickway and
the Union.
Cannon responded to Giles by letter dated July 28, in which Cannon stated:
In your letter dated July 17, 2006, you requested information from Quickway
Transportation, Inc., with respect to contracting with independent contractors at its
Landover terminal because of concerns that Quickway (h)as diverted bargaining
unit work to those independent contractors in violation of federal law. The
underlying premise of your letter and your request for information is incorrect.
Quickway currently has equipment for and needs 26-27 company route drivers to
do the work presently being performed at the Landover terminal. Unfortunately, we
only have 22 route drivers and have been supplementing the workforce with the
use of temporary employees from a local temp agency. Because of the cost
involved in using temporary employees, Quickway would like to reduce the use of
temporary employees and is actively trying to hire additional route drivers to fill the
company trucks.
Quickway has also begun advertising to attract independent contractors to work
out of the Landover facility. We anticipate beginning some additional runs that will
require layovers. Notwithstanding the fact that Quickway does not have enough
route drivers to perform its current work, Quickway does not have any sleeper cab
equipment at its Landover terminal to perform those runs. Using company route
drivers is therefore not an option, and Quickway will have to supplement its
workforce with independent contractors who have sleeper cab equipment. Those
independent contactors may also supplement any work that cannot be performed
by route drivers with company equipment. Suffice it to say, however, despite
Quickway Transportation’s plans to use independent contractors, no work is being
diverted or taken from bargaining unit employees.32

32 I have credited Branch’s testimony that it was Cannon not Branch who initiated the
meeting where Cannon discussed the NNJ runs and Branch becoming an owner operator.
The meeting taking place at the end of June or early July, since Cannon presented
Branch’s route sheets ending on June 24, during the meeting. While Cannon’s June 28
letter and Ortt’s testimony reveal that Respondent began to advertise for owner operators
sometime in July, Respondent presented no documentary evidence showing the date
those advertisements actually began. On the other hand, Cannon was aware of Branch’s
prior desire to convert to an owner operator position based upon Branch’s entreaties to
Cannon to do so. Given the fact that Respondent did not contract with its first owner
operator until August 8, the record evidence supports a finding that Respondent did not
begin to advertise for owner operators until sometime after Cannon met with Branch.
Along these lines, Ortt testified that Branch did not approach Ortt about the ads until
sometime in August, and Cannon could only state that he discussed the matter with
drivers when he was in town for negotiations which began on August 8. Given,
Respondent’s knowledge of Branch’s desire to be an owner operator, and Respondent’s
inability to establish how Branch would have learned of the NNJ runs at such an early date
other than by Cannon informing him of it during their meeting, as well as considerations of
Continued
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3. The contracting with owner operators
Respondent contracted with Thomas Purnell as its first owner operator out of
Landover on August 8. Purnell began running routes for Respondent on August 10, which
was a Thursday, and he worked three days that week. Purnell’s records show beginning
August 14, he worked five days a week for Respondent through and including the week of
September 18. Purnell worked four days during the week of September 25, and thereafter
resumed his five day a week schedule through the week of October 9. Purnell was
running all local runs during this period, which theretofore had been performed by the
company drivers or temporary employees.33 Dion Lane was the second owner operator
hired by Respondent with a contract date of September 5. Lane ran five days the week of
September 18, three the week of September 25, five the week of October 2, and four the
week of October 9. Terringus Walker entered a contract with Respondent on September
19. Walker ran three days the week of September 25, four the week of October 2, and six
the week of October 9. Respondent contracted with additional owner operators on
October 5, October 10, and on October 13. Respondent’s records reveal that it had
contracted with six owner operators by October 16 the day the NNJ runs began.
Respondent subsequently contracted with additional owner operators on November 14;
November 29; December 11, and on December 21. Cannon testified Respondent had has
many as 13 owner operators during the strike beginning on January 12. 2007.
Branch credibly testified to the following: On October 13, Branch signed
Respondent’s agreement entitled “Independent Contractor Agreement.” Ortt approached
Branch and gave him the agreement on October 13. Branch had previously received a
call from Ortt stating that on October 16, Respondent was going to start the new NNJ runs.
On October 16, he began running routes as an owner operator for Respondent.
As an owner operator Branch used Respondent’s DOT number.34 Branch testified
that upon signing the contract his runs also changed from local to NNJ runs. When
Branch became an owner operator his compensation was $1.13 for mileage, $18 a stop,
and whatever the fuel surcharge was for the week. Respondent paid for tolls when Branch
was a company driver. As an owner operator, Branch was also reimbursed by
Respondent for tolls for about $100 to $150 on a weekly basis. When Branch was a
_________________________
the demeanor of the witnesses, I have concluded it was Cannon who initiated the meeting
with Branch, and that Branch did not call Cannon on the phone to initiate the conference
as Cannon testified. It appears from the record, that the General Counsel has established
that the meeting between Cannon and Branch took place after the June 22, election.
However, the General Counsel has failed to establish, with sufficient specificity from the
testimony, that the meeting took place after the July 10, certification date as the record
evidence shows that the meeting between Cannon and Branch took place sometime after
June 24, but before July 16.
33 Cannon testified when owner operator Purnell he came on he did the same type of
work as the company drivers and as the temporary (temps) were.
34 Branch testified that contrary to being an owner operator at Respondent, that when
he is an independent contractor he retained his own operating rights, and that as an
independent contractor he could contract for his own loads without Respondent’s or
anyone’s help. As an independent contractor Branch uses his own DOT number. As a
lease contractor or owner operator, he used the DOT number of the company he was
leasing to. Branch testified he was not an independent contractor when working for
Respondent as an owner operator.
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company driver, Respondent was responsible for his taxes, and when he became an
owner operator he was responsible for his taxes. When Branch became an owner
operator he purchased insurance for his truck through Respondent. He did not insure
Respondent’s truck when he drove it as a company driver. He testified that under the
terms of the independent contractor agreement with Respondent, he could only work for
Respondent. He testified this was because he could not use Respondent’s DOT authority
without their permission, and he was purchasing his insurance through Respondent.35 As
an owner operator, Branch had to put a sign on his truck that said Quickway and he had to
display Respondent’s DOT number. The sign was a peel and stick sign. Branch testified
the owner operators were not represented by the Union. Branch testified, “The operators
didn't say that they were. I assumed myself, once I went on this contract, all my union
stuff that I was being represented by, was no longer.” He testified no one told him this
was the case.
4. Contract Negotiations August 8 to October 4
During contract negotiations, the parties worked from a typed template combining
proposals from both the Union and Respondent. The parties stipulated there were
bargaining sessions on August 8, 9, 30, 31, September 1, October 2, 3, 4, November 7, 8,
9, December 6, 7, and 8, 2006, and on January 15 and 17, 2007. Giles testified in
preparing for negotiations with Respondent he contacted the International Union's
research department and was sent four contracts that Respondent had with other
Teamsters local unions. Giles testified that all four contracts included owner operators as
being covered by the collective bargaining agreement.36
In attendance for the Union during negotiations sessions were Giles and unit
members Tucker and Mark Duncan, and for Respondent were Cannon and Respondent’s
attorney James Hanson, with Ortt attending one or two sessions. During the August 8,
session, the parties exchanged proposals. Giles testified that during the session he
informed Respondent that while they may reach tentative agreements on specific
proposals nothing was agreed to until they reached an agreement on everything. Giles
testified the Union’s initial proposal on subcontracting was “that bargaining unit work could
be subcontracted only if equipment and manpower were exhausted.” Giles testified
Respondent’s initial proposal on subcontracting was included in a proposed management
rights article, and it provided for unlimited subcontracting of bargaining unit work.
Cannon testified, relying on Hanson’s notes, that during the August 8, session,

35 Counsel for the General Counsel stated at the hearing that he was not contending that
Branch was still an employee when he became an owner operator.
36 Giles and Cannon each testified in detail about negotiations with Giles relying on his own
bargaining notes, and Cannon relying on the notes taking by Hanson. Giles’ notes were legible
and his recollection was good as to the specifics of each meeting, particularly when aided by the
use of his notes. On the other hand, Cannon on occasion had difficulty deciphering Hanson’s
notes. Cannon’s recall about the specifics of a particular meeting was not good, and he on
occasion testified in generalities with his claims not supported by either set of notes.
Considering their respective demeanors, I have found Giles to be a credible witness and his
notes to be a reliable aid in detailing what occurred. I have credited his testimony as to what
occurred during negotiations. I credited Cannon in some instances concerning his testimony
about negotiations, but not others. Cannon’s credibility concerning specific aspects of his
testimony will be further discussed herein.
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there was a notation in the notes at page 4, stating, “extra work--offered to available
employees already working.” Cannon testified that there was a discussion on August 8,
that extra work would be offered to company drivers that are currently working or
scheduled to work. He testified any company drivers not scheduled to work would be
offered to possibly come in on their off day. Cannon testified that any work beyond that
would be offered to subcontractors. Cannon testified that on August 8, if Respondent
needed an extra driver it was offering the work to company drivers first.
In addition to the regular attendees, Ortt attended the August 9, session. During
that session, the Union agreed to Respondent’s proposed Article 3 management rights
article, with the exception of the last sentence which would have allowed for unlimited
subcontracting. Giles testified that it was reflected in his notes for this session that
Hanson stated that when and if Respondent obtained some additional work that involved
layovers, they would come to the Union and compare having company drivers do the work
versus using owner operators. Giles responded he wanted it be perfectly clear that
Hanson said they would come to the Union when the Company wants to use owner
operators on layover runs and Hanson replied, yes, and that they were looking at owner
operators to supplement the workforce now in place instead of using temps on some local
runs. Giles testified it is reflected in his notes that he told Respondent again, during the
August 9, session that nothing was agreed to until everything was agreed to.
Cannon testified concerning the August 9 session referring to page 15 of Hanson’s
notes testified Giles stated on August 9, that the key issues in negotiations were wages,
health and welfare, vacation, sick leave, personal days and holidays.37 However, as
reflected at page 16 of Hanson’s notes, following Giles remarks about the big picture or
key issues, a discussion ensued about the use of owner operators. Hanson’s notes read:
JHH: Using o/o’s-replace rent-a-driver-may use in place of—our workforce
exhausted.
MO: To cover the temp
CC: O/o’s cant get into some stores- a handful
KT: Will take away from us –my runs38
JHH: Not trying to take away from our drivers
PG: Only cannot be run by co. drivers?
CC: Calculation by miles, stops –is issue 75-80% of loads require layover.
PG: How about using cartage agreement?
CC: Not going to do it that way-too expensive.
Cannon testified there was a discussion that Respondent was going to replace the
temporary agency drivers that Respondent was using to supplement their company driver
fleet, and Respondent was going to start using owner operators instead of the temps.39

37 Giles notes reflect that Hanson asked, “What are the big picture issues?” Giles
responded, “The wage structure & benefit structures being maintained including overtime
provisions (including Vac, sick, pers. Leave, holiday,---The economic Package.”
38 Cannon later testified that Hanson’s notes reflect that Tucker stated, “will take away
work from us, my runs…” Cannon agreed Tucker expressed a concern that using owner
operators would take away work from us, meaning the bargaining unit and his runs.
39 Cannon also testified the whole discussion was that the majority of the New Jersey
runs were going to require a layover, that Respondent was not going to spend the money
for extra equipment, that Respondent was going to use owner operators, that Respondent
Continued
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As set forth above, the first owner operator agreement was signed with Respondent
for Landover on August 8, for Purnell, who began running routes on a full time basis on
August 10. Giles, referencing his notes, testified he had a phone call with Hanson on
August 15.40 Giles testified that during the call Hanson told Giles that on August 10,
Respondent sent out one owner operator on a regular route. Hanson stated the driver was
off sick and the company offered the work to company drivers including Tucker and it was
turned down. Hanson also stated Respondent had no interest in returning Jackson to
work or paying him any money. Giles asked Hanson to send Giles the video tape they had
of Jackson. Giles testified Hanson did not send him the tape.
The next session was August 30. Giles testified that during the August 30, session,
the parties tentatively agreed to a recognition clause that mirrored the NLRB certification.
Giles testified that Respondent’s proposal on Article 3 management’s rights was again
discussed at this meeting. Giles again insisted that Respondent delete the last sentence
providing for unrestricted subcontracting from the article. Hanson replied they would have
to put the article on hold. Giles testified he did believe subcontracting was discussed at
the next two sessions held on August 31 and September 1.
On September 27, the Union filed an unfair labor practice charge in Case 5-CA-
33257, alleging Respondent had diverted and/or subcontracted bargaining unit work by
using independent owner operators without bargaining in good faith with the Union. The
charge also alleged Respondent had engaged in direct dealing with employees.
The parties met on October 2. Giles testified that during the meeting he told
Hanson the Union considered anything delivered from the dairy to be unit work, and
Hanson had said on August 9, regarding the use of owner operators that when and if they
got any work that required a layover, they would talk to the Union and negotiate the use of
owner operators versus having Company drivers do it. Giles testified he considered the
work being performed by owner operators to be union work, “Because we were certified as
all full and part-time drivers at that location. There were no owner operators at the time
that the operation was started. It would be new work. Anything that, you know, was new
to the unit, you know, was still covered by the unit. It was still unit work.” Giles testified
that at the beginning of the meeting, Hanson responded to Giles concern about
Respondent’s using owner operators, by stating that Respondent had been subcontracting
since they started the Landover operation by using temporary drivers. Hanson stated if
_________________________
stated that 75 to 80 percent of the New Jersey freight was going to require layovers, and
that Respondent was going to use owner operators. I do not credit this aspect of
Cannon’s testimony. The statements he made here about not spending money on
company equipment and that Respondent was going to use owner operators for the New
Jersey runs were not supported by Hanson’s notes, and contradicted by Giles credible
testimony that Hanson told Giles during the session that and if Respondent obtained some
additional work that involved layovers, they would come to the Union and compare having
company drivers do the work versus using owner operators.
40 Giles testified that on August 10, he went over to MMD for a meeting with
management there. When he came out of the building at around 5 p.m., he recognized an
owner operator tractor in that it was not leased by Ryder, as were the tractors Respondent
was using. Respondent’s tractors were all the same color, make, model and year. The
tractor Giles saw was older, it had different markings on it, and new set of Quickway
decals on the side of it, and this tractor had a sleeper cab.
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someone feels cheated about this tell us.41 It is reflected in Giles notes of October 2, that
Giles stated stops were being removed from existing runs and put on new trailers to create
additional runs. Hanson stated the customer tells how and when to deliver the milk.
Tucker asked what about a driver that has a regular run and now he gets something else
and an owner operator gets his run. Cannon stated we never had set loads, and Tucker
replied we have had them for the last three months. Hanson stated we have to check the
facts and the parties had a caucus.
Giles testified that during the caucus, Giles called MMD and talked to then Dairy
Manager Aumen, who has since retired. After the caucus, Giles made the assertion that
he thought the owner operators were being used to do bargaining unit work. Giles
testified he asserted that loads were being manufactured by taking stops off existing runs
and combining them to make an additional trailer load of milk. He testified Hanson’s
response is reflected at the top of page two of Giles October 2, notes. Giles testified
Hanson responded that the dairy determines the number of stops and how many dollies
are on a trailer. Giles testified, “We went back and forth” and that Ortt said he was not
pulling stops off of the trucks to make additional loads.42 Giles testified Tucker said that
was not true. Tucker said, he had seven stops on a specific run, and there was one stop
off, so there was only had six stops. Giles testified the impact of the loss of a stop was
Tucker would have lost mileage and stop pay.
Owner operators were discussed later on during the October 2, session as reflected
at page 5 of Giles notes. At that time, Giles stated owner operators were being used to do
bargaining unit work. Giles testified Respondent was not performing any layover runs out
of Landover at that time. Hanson responded Respondent was going to use owner
operators on runs that require a layover. Giles responded that any delivery made from
that dairy was bargaining unit work, and that giving it to an owner operator without
bargaining with the Union is a diversion of bargaining unit work. Hanson responded owner
operators were not company employees, and were not part of the bargaining unit. Giles
testified, “I responded by saying, look, when this bargaining unit was stipulated to, there
were no owner operators but this was new work that should be bargained over. I asked
him specifically have you changed your position on what you told me in August, that the
Company would bargain with the Union on the use of owner operators. He responded, no,
not on the new work. I asked him to explain.” Giles testified that Hanson said “that to the
extent that they use owner operators, as they have used the temps, we will continue our
past practice. He then stated on the new work, we will come to the Union, and if able or
not to run without a layover, we'll bargain over the new work and the cost, et cetera.”
Giles testified he responded that when the Union stipulated the bargaining unit, they were
unaware of any temps or owner operators. Hanson responded that it was not the

41 Giles testified it was his view that the use of owner operators was different than the
use of temporary employees. Giles explained temporary drivers were not uncommon to
this type of an operation which was delivering perishable products to a major customer, as
they have certain service requirements that have to be met. Giles testified using temps or
rent a drivers is not alien to Local 639 because the Union has recognized when there is
something that causes these operations not to be able to cover their work they have to be
able to fill that need. Giles testified the use of temporary drivers is not a subcontracting
situation in the sense that they are sending work away to be done by somebody else on a
long term or permanent basis. It's just to fill an immediate need.
42 Giles notes do not reflect that Ortt was in attendance at the meeting, but he was
apparently consulted with by Respondent’s officials during the caucus.
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company’s fault that the Union did not know about temps. Giles stated there were owner
operators that were included in the bargaining unit at other Quickway locations and they
were covered by the contract. Giles asked Hanson if he intended intend to bargain with
the Union over the use of owner operators. Giles testified, Hanson “responded by saying,
no.” Hanson went on to state that he had never seen anything like the other Quickway
locations where the owner operators pay Union dues but do not receive any benefits under
the contract. Giles testified he ended the session at that time.
Cannon testified that, according to Hanson’s notes, Giles opened up the October 2
session talking about owner operators stating he was going to go to the NLRB for a
Section 10(j) injunction. Cannon testified as he interpreted the notes that during the
discussion Hanson responded Respondent had been subcontracting since the start up by
using temp drivers, and now Respondent was going to use owner operators doing the
same type of work. Cannon testified the Union made a claim that Respondent was taking
stops off current loads to make up additional loads just to give owner operators, and the
Union mentioned company driver William Walker was losing loads. Cannon testified, in
reviewing page 43 of Hanson’s notes, that during a caucus Hanson and Cannon placed a
call to Ortt, Respondent took the last three weeks of pay of Walker and averaged it out.
Cannon testified the notes show that the average came to in gross wages to $1,215, and
the current week was $1,181. Cannon testified the notes reference a claim from Giles one
load went from nine to six stops, which he testified is not a possibility. Cannon testified
Ortt told Hanson and Cannon there were no nine stop loads, that the majority were five to
six stops. Ortt indicated he had only seen one eight stop load. Cannon testified a driver’s
pay fluctuates weekly based on the stores orders. Cannon testified that following the
caucus at 2:03 p.m., they returned to negotiations and Respondent discussed with the
Union the information they received from Ortt about Walker’s pay. Cannon testified
Hanson’s notes at page 47, reveals that later on there was a general discussion about
subcontracting. Hanson’s notes read as follows:
(general discussion re subk. & NJ runs)
-Co has subc BU work since start of operation
-Co uses o/os everwhere else
-Co will discuss new work with union to see if drivers want that work
-Co will decide when to add driver and equipment
-Co will cost new work by o/os vs. co. driver43
For the October 3 session, it is reflected at the third page of Giles notes that
Hanson referenced Article 15.09 and stated, “15.09 We’re OK.” Article 15.09 reads:
Section 15.09. Bargaining Unit Work/Subcontracting. Supervisory employees or
non-bargaining unit personnel may perform the work covered by this agreement or
the Employer may subcontract the work covered by this Agreement when all of its

43 Cannon testified that he and Hanson explained to the Union that owner operators were
used at all other locations throughout the Company and that we intended on using them in
Landover for the NNJ runs. Cannon testified Hanson indicated Respondent costed out the new
work concerning the use of owner operators versus drivers, and the company did not want to
spend the money for sleeper trucks. This testimony by Cannon is not credited as it is not
supported by Hanson’s notes where there is no reference to the cost of sleeper cabs, and which
state the “Co will discuss new work with Union to see if drivers want that work” and that the “Co
will cost new work with o/os vs. co. drivers”
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employees are working, scheduled to work or are unavailable to work.
Giles’s notes reflect that he told Hanson concerning Article 15.09 that the Union maintains
the Employer should have enough employees to do the work of the bargaining unit.
Hanson responded that he did not know what Giles meant as it was cheaper to use
company drivers than temporaries. Hanson stated Respondent was not going to have its
manpower needs dictated by the Union, and Respondent will decide when it hires and who
it hires. Giles asked Hanson how much temps cost the company and Hanson stated he
did not know. Giles stated bargaining unit work should be covered by union members, and
Respondent should maintain enough drivers to do the work of the unit. Hanson said, as
reflected in Giles notes, that if we do not have enough drivers to get the work done, then
we will subcontract it. Giles stated, as reflected in his notes, if the normal work of the
union requires 25 people, the company should have 25 drivers, not 10 and then say they
can subcontract the rest. Giles stated as to overtime, drivers who are off work should be
offered over time before the company calls in a temporary or anyone else. If the overtime
is refused by the bargaining unit then a temporary would be allowed. Hanson stated the
Union was not going to tell them whether they have 18, 20, or 24 drivers that they were
going to staff as they saw fit. Giles stated if you are subcontracting every day you should
be trying to hire someone.
During the conversation, Hanson stated he anticipated they were going to start
getting some Jersey work in about two weeks, which is referenced by the parties as
northern New Jersey work.44 Giles testified Hanson stated that some of the routes were
up to 500 plus miles, might have 6 stops on them, that on average they would be around
475 miles a trip with 5 stops. He estimated that it would take 12 to 16 hours to run these
trips. Hanson stated that 65 percent of the routes would take over 14 hours to run. Giles
notes reflect Hanson stated they had done some costing for the routes using owner
operators versus company drivers with per diem and hotel, and that it would be 3.5 to 9.5
cents a mile less to use owner operators. Giles asked what would the costs be without per
diem and a hotel, and Hanson said he would have to figure that out. In response to Giles’
inquiry, Hanson told Giles that Respondent calculated $25 per day per diem and $75 a day
hotel costs if they had to layover someone without a sleeper cab. Giles responded $75 a
night for a hotel could buy a lot of sleeper cabs. Giles asked what Respondent was
proposing to the owner operators and Cannon responded the stop pay was $1.33 a mile,
and he said that was based on $1.13 a mile and $18 per stop. Hanson said the tolls were
the owner operator's expense. Giles notes reflect Hanson stated they were proposing to
use owner operators for the New Jersey stores for all of the obvious reasons. Giles asked
if that included the New Jersey stores that were currently being serviced, and Hanson said
no the new stores. Giles asked if they were talking about the 54 new Stop & Shop Stores
throughout New Jersey that are presently not being handled by Marva Maid, and Cannon
replied yes. Giles stated some of the runs could be handled by the bargaining unit.
Tucker stated they were currently servicing two New Jersey runs that were 400 plus miles
and five stops. Giles stated the Atlantic City run is 433 miles and five stops, and the Rio
Grande run is 479 miles and five stops. Giles testified both were existing runs being
serviced by the bargaining unit.
Giles testified that they again discussed Article 15.09 later on during the October 3

44 Giles testified there were already 10 stores in New Jersey referred to as southern
New Jersey (SNJ) that had been serviced by the bargaining unit since the first day of
operation.
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session. Giles raised it, and his notes reflect that during the discussion Hanson stated the
Union was not going to tell them when to spend money on equipment. Hanson stated if
they get more business they might give it to another carrier. A discussion ensued about
making money, and Hanson said they could make money with owner operators. Giles
stated they must be making more money with company drivers, or they would only have all
owner operators. Giles stated that Article 15.09 and the last sentence of Article 3, the
management rights article was a major problem. Giles stated the company was going to
have to do something about it or this was all just a big waste of time. Giles stated, if you
think I'm going to negotiate a contract that allows unlimited subcontracting, then “I'm
pissing in the wind.” Hanson stated it is not that bad, that Respondent had owner
operators in other parts of the country, and that some operations are better served by
using owner operators. Hanson stated we now have 24 company drivers, the work we
started with, Respondent figured they would need 27 drivers and that was what they want
to have. Giles stated as new work is added, the Union wanted their membership to grow
also, and if the work was doable with company drivers, the Union wanted to do it. Giles
stated he was going to have a problem with the subcontracting language as written.
Hanson stated they were trying to do the Landover work with company drivers but the New
Jersey runs make more sense with owner operators. Giles stated they needed to agree
on some language because the Union could not agree to open subcontracting language.
Hanson stated they would work on it tonight, and the Union should suggest some
language also.45
Cannon testified that on October 3, the parties discussed proposal 15.09 relating to
subcontracting. Cannon referred to page 53 of Hanson’s notes. Cannon testified Giles
stated they were going to hold on Section 15.09, Cannon testified “I guess there was a
little bit of disagreement from the union and company, and Phil Giles was still making the
plea that the company should hire enough drivers to do all the work.” Cannon testified
there was a discussion if Respondent did not have enough drivers they were going to
subcontract out to temporary drivers or even owner operators. Cannon testified the New
Jersey runs were probably referenced during this discussion. Cannon testified the pay
amounts to the owner operators of $1.13 per mile and $18 a stop, were referenced in
Hanson’s notes referring to pay 54 of Hanson’s notes. Cannon testified the fuel surcharge
being paid to the owner operators was not included in the calculations presented to the
Union. Hanson’s notes reveal that Giles stated during the meeting, “Average, 45 miles an
hour, with stops of 30 minutes each. If it can be done without a layover, the bargaining
unit does it or do it.” Cannon testified Hanson’s notes again reflect a discussion of
subcontracting at pages 58 and 59. Cannon testified they were still discussing Article
15.09, and Giles had made a statement if Respondent was using subcontractors every
day, he insisted that Respondent hire more drivers, or even casual temps or part timers.46
The October 4 session was also attended by Ortt. Giles testified, and his notes
reflect, that when they opened the session, Giles made a verbal proposal pertaining to
subcontracting of unit work. Giles testified he proposed the Employer agree the work of

45 Giles explained it was the Union’s position that some of the 54 new stores did not
require a layover, and could be handled by the bargaining unit. He testified it was the
Union’s position that anything that did not require a layover was bargaining unit work, and
that anything that did require a layover should be bargained over.
46 Cannon testified Giles was insisting he wanted the Respondent to hire more drivers,
“but we weren't going to do it to run the northern New Jersey freight. We were still going
to run the northern New Jersey freight with owner operators.”
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the bargaining unit shall include but not be limited to the delivery of dairy products from
the Marva Maid Dairy in Landover, Maryland, to retail or wholesale facilities owned or
operated by (the name of the operation was left blank in the proposal), that are 500 miles
or less in total mileage and can be run without a layover. The Employer agrees that the
deliveries now being made in New Jersey shall remain bargaining unit work. Giles
testified he arrived at the 500 mile limit as a compromise based on his experience that a
run of that distance or less could be done without a layover. Hanson responded he would
look at the proposal during a break.
Giles testified that, after the break, Hanson stated as to subcontracting Respondent
should have a full complement of drivers by next week. Giles testified Hanson had
previously said that would be 27 drivers. Hanson stated if they had the full complement of
drivers, it was their intent to run the work they originally bid on with company drivers and
he hoped everyone would feel better. Giles responded the Union’s proposal was made to
protect the work the unit was handling when the Union filed the petition. Giles stated his
proposal gave definition to the work and there was work that will be new that could also be
run with the company drivers. At the end of the meeting, Giles notes reflect he stated this
will not continue much longer, that the Union would be prepared to settle in the next round,
and that they would present a total solution to the company.
5. The October 15 strike vote
Giles testified that on October 15, he held a meeting with members of the
bargaining unit. Giles called the meeting because he was receiving phone calls from
members of the union that people were very angry, “that they-- they were anxious to get a
contract completed.” Giles testified Tucker and Duncan served as conduits between
bargaining unit members and Giles. Giles testified Tucker, Duncan, and other drivers
called him. Giles testified, “they were very upset about the pay structure. They were very
upset about their benefits, the fact that there was no contract in place. So they were just,
you know, upset about the whole situation really.”47 Giles identified a sign in sheet for
bargaining unit employees containing 21 signatures for the October 15 meeting beginning
at 9 a.m., and lasting until 10:55 a.m. Giles identified a two page handwritten agenda that
he testified he prepared prior to the start of the meeting. Giles testified the agenda was
not all inclusive of what was discussed at the meeting.
Giles testified Tucker opened the October 15, meeting with a prayer, then Giles
updated the membership on negotiations stating he felt they were very close on
agreement on a lot of the language in the contract. Giles stated they must be willing to

47 The Union had previously filed a request for strike benefits assistance for Respondent with
the International Union dated August 16. Giles testified the information on the application form
came from him. The date of the proposed strike action was August 25, and it states under
outstanding issues, “Wages, Health, Pension and other language.” By fax dated October 20,
the Union’s request for strike benefits was approved by the International Union. Giles testified
he filed a strike authorization request over the summer because Respondent ran an anti-
union campaign. He testified the Union demonstrated an overwhelming majority of
support and offered third party verification, but Respondent wanted to go to an election.
He testified it was his opinion that Respondent had delayed the start of negotiations, had
not bargained in good faith, and was untruthful to him, so he filed the strike authorization
paper work. Giles testified it was also his standard operating procedure to file the paper
work early so things did not have to be done at the last minute.
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maintain area standards regarding pay and benefits. Giles stated they would either get an
agreement or they would have to do something else. He stated if they had to do
something else they would have to act at a time which would have maximum impact.
Giles stated he had filed strike paperwork weeks ago but the constitution required them to
take a vote on whether to strike. Giles explained this gave the committee the big stick that
sometimes got things moving at the bargaining table.
Giles testified he told the members there was an issue that was probably being
overlooked that they needed to understand, that Respondent was subcontracting the
bargaining unit work, that the Union had filed unfair labor practice charges over this
problem, and the outcome of the negotiations did not mean a thing if Respondent
continued to outsource their work. Giles explained the situation in more detail, and then
he threw the meeting open to questions. Giles testified there was a lot of discussion and
people were asking for more details on what he told them. Giles could not specifically
recall who spoke at that time. He testified the discussion, lasting about 30 minutes, was a
general discussion with a question and answer period. Giles testified he explained to the
membership about the unfair labor practice charges, that they were important because it
was always important to follow the law but even more than that if the Company continued
to divert the work we might have to take action to stop the diversion. Giles testified he
discussed the complaint that issued over the termination of Angelo Jackson, and that
charges had been filed on the surveillance and the impression of surveillance.
Giles testified that following the discussion they took a strike vote which was
unanimous to strike. Giles stated if it became necessary to strike they would see a picket
line when they showed up for work and that they should join the picket line. Giles testified
he told the employees they were waiting to strike because they were still in negotiations,
that it was possible they could resolve the charges, and it was Giles’ hope Respondent
would stop diverting work. Giles testified the diversion of work was the main issue to him.
Giles’ written agenda for the meeting reflects a motion was made by Tucker and
Duncan to have the negotiating committee continue negotiations until a tentative
agreement is reached or in the judgment of the negotiating committee with the approval of
the Union’s executive board a strike should be called. Giles testified the motion was made
at the meeting. Giles testified he knew they were going to make the motion before the
meeting started because he had discussed it with them and he filled in their names on the
agenda before the meeting started. Giles testified he did not make any notes on the
agenda outline during the meeting, except to add the time the meeting ended.48
Tucker testified that, during the meeting, Giles spoke about Respondent’s engaging
in unfair labor practices, specifically the firing of Jackson, the videotape and following of
Tucker and Jackson, and the diverting of bargaining unit work to owner operators.49

48 Giles admitted there was nothing in his written agenda for the meeting stating
anything about unfair labor practices. Giles identified an affidavit he gave on February 6,
2007, in which he stated, "I prepared an agenda before the meeting and I kept notes on
my agenda." Giles admitted he stated in the affidavit that he did not specifically recall
what was discussed at the meeting. He explained he did not have his notes with him at
the time the statement was taken.
49 Tucker testified Giles did not say anything about the use of temporary drivers.
Tucker did not recall Giles saying anything specific about what the company was offering.
Tucker did not recall Giles discussing anything about being paid by the hour as opposed to
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Tucker testified they then had a strike vote by secret ballot. Tucker testified before the
strike vote, Giles stated contract negotiations were still going on. Tucker testified the vote
was unanimous to strike. Tucker testified there was no strike date given at the meeting.
Tucker testified that as far as he could remember there was no discussion about the
negotiations, it was all about the unfair labor practices and going on strike for the unfair
labor practices. Tucker testified he gave the opening the prayer and that was all he
recalled he talked about at the meeting. Tucker did not recall making a motion at the
meeting to authorize the strike, but he would not deny that he did so.50
Kevin Cook testified that, during the meeting, Giles distributed a contract that
Respondent had given out, and Giles wanted to go over the whole contract. Cook testified
they took a vote to see if anyone wanted to accept the contract, and everyone turned the
contract down. Giles then explained what an unfair labor practice was, and he stated all
the work that came out of MMD was their work as company drivers and no one could come
in and take it from them. Giles then passed out the ballots to take a strike vote and asked
if anyone had any questions or any concerns. Cook testified he did not recall what
everyone said, but he stood up and said he was hurting “from losing out on going to
northern New Jersey because of the owner operators.” Cook later testified he said at the
meeting “that I was hurting because of the owner operators, that I wasn't making enough
money because they were taking most of the work going to North Jersey.” When
confronted that the NNJ runs did not start until October 16, which was after the October 15
meeting, Cook testified, “Well, they was taking the long distance runs, not just the North
Jersey. They were taking the local runs that was long distance.” Cook testified the owner
operators were hurting him. He testified, “They was also taking the long distance runs
going further, Virginia, Delaware. Cook testified they took a strike vote by secret ballot
and it was unanimous. Cook testified that Giles explained the difference between an
unfair labor practice and economic strike. Cook testified Giles said all the work that
comes out of MMD is the company drivers’ work, and it's an unfair labor practice to give it
to temp drivers or owner operators.”51
Phillip Langhorn testified the meeting started with Tucker leading a prayer and then
Tucker spoke for a minute stating they were not getting anywhere at the bargaining table.
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being paid by the mile.
50 Tucker testified Respondent’s use of owner operators sometimes impacted on the
availability of a second run for Tucker in that it might not be available if an owner operator
needed work. He also testified that sometimes to make a load for an owner operator, Tucker
was deprived of loads and stops. He raised this at negotiations on one occasion, and Ortt came
to the next session and responded to it. He testified he thought one of his stops was given to an
owner operator, but he was not positive this was the case.
51 Cook testified he thought the use of owner operators decreased his income because
they were giving them the longer runs to NNJ. Cook told the dispatcher he was willing to
take a run, but he would just give it to the owner operators. Cook testified he was not
getting those runs unless an owner operator was not available. Cook testified before the
NNJ runs started, he felt the use of owner operators was decreasing his income because
he came in a couple of times and it seemed owner operators had a longer run than he
had. He might have a run that was not even 100 miles, and would get paid minimum pay
for that day, when an owner operator may have a run going to Delaware or further out in
Virginia. Cook testified he remembered calling Ortt in the morning and asking if he
needed Cook to take a run, and Ortt said an owner operator had taken it. Cook estimated
he called Ortt about this four or five times before the NNJ runs started.
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Then Giles spoke and said the meetings with Respondent were not going very well, “they
weren't getting anywhere, and so we had a strike, a vote to strike.” Langhorn testified,
Giles told them what Respondent had offered and it was not acceptable. When asked if
he recalled Giles saying anything about unfair labor practices, Langhorn testified, “The
unfair labor practice was with the owner operators running during our work.”52 He testified
the unfair labor practice was what they were going on strike about. When asked what else
was discussed with regard to unfair labor practices, Langhorn replied, “we considered
unfair was getting paid by the mileage.” Langhorn testified the drivers said they wanted to
be paid by the hour.
Langhorn testified he thought they discussed Jackson’s being fired for stealing time
and that it came up that drivers were being followed. He testified Tucker raised it, “that
they was being I guess targeted, I guess they figured they was and they was being
followed by Quickway.” Langhorn testified that it was not just Tucker who said it. He
testified, “They said they was being watched, and Angelo was being followed.” Langhorn
testified that Giles said, “The unfair labor practice was them taking our work. The owner
operators. The vote was conducted on a secret ballot. Strike, a strike vote.” Langhorn
testified it was his understanding that they were going out on strike for the unfair labor
practices of the owner operators doing the company drivers’ work. Langhorn testified
Giles gave that reason, and the drivers were complaining about the owner operators
taking their work. He testified a few of the drivers complained about it including Tucker.
Langhorn testified Tucker was speaking for all of the drivers. Langhorn testified there may
have been a discussion about upholding area standards, which is hourly pay. He testified
most of the drivers, including Langhorn, wanted to be paid by the hour. He testified that
was one of the complaints. He testified, the strike was about the unfair practice with the
outside drivers doing our work, as well as the drivers’ desire to be paid by the hour.
Langhorn testified the drivers felt it was unfair to get paid my miles and stops.
Jameel Keys testified during the meeting Giles explained they would be going on
strike because the work was being given away to temporary drivers and owner operators.
Keys testified the drivers took a vote and agreed if it came to it, they would be prepared to
strike. Keys did not know whether the NNJ runs had started at the time the Union took the
strike vote. Keys testified a lot of times, the company drivers would be back for second
runs but there was no run because the owner operators or temp drivers had them.
a. Credibility
Giles credibly testified he did not take notes during the October 15 meeting, but
created the agenda outline prior to the time of the meeting, except noting the ending time
on the outline. In this regard, the agenda outline was only two pages for close to a two
hour meeting and was nowhere near the detail of the contemporaneous notes Giles
maintained during the collective bargaining negotiations.53 The second page of the
agenda outline was mostly left blank except for a description of the pre-planned motion by
Tucker at the end of the meeting. I have also credited Giles and the testimony of the

52 Langhorn testified that some time in August 2006, Ortt told Langhorn that pretty
soon Respondent would be acquiring stores in New Jersey that required layover runs, and
that they were hiring guys to make those runs with sleeper cabs. Ortt told Langhorn the
runs were going to start in early August. However, Langhorn testified they kept changing
the dates when those runs were to start.
53 The outline shows a 9 a.m. start time at the heading and the meeting ended at 10:55 a.m.
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bargaining unit employees that Giles discussed the unfair labor practices at the meeting
including the diversion of bargaining unit work. The negotiations leading up to the strike
vote did not focus on economics, rather the parties were dealing with language issues
including subcontracting. In fact, subcontracting was discussed during the August 8, 9,
and 30 sessions, and the use of owner operators was specifically discussed on August 9.
On August 8, Purnell, the first owner operator, signed a contract with Respondent
and Purnell began to run routes for Respondent on a full time basis on August 10. On
September 11 and 23, respectively owner operators Lane and Walker began to run routes
for Respondent. On September 27, the Union filed an unfair labor practice charge over
the diversion or subcontracting work to the owner operators without bargaining with the
union. On September 29, the Region issued complaint over Jackson’s termination and
allegations pertaining to surveillance. During the October 2, session, there was a
discussion regarding the use of owner operators, where Giles and Tucker accused
Respondent of pulling stops off company drivers’ routes and giving them to owner
operators, and there was a dispute about owner operators doing bargaining unit work in
general. Giles opened up the October 2, meeting by stating the Union was seeking
injunctive relief with the NLRB due to the use of owner operators. During the October 3,
meeting, the discussion about the use of owner operators continued, and Hanson informed
Giles that Respondent intended to begin the NNJ runs in about two weeks. On October 4,
the last session before the strike vote the discussion about subcontracting continued.
Thus, during negotiations leading up to the strike vote the Union notified
Respondent that subcontracting and the use of owner operators was of major concern to
the Union to the extent that the Union had filed an unfair labor practice charge over the
diversion of work, and the Union was seeking injunctive relief. Both Tucker and Giles also
accused Respondent of manipulating loads to the benefit of owner operators to the
detriment of company drivers.
I find, in these circumstances, that it likely, as Giles credibly testified, that during
the October 15, meeting Giles told the members there was an issue that was probably
being overlooked that they needed to understand, that Respondent was subcontracting
bargaining unit work, that the Union had filed unfair labor practice charges over this
problem, and that the outcome of the negotiations did not mean a thing if Respondent
continued to outsource their work and to subcontract it. Giles credibly testified he
explained to the membership about the unfair labor practice charges, and if the Company
continued to divert the work that they might have to take action to stop the diversion.
Giles credibly testified he discussed the complaint that issued over Jackson’s discharge,
and that charges had been filed on the surveillance and the impression of surveillance.
Giles testified he explained in more detail along those lines, and then he threw the
meeting open to questions. Giles testified there was a lot of discussion and people were
asking for more details on what he told them.
While their memories varied as to the specifics of the meeting, the drivers who
testified supported Giles description of the meeting. Tucker testified Giles spoke about
Respondent’s engaging in unfair labor practices including the firing of Jackson, the
videotaping and following of Tucker and Jackson, and the diversion of bargaining unit work
to owner operators. Cook testified that during the meeting Giles explained what an unfair
labor practice was, and he stated that all the work that came out of MMD was their work as
company drivers and that no one could come in and take it from them. Cook testified he
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did not recall what everyone said, but that he stood up and said that he was hurting “from
losing out on going to northern New Jersey because of the owner/operators.”54 Cook
testified they took a strike vote by secret ballot and that he thought it was unanimous.
Similarly, Langhorn testified, “The unfair labor practice was with the owner operators
running during our work.” He testified the unfair labor practice was what they were going
on strike about. When asked what else was discussed with regard to unfair labor
practices, Langhorn replied, “we considered unfair was getting paid by the mileage.”
Langhorn testified the drivers said they wanted to be paid by the hour. Langhorn testified
he thought they discussed Jackson’s being fired for stealing time and it came up that
drivers were being followed. Keys testified that during the meeting Giles explained what
they would be going on strike for because the work was being given away to temporary
drivers and owner operators. Keys testified a lot of times, the company drivers would be
back for second runs but there was no run because the owner operators or temp drivers
had them.55 In sum, I have credited Giles and the drivers’ testimony that the unfair labor
practices, including the diversion of work to owner operators was raised by Giles during
the meeting, that the drivers whose pay was based on the number of miles and stops they
ran were concerned about the diversion of bargaining unit work, and that the Union’s
unfair labor practice claims played a significant role in the drivers vote to strike.
6. Contract negotiations November 7 to December 8
Giles testified that, during the November 7 session, subcontracting was discussed
and they again discussed Article 3, Management Rights. Giles told Hanson the Union was
not agreeing to the last sentence in Article 3 pertaining to subcontracting. Giles testified
Hanson made a proposal stating hopefully this would resolve the subcontracting and
management rights issues. Hanson said Respondent would agree to delete the last
sentence of Article 3 if the Union withdraws its proposal on subcontracting made on
October 4, and accepts the Respondent’s proposal on Article 15.09. Giles credibly
testified, “I asked Mr. Hanson a question and I wrote this question verbatim in my notes.”
“Because I considered the question and its answer key.” Giles testified he wrote in his
notes, "Does the Company agree that the work presently being performed is bargaining
unit work?" Giles testified Hanson replied, “Yes.” Giles testified Respondent acquired the

54 I do not find Cook’s testimony about his reference to the NNJ runs during the meeting to
warrant discrediting his testimony that Giles raised the topic of unfair labor practices and
diversion of unit work during the meeting. First, Respondent had previously announced to the
Union that the NNJ work was coming on board soon, and it had advertised for and hired owner
operators. Branch had been contacted the prior week and told the NNJ work was starting on
October 16, and that he was to convert to owner operator status at that time. Thus, at the time
of the October 15, meeting the Union and its membership were aware of Respondent’s use of
owner operators and its plan to give them the NNJ runs. Since Respondent had created a
system where drivers’ income was increased by the length of their runs, I credit Cook, who felt
he had lost income to the owner operators, to have raised a complaint in their meeting about
their usage. I have concluded that Cook was mistaken in his testimony that Giles stated that
work was also being improperly diverted to temporary employees. The Union did not file a
charge of the use of temporary employees, and I find that Cook mistakenly recalled that as
being part of the discussion.
55 As with Cook, I have concluded that Keys was mistaken as to his recall that Giles
mentioned temporary drivers as part of the improper diversion of work. However, Keys credibly
testified that the unfair labor practices including the diversion of work was discussed at the
meeting, and that this was a concern of his and played a role in his vote for a strike.
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NNJ stores on October 16, and that Giles had been informed by bargaining unit members
that some of them had been doing some of the layover runs to NNJ.
Giles testified his notes reflect a caucus at 2:10 p.m. following Hanson’s proposal
and Giles’ response. Giles testified he took Tucker and Duncan to Giles’ office and
explained to them that he had written verbatim the question and answer in his notes and
that he felt that he had nailed down the work that Respondent had agreed to was the New
Jersey work and that was the Union’s work. Giles testified they were only out six minutes
and returned following the caucus. Giles testified when they returned they told Hanson
the Union agreed with what he had just proposed and Respondent should withdraw Article
4.02, which was Respondent’s proposal on casual employees. Respondent caucused and
when they returned, there was a discussion about Article 4.02, which Respondent did not
agree to withdraw during that session. Giles testified, however, that during the November
7, session the parties tentatively agreed on the language of Section 15.09. He testified
this was reflected in his notes made on the printed working document, as opposed to his
handwritten notes taken at the meeting. It is stated in Giles handwriting next to 15.09 of
the printed working document, “TA 11-7-/06 2:17 p.m.” It was also stated in Giles actual
notes of the meeting that the parties reconvened from a caucus at 2:16 p.m., at which
point Giles stated “We agree.” The latter comment was in obvious reference to Hanson’s
proposal on subcontracting. Giles testified Respondent later withdrew its proposal on
Article 4.02 during the November 9, session.56
Cannon testified referencing page 97 of Hanson’s notes that during the November
9, session there was a discussion of the open issues and they were all related to
economics, wages, health and welfare, pension, overtime, holiday pay, vacation pay, sick
leave pay, a legal service plan, funeral pay, jury duty time and pay for drug tests. Cannon
testified there was an understanding between the parties that nothing was finally agreed to
until the whole contract was agreed to.
Giles cited his bargaining notes from December 6, in testifying that at the outset of
that session he stated that two complaints issued by the NLRB, and the Company should
follow the law.57 Giles testified that following his introductory remarks about the NLRB

56 Concerning the November 7 session, Hanson’s notes reflect at page 70, there was a
discussion about Respondent’s proposal on management’s rights with the deletion of the
last sentence pertaining to subcontracting, to accept article 15.09 relating to
subcontracting, and that the Union withdrew its October 4, proposal. Cannon testified the
parties came to agreement on these terms at the meeting. The parties stipulated at the
hearing that the agreement was reached on November 7. Giles interjected at the hearing
that, “What my notes reflect is that to resolve it, Mr. Hanson proposed deleting the last
sentence of Article 3 if we withdrew our proposal on subcontracting made on 10/4/06 and
accepts the company's 15.09 and I-- to nail it down, I asked does the company agree that
work presently being performed is bargaining unit work? Mr. Hanson replied yes.” When
asked at the hearing if that was Respondent’s understanding of what transpired, Hanson
stated, “Yes. And if you look, Your Honor, at the bottom of Page 70, the-- it's a PG, does
company agree that work being performed in bargaining unit-- the BU work, bargaining
unit work? Yes. And then there's a parenthetical, meaning the work performed by
bargaining unit employees at the Landover operation.” Hanson stated at the hearing that
he was in agreement with Giles’ representation.
57 Cannon testified referencing page 103 of Hanson’s notes concerning the December
6, meeting that the notes contain a statement by Giles that two complaints issued, one on
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complaints, the remainder of the session was a discussion on economics. Giles testified
that the four sessions following December 6, were also focused on economics, such as
wages, benefits, and vacation. He testified subcontracting issues were not discussed at
those sessions. Giles’ notes for the December 6 session reveal Respondent made its
initial overall economic proposal, which included a proposal on wages which called for
effective January 1, 2007, $45.5 per mile and $15 a stop. It was a five year proposal
calling for a $.5 per mile increase per year, and beginning the second year of the
agreement a $.15 increase per stop a year. Following Respondent’s presentation of the
proposal, the Union caucused. Tucker and Duncan did not return following the caucus.
Giles informed Respondent’s negotiators that Tucker and Duncan walked out and that they
consider Respondent’s proposal insulting. Giles notes reflect he told Respondent that, “If
you wanted to be serious, I would have expected you to propose mileage in “steps.”
Hanson referred to it as a mileage matrix.58 The notes reveal Hanson said they would
consider it but did not think it was feasible in this area. Cannon stated, as reflected in the
notes, “When I look at the lay of the land, i.e.: Balto and D.C. It’s such a mess of traffic, it
wouldn’t work.” Giles responded, “My point exactly. Mileages & stops don’t work. You
gotta pay by the hour in some way, even as a guarantee to back up miles & stops.”
Cannon referencing page 116 of Hanson’s notes testified that on December 6,
there was a discussion from Giles wanting Respondent to make a final offer. Cannon
testified it was not referenced in Hanson’s notes, “but as far as that I can recall, Mr. Giles
made a comment of putting the company's best foot forward or indicating what you've got
here, putting it all on the table.” Cannon testified Respondent indicated they could put
some more money on the table, and then Giles “actually used, as far as what I remember,
requesting a best and last and final offer and also using a comment of putting the
company's best foot forward, putting it on the table, which–“ I do not credit, Cannon’s
testimony here. Hanson’s notes at page 116, reveal that the following exchange occurred:
JHH: We’ve got some room in the mileage & stops
PG: Put it on the table-don’t hold back – cut (illegible) the fat to the bone.
There is no reference in Hanson’s notes to Giles using the term best, last final offer. I am
convinced if Giles had used such language Hanson, an experienced labor attorney, would
have referenced it.
Giles testified Tucker and Duncan returned to negotiations for the December 7,
session. Giles testified that over night he had looked at what Respondent had given him
concerning pay records for drivers Tucker and Hughes. He testified he tried to extrapolate
hourly pay from those records and it was very low on an hourly basis. He testified that on
December 7, he told Respondent the records they had provided the Union were obviously
not the norm.59 Giles notes reveal he stated, “I have some trip cards, hourly rate are very
low. Let’s not play with this. What you showed me yesterday on Tucker and Hughes
obviously is not the norm. We need to agree on some other means of compensation, that
means wages should be hourly.”
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surveillance and the other the discharge of Angelo Jackson.
58 Cannon testified Giles was referencing a mileage matrix, where the shorter the
distance a driver went the higher the rate he would be paid per mile.
59 Giles testified the Union’s team felt the records Respondent had shown them were
exceptional productivity weeks.
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Giles testified that, later on in that session, Respondent made a new economic
proposal, the terms of which are reflected in Giles notes of the meeting. Giles testified
Respondent offered an increase in mileage rates and in hourly rates for the jockeys. Giles
testified that in response to the proposal that he stated that what Cannon had said the
previous day is exactly what the problem is, and that the mileage pay would not work in
the area. Giles stated they did not feel the driver could make a fair wage on mileage pay
and he asked if they would be willing to work on a pay system that, within a certain radius
of Landover, would be hourly and beyond that would be a mileage-based pay system.
Giles notes reflect that he suggested that within a 75 mile radius of Landover the pay
should be hourly pay. He suggested in the alternative rather than a radius they could
identify counties where there would be hourly pay. Hanson stated they would have to talk
about it before responding. He testified Hanson responded, I do not know if we can get
there. Giles stated where there is a will there is a way. Hanson stated we were not going
to settle this contract based on the Giant contract. Giles responded, “forget Giant. We'll
settle it with what we consider to be a fair settlement.”
Hanson later stated they could try to develop a matrix, but it is not possible to do by
tomorrow. Hanson stated they had drivers that go into Chicago and Detroit, but do not
face traffic jams like you do here. He asked Giles if the Union had a proposal for a
mileage rate, and Giles stated he did not as he did not think they could intelligently do a
mileage rate. Giles notes reflect that as discussion on pay continued, Giles repeated his
proposal to have hourly pay within a certain area and mileage and stops beyond that area.
Hanson stated that is why they would come back with a mileage matrix. He stated as
reflected in Giles notes, we are hearing there is a lot of traffic in this area, we agree. We
are trying to address the concern. Giles, according to the notes stated, we strongly feel
that hourly pay is what is necessary to settle this contract. Giles testified he also told
them that we needed health and welfare, retirement, sick leave, and the other things that
we proposed. Giles notes reflect that at the end of the session, he stated more ULP
complaints were coming.
At the beginning of the December 8, meeting, Giles came forward with a proposal
to Respondent. Giles’ proposal as reflected in his notes was the drivers were to be paid
$18 an hour, $.15 per mile, and $10 per stop. Giles notes reflect he stated at the outset of
the session, “You want incentive pay, we want hourly pay. Let’s do both.” Giles proposal
included, as reflected in his notes, a daily and weekly guarantee as proposed, overtime as
proposed, days off as proposed, sick leave as proposed, H & W as proposed, pension -
2.25 all hours worked to Teamster National 401 (K) plan, holidays as proposed, vacation
as proposed, funeral pay as proposed, jury duty as proposed. It is stated in the notes that
all leave should be based on hourly rates. According to Giles notes, Hanson responded
after a caucus, “We considered your proposal. The numbers would annihilate us. An
increase of $800,000. We’re not interested in that kind of cost.” Towards the end of the
meeting, Hanson told Giles that costs to the company were greater in the Union’s second
proposal than in the Union’s first proposal. Giles responded Hanson should then go with
the Union’s first proposal. Giles also told Hanson that he could not work with
Respondent’s incentive pay as he did not have Respondent’s information. Giles went on
to state as reflected in his notes, “This needs to be concluded. One way or another. I’m
available, you tell me.” Hanson responded they were going back to Nashville and see
about a matrix, and that it might not be possible. Giles later stated, “We’re not going to
drag this out for months. We need to wrap this up now.” Giles asked for Respondent’s
availability. Giles stated, the “men and the union are really pissed over these ULP’s. The
Company needs to stop breaking the law.” A meeting was scheduled for January 15,
2007, based on the Respondent’s earliest availability. Giles notes reflect that he stated,
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“No negotiations for 5 weeks. Maybe you can get back sooner.”60 Cannon testified all the
proposals were economic at the December 8 meeting, except for item 14 listed on the
notes at page 165, which was the expiration date.
On December 27, Region 5 issued a consolidated complaint against Respondent.
Included in the complaint for the first time was an allegation that Respondent since July
10, 2006, and at all times since then, has assigned work performed by the Union to other
employees or independent contractors without prior notice to the Union and without giving
the Union an opportunity to bargain in violation of Section 8(a)(1) and (5) of the Act.
7. Testimony of Respondent’s witnesses concerning the
need for and use of owner operators
Cannon testified there came a point when Respondent considered using owner
operators and this related to the addition of 54 northern New Jersey stores (NNJ stores) to
its Landover routes. He testified MMD approached Respondent around June or July,
regarding the addition of the NNJ stores. MMD initially informed Respondent that MMD
had about 35 stores in NNJ, however, by the October 16 start date for the NNJ runs the
number increased to 54 stores. Cannon testified Respondent was informed the NNJ
stores were going to be 500 and 600 mile roundtrips, with five to possibly six stops on
each run, and the routes would require a layover for the driver.
Prevost testified that as part of the purchase of the dairy from Giant, MMD
negotiated a minimum volume requirement, and if Giant did not meet that requirement,
they were required to make a payment every month to MMD. After a few months, Giant
indicated to MMD that rather than make a cash payment, they would put the additional
volume of 50 plus Stop & Shop locations located in New Jersey to be serviced by the
Landover dairy. Prevost testified based on the length of the NNJ runs and the overnights,
“we determined it would be most efficiently operated with owner operators.” Prevost
testified the day cabs Respondent runs are purchased at a lower cost than sleeper cabs,
and Respondent has a higher utility with the day cabs in that they can be used for up to
three shifts. Prevost testified MMD informed Respondent that since the NNJ work was
supplementing the minimum volume requirement it was not permanent, and MMD insisted
on a 90-day cancellation clause for the new work in its contract with Respondent. Prevost
testified Respondent was not going to buy expensive sleeper tractors that could be
cancelled in 90 days. Prevost testified Respondent purchased additional trailers for the
NNJ runs under the condition that if the business went away, MMD would either buy the
trailers from Respondent or reassign them and continue to make a monthly payment for
them. Prevost testified Respondent made the decision to use owner operators for the
tractors because the MMD did not have use for the additional tractors.61

60 Giles testified there was nothing in his notes for the December 8 meeting, that he asked
Respondent to bring its last, best and final offer to the table for the next meeting. He testified he
was pretty sure he would have written something like that down. He credibly testified, “My belief
that there was no demand from the Union for a last, best and final offer on December 8th, as a
matter of fact, I was upset about the fact that it was going to take five weeks to have the next
session and said I was available.”
61 Prevost testified that in Detroit, which is a union terminal, Respondent has 30
company drivers and eight owner operators. He testified the owner operators run all the
overnight in Indianapolis. Prevost testified he did not think owner operators were covered
by the collective bargaining agreement in Detroit, but that in Indianapolis and Shelbyville
Continued
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Prevost testified Miller, Respondent’s director of pricing and business analysis,
modeled the new routes using company tractors and using owner operators and by far the
most economically decision to MMD and to Respondent was to use owner operators.
Prevost testified Landover did not have enough tractors with the original 21 cabs to run the
additional 54 northern NNJ stores. He testified using owner operators was the most
economical model for Respondent as it required no capital investment and it required a
lower cost to the customer. Prevost testified Respondent would have had a $900,000 to a
million dollar in capital investment if it leased or rented the additional tractors for the new
work. He testified Respondent had done a leveraged buyout in June 2005, so they had
certain bank covenants. Prevost testified purchasing the tractors would have affected
Respondent’s debt to equity ratio and it would affect Respondent’s fixed asset leverage
ratio. Prevost testified if the work went away, which it eventually did, Respondent was not
stuck with the equipment with owner operators.62 Prevost testified the longer the lease for
the tractors the lower the fixed asset cost because you are stretching the life of the asset
over a longer period of time. Prevost testified a month to month lease would have been
very expensive because lessors do not want to lease month to month.
Prevost testified Respondent was able to lease additional trucks on a daily basis for
Mondays and Saturdays as part of its original deal with Ryder to lease the 21 trucks.
Prevost testified when Respondent leased a daily vehicle from Ryder it paid a fixed
amount for the daily rental and a variable amount for the miles. He testified Ryder has a
pool of vehicles for daily rentals. However, he testified they do not have a pool of vehicles
for high-mileage short-term rentals. He testified that would have depreciated Ryder’s
asset so rapidly that it would have been cost prohibitive.
Prevost testified there was nothing the Union could have done to convince
Respondent to run the NNJ runs with additional company drivers and equipment. He
testified the return on capital analysis indicated it was much more advantageous to the
company to use owner operators, especially when the business could have been cancelled
on a 90-day notice. Prevost testified owner operators were not hired or trained until
Respondent knew the New Jersey business was coming on line. He testified Respondent
had some owner operators before the NNJ runs started, stating, “We brought them on to
train them and we trained them on the existing business.” Prevost testified there is a
clause in Respondent’s contract with MMD that if there was a cancellation MMD had to
pay for the trailers. He testified there is such a provision for the tractors in the initial
contract, but MMD would not agree to that for the tractors to be used for the NNJ stores.
Prevost testified it was about 4 cents a mile cheaper to use owner operators than
company drivers from Landover for the layover runs.
Cannon attended negotiations between Respondent and MMD regarding rates for
the NNJ runs. He testified Respondent decided it would need an additional nine tractors
to service the 54 NNJ stores. It was decided Respondent would also need an additional
12 refrigerated trailers which Respondent purchased for this operation. He testified
Respondent did not receive any compensation from MMD for the purchase of the trailers.
Rather, Respondent was paid for the trailers by the rate MMD paid for the operation.
Cannon testified there was a contractual penalty to MMD if it cancelled the contract for the
_________________________
they were. He testified in Lynchburg they are not.
62 Prevost explained that Respondent lost the work because after the Union struck
Landover, Shop and Stop went to a dairy in New Jersey and decided to remain there.
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54 stores prior to the end of the term in that MMD was obligated to purchase the extra
trailers from Respondent.63
Cannon testified Respondent’s decision to use owner operators rather than
company drivers for the NNJ runs was a collective decision by Respondent’s officials.
Cannon testified the reasons were if Respondent used company drivers, they would have
had to purchase additional equipment in the form of nine sleeper cabs. He testified the
decision to use owner operators because Respondent did not want to spend the capital for
the nine sleeper cabs at a cost of $100,000’s each. He testified the cost was the same
whether Respondent purchased or leased the cabs. Cannon testified there was nothing
the Union could have offered to change Respondent’s decision not to make the additional
capital expenditure. Cannon testified the decision had nothing to do with actual drivers’
wages. Cannon testified that in order to get the best utilization of the original 21 day cabs
Respondent had acquired when it began the operation, it did not make sense to have
those trucks used on runs that required layovers because then they would not be around
the next morning. Cannon testified Respondent was able to take on the 54 new stores
without an extra equipment charge to MMD, “because we told them at the very beginning
that we can do this with owner operators and we prefer to, because we did not want to
invest the capital into a hundred thousand piece of equipment times nine.” Cannon
testified Respondent does not pay per diem or hotel costs when it uses owner operators,
which it pays to company drivers who layover with company equipment.64 Cannon
testified the start of the NNJ runs was expected by Respondent to be in the latter part of
August, but it was pushed back several times by MMD until the start date of October 16.
Cannon testified Respondent did a comparison and he recalled it being upwards of 17 to
19 cents more per mile to use company drivers for layover runs than owner operators.
Miller testified he analyzed the use of owner operators for the 54 new stores. He
testified the cost of operating with owner operators versus the cost of operating company
equipment was a little less expensive to run with owner operators so Respondent could
use owner operators and not have to spend the capital to purchase tractors. He testified
the cost of the purchase of 10 sleeper cabs would have been about $900,000. Miller
testified Respondent would have been in the same position if they leased the tractors or
purchased them. Miller testified the leasing of cabs would be a capital investment
because Respondent would have to make a five-year commitment for those tractors to a
leasing company because a one year lease would be more costly. Miller testified if they
purchased or leased sleeper cabs on a five year lease, if Respondent lost the business,
they would have to park the additional cabs or find some new business.
Miller testified Respondent started pricing the new business around July and
finalized most of the details around the end of September 2006. Miller testified, “We
looked at it under both methods, under company and under owner operators, and we
placed the bid based on the basis that we would try to use owner operators because we
felt that was the best way to do that from a business sense.” He testified once
Respondent placed the bid the cost was fixed whether Respondent used owner operators

63 Cannon testified MMD cancelled Respondent’s contract for the delivery to all 64 New
Jersey stores a few days after the January 12, 2007, strike began.
64 Cannon testified that two owner operators that Respondent eventually used only had day
cabs. Cannon testified if the owner operators did not have sleeper cabs, they had to pay the
expense for overnight accommodations when they ran layover runs as all the owner operators
were paid the same rate.
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or company drivers. Miller testified the projected cost was about 4 1/2 cents per mile less
to do the work with owner operators as opposed to company drivers. Miller testified the 4
and ½ cent per mile cost differential included the cost of leasing or purchasing additional
tractors. Miller testified some of the company drivers actually made the NNJ layover runs
on company equipment. However, Miller claimed he did not compare the actual cost of
those runs by the company drivers to what the owner operators were costing. Miller
testified that when he did the pricing for the 54 stores in July 2006, he did not have any
knowledge that the Landover stores were unionized and the union status of Landover was
not part of the pricing model. Miller testified they came up with the cost of the owner
operators by using what they thought the market would require to hire owner operators
which was around $1.13 per miles plus $15 a stop. He testified he did the analysis using
those figures.65 Miller testified he concluded concerning it would be best to hire owner
operators to run the NNJ runs without having to spend additional money on company
equipment. Miller testified he provided that conclusion to Prevost, who agreed.
Respondent’s records reveal that it had 24 company drivers working the week of
October 16. Respondent’s records reveal that it had contracted with six owner operators
by October 16. Cannon testified, “the purpose of the owner operators, once the northern
New Jerseys came on, that they were going to run all of the northern New Jersey runs.”
Cannon testified, however, that after the NNJ runs started, some members of the
bargaining unit did do NNJ runs. Cannon testified that as far as he could recall none of
the owner operators did local runs after the NNJ runs started on October 16. However,
Respondent’s payroll records as summarized by counsel for the General Counsel in
appendices to his brief reveal that between October 16 and December 30, there were 16
days in which owner operators ran non New Jersey routes referred to as local runs which
did not require a layover;66 there were seven days in which owner operators ran SNJ
routes which also did not require a layover and was pre-existing work;67 and there were
nine days in which owner operators ran mixed NNJ and SNJ.68 Respondent’s records also
reveal that following October 16, company drivers also regularly ran NNJ runs.69
Cannon testified the maximum owner operators Respondent had was 13, which
was during the course of the strike, and at the time of the hearing, Respondent was still
using some owner operators, although Respondent lost both the NNJ and SNJ runs shortly
after the start of the January 12, strike. He testified they used owner operators through
the strike from January 12 to March 2, 2007. Cannon testified the owner operators used
their own tractors but pulled the same trailers as company drivers and their product was
loaded by MMD as it was for the company drivers. The owner operators were listed on the
assignment board as were the company drivers. Cannon testified referring to the owner

65 While Miller testified the analysis was done a projected $15 a stop fee for owner
operators, Branch’s testimony reveals the owner operators were actually paid $18 a stop.
66 These dates were October 21, November 4, 8, 22, December 8, 9, 15, 16, 19, 21, 22, 23,
27, 28, 29, and 30.
67 These dates were October 21, 25, November 18, 21, 25, December 2 and 9.
68 These dates were October 30, November 6, 15, 20, 29, December 1, 6, 8, and 13.
69 During October 15 to December 30, company drivers ran NNJ routes on: October 17 to
20; 23 to 27; October 30 to November 3; November 6 to 8; November 10, 13, 14, 17, 20, 22, 25,
and 30; and December 2, 4, 6, 7, 9, 14, 16, 19, 23, and 24. On some of these dates more than
one company driver ran these routes. Following October 16, Respondent’s records reveal that
company drivers continued to run southern New Jersey routes almost on a daily basis. They
also on occasion ran mixed northern and southern New Jersey routes.
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operators, temporary drivers and company drivers that “They all did the same work.”
Cannon testified that: During the time period of June 1, through October 16, the
company drivers could not have handled all of Respondent’s loads because under
Respondent’s model they expected the company drivers to run more loads than they were
actually running. Respondent was expecting a large percentage of drivers to run at least
two loads a day, but they were not doing that. As a result, Respondent had to use temp
drivers and owner operators. Company drivers would also call off from work. Cannon
testified it was less expensive for Respondent to use owner operators than temporary
drivers, when Respondent was required to rent an extra tractor for the temporary driver.70
Cannon testified from the start of the operation to the time of the strike Respondent was
trying to hire company drivers.
Prevost testified the initial projected model for Landover operations included 21
company drivers, and a six day a week operation with first and second shift deliveries.
Prevost testified they were able to hire up to 21 company drivers at some point, but still
were not able to complete all of the loads. He testified they realized they needed change
the model to increase it to 26 company drivers to remedy the problem. Prevost testified
they used company drivers, temps, and “we brought in owner operators to train, once the
New Jersey business was coming on line.” Prevost testified, “The model for 26 was to be
26 company drivers, not owner operators.” Prevost testified while the model called for 26
company drivers, Respondent actually made the increase in numbers by using temps and
owner operators. He testified Respondent had some owner operators before the New
Jersey business started, stating, “We brought them on to train them and we trained them
on the existing business.” He testified when Respondent approached 26 drivers it
included temporary drivers and owner operators.71

70 However, Miller testified he was sent to Landover to do an analysis after the operation ran
for six weeks. Given a March 27 start date, the sixth week ended on Saturday, May 6. Miller
testified that Respondent was using more tractors than was anticipated in its model for the
facility, but they were able to manage that down to where they were operating with the original
number of tractors anticipated in the original model. Miller testified the need for extra tractors
was reduced by better routing and better dispatching. Miller did not know if there was still a
need to rent tractors on the heavier days, but he testified it was no longer done on a regular
basis. He testified Respondent just needed extra drivers. Miller testified part of the need for
extra drivers was the mileage being run was about seven and one half to eight percent more
than anticipated in the original model. Miller provided this information to Prevost.
71 Respondent had the following number of company drivers during the listed weeks: March
27, 18 drivers; April 3, 19 drivers; April 10, 23 drivers; April 17, 24 drivers; May 8, 25 drivers;
May 22, 23 drivers; May 29, 22 drivers; June 5, 23 drivers; July 10, 22 drivers; July 17, 21
drivers; July 24, 22 drivers; August 7, 23 drivers; August 13, 22 drivers; August 21, 22 drivers;
September 9, 23 drivers; September 18, 24 drivers; October 9, 25 drivers; October 16, 24
drivers; October 23, 22 drivers; November 12, 21 drivers; November 19, 20 drivers listed but
Garner ran no routes that week; November 26, 22 drivers listed but Garner ran no routes;
December 3, 21 drivers; December 10, 23 drivers; December 24, 22 drivers; January 6, 23
drivers. Weeks for which there was no change in the number of drivers from the prior week
listed were omitted from this summary. During the week of January 13, 27 drivers were listed
but of those, four Grannison, Lacy, McCord, and Sims were apparently hired in preparation for
the strike, as they were not listed the prior week, and all but McCord worked on January 13.
These figures were obtained from R. A. Exh. 34.
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When asked why Respondent could not hire a full complement of company drivers,
Prevost testified there was a high turnover at Landover during the March through
December period. He testified there was no longer high turnover among drivers at the
time of the hearing. He testified Respondent did not lower its hiring standards. Prevost
testified Respondent’s last offer to the Union has been implemented at the facility around
a week after it was offered to the Union, which was in mid-January 2007. He testified that
this resulted in a wage increase. Prevost testified Respondent no longer has a staffing
problem at the facility since implementing the wage increase. Prevost testified
Respondent continues to use an owner operator or two at Landover, and continues to use
temps there. He testified when Respondent brought the owner operators on, Respondent
never stopped using temporary drivers.
Ortt testified as follows: Respondent receives a daily fax from MMD in the afternoon
showing the number of dollies each store was receiving the next day. Ortt then broke the
stores down into geographic areas, took the amount of dollies each store was receiving
and planned the route for each trailer. Upon Ortt’s completing the routes they were
returned to MMD to load the trailers for the next day’s deliveries. The dispatcher and
terminal manager decided which routes a driver would be given. The dispatcher, at the
time of the hearing, was Arvester Horner. Respondent tried to use company drivers by
having them haul as many loads as possible to maximize their pay and fleet usage. When
Respondent ran out of company drivers they resorted to temporary drivers and at some
point it was temps and owner operators.
Ortt testified that: Under DOT regulations a driver cannot drive more than 11 hours
or work more than 14 hours in a day. Respondent implemented a sign up sheet, at the
Union’s suggestion, where the drivers could sign up for extra loads. Respondent started
using the sign up sheet in September or October 2006, and certain company drivers would
regularly sign up. When a company driver was out on a route they would be given first
shot at an extra load. If they did not want to do it then Respondent would contact any
company driver who was off to see if they were interested. Once Respondent exhausted
its company drivers then they would call the temps and owner operators. When a
company driver delivered in the D.C. area they could not expect him to make two runs a
day because it was too congested. Ortt testified a driver could do two runs in the
Baltimore area, and make the same amount of money as someone driving one run to
Delaware. Respondent was short company drivers from day one and it was a constant
hiring battle. Ortt testified they hired drivers who saw the work was too hard and left.
Respondent was short three or four company drivers at any given time.
Ortt testified Respondent hired some of the owner operators prior to the start of the
NNJ runs. He initially claimed those owner operators were only used if Respondent was
short of company drivers stating they would use the owner operators rather than calling
temporary agencies to fill the gap. He also initially testified that prior to October the owner
operators were not scheduled every day, but were basically scheduled on an as needed
basis if they did not have their full compliment of company drivers come in. Ortt testified
to offset the delay in the start of the NNJ runs Respondent put the owner operators on
hold, and “only used them when we absolutely needed to, until the New Jersey did start up
full time.” Yet, Ortt then admitted that, despite his claim that owner operators were only
being used as substitute drivers, the owner operators were being kept fully employed by
Respondent. Ortt testified under Respondent’s agreement with the owner operators they
were not free to work for anyone else besides Respondent. The owner operator was
leased to Respondent because the tractor would be in possession of Respondent because
Respondent’s DOT numbers were on the side of the tractor. Ortt testified working with
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another carrier would have also caused problems with the insurance carrier. In essence,
in order to retain their services, pending the start of the NNJ runs on October 16,
Respondent had to keep the owner operators hired prior to that date fully employed.
Ortt testified it cost Respondent at least $180 to $250 a day or more to use a temp
driver than company drivers. He testified if there was no vacant tractor for the temporary
employee then Respondent had to rent an extra tractor. Respondent paid the temporary
agency by the hour for the temporary drivers, plus overtime rates. He testified
Respondent was paying the temporary agency $10 to $15 an hour per driver.
Horner had been employed by Respondent as a dispatcher since July 15 at the
time of his testimony. Horner testified as follows: Saturdays were the heaviest days and
Horner could not meet deliveries with Respondents company trucks and drivers alone. It
was also fairly busy on Friday and Monday, with Monday being the second busiest day.
The set up was that no driver could be off on Saturday or Monday, although sometimes
they called in sick. On Mondays, Horner also had more loads than drivers and trucks.
Horner testified Respondent was renting three to five extra tractors from Ryder almost
every Saturday since Horner started, and almost every Monday, they had to rent at least
one tractor.72 When they had more loads on a day than they had scheduled drivers, he
would first call company drivers who were already working and if they were not available
he would call company drivers who were off that day. Once he exhausted company driver
availability, Horner would then resort to the temporary drivers. Horner could call a
temporary agency and get a driver with as little as two hours notice on many occasions.
Horner testified that at some point Respondent started using owner operators.
Horner testified the owner operators were assigned loads “just like the regular drivers
were assigned the loads. If they called in sick or to take a day off, like I said, I'm going to
call the Company drivers first, which I thought owner/operators, Company drivers, I went
to them first. If they was off, if they want to run that extra load. If they don't want to run
that extra load, then I go to the temp.” When asked if he treated the owner operators the
same as he treated the regular drivers, Horner responded, “They had a regular schedule?
Yeah, they was assigned the New Jersey runs, yes, sir. Some of the Jersey runs. So they
were assigned on a regular basis? Yes, sir.” He testified he asked the owner operators
just as he did the company drivers if they were available to fill in for extra loads, and then
Horner would go to the temporary agencies. Horner testified he asked the company
drivers to do extra loads before he asked the owner operators. He testified that practice
has not changed for the entire time he was there.73 Horner testified it was his decision to
call drivers who were working first on a given day first to see if they wanted an extra load,
and then to call the driver who was off from work. Horner testified he learned to use this
practice at the company he worked for before coming to Respondent. Horner testified
there was never a week where did not have to resort to using temporary drivers.

72 This assertion by Horner is contradicted by Miller’s testimony that Respondent early on
was able to cut down on the need for short term rented tractors by more efficient routing.
73 Tucker testified Respondent had a bin where it kept all the drivers assignment sheets.
Tucker could also recognize the owner operators by their trucks and he knew their names.
Tucker, like Horner, testified Respondent’s use of owner operators differed from temporary
drivers in the owner operators were scheduled in automatically, while the temporary drivers
were scheduled when there was too much work. Tucker testified the owner operators were part
of the schedule the same as the company drivers, and that they were always on the schedule.
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Horner testified Respondent receives a cube report from MMD detailing the milk to
be delivered the next day to the stores. The terminal manager then routes the stores with
no more than 50 dollies per trailer. Once everything is routed they send it back to MMD to
load the trailers according to Respondent’s routing directions. He testified it was possible
for Respondent to have altered the number dollies in a trailer to give more work to one as
opposed to another when they asked MMD to load the trailer. Horner testified he did not
set the routes. Rather he received the routes and assigned the driver to the route.
8. The January 12, 2007 strike.
Giles testified a decision was made to go on strike in the last week of December.
The decision was made by the Union’s officers and Giles in consultation with the Union’s
legal representatives. Giles testified it was decided the strike would begin on January 12,
2007, to allow the bargaining unit a couple of weeks of work to help pay for their
Christmas holiday. Giles testified that, “What triggered the decision in the last week of
December was the National Labor Relations Board issued a complaint against the
Company over the diversion of bargaining unit work.”
Giles testified the parties reached tentative agreement on the subcontracting issue
on November 7, and they bargained over economics and some other language issues
after that date. Giles testified he called the strike in January because Respondent’s
actions were contrary to what they had agreed to concerning subcontracting. Giles
testified, “If you look at all my bargaining notes and you see the progression of events,
that led up to that tentative agreement, you will see that the Company understood the
Union's concern over the subcontracting and the Union's willingness to, to allow limited
subcontracting to allow the Company to operate in the event that there was a sudden
vacancy or absence for some reason. During this time, the Company continued to hire
additional owner operators, and also during this time, it was in mid December, it was after
we had had our December session, the Company suddenly brought in, I don't know, 12, 15
drivers from other parts of the country and were using them to ride with the existing
bargaining unit members and do all of that.74 So I mean I didn't know where any of this
was going. Like I said though, the actions of the company were contrary to what we had
agreed to, in the spirit to which we agreed to it. I'd say it again. I wasn't trying to stop this
Company from offering service to its customer, to have service failures, but we were
certainly nailing down the scope of the work and the fact that bargaining unit work should
be done by bargaining unit members. And they continued to hire more owner operators
and divert additional work.”
Giles testified as follows: The strike began at 9:30 p.m. on January 12, 2007. Giles
called Tucker at about 5 p.m. on January 12, and told him the strike was going to start at
9:30 p.m. and asked Tucker to meet Giles at the dairy at 9 p.m. When Tucker arrived,
Giles had picket signs and picket instructions available. A few minutes before 9:30 p.m.
they put the picket signs on and established a picket line in front of the main entrance to

74 Following the November 7, tentative agreement date on subcontracting, Respondent
contracted with additional owner operators on November 14; November 29; December 11, and
on December 21. The owner operator who signed a contract on November 29 did not start
working for Respondent until December 19. Cannon testified that, at Prevost’s direction,
Cannon began strike preparations in early December. He testified that in about mid-December
he had about seven drivers from other companies come in and take a look at the operation and
familiarize themselves with Respondent delivery procedures.
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the dairy facility. Giles had drafted letters dated January 12 addressed to MMD to the
attention of Jan Tenpas and Walt Aumen, officials of the Dairy. The letters state this was
to notify them on that date the Union commenced an unfair labor practice strike against
Respondent and that a picket line has been established at their shared facility. Giles
delivered the letters by hand to Bob Doe the ranking supervisor at the Dairy at 9:30 p.m.
on January 12. Giles told Doe the letters were addressed to the named individuals and he
asked him to deliver the letters, and Doe said he would take care of it.
Giles identified the picket sign the Union used during the strike. The printed portion
of the sign was a stock sign. The sign read “Unfair” and then there's a blank space, and
then it says Teamsters Union Local 639. Giles inserted Respondent’s name in the blank
space on the sign.75 Giles testified they used the sign that said “Unfair” for the strike at
Respondent to signify that they were on an unfair labor practice strike. Giles also
identified picketing instructions which begin with, “You are helping to publicize the strike
by Teamsters Local Union No. 639 against Quickway Transportation for their unfair labor
practices.” Giles testified he handed copies of the instructions to the members of the
bargaining unit when they arrived at the picket line on January 12, 2007. Giles testified
the picketing that night was in front of the dairy, and that they were wearing the signs.
Giles testified there was no chanting going on. Giles testified that around 11 p.m. the
picket line was moved to the sidewalk in front of Gate 3 of the distribution center. Giles
testified they picketed the entrance and exit gates by walking back and forth within the
crosswalk of the driveway entrances when there were trucks entered or exited the facility.
Giles participated in the picketing throughout the strike, and he was there every day at
various points in time. Giles testified while he was on the line he never heard any
chanting.76 He testified the picket signs remained the same during the strike.

75 Giles identified another sign that states, “On Strike, Teamsters Union Local 639.”
This sign was distinguished from the sign the Union used for the strike at Respondent in
that it did not have the word unfair on it. He testified he had two choices of signs in that
the described signs were the only ones in the union hall.
76 While Giles denied he was present for any chanting on the line, Respondent played a
DVD at the hearing of events which Cannon testified took place on January 15 on the line where
there was chanting by the picketers to the effect that they wanted a contract now. Cannon
identified an individual who he testified was Giles. Cannon testified he was not present at the
picket line when the chanting occurred on this date, but he was merely identifying Giles by his
familiarity of Giles’ appearance on the video. The face of the individual on the video who
Cannon claimed was Giles could not be seen with any clarity and Cannon was just going by the
individual’s hair color, walk, and other characteristics when he claimed the individual was Giles.
Giles was present in the hearing room when the film was shown. When asked whether
Giles knew if the individual Cannon identified was Giles, Giles replied, “No, I don't.” He
testified, “It could've been, but you know, I can't clearly see the face of the person in that
video.” Giles testified he did not remember the incident. He testified he did not remember
being there when the picketers where chanting. When asked if he was denying it was him,
Giles responded, “It could've been me. I don't think it was me. I have no recollection of
any chanting going on while I was on the picket line.” Giles admitted he was on the
picketing line on the evening of January 15, and that he came there from the Union hall
after negotiations ended at about 7:45 p.m., and that it was a about a 10 to 15 minute
drive from the hall. Yet, Giles maintained that he could not recall what time he arrived at
the picket line that night.
Regardless of whether the individual Cannon identified was Giles, there is testimony by
the picketers that the chanting occurred on more than one occasion for a two to three
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Cook testified he showed up for work at 4.m. the day of the strike and was
intending to go to work that day, but when he saw the picket line he went on strike. Cook
confirmed his receipt of and Giles description of the unfair labor practice strike instructions
as well as Giles description of the picket sign. Cook participated in the picketing almost
every day. Cook testified, “I was on strike to try to get the work back, try to make more
money, because I was upset for the owner/operators taking all of the work.” Cook testified
he thought if they had gotten a contract the strike would have ended and they would have
gone back to work. Cook testified he did not understand the dispute in negotiations
between the Union and the Company at that time to be between hourly pay versus miles
and stops pay. Cook testified the dispute was they were trying to stop the owner
operators and temp drivers from stealing work from us. Cook testified, “My understanding
_________________________
week period. Giles impressed me as a meticulous individual, and I have concluded even if
he was not present for the actual chanting that he would have received reports that
employees were chanting for a contract on the line, and that this occurred on more than
one occasion. In this regard, General Counsel witness Cook testified that during the
second week of the strike the picketers were divided into three shifts. Cook testified he
heard chanting on the line while picketing on the day shift. The testimony of the strikers
reveals that the chant was, “Who are we? The Teamsters. What do we want? A contract.
When do we want it? We want it now.” Cook estimated the chanting went on for about a
week or two. Striker Langhorn estimated the chanting went on two to three weeks when a
truck came through the gate. Striker Keys estimated the chanting lasted a few days.
Tucker testified he was assigned the 4 p.m. to midnight shift, but that he also came in on
the other shifts. Tucker testified he picketed at least three to four days a week during the
course of the strike. He testified he was present one time when there was chanting on the
picket line and then the guys were asked to stop it by union official Michael David. Tucker
testified the chant was lead by someone with a bullhorn.
Harry Crabtree was employed by Respondent as vice president of safety and
recruiting. Crabtree testified Prevost asked Crabtree to go Landover during the strike and
that Crabtree stayed there for about two weeks. While in Landover, Crabtree worked with
Cannon, and Willie Cantrell, the Atlantic region director of safety, monitoring drivers
entering and exiting the facility, and he watched strikers walking in front of the trucks
before the drivers entered the gate. He testified he heard chants and saw signs and
posters. Crabtree testified he heard the above described chant over and over again when
the drivers approached the gates to enter and exit the property. Crabtree testified a man
named Kenny Tucker was identified to him as the guy who was initiating the chant.
Crabtree testified this was his first visit to Landover, and that Cantrell identified Tucker to
Crabtree. Crabtree testified Tucker “was a large, middle-aged black fellow, maybe 300
pounds, very vocal, but, yes, sir, I did see him.” Crabtree testified he had no direct
knowledge as to whether Cantrell was correct when he identified Tucker. Cantrell,
although still working for Respondent at the time of the hearing, was not called to testify.
Given the hearsay nature of Crabtree’s testimony in that he could not personally identify
Tucker, I do not find that Tucker led the strikers in the chant as Respondent contends,
given Tucker’s credible testimony that he only heard the chant on one occasion.
Cannon testified he arrived at the facility on January 15 around 6 or 7 a.m., and he left there
around 1 p.m. to go to negotiations. Cannon testified he heard some chanting as he was going
through the picket line at about 1 p.m. Cannon was driving his vehicle accompanied by
Hanson. Cannon named four drivers who were at the line, and he thought Langhorn was also
there. Cannon testified he heard the drivers say, “we want a contract, Chris. Chris, give us a
contract. We need more money.”
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was the work that came off the dairy, was supposed to be all company drivers and this
was-- the purpose of getting a contract was to stop them from taking the work that we
would be running.”77
Cook testified the owner operators were running varied runs before the NNJ runs
began in that they were given the same runs as the company drivers. Cook testified he
earned the most money by running the longer distance runs due to the increased mileage.
Cook testified he thought the use of owner operators decreased his income because they
were giving them the longer runs to NNJ. Cook told the dispatcher he was willing to take
the run, but he would just give it to the owner operators. Cook testified he was not getting
those runs unless an owner operator was not available. Cook testified he remembered
calling Ortt in the morning and asking if he needed Cook to take a run, and Ortt said an
owner operator had taken it.78
Tucker testified he went on strike because of the unfair labor practices, the firing of
Angelo Jackson and the diverting of bargaining unit work. He testified there was no other
reason he went on strike.79 He testified if Respondent and the Union reached a contract it
would have helped resolve the strike because it would help stop the unfair labor practices
by the company. Tucker testified he did not run layover runs to New Jersey while
employed by Respondent, but he did run non-layover runs to New Jersey. He testified
Respondent’s use of owner operators affected him, because sometimes if there was a
second run that he could run, then it might not be available if it had been given to an
owner operator. Tucker also testified that in some cases, just to make a load for an owner
operator, Tucker may have been deprived of stops on his loads. Tucker testified he did
not recall when this occurred, but he recalled it happening and he brought it up during
negotiations with Ortt attending a negotiation session to answer his question. Tucker
testified Ortt did not agree with him because Tucker was asking to be paid for the stop
because it would have fit in his load.
9. Contract negotiations January 2007
Giles testified the January 15, 2007, session opened with Hanson stating they were
working on a mileage grid. Giles notes read Hanson stated, “we’ve been working on a
final offer. A mileage grid - bands. Also some other economic proposals and language,
but let’s focus on the economics. We have some language on the shoe allowance that we
talked about B-4. We had also talked about the 72 hours notice of picketing.” During the
meeting, Respondent presented a two page document, entitled “Company’s Economic

77 Cook testified the company drivers that he was aware of who wanted to run to NNJ
runs were Cook, Keyes, Samuels, and Smith. Respondent’s records reveal that in
addition to the company drivers named above by Cook, that company drivers Coldwell,
Hughes, and Graham ran the NNJ runs on one or more occasions.
78 Langhorn testified he voted to strike in October because owner operators were
taking bargaining unit work. He testified he knew there were negotiations between the
Union and Respondent during the strike in that Tucker and Duncan had left the line to go
to negotiations. He testified if a contract had been reached that day the strike would have
been over. He testified they wanted to be paid by the hour not by the miles, and they did
not want contract drivers doing their work.
79 Owner operator Branch testified he spoke to Tucker on one occasion during the strike
and Branch asked Tucker why the men were on strike. He testified Tucker “said it was an
unfair labor strike, something of that nature.”
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Proposal, January 15, 2007.” The proposal included a mileage matrix. Giles testified
based on the work sheets Respondent had provided the mileage matrix proposal came to
a rate of $18.99 an hour. Giles testified that Hanson asserted the January 15 proposal
was a 12.3 percent increase. Giles responded why not add the 12.3 percent increase to
the hourly rate Giles had calculated for a floor of $21.25 an hour under Respondent’s
mileage matrix. Hanson responded they could not do that, they do not have it any where
in the company. Giles told Hanson that he was going to have to do something to resolve
the hourly pay versus mileage and stops.
As reflected by Giles’ notes, Hanson stated they had a huge philosophical
difference. Hanson stated he thought the drivers would love the pay package. Giles
stated you do not know them. Giles stated, as reflected in his notes, “You're in an area
where hourly pay, H and W, health and welfare, a pension paid by the employer, and they
also expect sick leave. None of that's here.” The notes reflect Cannon stated we put
together this proposal and it was Respondent’s final offer. Giles stated we do not accept.
Hanson asked Giles to let the drivers decide, and Giles stated it would be rejected 100
percent. Giles’ notes reflect that towards the end of the meeting, Giles stated they were
not getting anywhere, and asked if Respondent wanted to meet the next day. Hanson
responded, “I don’t think it would do any good. I don’t know where the compromise lies
then.” Cannon asked Giles if he was going to take Respondent’s proposal to the members
for a vote, and Giles stated no they had two members there to ask them what they think of
it. Cannon said they are only seven percent of the group, that it was not fair to the other
93 percent. Giles asked what happens after it is rejected? Cannon replied as reflected in
the notes, “we’re one step closer to getting through to the end.” At the end of the meeting,
Giles asked if this was Respondent’s last, best, and final offer, and both Cannon and
Hanson responded that was correct. Respondent’s written January 15, 2007, economic
proposal includes a proposed a matrix pay system for the drivers based on a 5 year
agreement. In the first year for the first two grids, drivers whose routes were 0 to 75 miles
were to receive $.55 a mile, and 76 to 150 miles, $.52 a mile. There were four grids in all
with routes of over 300 miles receiving $.46 per mile. All of the drivers were to be paid
$17 a stop for the first year, with $.25 increases per year.
Cannon testified he was informed by Giles the contract offer was voted down
unanimously by the members on January 16, 2007. Prevost’s testified Respondent
implemented its January 15 offer shortly after the start of the January 12, strike. However,
the Union was never notified the offer was implemented.
Giles testified Respondent’s January 15 offer was incomplete. He testified there
were still several language issues open. He testified Respondent had advanced
numerous work rules in November, and the Union had been waiting for language for the
work rules since the beginning of negotiations. He testified language issues involved the
bidding and the carry forward of vacation, the work rules, the assignment of overtime and
additional routes.80 He testified Respondent’s proposal in reduction of hours was still out

80 Giles testified he thought work rules were given to him on November 9. Giles
testified he became really agitated about the work rules. He testified Respondent put it on
the table and said they were going to implement it. Giles testified that was going to be a
major problem with the work rules lying out there. Article 12.03 of the parties’ combined
typed working document is entitled work rules. Giles has noted with respect to Article
12.03 in his November 7 bargaining notes, “Ok w/noted changes.” Hanson’s notes read at
page 94 referring to Giles remarks, “Work Rules- 42 items in there. Consider it bad faith
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there. Giles testified these things had not been agreed to, and that he did not have
Respondent’s position on these items. Giles testified that, at the January 15 meeting,
Hanson started the meeting by stating they had been working on a final offer, a mileage
grid slash or dash bands, and some other economic proposals and language. Giles
testified that Hanson, “just blew right by it and went straight to the economics and we
never came back to the language. So Mr. Hanson knew that there were language issues
still open in this, in this contract.” Giles then conceded that he had Respondent’s prior
proposals on these issues, and they had not been agreed to or had not been withdrawn.
He testified he had no basis to conclude Respondent had changed its position on those
issues prior to that meeting. Giles testified, “But the proposal that he gave me was
everything that they were proposing to conclude the negotiations. There were other items
that were still open and were not addressed in that last offer.” Giles testified, “They
appeared to have been omitted, to me, and I think that there was a probably three or four
times during the course of these negotiations that I said to Mr. Hanson, that nothing's
agreed to until everything's agreed to. Now, I think that he clearly started that meeting by
saying to me, look, we got some things here, mostly economic, but there's some language
too, and then we went right past the language. The language was never addressed.”
At the time of the hearing, the parties last met on January 17, 2007, with a federal
mediator. Giles testified that during that session, the Company made a slight modification
by proposing a conditional weekly guarantee on wages. He testified there was still
movement being made. Giles characterized movement by the Union as significant and
Respondent’s on January 17th as fairly small but he testified it was still movement. As
reflected in Giles’ notes near the outset of the January 17 session, Hanson stated that in
economics there were five major areas of disagreement. Giles notes read as follows:
JH-We have, in the economics, 5 major areas of disagreement:
1-Producitvity pay-same all around the country. 40% union
2. O/T + Guarantees- We don’t pay o/t. It’s factored into the pay structure.
3. P/H/sick leave- Co. gives 2 pers. Days, the Union want 6 p/h after 3 yrs + 12 sick
days p/y.
4. H & W—We have offered a company plan, we would do L639 H & W but all have
to contribute to the plan.
5. Pension- U has proposed 639 pension, has moved off of that & proposed
Teamsters Nat’l 401 (k) w/defined contribution, we have an ESOP + have shown
the value of that. We also have a Co. 401 (k) plan w/a 50% match on 6% of emp.
Contribution.
PG-Responds to the 5 above + rules + regs +bargaining unit work.
JH- A lot of the language issues will fall into place as we get it done.81
_________________________
bargaining.” Article 4.05 entitled bidding appears to have a tentative agreement initialed
on August 30. There is no T/A noted in the working document for Article 5.03 for the
assignment of overtime and additional routes. There was no T/A listed for any of the
vacation provisions listed in Article 7 of the parties’ working document.
81 Giles testified he told Hanson during the January 17 meeting that they had a just cause or
a good cause provision in the contract and they were going to grieve and arbitrate anything they
considered unreasonable. He testified he told Hanson that if he wanted to settle some of the
language he needed to take the work rules off the table. Giles testified vacation bidding was an
item, the work rules, and the accrual of vacation were open. Giles testified the parties did not
reach an impasse in negotiations and Respondent never said they were at impasse. Giles
testified in December and in the January sessions the Union made significant movement in what
Continued
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Giles testified on January 17, after meeting with the Respondent, Mediator Lynn Sylvester
returned to talk with the Union, and Giles wrote in his notes the following:
LS- I told the Company that the answer to the question is somewhere in the middle.
The concept they are willing to discuss is:
Guaranteed weekly amount w/ the following
1 5 days of availability, including Sat.
2. Doesn’t apply to unexcused absences.
3 Could not refuse load if hours available.
Giles testified after Sylvester gave the Union this information, the parties again got
together and talked. Giles notes of that point of the meeting read as follows:
PG- Flesh out what your concept is.
JH- Must be available to work 5 days including Saturday, doesn't apply on
unexcused absences. Cannot refuse a load w/hrs available.
PG- How would you determine the guarantee?
JH- It would be a weekly minimum.
PG- We're not any closer than we were five hours ago. What about hours, miles
and stops?
JH- We're not interested in hourly wages.
LS- It seems to me that what it comes down to is what the numbers are.
JH- 5 mos of thinking about it, I still don't know what the solution is.82
Giles testified then they took a break and Sylvester met with Respondent. Giles’ notes
reveal that when she returned she ended the session by stating:
LS –We’re at the end of the rope for today. I’ve asked them to go back & look at
some other things and I’ll stay in touch w/ the Co.
Giles testified he did not agree that there was no movement at the January 17 session.
However, Giles testified all Respondent ever proposed was miles and stops. When asked
if that ever changed from the beginning, Giles responded, “I don't think so, no.”
Cannon testified he recalled talking to Hanson about some type of daily or weekly
guarantee. When asked if Respondent made a formal proposal to the Union on that
Cannon testified, “We did.” However, Cannon then qualified his response stating it was a
concept the Union did not accept contending Sylvester made the suggestion to
Respondent. Cannon testified they discussed it, but Respondent did not propose it. He
testified they discussed it at Sylvester’s suggestion, but “No, we did not discuss it with the
union.” Despite Cannon’s claim that Respondent did not discuss the guarantee with the
Union, Hanson’s notes stated the following at page 202:
_________________________
they had proposed.
82 Giles testified during questioning by Hanson that during the exchange he asked,
"’What about hours, miles and stops?’ I'm trying to reach a compromise of something we
can all agree to, and you flat out said, ’We're not interested in any hourly wages.’ So the
idea of negotiations is somewhat of a question to me when you got your, when you got
your heels dug in and won't make any movement. We didn't want miles and stops either,
Mr. Hanson.”
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4:22 p.m.
PG, Mr. Giles: Flesh out concept.
JHH: Explained weekly guarantee. They can't refuse loads, unexcused absences.
It is reflected at page 203 of the notes:
PG: Weekly guarantee ties to hours. Will, and then 40 or 70 hours, won't agree to
something that's not fair.
JHH: Eyes of the beholder.
PG: (Talked about)
PG: Boils down to we're not interested in mileage and you're not interested in
hourly.
JHH: Can't figure out how to bridge that gap.
E. Analysis
1. The unlawful transfer of work to owner operators
a. Legal principles
In Fibreboard Paper Products Corporation v. NLRB, 379 U.S. 203, 209, (1964), the
Court stated, on the facts therein, that contracting out of work previously performed by
bargaining unit employees is a subject about which the Act requires bargaining. There the
Court approved the Boards “directing the Company to resume its maintenance operations,
reinstate the employees with back pay, and bargain with the Union.” The Court stated at 214:
The facts of the present case illustrate the propriety of submitting the dispute to
collective negotiation. The Company's decision to contract out the maintenance work did
not alter the Company's basic operation. The maintenance work still had to be performed
in the plant. No capital investment was contemplated; the Company merely replaced
existing employees with those of an independent contractor to do the same work under
similar conditions of employment. Therefore, to require the employer to bargain about
the matter would not significantly abridge his freedom to manage the business.
The Court also emphasized that a desire to reduce labor costs was a matter “peculiarly suitable
for resolution within the collective bargaining framework…”Id at 214.
In First National Maintenance Corp. v NLRB, 452 U.S. 666, 686 (1981), the Court stated:
We conclude that the harm likely to be done to an employer's need to operate freely in
deciding whether to shut down part of its business purely for economic reasons
outweighs the incremental benefit that might be gained through the union's participation
in making the decision, and we hold that the decision itself is not part of § 8(d)'s “terms
and conditions,…”
The Court cited the facts of the case to show the limits of its holding. In that case, the Employer
decided to terminate its cleaning contract with a nursing home, and it had no intention of
replacing the discharged employees or moving the operation elsewhere. The employer’s sole
purpose was to reduce its economic loss and there was no claim of antiunion animus. The
employer’s dispute was with the nursing home over the size of its management fee to be paid to
the employer. The Court noted the union was not selected as the bargaining representative or
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certified until well after petitioner's economic difficulties with the nursing home had begun.
Thus, the Court was not faced not faced with an employer's abrogation of ongoing negotiations
or an existing bargaining agreement. The Court noted the decision to halt the work at the
location in question represented a significant change in the employer’s operation, not unlike
opening a new line of business or going out of business entirely. Id at 687-688.
In Torrington Industries, Inc., 307 NLRB 809 (1992), the Board majority found the
employer violated Section 8(a)(5) of the Act by laying off two bargaining unit employees and
replacing them with a nonunit employee and independent contractors, without giving the union
notice to bargain about the decision and the effects on unit employees. The Board cited Justice
Stewart’s concurring opinion in Fibreboard for the proposition that when all that is involved is the
substitution of one group of workers for another to perform the same work at the same plant
under the ultimate control of the same employer that such decision does not involve a change in
the scope and direction of the enterprise and is therefore not a core entrepreneurial decision
which is beyond the scope of the bargaining obligation. The Board majority concluded that,
given the circumstances, it did not have to address the issue as to whether labor costs were a
factor of the employer’s decision to subcontract since the employer’s reasons had nothing to do
with a change in the scope and direction of its business. Rather, the employer simply replaced
two employees hauling sand and stone with a nonunit employee and independent contractors.
The Board majority noted that no substantial commitment of capital or change in the scope of
the business would be involved in negotiating with the Union over retaining the two bargaining
unit employees to perform the work. Therefore whether the decision to replace them was
motivated by labor costs, it involved unit employees’ terms of employment and was not at the
core of entrepreneurial control.
In Naperville Ready Mix, Inc., 329 NLRB 174 (1999), enfd. 242 F.3d 744 (7th Cir. 2001),
cert. denied 534 U.S. 1040 (2001), the Board found the employer violated Section 8(a)(5) of the
Act when in the midst of contract negotiations and within three days of a strike it instructed its
attorney to draft documents setting up ten corporate shells, in which the titles of certain of the
employer’s trucks were placed. After examining the nature of the transactions, the Board
concluded they were not arms length business arrangements, but rather stratagem designed to
give the appearance rather than the effect of removing the employer from the ready mix
business. It was concluded the employer engaged in a type of subcontracting to subcontractors
of its own creation. It was found there was no major shift in the direction of the employer’s
business, rather it continued to engage in the delivery of ready mix product to construction sites
with the only difference the work that was being performed by bargaining unit drivers changed to
being done by “owner drivers” through an elaborate subcontracting arrangement. It was also
noted that the employer did not engage in a significant redirection of capital in that before and
after the purported sale of the corporations into which title of the trucks had been placed, the
employer continued to bear financial risk because the new owners had not yet paid for the
trucks. Thus, the employer continued to use the same equipment in which it continued to have
an ownership interest. The Board stated, the employer’s basic operation remained unchanged,
and it merely replaced the employees driving the trucks with other employees under the owner
operator rubric, and in some cases it used the same employees under the new title, maintaining
essentially the same control over them that it always enjoyed. The Board concluded its
motivation for engaging in this maneuver was its concern over the labor costs of a union
contract. The Board found for labor cost reasons the employer subcontracted the work to
employees named as owners of the various corporations its attorney had set up.
In Overnite Transportation Co., 330 NLRB 1275, 1276 (2000), affd. in part, reversed in
part 248 F.3d 1131 (3rd Cir. 2000) (nonpublished), the Board majority cited the rationale
pertaining to subcontracting in Torrington Industries, supra. with approval. In Overnite, the
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Board majority stated:
At issue here is a decision to deal with an increase in what was indisputably bargaining
unit work by contracting the work to outside subcontractors rather than assigning it to
unit employees. We think it plain that the bargaining unit is adversely affected whenever
bargaining unit work is given away to nonunit employees, regardless of whether the work
would otherwise have been performed by employees already in the unit or by new
employees who would have been hired into the unit. In any event, it is not clear in this
case that the Respondent’s current employees did not, themselves, lose work
opportunities. Overnight, supra at 1276.83
Thus, the Board has held that a bargaining unit is adversely impacted when new work is
subcontracted out rather than letting the unit expand.
In Acme Die Casting, 315 NLRB 202 fn. 1 (1994), the Board majority noted that
Torrington is not limited to circumstances where employees are laid off or replaced. There, the
employer was found to have violated the Act when subcontracting to avoid paying employees
overtime. Along these lines, in St. George Warehouse, Inc., 341 NLRB 904 (2004), enfd. 420
F.3d 294 (3rd Cir. 2005), an unlawful transfer of bargaining unit work to temporary employees
was found when the employer stopped hiring bargaining unit employees, and replaced those
who left with temporary employees. There the employer had a practice of using temporary
employees to supplement its work force, but after a union won an election, the employer
stopped hiring bargaining unit employees and increased its usage of temporary employees
thereby causing attrition in unit positions. In Clear Channel Outdoor, 346 NLRB 696 (2006), a
violation of the Act was found based on subcontracting of unit work, although no employee lost
their job as a result of the subcontracting, and no current employee suffered a loss of wages.
However, it was noted that the parties could have negotiated an increase in the number of bills
to be posted by unit employees, and they could have negotiated offering employment to unit
employees who had been terminated rather than using subcontractors.
In Sociedad Espanola de Auxilio Mutuo y Beneficiencia de P.R. v. NLRB, 414 F.3d 158,
166-167 (1st Cir. 2005), the court citing the Board’s decision in Acme Die Casting, supra
enforced the Board’s finding of unlawful subcontracting holding that the subcontracting was a
mandatory subject of bargaining even if it did not result in loss of union jobs. The court stated:
There is good reason for the Acme Die rule. Union members have an interest in an
employer's subcontracting decision in addition to the potential for layoffs. This work
provides bargaining unit members with the opportunity to obtain extra shifts (possibly at
overtime rates) or to expand the size of the unit through the hiring of new employees.
Considering these interests (and possibly others), the Board has reasonably concluded
that the duty to bargain over subcontracting extends beyond the circumstance where the
employer's subcontracting decision will result in the direct loss of union employment.
In Regal Cinemas, Inc., v. NLRB, 317 F.3d 300 (D.C. Cir. 2003), the court affirmed the
Board’s finding that a movie theater operator violated Section 8(a)(5) of the Act by refusing to
bargain over its converting to manager operated theaters and terminating its union represented

83 In Overnight, the Board majority stated the General Counsel has introduced enough
evidence that the subcontracting “’might’” have had a material impact on the earnings of unit
employees to warrant considerations of whether the unit employees should be granted a
monetary remedy at the compliance stage of the proceeding.
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projectionists. The court in Regal Cinemas stated:
Here, the Board affirmed the ALJ's conclusion that the Fibreboard/Torrington
approach governed Regal's decision to convert to manager-operated theaters and
thereby eliminate the projectionist position. This conclusion stemmed directly from the
ALJ's determination that Regal "has continued to operate the same business at the
same locations and the only change is in the identity of the employees doing the work."
JDA 16. On review, Regal maintains that the Board's decision cannot be sustained due
to its reliance upon Torrington, a decision that, in its view, "creates a virtual 'per se' rule
that is incompatible with the test established in First National Maintenance." Br. for Pet'r
at 17. Because the Board's decision is both "reasonably defensible," Ford Motor Co.,
441 U.S. at 497, 99 S.Ct. at 1849, and consistent with this court's precedent, see, e.g.,
Rock-Tenn, 101 F.3d at 1446, we reject Regal's challenge. Id. at 310.
* * *
Although the instant case involves a transfer of unit work to managers and assistant
managers, and not a transfer of unit work to an outside subcontractor, we find this
distinction to be irrelevant. What matters, in our view, is that Regal, like the employer in
Rock-Tenn, transferred " 'the same work' " performed by the union-represented
projectionists to its managers and assistant managers " 'under similar conditions of
employment,' " and did so, not because of technological change but, instead, to reduce
its labor costs. Id. Given our conclusion that substantial evidence supports the finding
that Regal's conversion to manager-operated theaters resulted in a transfer of
bargaining unit work, we find the ALJ's legal approach, adopted by the Board to be
‘reasonably defensible.’ Ford Motor Co., 441 U.S. at 497, 99 S. Ct. at 1849.
In Dallas & Mavis Specialized Carrier Co., 346 NLRB 253, 258 (2006), the Board citing
Fibreboard Paper Products v. NLRB, supra., and Torrington Industries, supra., found the
transfer of work for bargaining unit truck drivers to owner operators to be violative of Section
8(a)(5) of the Act. The Board stated
We reject the Respondent's argument that the decision to replace employee drivers with
owner-operators was a change in the scope, nature, and direction of its enterprise
pursuant to First National Maintenance Corp. v. NLRB, supra. The Respondent's transfer
of the Belvidere-Toledo run to the owner-operators involved “nothing more than the
substitution of one group of workers for another to perform the same work.” Gaetano &
Associates, 344 NLRB 531, 533 (2005) (citing Fibreboard and Torrington, supra). See
also Naperville Ready Mix, Inc., 329 NLRB 174, 181 (1999), enfd. 242 F.3d 744 (7th Cir.
2001), …
In San Luis Trucking, Inc., 352 NLRB No. 34 (2008), the Board approved the judge’s
findings that an employer violated Section 8(a)(1) and (5) of the Act by transferring a majority of
its trucking work from its wholly owned subsidiary to another company. In finding a violation of
Section 8(a)(5) the judge concluded that the subcontracting of the work did not alter the
employer’s basic operations as goods were still transported from the subcontractor to the
employer’s stores and warehouse. Rather, the essential difference was a change in the identity
of the drivers who transported the grocery goods, and no capital investment was made by or
contemplated by the respondent in connection with its decision, in that the respondent had all
times maintained its subsidiary’s trucks in a state ready for activation. The judge stated in San
Luis Trucking, id., JD slip op. at 20-21 that:
The Respondents' decision to substitute Unified for SLT to transport grocery goods
for Factor Sales was motivated, at least in part, by labor costs, which are amenable to
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collective bargaining. This is demonstrated by the Respondents' reliance on SLT's
alleged losses as a reason for the transfer of SLT's business to Unified. Dorsey Trailers,
Inc., 321 NLRB 616, 616-617 (1996), enf. denied 134 F.3d 125 (3d Cir. 1998); Rock-
Tenn Co., 319 NLRB 1139, 1139 fn.2 (1995);84 Furniture Renters of America, Inc., 311
NLRB 749, 750 (1993) enf. denied 36 F.3d 1240 (3d Cir. 1994) ("labor costs were a
factor in the subcontracting decision").
* * *
Alternatively, ‘it is well established that an employer's subcontracting decision cannot
be a legitimate entrepreneurial decision exempt from bargaining when, as here,
antiunion considerations are at the heart of the alleged fundamental change in the
direction of the corporate enterprise.’ Joy Recovery Technology Corp., 320 NLRB 357
fn. 3 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998). Thus, even if the Respondents'
decision to subcontract SLT's transportation business to Unified were deemed to
constitute a change in the scope and direction of the business, the decision would
nevertheless be a subject of mandatory bargaining if it was motivated by antiunion
considerations. The evidence demonstrates that the Respondents' decision to
subcontract SLT's transportation business to Unified was motivated by and was in
response to the union activities of SLT's drivers. [FN11] Accordingly, the Respondents'
failure to notify the Union or bargain with it concerning the decision to subcontract SLT's
work to Unified violates Section 8(a)(5) and (1) of the Act.
b. Respondent unlawfully diverted bargaining unit work85
In the instant case, on March 27, Respondent began operations at Landover servicing
about 200 Giant stores in Virginia, Maryland, Washington, D.C., and Delaware. Respondent’s
initial operations also included 10 Stop and Shop stores in Southern New Jersey. (SSJ). On its
initial assumptions, Respondent expected to operate with 21 drivers and 21 tractors, based on
the idea drivers running short distance runs could perform two loads per day. From the outset
of the operation, in addition to its company drivers, Respondent used drivers hired through and
employed by temporary agencies. Respondent used temp drivers on a daily basis and their
numbers fluctuated based on the rise and fall of the store orders for dairy products, with
the heaviest usage of temp drivers on Saturdays and Mondays. The temp drivers for the
most part were scheduled the day before they were used, and could be procured with as
little as two hours notice. The temporary agencies controlled which drivers were sent to
Respondent, subject to Respondent’s being able to reject a particular driver.
The NLRB election was held on June 22, and a certification of representative was
issued for the Union on July 10, in a unit that included, “All full-time and regular part-time
company driver employees and hostlers employed by the Employer making deliveries from
its domicile at 5 S. Club Drive, Landover, Maryland…”. Following the election,
Respondent continued to use the temp drivers on a weekly basis.
The testimony of Respondent’s officials reveals that, sometime in June or July,
MMD approached Respondent about the addition of NNJ runs, which was initially
estimated at 35 stores, and then increased to 54 stores. Cannon testified Respondent
was informed the NNJ stores were going to be 500 and 600 mile roundtrips, and many of

84 The Board’s decision in Rock-Tenn Co., 319 NLRB 1139, 1139 fn.2 (1995) was enforced.
See, Rock-Tenn Co. v NLRB, 101 F.3d 1441 (D.C. Cir. 1996)
85 The following summation of facts, unless otherwise stated, is derived from credited
testimony, credited portions of bargaining notes, and payroll records or summaries thereof.
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the new routes would require a layover for the driver. Cannon testified the start of the
NNJ runs was expected by Respondent to be in the latter part of August, but it was
pushed back several times by MMD to the actual start date of October 16.
As a result of the upcoming contract for the new runs, Cannon contacted and met
with company driver Branch, after the June 22, election sometime in late June or early
July, and he offered Branch a chance to convert to owner operator. Cannon told Branch
the pay as an owner operator was $1.13 a mile, $18 dollars a stop, and $.33 a mileage
surcharge. Cannon also discussed with Branch other requirements in that the owner
operator would have to maintain at least $1,000 escrow account, and the possibilities of
purchasing a license plate for the truck through Respondent. Branch felt the money
Respondent was offering was not sufficient for local runs, but agreed to convert to owner
operator status when the longer NNJ runs began.86
On July 16, Branch met with Giles and showed him a copy of the “Independent
Contractor Agreement” Cannon had given Branch. Branch also discussed with Giles rates
Respondent was offering Branch if he agreed to convert to owner operator status. On July
17, Giles sent by fax to Taylor, a letter stating, “It has come to our attention that Quickway
intends to offer or already has offered bargaining unit work to drivers and hostlers on an
independent contractor, or owner-operator basis. Such improper diversion of bargaining
unit work would violate federal labor law and demonstrate bad faith on the part of
Quickway in refusing to bargain with its certified collective bargaining representative.”
Giles went on to state that the Union demands Respondent immediately engage in good
faith collective bargaining over any proposed change in Quickway’s operations, as well as
to begin negotiations for a collective bargaining agreement.
Cannon responded to Giles by letter dated July 28, in which Cannon stated the
Respondent has equipment and needs for 26 to 27 company drivers, but only had 22 and
had been supplementing the workforce with temporary employees. Cannon stated the
Respondent was actively seeking to hire additional company drivers to fill company trucks
in an effort to cut costs by decreasing the use of temporary employees. Cannon also told
Giles that Respondent had been advertising for independent contractors in that they
anticipated some additional runs that would require layovers. Cannon stated Respondent
did not have enough company drivers to perform its current work, and it did not have any
sleeper cabs at Landover. Cannon stated, “Using company route drivers is therefore not
an option, and Quickway will have to supplement its workforce with independent
contractors who have sleeper cab equipment. Those independent contactors may also
supplement any work that cannot be performed by route drivers with company equipment.
Suffice it to say, however, despite Quickway Transportation’s plans to use independent
contractors, no work is being diverted or taken from bargaining unit employees.”
Respondent contracted with Thomas Purnell as its first owner operator out of
Landover on August 8 and Purnell began running routes on August 10. Purnell’s records
show beginning August 14 through October 16, Purnell was working a full time schedule
for Respondent equivalent to the full time schedule of the company drivers. Purnell was
running all local runs during this period, which theretofore had been performed by the
company drivers or temporary employees.

86 Branch was again contacted by Ortt in October, and he signed an owner operator
agreement on October 13, and began making the NNJs runs on October 16.
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Contract negotiations began on August 8. Giles testified in preparing for
negotiations, he obtained copies of four contracts which Respondent had at other
terminals with other Teamster locals. Giles testified that in all four contracts owner
operators were covered by the collective bargaining agreement.87 During the August 8,
session, Giles informed Respondent that while they may reach tentative agreements on
specific proposals nothing was agreed to until they reached an agreement on everything.
The Union’s initial proposal on subcontracting was “that bargaining unit work could be
subcontracted only if equipment and manpower were exhausted.” Respondent’s initial
proposal on subcontracting was included in a proposed management rights article, and it
provided for unlimited subcontracting of bargaining unit work.88
Giles credibly testified, as reflected in his bargaining notes, that during the August
9, session, Hanson stated when and if Respondent obtained some additional work that
involved layovers, they would come to the Union and compare having company drivers do
the work versus using owner operators. Giles responded he wanted it be perfectly clear
that Hanson said they would come to the Union when the Company wants to use owner
operators on layover runs and Hanson replied, yes, and that they were looking at owner
operators to supplement the workforce now in place instead of using temps on some local
runs. The following is reflected at page 16, of Hanson’s notes:
JHH: Using o/o’s-replace rent-a-driver-may use in place of—our workforce
exhausted.
MO: To cover the temp
CC: O/o’s can’t get into some stores- a handful
KT: Will take away from us –my runs
JHH: Not trying to take away from our drivers
PG: Only cannot be run by co. drivers?
Cannon testified there was a discussion that Respondent was going to replace the
temporary agency drivers that Respondent was using to supplement their company driver
fleet with owner operators. Thus, Hanson’s notes reveal the Union was told that owner
operators were just going to be used as temporary drivers were, that is to fill in for work
when Respondent’s company driver work force was exhausted. There is no claim that the
Union was told that the owner operators were going to be scheduled on a full time basis to
perform local runs. Along these lines, Giles credibly testified he had a phone call with
Hanson on August 15, during which Hanson told Giles that on August 10, Respondent sent
out an owner operator on a regular route. Hanson stated the company driver was off sick
and the company offered the work to company drivers and it was turned down.
Respondent signed its second contract for an owner operator with Lane on
September 5,89 and entered a contract with the owner operator Walker on September
19.90 On September 27, the Union filed an unfair labor practice charge alleging

87 There is a dispute between Giles and Prevost as to whether all four agreements covered
owner operators. Prevost admitted two of the four agreements covered owner operators, and
was not sure about the third. He testified the fourth agreement did not cover owner operators.
88 While Respondent entered into a contract with Purnell on August 8, there is no contention
that the Union was informed of Purnell’s status on that date.
89 Lane ran five days the week of September 18, three the week of September 25, five
the week of October 2, and four the week of October 9.
90 Walker ran three days the week of September 25, four the week of October 2, and
Continued
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Respondent had diverted and/or subcontracted bargaining unit work by using independent
owner operator delivery drivers without bargaining in good faith with the Union. The
charge also alleged Respondent had engaged in direct dealing with employees.91
The parties met on October 2. Giles opened up the meeting talking about owner
operators stating he was going to go to the NLRB for a Section 10(j) injunction. Cannon
testified Hanson stated Respondent had been subcontracting since the start by using temp
drivers, and now Respondent was going to use owner operators doing the same type of
work. Cannon testified the Union made a claim that Respondent was taking stops off
current loads to make up additional loads just to give owner operators work. Giles
credited testimony reveals that at the beginning of the October 2 meeting, Hanson
responded to Giles’ concern about Respondent’s using owner operators, by stating
Respondent had been subcontracting since they started the Landover operation by using
temp drivers. Hanson stated if someone feels cheated about this tell us. During this
session both Giles and Tucker accused Respondent of taking stops off company drivers’
loads, and Tucker’s in particular, and giving those stops to owner operators.
The discussion about owner operators continued later on during the October 2,
session. Giles again asserted that owner operators were being used to do bargaining unit
work. Hanson responded the Respondent was going to use owner operators on runs that
require a layover. Giles responded that any delivery made from that dairy was bargaining
unit work, and that giving it to an owner operator without bargaining with the Union is a
diversion of bargaining unit work. Hanson responded owner operators were not company
employees, and were not part of the bargaining unit. Giles testified, “I responded by
saying, look, when this bargaining unit was stipulated to, there were no owner operators
but this was new work that should be bargained over. I asked him specifically have you
changed your position on what you told me in August, that the Company would bargain
with the Union on the use of owner operators. He responded, no, not on the new work. I
asked him to explain.” Giles testified Hanson said “to the extent that they use owner
operators, as they have used the temps, we will continue our past practice. He then
stated on the new work, we will come to the Union, and if able or not to run without a
layover, we'll bargain over the new work and the cost, et cetera.” During the discussion,
Giles stated there were owner operators included in the bargaining unit at other Quickway
locations and they were covered by the contract. Giles asked Hanson if he intended
intend to bargain with the Union over the use of owner operators. Hanson “responded by
saying, no.” Hanson went on to state that he had never seen anything like the other
Quickway locations where the owner operators pay Union dues but do not receive any
benefits under the contract. Giles ended the session at that time. Hanson’s notes at page
47 read as follows concerning the discussion about owner operators:
(general discussion re subk. & NJ runs)
-Co has subc BU work since start of operation
-Co uses o/os everywhere else
-Co will discuss new work with union to see if drivers want that work
-Co will decide when to add driver and equipment
-Co will cost new work by o/os vs. co. driver
_________________________
six the week of October 9.
91 Owner operator Carrington contracted with Respondent on October 5, George
Dorsey on October 10, and on October 13, then company driver Branch contracted with
Respondent as an owner operator.
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During October 3 session, the parties discussed proposed Article 15.09 concerning
subcontracting. Giles told Hanson concerning Article 15.09 that the Union maintains the
Employer should have enough employees to do the work of the bargaining unit. Hanson
stated Respondent was not going to have its manpower needs dictated by the Union, and
Respondent will decide when and who it hires. Giles stated bargaining unit work should
be covered by union members, and that Respondent should maintain enough drivers to do
the work of the unit. Hanson said if we do not have enough drivers to get the work done,
then we will subcontract it. Giles stated if the normal work of the union requires 25
people, the company should have 25 drivers, not 10 and say they can subcontract the
rest. Giles stated as to overtime, drivers who are off work should be offered over time
before the company calls in a temporary or anyone else. If the overtime is refused by the
bargaining unit then a temporary would be allowed. Hanson stated the Union was not
going to tell them whether they have 18, 20, or 24 drivers that they were going to staff as
they saw fit. Giles stated if you are subcontracting every day you should be trying to hire
someone.
During the conversation, Hanson stated he anticipated that they were going to start
getting some NNJ work in about two weeks. Hanson stated some of the routes were up to
500 plus miles, might have 6 stops on them, that on average they would be around 475
miles a trip with 5 stops. He said they estimated that it would take 12 to 16 hours to run
these trips. Hanson stated 65 percent of the routes would take over 14 hours to run.
Hanson stated they had done some costing for the routes using owner operators versus
company drivers with per diem and hotel, and that it would be 3.5 to 9.5 cents a mile less
to use owner operators. Giles asked what would the costs be without per diem and a
hotel, and Hanson said he would have to figure that out. Hanson told Giles Respondent
calculated $25 per day per diem and $75 a day hotel costs if they had to layover someone
without a sleeper cab. Giles responded that $75 a night for a hotel could buy a lot of
sleeper cabs. Giles asked what Respondent was proposing to the owner operators and
Cannon responded the stop pay was $1.33 a mile, and he said that was based on $1.13 a
mile and $18 per stop. Hanson said the tolls were the owner operator's expense. Giles
notes reflect that Hanson stated they were proposing to use owner operators for the New
Jersey stores for all of the obvious reasons. Giles asked if that included the New Jersey
stores that were currently being serviced, and Hanson said no the new stores. Giles
asked if they were talking about the 54 new Stop & Shop Stores throughout New Jersey
that are presently not being handled by Marva Maid, and Cannon replied yes. Giles stated
that some of the runs could be handled by the bargaining unit. Giles mentioned two
southern New Jersey runs with five stops each, one with 433 miles and the other with 479
miles that were being handled by the bargaining unit.
The parties again discussed Article 15.09 later on during the October 3 session.
Giles stated that Article 15.09 and the last sentence of Article 3, which provided for
unlimited subcontracting was a major problem. Giles stated the company was going to
have to do something about it or this was all just a big waste of time. Giles stated, if you
think I'm going to negotiate a contract that allows unlimited subcontracting, then “I'm
pissing in the wind.” Hanson stated we now have 24 drivers, the work we started with,
Respondent figured they would need 27 drivers and that was what they want to have.
Giles stated as new work is added, the Union wanted their membership to grow, and if
work was doable with company drivers, the Union wanted to do it. Hanson stated they
were trying to do the Landover work with company drivers but the New Jersey runs make
more sense with owner operators. Giles stated they needed to agree on some language
because the Union could not agree to open subcontracting language.
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When the October 4 session opened, Giles made a verbal proposal pertaining to
the subcontracting of unit work. Giles proposed the Employer agree the work of the
bargaining unit shall include but not be limited to the delivery of dairy products from the
Marva Maid Dairy in Landover, Maryland, to retail or wholesale facilities that are 500 miles
or less in total mileage and can be run without a layover. The Employer agrees that the
deliveries now being made in New Jersey shall remain bargaining unit work. After a
break, Hanson stated as to the subcontracting that Respondent should have a full
complement of drivers by next week. Giles testified Hanson had previously said that
would be 27 drivers. Hanson stated if they had the full complement of drivers, it was their
intent to run the work they originally bid on with company drivers and he hoped everybody
would feel better. Giles responded the Union’s proposal was made to protect the work the
unit was handling when the Union filed the petition. Giles stated his proposal gave
definition to the work and there was new work that could also be run with the company
drivers. At the end of the meeting, Giles notes reflect he stated this will not continue much
longer, the Union would be prepared to settle in the next round, and they would present a
total solution to the Company.
Giles called a union meeting on October 15, where a strike vote was taken. During
the meeting, Giles told the members there was an issue that was probably being
overlooked that they needed to understand, that Respondent was subcontracting
bargaining unit work, that the Union had filed unfair labor practice charges over this
problem, and that the outcome of the negotiations did not mean a thing if Respondent
continued to outsource their work and to subcontract it. Giles told the membership if the
Company continued to divert the work that they might have to take action to stop the
diversion. Giles discussed the complaint that issued over Jackson’s discharge, and that
charges had been filed on the surveillance and the impression of surveillance. Giles then
opened the meeting to questions. Strikers Tucker, Cook, Langhorn, and Keys
corroborated Giles’ testimony that there was a discussion of the unfair labor practice
charges during the meeting, including the diversion of work to owner operators, prior to the
employees unanimously voting to authorize a strike.
Respondent’s had 24 company drivers working the week of October 16, and
Respondent had contracted with six owner operators by October 16. Respondent’s
records reveal following October 16, company drivers and owner operators regularly ran
NNJ runs. Respondent’s records reveal that between October 16 and December 30, there
were 16 days in which owner operators ran non New Jersey routes referred to as local
runs which prior to October 16 had been run by the bargaining unit; there were seven days
in which owner operators ran SNJ routes which prior to October 16, had been performed
by the bargaining unit; and there were nine days in which owner operators ran mixed SNJ
and NNJ routes.
During the November 7, session, the parties came to a tentative agreement on
subcontracting by agreeing to Article 15.09, based on Hanson’s verbal representation
during the meeting that the work presently being performed was bargaining unit work. At
that time, as referenced above, company drivers were running some of the NNJ runs.
However, despite Hanson’s representation during bargaining that Respondent intended to
run the runs other than the NNJ runs with bargaining unit members, the owner operators
continued to run both the SNJ runs and local runs after October 16. Toward the end of the
December 8, session, the last meeting before the strike, Giles stated this was not going to
last much longer, that they needed to wrap this up now, that they were not going to let this
drag on for months. Respondent refused Giles’ request for a quick resumption of
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negotiations stating earliest the they could meet was January 15, 2007. At the end of the
meeting, Giles stated, the “men and the union are really pissed over these ULP’s. The
Company needs to stop breaking the law.”
Cannon testified that in early December, Prevost had instructed him to begin
preparations for a strike. In this regard, during this time, Respondent continued to
increase the number of owner operators contracting with additional owner operators on
November 14, November 29, December 11, and December 21, and Cannon brought in
drivers from outside company to train on Respondent’s Landover procedures. On
December 27, Region 5 issued a consolidated complaint against Respondent. Included in
the complaint for the first time was an allegation that Respondent since July 10, 2006, and
at all times since then, has assigned work performed by the Union to other employees or
independent contractors without prior notice to the Union and without giving the Union an
opportunity to bargain in violation of Section 8(a)(1) and (5) of the Act.
Giles testified a decision was made to go on strike in the last week of December.
Giles testified it was decided the strike would begin on January 12, 2007. Giles credibly
testified that, “What triggered the decision in the last week of December was the National
Labor Relations Board issued a complaint against the Company over the diversion of
bargaining unit work.” Giles testified the parties reached tentative agreement on the
subcontracting issue on November 7, and they bargained over economics and some other
language issues after that date. Giles testified he called the strike on January 12, 2007,
because Respondent’s actions were contrary to what they had agreed to concerning
subcontracting. Giles testified, “If you look at all my bargaining notes and you see the
progression of events, that led up to that tentative agreement, you will see that the
Company understood the Union's concern over the subcontracting and the Union's
willingness to, to allow limited subcontracting to allow the Company to operate in the event
that there was a sudden vacancy or absence for some reason.” He testified during this
time Respondent continued hire additional owner operators and in mid December
Respondent brought in 12 to 15 drivers from around the country to ride with bargaining
unit members. Giles testified, “I wasn't trying to stop this Company from offering service
to its customer, to have service failures, but we were certainly nailing down the scope of
the work and the fact that bargaining unit work should be done by bargaining unit
members. And they continued to hire more owner operators and divert additional work.”
The strike began at 9:30 p.m. on January 12, 2007. Giles was present for the start
of the strike, at which time he handed out picket signs using the term “Unfair” and he gave
out printed instructions to the bargaining unit members stating “You are helping to
publicize the strike by Teamsters Local Union No. 639 against Quickway Transportation
for their unfair labor practices.” On that same evening, Giles hand delivered two letters to
officials of MMD notifying them that the Union had commenced an unfair labor practice
strike against Respondent. The testimony revealed that for the first two to three weeks of
the strike that there was chanting among the picketers for a contract.
1. Respondent’s use of owner operators was presented
to the Union as a fait accompli
Sometime after the Union won its election on June 22, Cannon contacted Branch,
informed him Respondent was in the process of acquiring some layover runs, and
discussed with him the terms of Branch’s converting to owner operator. The agreement
Cannon presented to Branch during the meeting is entitled, “Independent Contractor
Agreement.” At page 9, of the agreement it specifically states, in bolded print,
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“CONTRACTOR NOT AN EMPLOYEE OF THE CARRIER.” The agreement goes on to
state, “It is expressly understood and agreed that CONTRACTOR is an independent
contractor for the Equipment and driver services provided pursuant to this Agreement.”
Giles was presented a copy of this contract by Branch on July 16. By letter dated July 17,
to Taylor, Giles protested the diversion of any bargaining unit work to owner operators or
independent contractors, and demanded immediate bargaining over any change in
Respondent’s operations. Cannon responded by letter date July 28, stating that
Respondent had been advertising for independent contractors in that they anticipated
some additional runs that would require layovers. Cannon stated Respondent did not
have enough company drivers to perform its current work, and it had no sleeper cabs at
Landover. Cannon stated, “Using company route drivers is therefore not an option, and
Quickway will have to supplement its workforce with independent contractors who have
sleeper cab equipment. Cannon further stated the independent contactors may also
supplement any work that cannot be performed by route drivers with company equipment.
The parties met on August 8, for their initial negotiation session, at which time
Respondent proposed for unlimited subcontracting as part of its management rights
clause. While Respondent had contracted with owner operator Purnell on August 8, it did
not inform the Union of said contract during the meeting. During the August 9, session,
Hanson told Giles when and if Respondent obtained some additional work that involved
layovers, they would come to the Union and compare having company drivers do the work
versus using owner operators. Hanson also told Giles Respondent was looking at owner
operators to supplement the workforce now in place instead of using temps on some local
runs. Hanson’s notes reflect that he told Giles that Respondent was using owner
operators to replace temporary drivers when Respondent’s work force was exhausted.
There is no claim that the Union was told that the owner operators were going to be
scheduled on a full time basis to perform local runs. Along these lines, Giles credibly
testified he had a phone call with Hanson on August 15, during which Hanson told Giles
that on August 10, Respondent sent out an owner operator on a regular route. Hanson
stated the driver was off sick and the company offered the work to company drivers and it
was turned down.
Thus, despite Giles July 17, demand to bargain, Respondent’s officials gave the
Union no prior notice as to the actual contracting with an owner operator, and then
misinformed Giles as to how owner operators were going to be used. In this regard,
Respondent contracted with Purnell on August 8, and despite representations to the Union
that he was just going to be used to supplement the work that could not be performed by
the bargaining unit, Respondent immediately placed Purnell on a full time schedule as part
of the company driver rotation, performing work that had been theretofore been performed
by the bargaining unit and temporary employees.92

92 Horner testified the owner operators were assigned loads “just like the regular
drivers were assigned the loads. If they called in sick or to take a day off, like I said, I'm
going to call the Company drivers first, which I thought owner/operators, Company drivers,
I went to them first. If they was off, if they want to run that extra load. If they don't want to
run that extra load, then I go to the temp.” When asked if he treated the owner operators
the same as he treated the regular drivers, Horner responded, “They had a regular
schedule? Yeah, they was assigned the New Jersey runs, yes, sir. Some of the Jersey
runs. So they were assigned on a regular basis? Yes, sir.” He testified he asked the
owner operators just as he did the company drivers if they were available to fill in for extra
loads, and then Horner would go to the temporary agencies.
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Following the August sessions, Respondent signed on two more owner operators in
September, and on September 27, the Union filed an unfair labor practice charge of the
diversion of unit work to owner operators. At the start of the October 2, Giles informed
Respondent that the Union was seeking 10(j) relief with the Board over the diversion of
unit work. Cannon testified Hanson responded that Respondent had been subcontracting
since the start up by using temp drivers, and now Respondent was going to use owner
operators doing the same type of work. It is reflected in Giles notes of October 2, that
Giles stated stops were being removed from existing runs and put on new trailers to create
additional runs for owner operators. During the discussion that followed, Giles again
asserted that owner operators were being used to do bargaining unit work. Hanson
responded the Respondent was going to use owner operators on runs that require a
layover. Giles responded that any delivery made from that dairy was bargaining unit work,
and that giving it to an owner operator without bargaining with the Union is a diversion of
bargaining unit work. Hanson responded owner operators were not company employees,
and were not part of the bargaining unit. Giles testified Hanson said “that to the extent
that they use owner operators, as they have used the temps, we will continue our past
practice. He then stated on the new work, we will come to the Union, and if able or not to
run without a layover, we'll bargain over the new work and the cost, et cetera. Giles told
Hanson there were owner operators that were included in the bargaining unit at other
Quickway locations and they were covered by the contract. Giles asked Hanson if he
intended intend to bargain with the Union over the use of owner operators. Giles testified,
Hanson “responded by saying, no.” Hanson went on to state that he had never seen
anything like the other Quickway locations where owner operators pay union dues but do
not received any benefits under the contract.
Thus, on October 2, Hanson told Giles that owner operators were not company
employees, and were not part of the bargaining unit. He told Giles to the extent
Respondent used owner operators as they had temporary employees Respondent would
not bargain over their usage, and he rejected Giles suggestion of possibly including owner
operators in the collective bargaining unit as they were at Respondent’s other locations.
He made the statement that Respondent would bargain with the Union over the new work
whether or not it involved a layover.
During the October 3, session, Giles stated bargaining unit work should be covered
by union members and Respondent should maintain enough drivers to do the work of the
unit. Hanson said if we do not have enough drivers to get the work done, then we will
subcontract it. Giles stated if the normal work of the union requires 25 people, the
company should have 25 drivers, not 10 and say they can subcontract the rest. During the
conversation, Hanson stated he anticipated that they were going to start getting some NNJ
work in about two weeks. Hanson stated some of the routes were up to 500 plus miles,
might have 6 stops on them, that on average they would be around 475 miles a trip with 5
stops. Hanson stated they had done some costing for the routes using owner operators
versus company drivers with per diem and hotel, and that it would be 3.5 to 9.5 cents a
mile less to use owner operators. Giles asked what would the costs be without per diem
and a hotel, and Hanson said he would have to figure that out. Hanson told Giles
Respondent calculated $25 per day per diem and $75 a day hotel costs if they had to
layover someone without a sleeper cab. Giles asked what Respondent was proposing to
the owner operators and Cannon responded the stop pay was $1.33 a mile, and he said
that was based on $1.13 a mile and $18 per stop. Hanson said the tolls were the owner
operator's expense. Hanson stated they were proposing to use owner operators for the
New Jersey stores for all of the obvious reasons.
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When providing the Union with the costs of the owner operators, Respondent’s
officials failed to mention the owner operators were also being paid a fluctuating fuel
allowance, and he incorrectly told the Union the owner operators were responsible for their
own tolls. Branch testified as an owner operator he was reimbursed for tolls at the rate of
$100 to $150 per week. Moreover, while Hanson represented the cost gains by using
owner operators over company drivers was 3.5 to 9.5 cents mile, Miller, who had made the
calculation for Respondent, stated the actual saving was 4.5 cents a mile, and that this
calculation included the cost of renting or purchasing sleeper cabs for company drivers.93
It is a violation of Section 8(a)(5) of the Act for an employer to change a mandatory
term or condition of employment without bargaining with a union. Litton financial Printing
Div. v NLRB, 501 U.S. 190, 198 (1991); NLRB v. Katz, 369 U.S. 736, 747 (1962). In
Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. 15 F.3d 1087 (9th Cir. 1994),
the Board stated when parties are engaged in contract negotiations an employer’s
obligation to refrain from unilateral changes extends beyond the mere duty to give notice
and an opportunity to bargain. Rather, it encompasses a duty to refrain from
implementation at all, unless and until an overall impasse has been reached on bargaining
for an agreement as a whole, absent two limited exceptions, that is if a union has in
response to an employer’s diligent and honest efforts is seeking to delay bargaining, or
when economic exigencies compel prompt action.94 In RBE Electronics of S.D., 320 NLRB
80, 81 (1995), the Board held as follows:
Of course, there are certain compelling economic considerations that the Board has
long recognized as excusing bargaining entirely about certain matters. The Board has
limited its definition of these considerations to “extraordinary events which are 'an
unforeseen occurrence, having a major economic effect [requiring] the company to take
immediate action.' ” Hankins Lumber Co., 316 NLRB 837, 838 (1995), quoting Angelica
Healthcare Services, 284 NLRB 844, 852-853 (1987). Absent a dire financial
emergency, the Board has held that economic events such as loss of significant
accounts or contracts, operation at a competitive disadvantage, or supply shortages do
not justify unilateral action.
* * *
We believe, however, that there are other economic exigencies, although not
sufficiently compelling to excuse bargaining altogether, that should be encompassed
within the Bottom Line exception. ….When these circumstances occur, we believe that
the general Bottom Line rule foreclosing changes absent overall impasse in bargaining
for an agreement as a whole should not apply. Instead, we will apply the traditional
principles governing bargaining over changes in terms and conditions of employment
referred to in Bottom Line. Thus, where we find that an employer is confronted with an
economic exigency compelling prompt action short of the type relieving the employer of
its obligation to bargain entirely, we will hold under the Bottom Line Enterprises exigency
exception, as further explicated here, that the employer will satisfy its statutory obligation
by providing the union with adequate notice and an opportunity to bargain. In that event,

93 Miller testified that he made the calculation for cost of owner operators based on an
assumption that they were being paid $15 a stop, when in actuality Respondent paid them $18
a stop.
94 This duty applies as well when parties are engaged in negotiations for their initial contract.
See, Citizens Publishing and Printing Co., v. NLRB, 263 F.3d 224, 233 (3d Cir. 2001); and
Northwest Graphics, Inc., 342 NLRB 1288, enfd. 156 Fed. Appx. 331 (D.C. Cir. 2005).
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consistent with established Board law in situations where negotiations are not in
progress, the employer can act unilaterally if either the union waives its right to bargain
or the parties reach impasse on the matter proposed for change. (Footnotes omitted.)
The Board went on to state,
In defining the type of economic exigency susceptible to bargaining, however, we start
from the premise, derived from the cases discussed above, that not every change
proposed for business reasons would meet our Bottom Line limited exception. Thus,
because the exception is limited only to those exigencies in which time is of the essence
and which demand prompt action, we will require an employer to show a need that the
particular action proposed be implemented promptly. Consistent with the requirement
that an employer prove that its proposed changes were “compelled,” the employer must
additionally demonstrate that the exigency was caused by external events, was beyond
the employer's control, or was not reasonably foreseeable.
As discussed above, an employer which has demonstrated that a situation meets
these requirements would satisfy its statutory obligations by providing adequate notice
and an opportunity to bargain over the changes it proposes to respond to the exigency
and by bargaining to impasse over the particular matter. In such time sensitive
circumstances, however, bargaining, to be in good faith, need not be protracted. Dixon,
supra. Thus, the Board has recognized in a number of analogous cases that the amount
of time and discussion required to meet a bargaining obligation is dependent on the
exigencies of a particular business situation. (Citations omitted.) Id. at 81-82.
See also, Pleasantview Nursing Home, Inc., 335 NLRB 961, 962-63 (2001), enfd. in relevant
part 351 F.3d 747 (6th Cir. 2003), where the Board further explicated an employer’s
requirements for the limited exception referenced in Bottom Line Enterprises. In Pleasantview
the Board stated:
While the Respondent has shown that it needed to raise its starting wage rates in order
to attract and retain qualified employees, it has failed to show that ‘time was of the
essence’ with respect to its employment situation, and that ‘prompt action’ was
‘compelled’ independent of the overall ongoing bargaining process. Id. at 82. The
evidence here simply does not demonstrate the sort of emergency that RBE Electronics
contemplates.
Even if it did, however, we would not find that the Respondent met its residual duty to
bargain in good faith under the circumstances here. The Respondent did not notify the
Union that it needed to immediately implement the wage rate proposal on a piecemeal
basis. Nor did it seek to bargain over the wage-rate increase as a separate, emergency
matter. Good-faith bargaining would have entailed informing the union, in advance, that
the Respondent believed that an emergency existed and that it intended to unilaterally
implement a proposal to address the situation, if impasse were reached. Last, there is no
basis for concluding—indeed, the Respondent does not argue—that impasse had been
reached on July 1 over the wage rate changes proposed to respond to the claimed
exigency.
There are certain circumstances, where the Board has recognized where a union’s
request to bargain is futile, either because the notice by an employer is too short before the
actual implementation, or because the employer has no intention of changing its mind. In these
circumstances, the notice is nothing more than a fait accompli. Ciba-Geigy Pharmaceutical
Division, 264 NLRB 1013, 1017 (1982), enf. 722 Fed 2d. 1120 (3rd Cir. 1983). A union is not
required to request bargaining over a decision or effects in circumstances when there is a fait
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accompli. Holiday Inn of Benton, 237 NLRB 1042 (1978), enfd in relevant part 617 F.2d 1264
(7th Cir. 1980).
I do not find either of the bargaining exceptions, or the more limited exceptions
pertaining to bargaining set forth in Bottom Line Enterprises, supra applicable here.
Cannon, without notifying the Union, contacted Branch about converting from a company
driver to an owner operator in late June or early July. Branch reported the contact to Giles
on July 16. Giles promptly demanded immediate bargaining by fax on July 17, over any
change in Respondent’s operations, as well as to start negotiations for a general contract.
Respondent did not respond until July 28, wherein Cannon stated Respondent has begun
advertising to attract independent contractors to work out of the Landover facility, that
Respondent anticipated beginning some additional runs that will require layovers, that
Respondent did not have any sleeper cab equipment at its Landover to perform those
runs, that using company drivers was therefore not an option, and Respondent will have
to supplement its workforce with independent contractors who have sleeper cab
equipment. Giles was told those independent contactors may also supplement any work
that cannot be performed by route drivers with company equipment. Cannon did not state
these changes were imminent or offer to set up special negotiations outside general
bargaining about these stated changes in Respondent’s operation.
The parties met on August 8, to begin general contract negotiations and
Respondent neglected to inform the Union that it had contracted with an owner operator
on that date. During the August 9, session, Hanson told Giles that when and if
Respondent obtained some additional work that involved layovers, they would come to the
Union and compare having company drivers do the work versus owner operators. Despite
the Union’s immediate demand to bargain on July 17, Respondent postponed providing
the Union with the details of the cost of owner operators until October 3, when it had
already placed its bid with MMD premised on the use of owner operators, and when it had
already hired three owner operators. The information Respondent provided the Union on
October 3, was also inaccurate and incomplete. At that time, Hanson told Giles the owner
operators paid their own tolls although Respondent paid them, and Giles was not informed
the owner operators also received a gasoline allowance. Moreover, Hanson represented
to the Union the cost gains by using owner operators over company drivers was 3.5 to 9.5
cents mile. However, Miller, who made the calculation for Respondent, testified the actual
saving was only 4.5 cents a mile, and this calculation included the cost of renting or
purchasing sleeper cabs for company drivers.
I have concluded Respondent had no intention of bargaining with the Union over
the use of owner operators. Rather, it exhibited a fixed intent to use them on both local
and the NNJ runs as exhibited in Cannon’s initial response of July 28. In this regard, while
Hanson’s represented to the Union on August 3, that it would come to the union and
compare the costs of having company drivers versus owner operators performing the
work, Miller testified that Respondent started pricing the new business around July 2006,
and they finalized most of the details around the end of September 2006. Miller testified,
“We looked at it under both methods, under Company and under owner operators, and we
placed the bid based on the basis that we would try to use owner operators because we
felt that was the best way to do that from a business sense.” He testified once
Respondent placed the bid the cost was fixed whether Respondent used owner operators
or company drivers. It is clear from all of the forgoing that Respondent had a fixed plan to
use owner operators for both local and long distance runs, and that plan did not involve
good faith negotiations with the Union over its actions as Miller was not even informed
there was a union at Landover when he formulated Respondent’s pricing model.
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Accordingly, I find the Union was presented with a fait accompli concerning the use of
owner operators, with Respondent disingenuously going through certain motions in a half
hearted effort to appear that it had bargained about the subject. In fact, Cannon dealt
directly with Branch with no notification to the Union, and Respondent hired Purnell in the
face of Giles request for immediate bargaining without even meeting with the Union.
2. The owner operators were statutory employees
Respondent’s propensity to play both sides of the coin is demonstrated by
passages in its post-hearing brief and later filed reply brief. Respondent authored the
independent contractor agreements signed by the owner operators which contained the
statement in reference to the owner operators that “CONTRACTOR NOT AN EMPLOYEE
OF THE CARRIER.” The agreement goes on to state, “It is expressly understood and
agreed that CONTRACTOR is an independent contractor for the Equipment and driver
services provided pursuant to this Agreement.” During the October 2, session, Hanson
stated owner operators were not company employees, and were not part of the bargaining
unit. Giles told Hanson there were owner operators that were included in the bargaining
unit at Respondent’s other locations and they were covered by the contract. Giles asked
Hanson if he intended intend to bargain with the Union over the use of owner operators.
Hanson responded “No.” Hanson further stated he had never seen anything like the other
Quickway locations where the owner operators pay Union dues but do not receive any
benefits under the contract, thereby rejecting any possibility that the owner operators be
included in the existing Landover bargaining unit. Respondent continued this position in
post-hearing brief stating at page 34:
Just like BLT Enterprises, Quickway has contracted out the hauling of loads either
to temporary agency workers or owner-operators since it took over operations at
the Landover facility. At most, Quickway simply substituted one set of non-
bargaining unit workers for another.
It similarly stated at page 37 of the post-hearing brief:
In sum, Quickway simply continued to use non-bargaining workers to supplement
work performed by the bargaining unit members. The bargaining unit members
were always given their assignments first, they were always offered additional
work, and Quickway only used temporary agency workers and owner-operators to
cover the runs that bargaining unit members could not cover. (Transcript citations
omitted.)
However, Respondent’s position changed in its later filed reply brief stating at page 13:
Finally, General Counsel’s claim is based on the complaint allegation that
Quickway ‘entered into agreements with employees in the unit that purported to
change their status to independent contractors.’ Complaint, (P) 16. (emphasis
supplied). The complaint allegation necessarily implies that the change in status
was ineffective and that the drivers remained employees. General Counsel furthers
this position by eliciting multiple sources of testimony showing owner-operators pull
the same trailers company drivers pull, Quickway’s name is on the owner-
operators’ tractors, Quickway paid tolls for owner-operators, and the owner-
operators were controlled by Quickway to the point they could not drive for anyone
else (GC Exh. 5, 26) General Counsel eventually decided not to pursue the
evidence that owner-operators were actually statutory employees, but the evidence
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is nevertheless present - evidence establishing a statutory employment
relationship, which thereby eviscerates the claim that any loads whatsoever were
subcontracted, as well as the claim that company drivers went out on strike to
protest diversion of work to non-bargaining unit drivers since they were all
bargaining unit drivers. See Roadway Package System, Inc., 326 NLRB 842
(1998).
In addition to the factors cited by Respondent above, there are other factors that militate
in favor of employee rather than independent contractor status for the owner operators.
Respondent’s independent contractor agreement provides that: it can be terminated on one
days notice for any reason; the carrier has the right to disqualify drivers provided by the
contractor if they do not meet the carriers minimum standards; the contractor and its drivers are
required to submit to the Carrier’s random drug and alcohol testing program; the contractor
agrees that it will comply with the carriers policies and procedures and any revisions thereto; the
contractor is required make its equipment available for reasonable inspection of the carrier, and
is required to have its equipment inspected on an annual basis at a facility authorized by the
carrier. The independent contractor agreement provides that the equipment shall be for the
Carrier’s exclusive possession and use during the agreement, and that the contractor shall not
operate the equipment for any other motor carrier without prior written consent from the carrier.
The owner operators were paid a fuel surcharge for gas usage. The terms of their
compensation were uniform and they were set by Respondent. In this regard, Cannon testified
Respondent paid the owner operators the same compensation whether or not they had sleeper
cabs. Respondent also has a history of including owner operators in its collective bargaining
agreements at other facilities.
I concur with Respondent for the reasons it enunciated in its reply brief, as well as for the
reasons I have cited that the owner operators were statutory employees. In this regard, their
operations were in the control of Respondent, as they could not work for other carriers, they had
to abide by Respondent’s rules and regulations as did any drivers they might employ who also
had to be approved by Respondent, and their incomes were directly dependent on the routes
they were assigned by Respondent’s dispatchers. I also agree with Respondent’s assertion in
its reply brief that the owner operators should have been part of the collective bargaining unit.
In this regard, they drove the same routes as the company drivers, their routes were assigned
by the same dispatchers and they followed the same dispatch procedures, they hauled the
same trailers and performed the same work. The routes of the owner operators were also
readily observable to the company drivers through Respondent’s dispatch postings, and its
placement of all the drivers’ routes in a dispatch bin available for review by all of the drivers.
Respondent also converted one of the company drivers to an owner operator position.
Despite Respondent’s belated concession that the owner operators are employees and
should have been in the collective bargaining unit, it took a contrary position during negotiations
with the Union and the owner operators themselves. As reflected in Giles’ October 2 notes and
his credited testimony, Hanson specifically told Giles that owner operators are not company
employees and they were not part of the bargaining unit. Thus, Hanson specifically refused to
consider the owner operators being included in the bargaining unit during negotiations, although
he conceded they had been included in bargaining units at other locations. This is consistent
with Respondent’s actions where it bypassed the Union and met and set the terms of the owner
operator agreements with the owner operators on an individual basis, and the owner operator
agreements crafted by Respondent specifically state the owner operators are not employees.95

95 In fact, Cannon met with the owner operators as a separate group, and questioned them
Continued
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Thus, whether the owner operators are statutory employees or should have been members of
the bargaining unit is not determinative, for Respondent by its own actions excluded them from
the bargaining unit, and refused to bargain with the Union over their usage or terms of their
employment. The diversion of work from a collective bargaining unit has the same impact
whether it is subcontracted to independent contractors, given to non bargaining unit employees,
supervisors, or other members of an employer’s staff. See, Naperville Ready Mix, Inc., 329
NLRB 174 (1999), enfd. 242 F.3d 744 (7th Cir. 2001); Torrington Industries, Inc., 307 NLRB 809
(1992), where the employer violated Section 8(a)(5) of the Act by laying off two bargaining unit
employees and by replacing them with a nonunit employee and independent contractors; Office
and Professional Employees International Union, Local 425 v. NLRB, 419 F.2d 314 (D.C.
Cir. 1969), and Regal Cinemas, Inc., v. NLRB, 317 F.3d 300 (D.C. Cir. 2003). Respondent’s
actions here had a particularly severe impact on bargaining unit employees. Their income was
directly tied to the length of their runs and the number of stops they received. Just as contract
negotiations began with the Union, Respondent bypassed the Union and brought in owner
operators, a new category of drivers. Respondent converted a bargaining unit driver to owner
operator, excluded the owner operators from the bargaining unit, and favored them with longer
routes all in plain view of the bargaining unit members thereby serving to undermine the Union.
3. Respondent violated Section 8(a)(1) and (5) of the Act
by diverting bargaining unit work to owner operators
for layover and non-layover runs
Respondent argues it had no obligation to bargain over the existing work assigned
to owner operators asserting that it was merely continuing the practice of contracting out
extra work to temporary employees by shifting that work to owner operators. I do not find
this argument to be persuasive. In Citizens Publishing and Printing Co. v NLRB, 263 F.3d
224, 233-34 (3rd Cir. 2001), the court approved a section 8(a)(5) finding when an employer
unilaterally subcontracted night and weekend work to stringers during the negotiation of an
initial collective bargaining agreement. While the employer had used stringers in the past
to perform some of the work, the court noted that the status quo is determined as of the
time of the union’s certification and at that time the work in question had become an
integral part of the duties of the photographer, and therefore it was bargaining unit work.
Thus, by removing those duties from the photographer’s position and shifting it exclusively
to stringers the employer had unlawfully subcontracted unit work. Similarly, in St. George
Warehouse, Inc., 341 NLRB 904 (2004), enfd. 420 F.3d 294 (3rd Cir. 2005), an employer’s
increased usage of temporary employees to replace bargaining unit employees as they left after
a union won an election was found to violated the Act.
At the time of the union’s certification the work out of Landover was being
performed by company drivers and temporary employees. The company drivers were full
time, and scheduled on a daily basis by Respondent’s dispatcher based on routes created
by the terminal manager formulated by store orders provided by MMD. The company
drivers were assigned to work five days a week with Sunday’s off, and required to work
Saturdays. They could work a sixth day on a voluntary basis if the work was available,
and if they had DOT hours remaining. On certain days the company drivers were either
assigned two loads, or on occasion if off from work offered an extra load on a voluntary
basis. Company drivers were paid on a formula based on miles and stops, and there was
testimony that their income increased based on the length of their assigned load. This
was acknowledged by Respondent in that on January 15, 2007, it proposed a plan that
_________________________
as to whether he had their support to continue working should the Union call a strike.
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company drivers be paid based on a mileage matrix formula with those driving 75 miles or
less receiving $.09 more per mile than those driving routes over 300 miles. There was
also a monetary incentive for Respondent to provide the company drivers as much work
as possible rather than use temporary drivers. Ortt confirmed this by his testimony that
Respondent tried to use company drivers to haul as many loads as possible to maximize their
pay and fleet usage. He testified only when Respondent ran out of company drivers did they
resort to temporary drivers, for whom the temporary agencies received an hourly fee and
overtime. In this regard, Ortt testified it was $180 to $250 a day or more to use a temporary
driver than a company driver.
By letter dated July 28, Cannon told Giles Respondent had equipment for and
needs for 26 to 27 company drivers, but only had 22 on its payroll.96 It was stated in the
letter that Respondent was looking to hire more company drivers due to the cost of using
temporary drivers. Prevost testified Respondent realized it needed to operate with 26
company drivers, rather than the original estimated 21 and he attributed the need for additional
drivers due to congested area traffic patterns. He testified while Respondent’s revised model
called for 26 company drivers, Respondent did not hire the 26 drivers rather it made up for the
extra drivers by using temporary drivers and owner operators.
Despite Prevost’s testimony, I find Respondent did not make up for the admittedly low
level of company drivers by using temporary drivers during the period in question. In this
regard, Respondent’s post-hearing brief reveals that for the week ending September 2,
Respondent had 36 runs by temporary drivers. This number dwindled to seven runs by
temporary drivers by the week ending October 14, when it had four owner operators making
runs. Thus, rather than expanding the bargaining unit to 26 or 27 company drivers as its model
called for, Respondent shifted the work to full time owner operators. In fact, for a period of time,
Respondent decreased the number of company drivers as it brought on more owner operators.
Respondent had 24 company drivers on its payroll the week ending October 7; 25 drivers the
week ending October 14; and 24 drivers the week ending October 21. By the week ending
October 28, it had only 22 company drivers; and by the week ending November 25, it was down
to 20 company drivers. During this period of time, it had increased to seven owner operators.
Thus, prior to the NNJ runs, Respondent shifted work of temporary drivers and company drivers
to full time owner operators, rather than fully staffing the bargaining unit. If it had sufficient
business to keep the owner operators fully employed with local and SNJ runs, it could have
used that same business to increase the company drivers since it admittedly had the equipment
to support 26 to 27 company drivers, and there would have been no additional capital
expenditure for it to have increased the bargaining unit to a full staffing level.
While Ortt at first claimed that prior to October 16, owner operators were only used on
an as needed basis, he eventually admitted that Respondent kept the owner operators fully
employed because under their agreement with Respondent they were not free to work for
another carrier. Thus, Horner testified the owner operators were assigned loads just like the
company drivers were assigned loads. If an owner operator called in sick, Horner was “going to
call the Company drivers first, which I thought owner/operators, Company drivers, I went to
them first.” Horner would then go to the temporary drivers. When asked if he treated the owner
operators the same as the company drivers, Horner testified that he did and that the owner
operators had a regular schedule, and were assigned on a regular basis. He testified he asked
the owner operators just as he did the company drivers to fill in for regular loads, then he would

96 Giles testified he was told during negotiations that 27 company drivers would constitute
full staffing for Respondent.
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go to the temporary drivers.97
Thus, at the time of the Union’s certification there were no owner operators.
Respondent used a mileage based pay system for the company drivers and it was less
expensive for Respondent to use to them to full capacity than it was to rely on temporary
drivers. Respondent, by its own admission, had a financial incentive to keep the company
drivers as fully utilized as possible before using temporary drivers. On the other hand,
contrary to temporary drivers, owner operators were regularly scheduled the same as the
company drivers and were competing with the company drivers for higher paying and
spare runs. Respondent had an obligation to keep both owner operators and company
drivers fully employed in order to retain their services, and used them interchangeably on
local runs prior to October 16, and on local and long distance runs thereafter. The use of
regularly scheduled owner operators served as a basis to refrain from fully staffing the
bargaining unit with company drivers. Respondent never hired enough company drivers to
fully staff its available equipment.98 At the same, time it steadily increased the number of
owner operators contracting with its first on August 8, second on September 5, and third
on September 19. Thus, it was using three owner operators on a full time basis almost a
month before it obtained the new NNJ work.99 By October 16, the date the NNJ runs had
started, it had contracted with six owner operators. Respondent was then content to run
the NNJ runs using a mix of company drivers and owner operators through the end of the
year.100 It waited a month from October 16, to contract with the next owner operator on
November 14. Respondent began its strike preparations in early December. It did not
contract with the next owner operator until November 29, and he did not start runs until

97 I do not credit Horner’s claim that he went to the company drivers first to fill an extra load
before he went to the owner operators. Rather, I have concluded that he intentionally back
tracked on his initial testimony that he used company and owner operators interchangeably in
an effort to advance Respondent’s cause.
98 Respondent had the following number of company of drivers in the referenced
weeks: July 24, 22 drivers, August 7, 23 drivers; the weeks of August 13 and 21, 22
drivers; September 9, 23 drivers; September 18, 24 drivers; October 9, 25 drivers; October
16; 24 drivers; October 23, 22 drivers; November 12, 21 drivers; November 19, 20 drivers;
November 26, 22 drivers; December 3, 21 drivers; December 10, 23 drivers, December 24
22 drivers; and January 6, 23 drivers.
99 I do not find that Respondent needed to train the owner operators for a month to run the
NNJ runs. Company driver Keys testified his training consisted of two road trips before he ran
routes on his own. These owner operators were obviously experienced drivers as all but two
owned their own trucks. Respondent contracted with an owner operator on November 14, and
he was able to run a route the next day. There was also nothing to prevent Respondent from
allowing the owner operators from riding along with the company drivers in order to train, if
necessary, rather than diverting the bargaining unit work without bargaining with the Union.
100 Respondent asserts that its use of owner operators did not impact on the earning of
company drivers because the week ending June 3, their average daily pay was $191.99; week
ending August 5, it was $193.23; week ending October 28, it was 201.88; and week ending
December 23, it was $195.76. Overlooked in this analysis was that during the week ending
October 28, the company drivers had run seven NNJ runs, and one mixed NNJ and SNJ run
thereby increasing their income by the longer runs. However, as Respondent continued to
increase the owner operators, it used the company drivers less for the NNJ runs, using them for
only two such runs during the week ending December 23, and having them run no mixed runs.
Thus, the company drivers had a temporary increase in income when they were allowed to run
the NNJ runs on a more regular basis.
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December 19. Respondent contracted with two other owner operators in December.
Despite its claims that it needed nine or ten owner operators and their trucks to service the
NNJ routes, it was content to run those routes mixture of six or seven owner operators and
company drivers, until Respondent began preparations for a strike at which time it started
to increase its owner operators until it had 13 during the course of the strike.
There was testimony by Respondent’s officials that Respondent had difficulty hiring
and retaining a sufficient number of company drivers. I do not credit this testimony.
Prevost attributed the problem to high turnover of company drivers. He testified the
problem was eliminated when Respondent issued a pay raise after the start of the strike.
By Prevost’s admission Respondent’s difficulty in hiring and retaining drivers was directly
linked to the wages it was offering. Moreover, during the week of January 6, Respondent
had 23 company drivers running routes. However, the week of the strike for the first time
its number rose to 27 company drivers. Three of the four new drivers worked on January
13, the day after the strike. Respondent was able to hire company drivers based on pre-
strike wage rates in a hurry as part of its strike preparation. I have concluded that absent
the use of owner operators there would have been increased pressure to hire more
company drivers and to increase their wages to retain them, as opposed to using the more
expensive temporary employees.
Since the company drivers were paid by stops and miles there was an inherent
tension created by Respondent’s regular scheduling of owner operators. Tucker protested
during the October 2 bargaining session that a stop had been taking off one of his routes
and diverted to an owner operator costing him stop pay and a loss of miles. Cook testified
he thought the owner operators decreased his income because they were taking the
longer runs to NNJ. He testified before the NNJ runs started he felt he lost money to the
owner operators because he came in on a couple of occasions and it seemed like an
owner operator had a longer route than he had. He testified he called Ortt on four or five
occasions asking him if he needed Cook to take a run, only to be told an owner operator
had taken it. Keys testified the company drivers lost runs to the owner operators and
temporary employees.
Finally, the record reveals some of the company drivers had previously been
employed by Giant where they received hourly wages. Respondent was aware based on
complaints to its officials by the company drivers that they wanted to receive hourly pay.
Respondent’s system of pay nationwide was based on stops and miles. Respondent
officials admitted that traffic was worse in the D.C. metro area then in the remainder of its
terminals, even those in big cities, leading it to eventually propose a mileage matrix pay
scale shortly after the strike started. Respondent, however, never acceded to the Union’s
request for some form of hourly guarantee, even for the local routes. Respondent
opposed the Union, and committed other unfair labor practices during the course of the
union campaign. Respondent had experienced labor counsel, and was aware from the
outset of negotiations of the strong possibility of a strike. I have concluded that
Respondent began the use of owner operators as part of its strike contingency plan.
Cannon met with the owner operators around a week before the strike, and asked if they
would cross the picket line. It added three additional owner operators running routes in
December when it began its strike preparations bringing the total to 10 shortly before the
strike, and raised the amount to 13 during the strike.
In sum, Respondent did not use owner operators at the time the Union was
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certified.101 I find that the use of owner operators constituted a material change to the
certification status quo in that in created a new full time group of drivers competing with
the company drivers for runs. The company drivers were keenly aware of the use of
owner operators as all drivers daily runs were kept in bins accessible to all drivers.
Moreover, a driver’s pay was based on stops and miles which prior to the strike were paid
at a uniform rate, therefore the longer run and the more stops a driver received the
likelihood that their pay would increase for that day. The record testimony reveals the
company drivers felt aggrieved by Respondent’s use of owner operators both before and
after the start of the NNJ runs, and their use was protested in general and pertaining to
specific drivers during negotiations. The company drivers differed from temporary drivers
in that they were employed on a full time basis, whereas temporary drivers were mainly
used after all available runs were offered to company drivers. The use of owner operators
suppressed company driver pay in several ways. It did so on a daily basis when owner
operators received a more favored run than a company driver including local runs, when
the company drivers received the bulk of the NNJ runs at the expense of the company
drivers, and by serving as a disincentive to raise the pay of company drivers in general to
minimize their turnover, since the use of owner operators provided Respondent an
alternative to the use of temporary employees.102 The use of owner operators, in
particular for local and southern New Jersey, runs served as an alternative to increasing
the size of the bargaining unit to 26 or 27, for which Respondent admittedly had available
equipment.103 Finally, Respondent subcontracted the work to owner operators as a
safeguard against a possible strike. Respondent took this action because of its concern of
increased labor costs due to a union contract.104
Beginning August 9, owner operator Purnell began performing local runs, which
had theretofore been bargaining unit work, on a full time basis. Thereafter, new owner
operators began running local runs on September 11, September 23, October 7, and
October 14 on a full time basis as the NNJ runs did not begin until October 16. Owner

101 See, Citizens Publishing and Printing Co. v NLRB, 263 F.3d 224, 233-34 (CA 3,
2001), holding the status quo of the unit is determined as of the time of the union’s
certification.
102 See, Acme Die Casting, 315 NLRB 202 fn. 1 (1994), where subcontracting was unlawful
when purpose was to avoid paying unit employees overtime; Clear Channel Outdoor, 346 NLRB
696 (2006), a violation of the Act where rather than subcontracting the parties could have
negotiated an increase in the number of bills to be posted by unit employees, and they could
have negotiated offering employment to unit employees who had been terminated rather than
using subcontractors. See also, Office and Professional Employees International Union,
Local 425 v. NLRB, 419 F.2d 314 (D.C. Cir. 1969), where plans of an employer to
unilaterally have auditing work done outside of the bargaining unit could not be said to
have an insignificant impact on the unit where the union lost an element of work carrying
higher pay and an opportunity for experience and advancement.
103 Overnite Transportation Co., 330 NLRB 1275, 1276 (2000), affd. in part, reversed in part
248 F.3d 1131 (3rd Cir. 2000) (nonpublished), bargaining unit adversely affected when an
employer contracts out work rather than hiring new employees; Clear Channel Outdoor, supra,
bargaining unit adversely affected by subcontracting rather than recalling terminated
employees; and Sociedad Espanola de Auxilio Mutuo y Beneficiencia de P.R. v. NLRB, 414
F.3d 158 (1st Cir. 2005).
104 See, Naperville Ready Mix, Inc., 329 NLRB 174, 181 (1999), enfd. 242 F.3d 744 (7th Cir.
2001), where subcontracting work with “owner operators” due to the concern of the cost of a
union contract found to be violative of the Act.
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operators also continued to run local runs and bargaining unit southern New Jersey (SSN)
runs unit after the NNJ runs started on October 16. During the weeks ending August 9 to
December 30, Respondent’s records reveal Respondent had between 20 and 24 company
drivers, with only one week during that period where there were 25 company drivers on
Respondent’s payroll. Respondent admittedly never staffed to the 26 or 27 company
drivers its available equipment would support. Thus, it could have increased the
bargaining unit with no capital investment required for non layover runs that it contracted
with owner operators to perform. It merely substituted the owner operators for work out of
the same terminal, with the same procedures, for work that could have been performed by
bargaining unit employees with no additional capital investment. For the reasons set for
the above, I find Respondent failed to bargain with the Union in violation of Section 8(a)(1)
and (5) of the Act over the decision and effects of diverting the non layover work from the
bargaining unit to owner operators, as it constituted nothing more than a transfer of the
work from one group of employees to another. See, Dallas & Mavis Specialized Carrier Co.,
346 NLRB 253, 258 (2006), and Naperville Ready Mix, Inc., supra.105
Respondent argues that is was not required to bargain with the Union over the use of
owner operators for the NNJ runs because its contract with MMD for the NNJ runs was
cancelable on short notice and Respondent did not have enough vehicles on hand to cover the
NNJ stores with company drivers. By Respondent’s model it would have had to acquire 9 or 10
sleeper cabs to staff the addition 54 NNJ stores at a cost of $900,000 to $1 million whether or
not Respondent acquired the sleeper cabs through purchase or long term lease. Prevost
testified the purchase of the sleeper cabs would also have had an adverse impact on
Respondent’s debt equity ratio and a negative impact on Respondent’s financial standing.
Respondent claims the costs were prohibitive to use company drivers because of the hotel and
per diem requirements for running the NNJ runs without sleeper cabs and it would be required
to take its day cabs out of use for periods of time when the drivers had to layover.
There are several problems with Respondent’s position. While it claims labor costs were
not a factor in its decision to use owner operators because of a required capital investment to
use company drivers, it in fact did have Miller, its financial analyst, do a cost comparison
between the costs of owner operators and company drivers. Miller taking into account the cost
of additional capital outlays for 10 new vehicles concluded it was only four and one-half cents a
mile more to use company drivers than to hire owner operators for the NNJ runs.106 Miller’s
assessment, by his testimony, was based on a stop pay to owner operators of $15 per stop,
while their actual pay was $18 per stop. Moreover, Respondent managed the addition of the 54
stops from October 16 to November 14, using a mixture of six owner operators and company
drivers performing the NNJ runs and local routes. Respondent added a seventh owner operator
on November 15, but did not bring other owner operators aboard until mid to late December
when it was in the midst of its strike preparations. Thus, I have concluded that representations
of the costs of capital investment requiring 9 or 10 sleeper cabs to service the NNJ runs were
inflated, because Respondent was content to use six or seven owner operators to service the

105 There were also claims by existing company drivers that they lost stops and runs to
the owner operators for bargaining unit work. I shall leave to the compliance stage of this
proceeding as to whether the General Counsel can establish there was an actual loss to the
earnings for the existing company drivers to determine if a backpay reward is warranted for
particular drivers for the subcontracting. See, Overnite Transportation Co., supra.
106 There was a variance in testimony of Respondent’s officials with Cannon stating 9
sleeper cabs and Miller stating 10 were needed to service the NNJ runs.
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runs until December when it began its strike preparations in earnest.107
Respondent also toyed with the idea of negotiating with the Union over the use of owner
operators. During the August 9, bargaining session, Cannon told Giles that when and if
Respondent obtained the work involving layovers, it would come to the Union and compare the
cost of using company drivers versus using owner operators. Hanson gave a similar assurance
to Giles during the October 2, session. Despite its contention that it did not have enough
tractors to run the NNJ runs with company drivers, and that it was too expensive to use them,
when the October 16 NNJ runs began, Respondent’s records reveal that company drivers
regularly ran some of the NNJ runs and received compensation for laying over on some of
the runs.108 In fact, after October 16, Respondent used owner operators on bargaining
unit local and SSJ runs, as well as on the new NNJ runs. It also used company drivers on
all three sets of runs.
In sum, while Respondent informed the Union that it would be using owner
operators on the NNJ runs because they involved layovers and it needed to use sleeper
cabs, it also used company drivers for the NNJ runs on a regular basis. While
Respondent informed the Union that the owner operators were not employees, dealt with
the owner operators directly, and refused to include them in the bargaining unit, it has
taken a position in its post hearing reply brief that the owner operators are employees and
members of the bargaining unit. Respondent has owner operators as part of bargaining
units at some of its other facilities. I have concluded that labor costs were the motivating
factor in Respondent’s decision to employ the owner operators for the local and the NNJ
runs and to exclude them from the bargaining unit. First, Respondent’s analysis in
determining to use owner operators for the NNJ runs was based on a cost comparison of
using them versus company drivers, and Respondent made that comparison taking into
account the cost of acquiring sufficient additional cabs to staff the new runs with company
drivers. It came up with only a four and one half cent differential per mile.109 That was
clearly something that could be bargained with the Union for service for some or all of the
NNJ runs with company drivers. In this regard, if acquiring extra vehicles rendered the
use of company drivers for NNJ runs a non starter, Respondent had no reason to have
Miller do the cost comparison in the first instance.
Moreover, I have concluded Respondent, as part of its defense, exaggerated the
number of owner operators and therefore capital expenditure it needed to complete the
NNJ runs. For it ran the runs with a combination of owner operators and company drivers

107 Moreover, two of the cabs owned by the owner operators were in fact day cabs, not
sleeper cabs. While these owner operators were paid the same rates as those using sleeper
cabs, they nevertheless found it worthwhile to run those routes with day cabs.
108 During October 15 to December 30, company drivers ran NNJ routes on: October 17 to
20; 23 to 27; October 30 to November 3; November 6 to 8; November 10, 13, 14, 17, 20, 22, 25,
and 30; and December 2, 4, 6, 7, 9, 14, 16, 19, 23, and 24. On some of these dates more than
one company driver ran these routes. Following October 16, Respondent’s records reveal that
company drivers continued to run southern New Jersey routes almost on a daily basis. They
also on occasion ran mixed northern and southern New Jersey routes. Obviously, company
drivers could have performed a greater percentage of the NNJ runs on available
equipment had Respondent fully staffed the unit as Hanson assured Giles they would
during negotiations.
109 Even this differential was based on an estimate of paying the owner operators $15 a stop
when they were actually paid $18.
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for a period of time and only increased the number of owner operators to its original
estimate when it specifically began to prepare for a strike. Respondent also had excess
capacity with existing tractors to allow it to accommodate more company drivers without
any capital expenditure. Finally, I have concluded Respondent orchestrated the use of
owner operators and intentionally excluded them from the bargaining unit as part of its
strike contingency plan because it did not want to assume the labor costs of a union
contract which from the Union’s standpoint included some form of hourly pay. As set forth
above, Respondent’s actions served to maintain the bargaining unit at a smaller size than
there was available work at a time of a possible strike, and it created a pool of trained
employees in the form of owner operators to perform that work in the event there was a
strike. See, Naperville Ready Mix, Inc., 329 NLRB 174, 181 (1999), enfd. 242 F.3d 744 (7th Cir.
2001). Accordingly, I find that Respondent violated Section 8(a)(1) and (5) of the Act, when it
refused to bargain in good faith with the Union over the decision to use owner operators for the
NNJ runs and its failure to bargain over the effects of that decision on bargaining unit
employees. In this regard, it substituted one group of drivers for another to perform new work
that was of the kind and nature that had theretofore been performed by the bargaining unit. See,
Overnite Transportation Co., 330 NLRB 1275, 1276 (2000), affd. in part, reversed in part 248
F.3d 1131 (3rd Cir. 2000) (nonpublished); Clear Channel Outdoor, supra; and Sociedad
Espanola de Auxilio Mutuo y Beneficiencia de P.R. v. NLRB, 414 F.3d 158 (1st Cir. 2005).110
4. Direct Dealing
This allegation centers on Respondent’s conversion of company driver Branch to a
position of owner operator on October 13. Branch was hired as a company driver around
April 16. At that time, Branch informed Respondent that he owned a truck and had a
desire to become an owner operator for Respondent. Cannon responded they could not
do it at that time, but if Branch took the job as a company driver, he could become an
owner operator at a later but unspecified date. Branch was hired as a company driver,
and any proposed compensation for him for a conversion to owner operator was not
discussed at that time. After Branch was hired, he continued to ask Cannon and Ortt

110 I do not find Respondent’s negotiating a subcontracting provision with the Union during
the November 7 bargaining session in any way shields Respondent from a finding of a violation
here. By November 7, Respondent had already unilaterally employed six owner operators who
were performing local, SNJ and NNJ runs. Respondent’s actions undercut the Union and forced
it to bargain from a weekend position. The Union had the Hobson’s choice of not bargaining at
all with Respondent or trying to reach an over all contract for the employees it represented.
Moreover, during the November 7, session, Hanson represented to Giles that Respondent
agreed that the work currently being performed was bargaining unit work. At that time, the
bargaining unit employees were performing some of the NNJ runs. However, after that date,
and prior to the strike Respondent continued to hire owner operators, which Giles felt was a
breach of their understanding. Finally, the parties had an understanding during negotiations no
tentative agreement on any item was final until the parties reached an overall contract.
Therefore, there was never any agreement on a subcontracting provision that could somehow
shield Respondent from its actions. I also do not provide much credence here to Respondent’s
contention that Giles was inflexible about the use of owner operators. In fact, Giles made
proposals which may have allowed for the use of some combination of owner operators, and it
is likely that he would have been even more flexible if Respondent took the position during
negotiations that it took in its reply brief that owner operators were part of the bargaining unit.
Finally, Respondent gave Giles incomplete and inaccurate information about the pay and cost of
the owner operators, and only did so after several of them had been added to its work force.
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about becoming an owner operator.
Sometime after the June 22, union election, in either late June or early July,
Cannon approached Branch and met with him with Ortt present, and discussed with
Branch specific rates Respondent was offering if Branch agreed to convert to owner
operator. Cannon told Branch they were going to start the NNJ runs with an expected
starting date of the end of August or beginning of September. Cannon had Branch’s prior
trip sheets with him to show Branch what Branch’s earning would have been at the
proposed owner operator rates. The rates included new mileage and stop rates for an
owner operator, as well as a mileage surcharge rate to help pay for the cost of gas.
Branch was also informed what insurance was available through Respondent and the
insurance that would be required if he became an owner operator. Branch was told an
owner operator had to maintain a $1000 escrow account with Respondent, and of the
possibilities of purchasing a license plate through Respondent. Branch took the
information home, and discussed it with his wife and concluded he could not perform local
routes at the rates Respondent was offering, but that he could do longer distance runs.
Branch then called Cannon and told him the rates Respondent was offering was fine for
the NNJ runs, but that he could not do the local runs for that pay. Cannon told Branch he
did not think he could raise the price for the local routes. Branch told Cannon that he did
not want to start as an owner operator at that time, but he agreed to do so when the NNJ
runs became operational.
Branch met with Giles on July 16, and discussed the rates Cannon offered him as
an owner operator, and presented Giles with a copy of Respondent’s independent
contractor agreement that Cannon had provided to Branch. On July 17, Giles wrote Taylor
that it had come to the Union’s attention that Respondent intends to offer or already has
offered bargaining unit work to drivers and hostetlers on an independent contractor, or
owner operator basis. Giles informed Respondent that such a diversion of work would
constitute a diversion of bargaining unit work, and a refusal to bargain in good faith. Giles
requested information pertaining to Respondent’s actions, and requested immediate
bargaining as to any proposed change in Respondent’s operation, as well as to commence
bargaining over a collective bargaining agreement. By letter dated July 28, Cannon
replied to Giles and denied any improper diversion of work. Cannon neglected to inform
Giles of Cannon’s meeting with Branch.
Sometime in October, Branch received a call from Ortt telling him the NNJ runs
were going to start on October 16. Branch signed Respondent’s independent contractor
agreement on October 13, under the terms Cannon had presented him in their June or
July meeting. Branch’s rates of pay changed from $.45 per mile and $15 a stop as a
company driver, to $1.13 per mile, and $18 a stop as an owner operator. As an owner
operator he used Respondent DOT number, and he purchased his truck insurance through
Respondent. As an owner operator, Branch became responsible for his own taxes.
Branch also had to affix Respondent’s DOT numbers to his vehicle.
The Board and courts have long held that by dealing directly with bargaining unit
employees an employer unlawfully bypasses a union and in doing so undermines its
representation status in the bargaining unit. See, Medo Photo Supply Co. v NLRB, 321
U.S. 678, 683 (1944); Georgia Power Co., 342 NLRB 199 (2004), enfd. 427 F.3d 1354
(11th Cir. 2005); and Ken’s Building Supplies, 142 NLRB 235 (1963), enfd. 333 F.2d 84 (6th
Cir. 1964). In Medo Photo Supply Co. v. NLRB, supra, 18 of the employers 26 employees had
designated the union as their collective bargaining representative and the employer recognized
the union as such on June 4 and 5, 1941. On June 7, 12 employees told the employer’s
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manager that they and six other members had no desire to belong to the union if they could
obtain a list of wage increases they submitted to the manager. On June 9, the manager met
with four of the employees from the group of 12, and he told them the employer would grant the
wage increases requested. The committee of four employees informed other employees of the
employer’s position, and then the committee returned and informed the manager of the
employees’ position to accept the wage increases and that they did not need the union and
would rather stay out. At a meeting thereafter with the union that same day, the employer’s
attorney informed the union that he understood the union no longer represented a majority of
the employees and he declined to negotiate with it unless it established that it was the
bargaining representative through an election. The Court held that the employer’s
“determination to increase wages was ‘occasioned solely by the employees' offer to withdraw
from the union if the raises were granted’; and that the employees' defection from the union was
induced by (the employer’s) conduct in dealing directly with the employees.” Id at 682. The
court stated:
Nor in the circumstances disclosed by the evidence and the Board's findings can we say
that it was of any significance whether, as the Court of Appeals thought, the employees'
offer to abandon the union originated with them or was inspired by the employer. For in
either case, as will presently appear, we think that the negotiations by petitioner for wage
increases with any one other than the union, the designated representative of the
employees, was an unfair labor practice. We think that the Board's order should have
been enforced for the reasons stated by it. Id. at 683.
See also Ken’s Building Supplies, 142 NLRB 235 (1963), enfd. 333 F.2d 84 (6th Cir. 1964),
where a direct dealing violation was found even though employees initiated a meeting with the
employer over health insurance.
In Naperville Ready Mix, 329 NLRB 174, 184 (1999), the Board found the employer
engaged in unlawful direct dealing when the employer held meetings with the drivers and
mechanics where it discussed with them arrangements by which drivers might buy the
employer’s trucks and mechanics might continue to service the trucks. The Board stated:
…we disagree with the judge’s conclusion that the meetings were essentially
between potential business associates and had nothing to do with the unit
employees’ terms and conditions of employment, which were then under
negotiation with the union. In our view, the meetings were efforts to enlist the
employees in the sham transactions by which the Respondents would carry on the
ready mix delivery operations without the obligations or costs of a union contract.
Such direct dealing over terms and conditions of employment is a clear violation of
Section 8(a)(5) of the Act.
As in Naperville Ready Mix, supra, I find that Respondent engaged in unlawful
direct dealing with Branch, when upon receiving notice that it would receive the NNJ runs
it sought Branch out and offered him a contract as an owner operator in June after the
Union election and thereafter had him sign a contract as owner operator in October. While
Branch had requested to become an owner operator when hired in April, and had been
given assurances by Respondent that this would eventually be the case if he accepted a
job as a company driver no terms of his owner operator status were discussed at that time.
It was only after the Union had received a majority vote, that Respondent through Cannon
and Ortt approached Branch and offered him specific details of working for Respondent in
an owner operator capacity. Branch thereafter unsuccessfully attempted to negotiate
different terms directly with Respondent. As a result, Branch would not accept
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employment in June or July as an owner operator, and only agreed to accept the position
when Respondent began the longer NNJ runs, which he did in October after being
contacted by Ortt to sign Respondent’s contract.
Thus, while Branch had expressed a desire to become an owner operator when he
was hired, it was only after the Union won the election that Respondent bypassed the
Union and approached him about specific terms to operate in that capacity. Until
Respondent gave Branch the specifics of its offer there was no guarantee that he would
accept it. In fact, he turned it down at a time when it was offered for only local runs. An
employer’s obligation to bargain accrues at the time a union wins the representation election,
absent valid objections to that election. See, Bloomfiled Health Care Center, 352 NLRB No. 39,
slip op. at 4 (2008); and Ramada Plaza Hotel, 341 NLRB 310, 315-316 (2004). As I have found,
when Branch was converted to owner operator he still remained an employee of Respondent.
However, Respondent had removed him from the bargaining by requiring him to sign its
independent contractor agreement stating he was not an employee, and by informing the Union
during negotiations that the owner operators were not employees and that they were not going
to be included in the unit. Thereafter, Cannon met with the owner operators as a group prior to
the strike and asked them if they would cross a picket line, which they agreed to do. I have
concluded the conversion of Branch to an owner operator, along with the hiring of owner
operators, and Respondent’s refusal to include them in the bargaining unit was part of
Respondent’s plan to avoid expanding the bargaining unit, and to have the owner operator’s at
its disposal in the event of a strike. I have concluded that by Respondent’s meeting with then
company driver Branch in June or July and discussing with him the terms of being an owner
operator, and by tendering him an owner operator agreement for signature and conversion in
October, Respondent engaged in direct dealing with its employee in violation of Section 8(a)(1)
and (5) of the Act.111
I do not find the cases cited by Respondent require a different result. In U.S. Ecology
Corp., 331 NLRB 223, 226 (2000), enfd. 169 LRRM 2320 (6th Cir. 2001), an employer sent
letters to striking employees in response to employee questions to supervisors about their
returning to work. The employer stated in the letters they could return to work for the time being
and receive the same wages and benefits that prevailed before the strike. The Board stated in
deciding the issue of direct dealing “’the question is whether (the) employer’s direct solicitation
of employee sentiment over working conditions is likely to erode ‘the Union’s position as
exclusive representative.’” Contrary to the judge, we do not find any such likelihood here.”
(Citations omitted from quote). The Board stated to begin with the employer did not initiate the
communications but sent its letter in response to employee questions. The Board stated, “We
do not believe that, merely by stating (in response to employee inquiries) the only employment
conditions it could lawfully offer under the circumstances, the Respondent can reasonably be
found to have ‘eroded the Union’s position as exclusive representative.’” Similarly, in Boehring
Ingleheim Vetmedica, Inc., 350 NLRB No. 60 (2007), an employer engaged in a lawful lockout
and gave the union two options for returning bargaining unit employees to work. The Union
declined both options. The Board majority found the employer did not bypass the Union.
Rather it timely informed the union of its intentions giving it two options to end the lockout. In
the face of the union’s refusals to provide a no-strike assurance, the employer allowed
employees to return to work by providing individual assurances, as referred to in the second
option given to the Union. The Board found in doing so, the employer did nothing to derogate
from the Union's representative status or to undermine its legitimate role. On the contrary, the

111 While the complaint only alleges Respondent’s conduct in October of 2006, the June or
July meeting with Branch was fully litigated by the parties.
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Respondent told a number of employees to talk to their union representatives before deciding
whether to sign the no-strike assurances. A factor considered by the Board majority was that
although the employees did not verbally inquire about returning to work they did so nonverbally
by presenting themselves for work despite having been informed of the lockout.
Neither of the cases cited by Respondent stand for the proposition that an employer
cannot engage in direct dealing when employees initiate a conversation about a subject matter.
Such a conclusion would be contrary to the pronouncements in Medo Photo Supply Co. v
NLRB, 321 U.S. 678, 683 (1944); and Ken’s Building Supplies, 142 NLRB 235 (1963), enfd.
333 F.2d 84 (6th Cir. 1964). Rather, it is apparent from U.S. Ecology Corp., supra, and Boehring
Ingleheim Vetmedica, Inc., supra, that the Board refused to find a violation because the
employer offered the employees the only terms and conditions it was legally permitted to offer in
U.S. Ecology Corp., and in Boehring the employer only offered employees what it had
previously offered to and been rejected by the union. In the latter case, it even informed the
employees to consult with the union before deciding whether to accept the offer. Neither
employer offered employees new terms or conditions of employment that the Board found rose
to the level of bypassing the union or engaging in direct dealing. In the present case, Cannon
offered Branch new terms and conditions of employment in an effort to convert his employment
status from company driver to owner operator. Cannon did so without contacting the Union.
When Giles was informed of Cannon’s actions after the fact, he immediately faxed a letter in
protest. I have concluded in another section of this decision that Respondent did not bargain in
good faith with the Union over the use of owner operators, and it continued its course of conduct
with its unlawful direct dealing with Branch by converting him to owner operator on October 13.
F. The strike beginning on January 12, 2007
was an unfair labor practice strike.
In East Buffet and Restaurant, Inc, 352 NLRB No. 116 JD. Slip op. at 25 (2008), it was
held that:
"It is well settled that if a strike is caused in part by an employer's unfair labor practice,
the strike is an unfair labor practice strike. An unfair labor practice strike occurs even
when the employer's unfair labor practice is not the sole or major cause or aggravating
factor; it need only be a contributing factor." RCG (USA) Mineral Sands, Inc., 332 NLRB
1633, 1633 (2001).112
In East Buffet and Restaurant, supra, a strike was found to be an unfair labor practice
strike in part based on flyers distributed by the union during the strike stating the employees
were striking in protest of unfair labor practices which specified the unfair labor practices. In
Child Development Council of Northeastern Pennsylvania, 316 NLRB 1145 (1995), enfd. 77
F.3d 461 (3rd Cir. 1996), the Board concluded that a strike was an unfair labor practice strike
stating, “It is well established that a causal connection between the Respondent's unlawful
conduct and the strike may be inferred from the record as a whole.” (citations omitted.) Factors
considered there were the timing of a threat to senior employees on the union’s negotiating
committee shortly before the start of the strike and that employees on the negotiating committee

112 See, also Northern Wire Corp. v. NLRB, 887 F.2d 1313 (7th Cir. 1989); Teamsters Local
Union No. 515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991); and
NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir. 1972), cert. denied 419 U.S. 850 (1972)
holding that as long as an unfair labor practice has “anything to do with” the cause of a strike, it
will be considered an unfair labor practice strike.
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had knowledge of the threat. Moreover, the union representative discussed the threat with
employees at a strike vote meeting held a few days before the strike. The Board stated, “we
find it reasonable to infer that Koff's June 27 threat, which was specifically discussed and
became a matter of consternation at the employee membership meeting that evening,
contributed to the employees' June 27 decision to strike. Accordingly, we find, contrary to the
judge, that the July 1, 1991 strike was an unfair labor practice strike.” It was specifically noted
in Child Development Council that the absence of picket sign language stating the strike was in
protest of an unfair labor practice does not establish that unlawful conduct was not a cause of
the strike citing Lifetime Door Co., 179 NLRB 518, 522-523 (1969); and AMF-Inc., 228 NLRB
1406 (1978), enfd. 593 F.2d 972, 979-981 (10th Cir. 1979).
In Fairhaven Properties, Inc., 314 NLRB 763,768 (1994), on February 25, a union called
a strike. The Union claimed the strike was an unfair labor practice strike because of the
Respondent’s February 6 meetings with employees. The union business agent (BA) testified he
met with groups of employees prior to the strike, informed them of what happened in
negotiations, and explained that because the employer had gone around with the February 6
paper to oust the union, if the union called a strike it would be due to the employer’s attempt to
break the union. The union business agent further explained that in an unfair labor practice
strike employees could return to work but if it were an economic strike their jobs would not be as
protected. It was noted employees corroborated the BA’s testimony. Another factor considered
by the Board in finding it was an unfair labor practice strike was the BA’s testimony that during
the strike the union used only its “unfair” picket signs not its “on strike” signs. Also leaflets
handed out by the union stated the Employer “unlawfully intimidated our members in an attempt
to have them disavow their Union.” In finding the strike was an unfair labor practice strike, the
Board noted that “A strike may be an unfair labor practice strike even though it also has
economic objectives. NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 269 (2d Cir. 1963), cert.
denied 375 U.S. 834 (1963).”
In Capitol l Steel & Iron Co., 317 NLRB 809, 814 (1995), enfd. 89 F.3d 962 (1st Cir.
1996), a strike was found to be an unfair labor practice strike where a respondent violated
Section 8(a)(5) by unilaterally granting wage increases in such a way as to undermine the
union’s status in the bargaining unit. It was found that the wage increases angered and
frightened the employees and were part of the debate leading up to the strike. In finding the
strike was an unfair labor practice strike it was noted, “It is not required that they correctly
perceive the unlawful nature of the Employer's actions. F.L. Thorpe, 315 NLRB 147, 150 fn. 8
(1994).” The judge as approved by the Board went on to state:
The strike was no less an unfair labor practice strike because the employees discussed
whether they would receive the added protection accorded unfair labor practice strikers
rather than whether a strike would cure those unfair labor practices. Such discussions
may in fact evidence that, but for such conduct, the strike would not have occurred.
Similarly irrelevant is evidence that there were other motives for striking or that some
employees may have indicated that the strike would cease if the employer agreed to one
of its major proposals. A willingness to forgive or overlook the unlawful conduct in return
for a significant gain in the negotiations does not establish that the unlawful conduct was
not a motivating factor.
In Teamsters Local Union No. 515 v. NLRB, supra, the court reversed the Board to find
that a strike was an unfair labor practice strike. The employer there was found to have
unlawfully insisted to a no-access provision to the point of impasse during negotiations. The
court stated in finding the strike was an unfair labor practice strike noted the union president
indicated at the bargaining table that the no-access provision was a strike issue, and at the
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strike vote meeting he told the employees that the employers proposals were unreasonable and
outrageous and that there were items in the management rights and no strike clause that he
had never seen before, and that if the union agreed to these proposals they would not have a
significant agreement. The court stated:
In this case, because the matter of the no-access provision was not specifically
discussed at the strike meeting, it is crucial to inquire whether the Union's reasons for
recommending a strike can be imputed to the employees who voted for the strike. That
inquiry is relatively easy on this record, for it is unrefuted that the employees voted to
strike solely pursuant to the Union President's recommendations. Id at 725.
* * *
Employees may formally cede authority to a union agent to call a strike; they can also
achieve the same result by simply endorsing a union agent's judgment that a strike is
necessary. In either case, the union representative's reasons for calling or
recommending a strike may provide the basis for determining causation. Here the
employees followed their Union leader's recommendation to strike, in part because of his
view that the provisions of the no-strike clause were outrageous. In so voting, the
employees ratified the Union leader's judgment that they should strike because of the
Company's demand for a no-access provision. Id. at 725-726.
In the instant case, the Union filed a petition for election on May 17. During the
week of May 22, Respondent brought in personnel from outside the facility and followed
Jackson, the individual who contacted the Union, and Tucker the other leading union
adherent. On May 25, they called both Jackson and Tucker into the office to meet with
Regional Vice President Taylor, and Cannon who had been alternating with Taylor in
supervising the start up of the Landover operation. Both Jackson and Tucker were told
they had been followed during the meeting. Jackson was also told he was fired for falsely
filling in a company document related to one of his routes, and was not given a chance to
defend himself against the accusations. After Jackson left, Tucker was told Cannon had
been told by anti-union drivers that he was involved in starting the Union. Tucker was also
told he should not serve as a middle man between the drivers and management and that if
the drivers had complaints Tucker should refer them directly to management personnel.
The Union won its election on June 22. Shortly, thereafter Cannon and Ortt called
company driver Branch into a meeting. Branch was told Respondent was expecting NNJ
runs which would require a layover, and he was given the option of converting to owner
operator under terms of employment including new stops and mileage pay rates that were
presented to him during that meeting. Branch was also provided a copy of an independent
contractor agreement provided by Respondent, which stated that the contractor was not
an employee of the Respondent. Upon reflection Branch declined to convert to owner
operator status until Respondent began the NNJ runs, which were more lucrative to the
driver due to the length of the runs. Branch was informed by Ortt in mid-October that the
NNJ runs were to start on October 16. Branch signed the independent contractor
agreement on October 13, and by its terms and Respondent’s actions at the negotiating
table Branch was effectively removed from the bargaining unit on that date.
Branch met with Giles on July 16, and informed Giles of Respondent’s offer for him
to become an independent contractor. Giles sent a fax to Respondent the next day
protesting the diversion of bargaining unit work, and requesting bargaining over any such
diversion as well as the start of negotiations for a new contract. The parties first
negotiation session was August 8, but unbeknownst to the Union, Respondent had hired a
full time owner operator to begin servicing routes that had theretofore only been serviced
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by company drivers and temporary employees. Respondent continued to increase the
number of the owner operators on its staff totaling six by October 16, with three starting
work in December, thus shortly before the Union’s January 12, strike.
The parties discussed subcontracting during the August 8 session, and specifically
discussed the use of owner operators during the August 9 session. They again discussed
subcontracting on August 30. On September 27, the union filed an unfair labor practice
charge alleging the diversion of bargaining unit work by the use of owner operators, and
that Respondent had engaged in direct dealing with employees. Giles opened up the
October 2, negotiation session by stating he was seeking an injunction at the NLRB
concerning Respondent’s use of owner operators. A discussion ensued throughout that
session where Giles protested Respondent’s use of owner operators. Tucker also
protested that he had lost a stop on one of his routes to owner operators. The discussion
concerning subcontracting continued on October 3, during which Giles told Respondent he
wanted the unit to be fully staffed. During the session, Giles told Hanson that
Respondent’s proposed management’s right clause was a major problem, that the
company had to do something about it or it was a big waste of time, and that if Hanson
thought Giles was going to negotiate a contract with unlimited subcontracting then Giles
was “pissing in the wind.” Subcontracting was again discussed on October 4.
Giles called a union meeting on October 15, which the sign in sheet reveals was
attended by 21 bargaining unit employees. During the meeting, Giles told the members
there was an issue they needed to understand, that Respondent was subcontracting
bargaining unit work, that the Union had filed unfair labor practice charges over this
problem, and that the outcome of the negotiations did not mean a thing if Respondent
continued to outsource their work and to subcontract it. Giles explained to the
membership about the unfair labor practice charges, and if the Company continued to
divert the work that they might have to take action to stop the diversion. Giles also
discussed the complaint that issued over Jackson’s discharge, and that charges had been
filed on surveillance and the impression of surveillance. Giles explained in some detail
about the charges, and then he threw the meeting open to questions. The drivers who
testified supported Giles description of the meeting pertaining to his description of the
unfair labor practices, and they specifically testified that drivers also brought up
complaints relating to Respondent’s use of owner operators. The testimony concerning
the meeting revealed that following a discussion of the unfair labor practices, the
employees unanimously voted to strike. Thereafter, Giles told the employees if it became
necessary to strike they would see a picket line when they showed up for work and they
should join the picket line. Giles told the employees they were waiting to strike because
they were still in negotiations, that it was possible they could resolve the charges, and it
was Giles’ hope Respondent would stop diverting work. Giles testified the diversion of
work was the main issue to him.
The parties resumed negotiations on November 7, at which time they reached
tentative agreement on a subcontracting provision. Giles testified the Union tentatively
agreed to the provision based on assurances from Hanson that the work presently being
performed was bargaining unit work, and that he specifically recorded that assurance in
his bargaining notes discussing it in a caucus with the employee bargaining committee
members before agreeing to the provision. Giles agreed to the provision because at the
time of the agreement some of the company drivers were running NNJ runs.
The December 6, session opened with Giles stating two complaints had issued by
the NLRB and the company should follow the law. Thereafter, the parties began to
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discuss economics. At that time, Respondent made its initial economic proposal for a five
year agreement with an increase in pay of $.5 per mile with no increase in stop pay for the
first year. Following the first year, there was to be an increase in stop pay of $.15 per
stop. Following a caucus, the employee members of the negotiating committee walked out
over Respondent’s pay proposal. However, Giles returned and suggested increased
mileage pay for the local drivers due to area traffic. Cannon in response said Giles was
seeking a mileage matrix. Respondent’s officials conceded traffic was a problem. During
the December 7, meeting, Respondent offered an increase in mileage rates, and an
increase in pay for the jockeys over its initial offer. Giles suggested as an alternative a
pay system by the hour within a 75 mile radius. During the session Hanson stated they
were going to return to Nashville, and work on some type of mileage matrix. Towards the
end of the December 7, session Giles told Hanson more unfair labor practice complaints
were coming. During the December 8 session, the Union came forward with a proposal
combining an hourly rate with Respondent’s stops and miles formula. The proposal also
included a daily and weekly guarantee, overtime, days off, sick leave, pension, 401(k) and
some other economic items. The proposal was rejected by Respondent. Towards the end
of the meeting, Giles stated they were not going to drag this out for months, that it needed
to be wrapped up now, and he asked for Respondent’s availability. Giles stated, “the men
and the Union are really pissed over these ULP’s. The Company needs to stop breaking
the law.” However, the earliest Respondent agreed to meet was January 15, 2007, five
weeks away.
On December 27, Region 5 issued a consolidated complaint against Respondent,
included in which for the first time was the allegation that since July 10, and at all times
since then Respondent assigned work performed by the Union to other employees or
independent contractors without prior notice to the Union and without giving the Union an
opportunity to bargain. Giles testified a decision was made to go on strike in the last week
of December. Giles testified it was decided the strike would begin on January 12, 2007.
Giles credibly testified that, “What triggered the decision in the last week of December was
the National Labor Relations Board issued a complaint against the Company over the
diversion of bargaining unit work.” Giles testified that, while the parties had reached
tentative agreement on the subcontracting issue on November 7, the Union decided to
strike on January 12 because Respondent’s actions were contrary to what they had
agreed to. He testified the progression of bargaining that led to the tentative agreement
on subcontracting was Respondent understood the Union’s concern over subcontracting
and the Union’s willingness to allow limited subcontracting to allow the Company to
operate in the event that there was a sudden vacancy or absence for some reason.
However, during this time, Respondent continued to hire additional owner operators and in
mid December Respondent brought in 12 to 15 drivers from around the country to ride with
existing bargaining unit members. Giles testified, “I didn't know where any of this was
going. Like I said though, the actions of the company were contrary to what we had
agreed to, in the spirit to which we agreed to it.” Giles testified, “I wasn't trying to stop this
Company from offering service to its customer, to have service failures, but we were
certainly nailing down the scope of the work and the fact that bargaining unit work should
be done by bargaining unit members. And they continued to hire more owner operators
and divert additional work.” Respondent in fact hired between three and four additional
owner operators during the period of November 14 and December 31.
The Union’s strike began at 9:30 p.m. on January 12, 2007. Giles called Tucker at
about 5 p.m. on January 12, and told him the strike was going to start at 9:30 p.m. and
asked Tucker to meet Giles at the dairy at 9 p.m. When Tucker arrived, Giles had picket
signs and picket instructions. A few minutes before 9:30 p.m. Giles and Tucker put the
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picket signs on and established a picket line in front of the main entrance to the dairy
facility. Giles identified the picket sign used during the course of the strike which had the
word “Unfair” and then there's a blank space, and then it says Teamsters Union Local 639.
Giles inserted Respondent’s name in the blank space on the sign. Giles testified they
used the sign that said “Unfair” for the strike at Respondent to signify that they were on an
unfair labor practice strike. Giles testified they used that sign as opposed to the Union’s
other sign which just said “On Strike.” Giles also identified picketing instructions which he
distributed to all the strikers and asked them to read it which begin with, “You are helping
to publicize the strike by Teamsters Local Union No. 639 against Quickway Transportation
for their unfair labor practices.” Giles also hand delivered two letters to MMD addressed
to Dairy Officials Aumen and Tenpas at about 9:30 p.m. on January 12, notifying them that
on that date the Union had commenced an unfair labor practice strike against Respondent
and that a picket line has been established at their shared facility.
Cook testified he thought the strike started on January 12, 2007, and that when he
showed up at 4 a.m. on Friday, he was intending to go to work that day. Cook confirmed
receipt of the picket sign and picketing instructions from Giles. Cook testified, “I was on
strike to try to get the work back, try to make more money, because I was upset for the
owner/operators taking all of the work.” Tucker testified he went on strike because of the
unfair labor practices, the firing of Angelo Jackson and the diverting of bargaining unit
work. He testified there was no other reason he went on strike.113 He testified if
Respondent and the Union would have reached a contract it would have helped resolve
the strike because it would help stop the unfair labor practices the company was
committing. The testimony of some of the strikers revealed that during the first two to
three weeks of the strike there was chanting for a contract.
I have concluded that the facts establish that the strike was clearly motivated at
least in part by Respondent’s unfair labor practices. The discussion in particular of the
diversion of bargaining unit work was an ongoing discussion during negotiations, and by
the Union’s repeated comments at the bargaining table to Respondent’s officials including
that the Union had filed an unfair labor practice charge and was seeking 10(j) relief over
the matter Respondent’s officials were aware this was a matter of grave concern to the
Union as well as the employees. In fact at the end of the December 8 bargaining session,
the last bargaining session prior to the strike, Giles informed Respondent’s officials that
the men and the Union were really “pissed” over Respondent’s unfair labor practices. I
also do not find Respondent’s unfair labor practices were remote in time to the strike in
that Respondent’s use of owner operators was ongoing, and in fact increased by three or
four in December, the month before the strike.114 Thus, as Giles credibly testified the

113 Owner operator Branch testified that during the strike he spoke to Tucker on one
occasion. Branch testified he asked Tucker why the men were on strike and Tucker “said
it was an unfair labor strike, something of that nature.” Branch testified the conversation
was halfway through the strike.
114 I do not find the November 7, tentative agreement on subcontracting to be significant
here. First, it was just a tentative agreement, conditioned on an overall contractual agreement.
Second, standing alone it did not remedy the unfair labor practice I have found with respect to
the unilateral change concerning the use of subcontractors. Finally, Respondent continued to
add owner operators after the agreement was reached which as Giles indicated upset the
employees and in the Union’s view was violative of the spirit of the November 7 tentative
agreement. Even if Respondent were to argue that Giles was incorrect in his assessment as to
the meaning of the November 7 tentative agreement that would not be determinative here. In
Continued
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timing of the unfair labor practice complaint in combination of with Respondent’s increased
use of owner operators was the main motivating factor in Union’s decision to call the
strike. The fact that the complaint issued was clearly a legitimate factor to be considered
by the Union as to the advisability of the strike. See, Capitol Steel & Iron Co., 317 NLRB
809, 814 (1995), enfd. 89 F.3d 692 (10th Cir. 1996). Giles picket line instructions to
employees, as well as his use of the picket sign stating “Unfair”, and his letter to the Dairy
officials on the night of the strike notifying them that it was unfair labor practice strike all
confirm Giles testimony as to the purpose of the strike. See, Fairhaven Properties, Inc., 314
NLRB 763,768 (1994); and East Buffet and Restaurant, Inc, 352 NLRB No. 116 (2000).
Giles had also held a meeting with the vast majority of strikers on October 15, wherein
he reviewed Respondent’s unfair labor practices with them and explained to them the
importance of diversion of the bargaining unit work, after which they unanimously voted to
strike. Thus, the unit employees were aware of the nature of the unfair labor practices when
they received the strike instructions stating they were engaging in an unfair labor practice strike
and thereafter joined the picket line. See, Fairhaven Properties, Inc., supra. I do not find the
fact that the employees chanted on the picket line for a contract or their desire to be paid by the
hour to establish that the unfair labor practices did not at least serve as a partial motive for the
strike. For “a willingness to forgive or overlook the unlawful conduct in return for a significant
gain in the negotiations does not establish that the unlawful conduct was not a motivating
factor.” See, Capitol Steel & Iron Co., supra. at 814. Moreover, as Tucker credibly testified he
felt that if the parties reached an agreement they could resolve the unfair labor practices as part
of the agreement. The fact that the employees ceded the decision of the timing of the strike to
the union officials does not suggest that they changed their reasons for authorizing the strike
made during their October strike vote. In fact, they were given written instructions by Giles on
January 12 that they were striking for unfair labor practices and only thereafter joined the picket
line. Thus, by their actions they adopted the Union’s goals in calling the strike. See, Teamsters
Local Union No. 515 v. NLRB, 906 F.2d 719, 723 (D.C. Cir. 1990).
Finally, I reject Respondent’s argument that in the circumstances here the Union did not
provide notice to Respondent’s officials that they were on an unfair labor practice strike. The
Union repeatedly through Giles beginning on July 17, expressed a strong concern to
Respondent’s officials over the use of owner operators and diversion of unit work. This concern
was repeated multiple times during the course of negotiations, including the filing of an unfair
labor practice charge, and the statement during the October 2, session that the Union was
seeking 10(j) relief with the Region. The Union ended the December 8 session, the last session
before the strike by demanding earlier negotiations than January 15, 2007, the earliest date
Respondent was willing to meet, and stating the Union and the men were “pissed” over the
unfair labor practices. In the face of the Union’s statements, Respondent began to prepare for a
strike and hired more owner operators. On January 12, 2007, Giles delivered two letters to
MMD officials stating the Union was going on an unfair labor practice strike at the Dairy. MMD
and Respondent shared facilities at Landover, and Respondent and MMD officials were in
contact on a daily basis for the loading of trailers and the scheduling of deliveries. I have
concluded that the MMD officials would have informed Respondent’s management of the
content of Giles letters, as they had earlier told Cannon that there was union activity amongst
his employees during the course of the union campaign. Moreover, both Cannon and Hanson
_________________________
this regard, the agreement was not binding on the parties and it did not remedy the unfair labor
practice with respect to the diversion of bargaining unit work. As set forth above, I have found
the unfair labor relating to the diversion of bargaining unit work was in particular a motivating
factor for the strike.
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are intelligent individuals and I have concluded they were aware that the strike was at least
partially motivated by the diversion of work based upon Giles repeated entreaties at the
bargaining table over the issue. I have also concluded that all of this information would have
been reported to Prevost. Moreover, the real issue here is whether the strike was at least
partially motivated by Respondent’s unfair labor practices, not Respondent’s knowledge of that
motive. I have concluded for the reasons set for the above that the strike was at least in part
motivated by conduct that I have found to be unfair labor practices and therefore the strike
beginning on January 12, 2007 was an unfair labor practice strike.
I do not find cases cited by Respondent such as Pirelli Cable Corp. v. NLRB, 141 F.3d
503 (4th Cir. 1998), require a different result. In Pirelli, the court reversed the Board and
concluded that a strike was not an unfair labor practice strike. The court first found that the
employer’s letter to its employees concerning possible job loss if they went out on strike was not
an unfair labor practice, therefore the contended basis of the strike was not over an unfair labor
practice. The court went on to state even assuming that the letter violated Section 8(a)(1), there
was no substantial evidence the workers were motivated by threats contained in the letter. The
court refused to rely on the testimony of union officials that the employees were upset about the
letter. The court stated union official Massey was not an employee of Pirelli, nor a member of
the bargaining unit, his feelings about the Q & A letter are completely irrelevant to the causation
question before us as he could not vote to strike. The court went on to caution against self
serving statements by union officials as to the cause of a strike and stated evidence of union
officials ire does is not sufficient to constitute evidence that the letter was a contributing cause of
the strike. The court stated, here the Board without substantial evidence of the membership’s
reaction to the letter equates union leadership sentiment with membership sentiment, and
concluded that the rank and file members had the same reaction to the letter as members of the
negotiating committee was not substantiated by the record. The court concluded the union
leadership made a strategic decision to file an unfair labor practice charge because it had
potential of shielding union members from the consequences of an unfair labor practice strike.
In the first instance, the court’s view of the role of a union official in determining the
cause or setting the agenda for strike in Pirelli may differ from the role enunciated by the D.C.
Circuit in Teamsters Local Union No. 515 v. NLRB, 906 F.2d 719, 723 (D.C. Cir. 1990), cert.
denied 498 U.S. 1053 (1991). However, it is not necessary for me to decide which if either the
Board may follow with respect to this case. In this regard, Giles protested the diversion of work
beginning in July, and raised it at most negotiation sessions from August through November.
Giles was joined in his protest at the bargaining table by Tucker who claimed to Respondent
that the use of owner operators would take work from bargaining unit employees in general as
well as to himself for which he specifically cited the loss of a stop. Cannon’s testimony reveals
the Union also specifically protested the loss of work for another company driver during
negotiations. On September 27, Giles filed a charge over the diversion of work, on October 2,
he stated the union was attempting to seek 10(j) relief over it, and on October 15, he discussed
the matter with bargaining unit employees in detail, cautioned them about its effects on the
bargaining unit, after which he opened the matter to discussion to bargaining unit members and
several raised claims of loss of work to owner operators and thereafter they voted to authorize
the Union to call a strike. It cannot be said here the Union’s filing the charge over the diversion
of work was merely a ruse to seek unfair labor strike protection. The Respondent’s conduct
here was not one isolated letter. The Respondent’s pay system was based on stops and miles.
The employees’ income was directly related to the routes they received in terms of the number
of stops, length, and location of those routes. By creating a new full time position of owner
operator which competed for those routes with company drivers and which was specifically
given on a more regular basis longer routes, Respondent created grievances both real and
perceived amongst the company drivers which I have found had a direct causal effect on their
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decision to strike.
G. Respondent unlawfully refused to reinstate unfair labor practice
strikers on March 2, 2007, and continued in its unlawful conduct
by locking them out on March 7, 2007
I. The strike ends on March 2, 2007
Giles testified the strike ended on March 2, 2007, by a consensus of the members
still picketing. Giles sent Cannon by fax and regular mail on March 2, 2007, a letter
stating that on January 12, 2007, the bargaining unit employees of Respondent employed
at the Landover, Maryland facility, commenced an unfair labor practice strike. The letter
stated that effective immediately, these employees were ceasing their strike activities and
were making an unconditional offer to return to work under the current terms and
conditions of employment. It stated the employees are ready to return to work for their
regular duties effective immediately. Giles copied the letter to Hanson on the same date
by fax. Giles testified Respondent did not respond to the letter until March 5, when Giles
had a phone call with Hanson. Giles asked Hanson if he had received Giles’ letter.
Hanson acknowledged the receipt and Giles stated he was waiting for a response.
Hanson said he had to check with Respondent that he thought Respondent had hired
replacements, and that he was not sure how many people would be recalled. Giles said
that ULP strikers cannot be permanently replaced, and Hanson said Respondent
considered the strike to be an economic strike. Giles disagreed with that assertion, and
stated he expected a response from Hanson. Hanson said he would get back to Giles the
next day after he talked to the Company. Giles testified they talked again on March 6, and
Hanson had a similar response that he did not know where Respondent was and how
many people they needed. On March 7, 2007, Giles received a fax from Hanson dated
March 7. In the fax, Hanson stated:
Quickway believes that the strike, which commenced on January 12, 2007, has
always been an economic strike. As a result, while the bargaining unit employees
were out on strike, Quickway began hiring new employees as permanent
replacements and has hired, as of March 2, 2007, 24 permanent replacements of
the striking employees.115 In addition four positions in the bargaining unit have
been lost as Marva Maid Dairy is currently performing the spotting functions at the
dairy, which were previously performed by Quickway. It is my understanding that,
with your agreement, several different striking employees have been performing
that work for the several weeks.116
Despite your offer to return to work on the same terms and conditions of
employment that have been offered to the permanent replacements, Quickway is
still involved in a labor dispute with teamsters Local Union No. 639. Specifically,
the contract negotiations, which began in August, 2006, have still not resulted in a
contract. As a result, members of Local 639 who are part of the bargaining unit and
have been on strike since January 12, 2007 will be “locked out” and are not going
to be allowed to work at Quickway effective immediately, until the contract
negotiations are resolved.

115 Cannon testified Respondent hired permanent replacements during the strike, estimating
that “got up to…about 22, 23.
116 At the time of the hearing, the General Counsel was not claiming the spotting positions
should be available to Respondent’s employees upon their recall.
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Quickway must protect its business and ensure continued service to its
customers so that its employees will have work available when the parties reach an
agreement. Local 639’s decision to end the strike and offer to return to work does
not resolve the labor dispute and, without a signed collective bargaining agreement,
still leaves Quickway vulnerable to strikes in the future. Until Local 639 is prepared
to sign an agreement with the last, best and final offer made by Quickway in our
meeting on January 15, 2007, the employees will remain “locked out.”
In order to end the “lock out,” Local 639 must be prepared to execute the
proposed collective bargaining agreement between Local 639 and Quickway
encompassing the terms of Quickway’s last, best and final offer. If you have any
questions or want to discuss this matter further, please feel free to contact me.
A letter went out under Cannon’s name, dated March 7, addressed to “Striking
Quickway Employees.” The parties stipulated it was mailed to all striking employees.117
The employees were told Respondent had received an unconditional offer to return to
work. In informing the employees they were being locked out until an agreement is
reached with the Union, Cannon stated:
Specifically, Quickway made its last, best and final offer to Local 639 on January
15, 2007, and Mr. Giles told me the following day that Quickway’s last, best and
final offer was unanimously voted down by the employees. When our attorney
questioned Mr. Giles after receiving notice that the strike was ending whether the
union would be signing a contract including Quickway’s last, best and final offer,
Mr. Giles stated that the employees would be ending the strike, but that Local 639
would not sign a contract. As a result, there is still an ongoing labor dispute with
Local 639 over the contract negotiations. Because that labor dispute has not been
resolved, bargaining unit members of Local 639 will be “locked out” and not allowed
to return to work at Quickway effective immediately, until a contract is signed, even
though the strike on the part of Local 639 has ended.
Respondent had not ended its lockout at the time of the unfair labor practice trial in
this matter. Cannon testified Respondent was still using some owner operators out of
Landover at the time of the unfair labor practice trial, although they had lost both the
southern and northern New Jersey runs shortly after the start of the January 12, strike.
Bargaining unit employees Jeremy Smith and Lawrence Simms, Sr., were hired by
Respondent on April 10, and April 17, respectively. Each drove routes for Respondent the
week of January 8, 2007, with Simms driving a route on January 13. Smith’s payroll
records show that he worked for Respondent during the course of the strike, and that he
last worked for Respondent for the pay period ending on March 10, 2007. Records from
the Maryland state government reveal that Smith applied for unemployment insurance.
The state records show the last day Smith worked for Respondent was March 8, and that
he was discharged for fighting effective March 10, 2007.118 Smith represented to the

117 Hanson, at the time of the stipulation, represented that Cannon’s letter was also mailed
to some additional drivers other than the strikers, but no evidence was tendered to support that
representation.
118 The parties stipulated at the hearing that Smith was hired on April 10, 2006, that his last
of work was March 9, 2007, and that Respondent terminated his employment on March 19,
2007. Cannon testified Smith was fired because store operations at Giant did not want him
back in the store.
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Office of Unemployment Insurance that, “I did cross the picket line in defiance of the union
strike, but I did not quit my job-I was fired for fighting.” Respondent asserted in response
that he crossed the picket line, came back to work, and that he quit on March 10, 2007.
The finding made by the state was that he was discharged for fighting. Cannon also
testified Smith was discharged for fighting.
Simms payroll records show he worked for Respondent during the strike and he
continued to work for Respondent at least through the pay period ending September 29,
2007, when the payroll records submitted into evidence ended. Tucker testified on
November 27, 2007, that Simms is a driver who did not strike, and that he was not locked
out. Tucker testified, “We seen him come through the picket line and he’s still working
there today.” Tucker was working for MMD as a yard jockey at the time of his testimony
and he testified he saw Simms was still working for Respondent at Landover as a
driver.119
Cannon testified that Simms is a company driver, hired prior to the strike, and he
was a member of the bargaining unit. Cannon testified Simms continued to work during
the strike in that Simms worked out of a Ryder facility in Landover, and he also worked out
of a Ryder facility in Virginia. Simms picked up loads at these facilities that originated
from Landover. Cannon testified loads were shuttled to Simms at those locations so he
did not have to cross the picket line. Had there not been a strike Simms would have just
gone to Landover to pick up the loads. Cannon testified that, for a period of time during
the strike, the Landover Dairy was not operating, but Simms continued to work. Cannon
testified he was not crossing the picket line, rather he was going to the Ryder facility and
to other area plants to pick up his load. Cannon testified this was just the time the
Landover Dairy was not operating. He testified the Dairy went down about two or three
days after the strike started and remained down for about four weeks. The strike was
seven weeks long. While the Dairy was down there were five other area locations that
were servicing the stores MMD had serviced and Simms went to those locations to pick up
his loads. Cannon testified when the Dairy started to operate Simms began getting loads
delivered to him from the MMD plant at the mentioned Ryder locations.120
Hanson did not testify at the hearing, however, in response to questions placed to
him during his opening statement, he stated that the strikers remained locked out at the
time of the hearing. He stated the strikers have been permanently replaced prior to Giles’
March 2, offer to return to work, which Hanson admitted constituted an unconditional offer
to return to work. Hanson stated Respondent still maintained at the time of the hearing
about 18 of the permanent replacements hired prior to the unconditional offer. Hanson
stated that the owner operators Respondent had before the strike continued to run work
during the strike. He stated that Respondent lost the New Jersey work gained in October
at the start of the strike. Hanson initially stated there were 26 drivers who went out on
strike. Hanson conceded that Respondent could not replace strikers after the strike was
over with permanent replacements contending that after the unconditional offer
Respondent only hired temporary replacements to replace the permanent replacements
who left. Hanson later stated as follows:

119 Tucker testified the owner operators also continued to work during the strike.
120 No other company drivers worked throughout the strike as did Simms and Smith. A
couple of drivers crossed the line to return their vehicles the first day of the strike, but did not
work thereafter. A couple of other drivers crossed the line for a day or two after the strike
started. None of these drivers worked after Respondent imposed the lockout.
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JUDGE FINE: So the employer -- the employer says how many people went out on
strike, 26?
MR. HANSON: There were 26, I believe.
JUDGE FINE: And prior to the strike --
MR. HANSON: There were 26 people that did not work.
JUDGE FINE: Right, during the strike.
MR. HANSON: Some were strikers and some were not.
JUDGE FINE: They were on the -- whether they -- they all went out together,
correct? They all ceased working at the start of the strike?
MR. HANSON: No.
* * *
JUDGE FINE: Okay. Well, how many went out on strike, from the employer's point
of view?
MR. HANSON: It was probably 21. I believe it was 21.
JUDGE FINE: All right. So from the employer's perspective, 21 went out on strike
and during the course of the strike, you replaced all 21 with permanent
replacements or you gave some of the work to independent contractors?
MR. HANSON: We did both.
JUDGE FINE: So how many actual permanent replacements were there?
MR. HANSON: There was -- at one time, we had had --
JUDGE FINE: Before the strike ended. At the day that the strike was over -- the
day before the strike was over, how many permanent replacements did you have?
MR. HANSON: There probably were 22 people working, 22 permanent
replacements. Twenty-four it may have been. But some of those have since left.
JUDGE FINE: Right. So at the time that they made an unconditional offer to return
to work, it's the employer's position that there -- for every bargaining unit person
that was out, whether they were on strike or not, the employer had hired a
permanent replacement?
MR. HANSON: That's just -- I can't say that the numbers are exactly one for one,
but yes, we were using owner/operators too. So for me to say that it was exactly --
JUDGE FINE: So -- but you're not contending an owner/operator as a permanent
replacement?
MR. HANSON: No, I'm not.
JUDGE FINE: So you might've had -- at the time the strike ended by the union's
letter, you might've had owner/operators taking -- doing -- performing bargaining
unit work on a full-time basis, as well as permanently hired employees doing the
work?
MR. HANSON: Yes, we would've had both working.
JUDGE FINE: Right.
MR. HANSON: Yes.
JUDGE FINE: So is it the employer's position, had there not been a lawful lockout,
that once the strike ended, that those owner/operators doing bargaining unit work,
they should've been gone --
MR. HANSON: Correct.121

121 Hanson stated that after the start of the strike Respondent lost all the New Jersey work
as well as the four spotters positions to MMD. He stated there were 26 bargaining unit drivers
at the start of the strike and they were in addition to the four spotter positions that went to MMD.
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2. Analysis
Under established law an employer is required to reinstate unfair labor practice strikers
on their unconditional offer to return to work even if they have been permanently replaced. See,
East Buffet & Restaurant, Inc., (2008), 352 NLRB No. 116 (2008); Boydston Electric, 331 NLRB
1450, 1453 (2000); Walnut Creek Honda, 316 NLRB 139, 142 (1995), enfd. 89 F.3d 645 (9th Cir.
1996); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379 fn. 5 (1967); and Mastro Plastics
Corp. v. NLRB, 350 U.S. 270 (1956). It is also well established that an employer cannot warn
unfair labor practice strikers that they have been permanently replaced. See, Decker Coal Co.,
301 NLRB 729, 748 (1991); Escada USA, 304 NLRB 845, 850 (1991), enfd. 970 F.2d 898 (3rd
Cir. 1992); and Walnut Creek Honda, supra.
In certain circumstances, an employer retains the right to lockout employees. In
American Ship Bldg. Co. v. NLRB., 380 U.S. 300, 308-309 (1965), the Court held that an
employer does not commit an unfair labor practice when, after a bargaining impasse has been
reached, it temporarily shuts down its plant and lays off employees for the sole purpose of
bringing economic pressure to bear in support of his legitimate bargaining position. There, the
Court noted there was no allegation the lockout was in the service of designs inimical to
collective bargaining, and there was no evidence that the employer was hostile to its employees'
banding together for collective bargaining or that the lockout was designed to discipline them for
doing so. In NLRB v. Brown, 380 US 278 (1965), the Court held that nonstruck members of a
multiemployer bargaining group did not engage in unfair labor practices when, in response to
whipsaw strike against one member of the group which continued business operations, they
locked out their regular employees and used temporary replacements to carry on business. In
reaching this result, the Court again noted there is no assertion or evidence that the
respondent’s were motivated by antiunion animus. The Court stated the lockout was a
defensive measure to preserve to preserve the multiemployer group, and the action was not
inherently destructive employee rights. The Court held that the tendency to discourage union
was comparatively remote. The Court stated, “First, the replacements were expressly used for
the duration of the labor dispute only; thus, the displaced employees could not have looked
upon the replacements as threatening their jobs.” Id. at 288. The Court noted that the history of
labor relations between the parties had always been amicable noting that even the struck
member of the association did not resort to using permanent replacements for the striking
workers. Rather, it sought to ride out the dispute with temporary replacements to avoid
depriving the regular employees of their jobs.122
In Harter Equipment, 280 NLRB 597, 597 (1986), review denied 829 F.2d 458, (CA
3,1987) (Harter I), The Board majority stated, “we hold that, absent specific proof of antiunion
motivation, an employer does not violate Section 8(a)(3) and (1) by hiring temporary
replacements in order to engage in business operations during an otherwise lawful lockout.” In
Harter I, the Board majority stated there is no difference in an employer’s using temporary
replacements for an offensive or defensive lockout. The Board stated:
Finally, any adverse effect of the use of temporary employees on the right to belong to a
union membership represents, as in Brown Food Store, at most only a slight addition to
the impact of the lockout itself. In every instance, the use of ‘temporary’ employees
means no threat to the permanent employee status of locked out employees. The Union

122 Justice Goldberg stated in his concurring opinion that, “There would be grave doubts
as to whether the act of locking out employees and hiring permanent replacements is justified
by any legitimate interest of the nonstruck employers, …”. Id. at 294”
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or its individual members have the ability to relieve their adversity by accepting the
employer's less favorable bargaining terms and returning to work. Id. at 600.
In Harter Equipment, 293 NLRB 647 (1989), (Harter II) the Board held that the locked out
employees were not strikers and could not be permanently replaced. The Board stated, “the
Employer locked out the bargaining unit in support of its bargaining demands and they were not,
and could not lawfully be permanently replaced. Indeed, the finding that the replacements were
temporary was essential to the dismissal of the complaint in (Harter I).”
In Ancor Concepts, Inc., 323 NLRB 742, 742 (1997), enf. denied 166 F.3d 55, (2nd Cir.
1999), the Board stated, “we find that following its initial declaration of a lockout, the
Respondent engaged in conduct inconsistent with a lawful lockout by telling the Union that the
replacements were permanent employees and that the strikers would be placed on a
preferential recall list if the Union so desired. The Respondent’s assertion rendered the lockout
unlawful, so that the Respondent was no longer privileged to invoke Harter to justify its
continued failure to reinstate strikers who had made unconditional offers to return to work.” The
Board stated in that instance employees went on strike on September 24. In October the union
representative asked the company owner if he would take the employees back under the terms
of the expired contract. The owner responded that he would not take the employees back until
they reached a settlement on a new contract. By letter dated November 9, the union restated its
unconditional offer to return to work on behalf of the striking employees. The employer
responded by letter from its attorney dated November 29. Included in the response was that at
the present time all of the striking employees’ positions had been filled by permanent
replacements, and if the union wanted the strikers names to be placed on a preferential recall
list in the event of any openings the union was to advise the attorney. The Board stated:
Regarding the lawfulness of a claimed lockout, the Board in Eads Transfer[FN9] found that
absent timely notification, an employer's failure based on a claimed lockout to reinstate
economic strikers on their unconditional offer to return to work is inherently destructive of
employee Laidlaw rights[FN10] and violates Section 8(a)(3) and (1) of the Act. The Board,
acknowledging and balancing the competing rights of economic strikers to reinstatement
on their unconditional offer to return to work, and of employers to lock out and
temporarily replace employees for legitimate economic or business reasons under
Harter I, concluded that if the employer wanted to rely on Harter to suspend the strikers'
reinstatement rights, “it was obligated to declare the lockout before or in immediate
response to the strikers' unconditional offers to return to work.”[FN11] Such timely
notification is necessary, the Board reasoned, so that the strikers could fairly evaluate
their bargaining position.[FN12] Id. at 744
The Board stated the respondent informed the union in the November 29 letter that the
replacements were permanent employees, and that an employer’s use of permanent
replacements is inconsistent with a declared lawful lockout in support of its bargaining position,
and in the letter the attorney stated the strikers wishing to recall could be placed on a recall list
which was inconsistent with the respondent’s claim that it was refusing to allow the employees
to return to work at all. Thus, the Board found as of the November 29, letter the lawful lockout
was over. The Board concluded that the respondent was obligated to offer reinstatement to all
the strikers who had offered to return. The Board found that the failure, based on a claimed
lockout to offer the strikers reinstatement on their unconditional offer to return to work after it
had announced the replacements were permanent employees, is inherently destructive of
employees rights under Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970), and violates Sections 8(a)(3) and (1) of the Act. The
Board found in reaching this conclusion that the Respondent was not motivated by union
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animus. The Board stated,
In the instant case, the employees could not intelligently evaluate their position because
the Respondent indicated to them (incorrectly in law) that they would remain replaced
even if they yielded to the Respondent's bargaining demands. The Respondent's
November 29 announcement, like the employer's untimely declaration of a lockout in
Eads, could have reasonably caused the strikers confusion in evaluating their bargaining
strength.[FN20] Thus, for at least 21 months (i.e., from the Respondent's November 29
letter to the date of the hearing) the employees were in the dark about their status.
Accordingly, for the reasons set forth above, we find that the Respondent violated
Section 8(a)(3) and (1) by failing to reinstate the strikers on and after November 29. Id.
at 745.123
In Royal Motor Sales, 329 NLRB 760, 761-762 (1999), enfd. 2 Fed. Appx. 1 (D.C. Cir.
2001), the Board majority stated:
In Taft Broadcasting, 163 NLRB 475, 478 (1967), enfd. sub nom. Television Artists,
AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968), the Board defined an impasse as a
situation where ‘good-faith negotiations have exhausted the prospects of concluding an
agreement.’ This principle was restated by the Board in Hi-Way Bill-Boards, 206 NLRB
23, 23 (1973), as follows:
A genuine impasse in negotiations is synonymous with a deadlock: the parties
have discussed a subject or subjects in good faith, and, despite their best efforts
to achieve agreement with respect to such, neither party is willing to move from
its respective position.
See also NLRB v. Powell Elect. Mfg., 906 F.2d 1007, 1011-1012 (5th Cir. 1990). The
Board has further held that, even if impasse is reached over an issue, it may be broken if
one of the parties moves off its previously adamant position. (Citation omitted.)
* * *
The Board has also long held that even if the parties have reached deadlock in their
negotiations, a finding of impasse is foreclosed if that outcome is reached ‘in the context
of serious unremedied unfair labor practices that affect the negotiations.” (Citations
omitted.)
In Royal Motor Sales, it was concluded the deadlock was broken when the Machinists submitted
a written proposal that represented their agreement to bargain on the basis of a flat-rate model
wage system, rather than their prior demand for hourly pay. Rather, than explore the
possibilities of the proposal, Royal rushed to declare impasse and implement its July 5 offer. It
was stated that it could not be fairly said that under the terms of Taft Broadcasting, the parties
had exhausted all possibilities of reaching agreement. The Board majority then stated:
b. Our finding that negotiations between Machinists and Royal had not reached a valid

123 In refusing to enforce the Board’s order in Ancor, the court noted the final sentence in the
employer’s November 29 letter reading, “However, if you believe there is sufficient flexibility in
the Union's position so that meaningful negotiations can occur at this time, please contact the
undersigned to arrange a meeting.” The court stated this conclusion, put at the letter's end,
demonstrates that nothing was final in Ancor's position. The court also cited prior
communications by the employer indicating a willingness to negotiate if the union was. See,
NLRB v. Ancor Concepts, Inc., 166 F.3d 55, 58 (2nd Cir. 1999).
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impasse finds further support in Royal's unfair labor practices away from the bargaining
table. As discussed supra, we have found that Royal violated Section 8(a)(5) and (1) of
the Act by virtue of Service Manager Chavez' direct dealing with employee Wong
regarding flat-rate compensation, the very issue over which Royal has claimed, and the
judge has found, the existence of impasse. When considered in the context of Chavez'
role at the bargaining table, we conclude that Chavez' statements to Wong disparaged
the collective-bargaining process and undermined the status of the Union at the
bargaining table. (Citations omitted.)
c. In sum, based on the totality of the circumstances we find that there was no impasse
in fact, and that even if deadlock had been reached, no impasse could properly be
declared because of the context of serious unremedied unfair labor practices.
Accordingly, we find that Respondent Royal violated Section 8(a)(5) and (1) when it
implemented portions of its final offer to the Machinists on July 5 in the absence of a
bona fide impasse in bargaining. Id. 763-4
The Board in Royal Motor Sales, also found the respondent’s lockout of the employees was
unlawful because it was just used to facilitate the respondent’s implementation of its offer
without either the union’s agreement or a genuine impasse therefore it was used in service of
designs inimical to the bargaining process. Moreover, the respondent’s hostility towards the
Union expressed in the unlawful statements by the respondent’s vice president permitted an
inference that the lockout was caused by a desire to discourage membership in the union. See
also Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir. 1991), where the
court found an employers association’s lockout and replacement of their employees in an
attempt to coerce the Union to accept the Association's unilaterally implemented final offer was
violative of Section 8(a)(5), (3), and (1) of the Act in that it did not constitute “’legitimate
bargaining position’” that the employers may pursue through the use of a lockout.”
In Allen Storage & Moving Co., 342 NLRB 501 (2004), an employer locked out
employees on condition that they could return to work when they accepted the employer’s
existing bargaining proposals, which included an unlawfully implemented change in the
employees group life insurance plan. In approving the judge’s finding that the respondent
locked out the employees in violation of Section 8(a)(3) and (1) of the Act, the Board stated:
1. The judge found that the Respondent locked out its employees in violation of
Section 8(a)(3) and (1) for periods in September 2001 and March 2002. In adopting this
finding, we particularly agree with the judge that the Respondent's discriminatory
motivation for the lockouts is demonstrated by the manner in which it implemented
them.[FN3] Thus, the Respondent, without explanation or justification, allowed Steven
Jennings, the only unit employee who had not participated in the strike, to continue
working during both periods of the lockouts, while it barred each former striker from
work. Such disparate treatment of former strikers is, as the judge found, evidence of
discriminatory motive in the circumstances of this case.[FN4] See McGwier Co., 204 NLRB
492, 496 (1973); O’Daniel Oldsmobile, 179 NLRB 398, 401 (1969).124
2. We further agree with the judge that for a lockout to be permissible under
American Ship Building Co. v NLRB, 380 U.S. 300, 318 (1965), it must be for the ‘sole
purpose of bringing economic pressure to bear in support of [the employer's] legitimate

124 See also, Local 15, International Brotherhood of Electrical Workers, AFL-CIO v. NLRB,
429 F.3d 651 (7th Cir. 2005), cert. denied 127 S.Ct. 42 (2006); and United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International
Union, AFL-CIO v. NLRB, 179 Fed Appx. 61 (D.C. Cir. 2006).
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bargaining position.’ Here, the Respondent's lockouts were in support, at least in part, of
a bargaining proposal to ‘provide each employee with a $30,000.00 group term life
insurance plan’ ‘in lieu of the current death benefit.’ While this proposal on its face might
have been legitimate, it was advanced in the face of the Respondent's unlawful
termination of the employees' current death benefit—an unfair labor practice, which was
unremedied at the time of the lockouts. The Respondent's proposal would, therefore,
have required the employees to accept the Respondent's unlawful conduct in order to
end the lockouts. In this context, the Respondent's lockouts cannot be found lawful
under American Ship Building Co.[FN5]
In the current case, On March 2, 2007, Giles faxed a letter to Cannon and Hanson
stating that the strike was an unfair labor practice strike and that the employees were
immediately ceasing their strike activities and making an unconditional offer to return to
work under the current term and conditions of employment. Having received no response,
on March 5, Giles had a phone call with Hanson during which Giles asked Hanson if he
had received Giles’ letter. Hanson acknowledged the receipt and Giles stated he was
waiting for a response. Hanson said he had to check with Respondent that he thought
Respondent had hired replacements, and that he was not sure how many people would be
recalled. Giles said that ULP strikers cannot be permanently replaced, and Hanson said
Respondent considered the strike to be an economic strike. Giles disagreed with that
assertion, and stated he expected a response from Hanson. Hanson said he would get
back to Giles the next day after he talked to the Company. Giles testified they talked
again on March 6, and Hanson had a similar response that he did not know where
Respondent was and how many people they needed.125
On March 7, 2007, Giles received a faxed letter from Hanson. In the letter, Hanson
labeled the strike as an economic strike. The letter stated that while the bargaining unit
was on strike Respondent began hiring new employees as permanent replacements and
has hired as of March 2, 24 permanent replacements of the striking employees. Later in
his response, Hanson also stated that, “members of Local 639 who are part of the
bargaining unit and have been on strike since January 12, 2007 will be ‘locked out’ and
are not going to be allowed to work at Quickway effective immediately, until the contract
negotiations are resolved.” The letter later states that, “Until Local 639 is prepared to sign
an agreement with the last, best and final offer made by Quickway in our meeting on
January 15, 2007, the employees will remain ‘locked out.’”
A letter went out under Cannon’s name, dated March 7, addressed to “Striking
Quickway Employees.” The parties stipulated it was mailed to all striking employees.
Hanson, at the time of the stipulation, represented that Cannon’s letter was also mailed to some
additional drivers who were not strikers. Hanson during questions posed to him during his
opening statement took the position that 26 drivers ceased work around the start of the strike,
but from Respondent’s perspective only 21 of those individuals were strikers. Apparently, from
Hanson’s remarks, it can be presumed Respondent had mailed Cannon’s letter addressed to
strikers to all 26 of the drivers. The recipients of Cannon’s letter were told Respondent had
received an unconditional offer to return to work, that Giles had informed Hanson that the
Union would not sign a contract including Respondent’s “last, best and final offer“ and that

125 There is a question as to whether Respondent’s institution of the lockout was done in a
timely manner since Respondent did not immediately inform the strikers they were locked out
upon their unconditional offer to return to work. Ancor Concepts, Inc., supra. at 744. However,
since I have found the lockout unlawful for other reasons I need not address this question here.
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the “bargaining unit members of Local 639, would be locked out and not allowed to return
to work until a contract is signed. Thus, the employees were informed in Cannon’s letter
that they were being locked out because the Union had refused to sign Respondent’s “last,
best, and final” offer. Moreover, any ambiguity in Cannon’s letter as to Respondent’s
intent is cured by Hanson’s letter to Giles stating, “Until Local 639 is prepared to sign an
agreement with the last, best and final offer made by Quickway in our meeting on January
15, 2007, the employees will remain ‘locked out.’”
While Hanson represented that Respondent had hired 24 permanent replacements
in his March 7 letter, no testimony or documentary evidence was placed in the record in
support of this contention. Cannon at one point estimated that Respondent hired up to 22
or 23 permanent replacements. In the circumstances of this case, I am not willing to take
these blanket representations as correct absent documentary evidence showing the
names of these individuals, their dates of hire, and proof of what they were told at the time
of their hire. Moreover, despite the representations in his letter of 24 permanent
replacements, Hanson admitted during his opening remarks that Respondent continued to
use owner operators at the time of the Union’s March 2 offer, and he conceded that these
owner operators did not constitute permanent replacements for the strikers, and that
absent the lockout they should have been terminated and at least some of the strikers
should have been reinstated regardless of whether they were unfair labor practice strikers
or economic strikers.
For reasons set forth in detail in this decision, I have concluded that the strikers
were unfair labor practice strikers, and that the strike was in large part caused by
Respondent’s unlawful unilateral diversion of bargaining unit work to owner operators.
Thus, I find that Respondent violated Section 8(a)(1) and (3) of the Act by permanently
replacing unfair labor practice strikers, and by on March 7, 2007, informing their Union
representative that it had done so.126 East Buffet & Restaurant, Inc., 352 NLRB No. 116
(2008); Boydston Electric, 331 NLRB 1450, 1453 (2000); Walnut Creek Honda, 316 NLRB 139,
142 (1995), enfd. 89 F.3d 645 (9th Cir. 1996); NLRB v. Fleetwood Trailer Co., 389 U.S. 375,
379, fn. 5 (1967); and Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956); Decker Coal Co.,
301 NLRB 729, 748 (1991); and Escada USA, 304 NLRB 845, 850 (1991), enfd. 970 F.2d 898
(3rd Cir. 1992). There is an inherent tension between the Supreme Court’s pronouncements in
American Ship Bldg. Co. v. NLRB., 380 U.S. 300, 308-309 (1965), and NLRB v. Brown, 380 US
278 (1965), that lockouts are permissible only when: there is no evidence that the employer was
hostile to its employees' banding together for collective bargaining; and there is no assertion or
evidence that the lockout was motivated by antiunion animus and a lockout being lawfully
applied to unfair labor practice strikers.
I find that the March 7, 2007, lockout was unlawfully motivated, in view of the unfair labor
practices I have found showing that there is a background of strong anti-union animus on the
part of Respondent. On May 22, five days after the Union filed its petition for election
Respondent followed the employee who originated the union drive. On May 25, it fired that
employee in a meeting without giving him the opportunity to defend himself as to the allegations
against him. That meeting, at the Respondent’s request, was also attended by the other leading
union adherent. He was also told at that time that he had also been followed, and that the
Employer was aware that he was one of the individuals who started the union drive. He was
instructed not to serve as a middle man between the Respondent and the employees, and that if

126 Respondent continued to maintain through counsel that there were still 18
permanent replacements of the strikers employed at the time of the hearing.
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employees had complaints he was instructed to refer them directly to management. Within
weeks before the June 22 election, high level officials Taylor and Cannon separately isolated
and then interrogated an employee as to whether they had his support for the upcoming
election. Shortly, after the election, Cannon and Ortt met with and dealt directly with another
employee over his removal from the unit and becoming an owner operator. On July 17, Giles by
letter to Taylor protested Respondent’s actions and demanded immediate bargaining over the
diversion of bargaining unit work as well as beginning negotiations for a new contract. On
August 8, the same day contract negotiations began Respondent, without informing the Union,
hired an owner operator on a full time basis, and he began performing bargaining unit work.
Thereafter, Respondent began to increase the number of owner operators who were directly
competing with bargaining unit employees for work. During negotiations, Respondent’s chief
negotiator insisted that the owner operators were not part of the bargaining unit, although they
had been included in bargaining units at other facilities operated by Respondent. In October
Respondent again directly dealt with an employee by converting him to owner operator and
removing him from the unit. The numbers of owner operators continued to increase and they
were regularly performing local and long distance runs as were the bargaining unit employees.
Thus, the Respondent had undermined the Union’s bargaining strength by its direct dealing with
an employee and its diversion of bargaining unit work.
In December, as part of its strike preparations Respondent increased its number of
owner operators by three, and brought in outside drivers to accompany unit employees on their
routes. Respondent’s actions, concerning the continuing increase of the use of owner operators
precipitated the employees’ unfair labor practice strike. Shortly, after the strike started,
Respondent implemented its January 15, 2007, offer. Respondent implemented the offer
without informing the Union it was doing so. I find that Respondent implemented the offer at a
time the parties’ were not at impasse because the Respondent’s unremedied unfair labor
practices particularly those relating to direct dealing and the diversion of bargaining unit work
had undermined the Union and precluded an impasse in bargaining. See, Royal Motor Sales,
329 NLRB 760, 761-2 (1999).127

127 While negotiations began on August 8, the parties did not begin bargaining with respect
to economics until December 6. At that time Respondent made its first wage proposal with the
first contract year beginning at $45.5 per mile and $15 a stop. During meeting, Giles suggested
Respondent consider a mileage matrix as part of its proposal, and the parties agreed during that
meeting that traffic in the D.C. area was a problem in terms of Respondent’s pay system. Giles
asserted the employees need some form of hourly pay, even if it was incorporated in
Respondent’s stops per miles system. On December 7, Respondent offered a new proposal
which contained an increase in the mileage rates to $46.5 per mile upon ratification with a $.05
increase every year for four years. Giles suggested an alternative with hourly rates within a 75
mile radius of Landover or hourly pay within certain congested counties, and stops and miles
pay outside the described areas. On December 8, Giles proposed a pay rate of $18 an hour,
$.15 a mile and $10 a stop. On January 15, 2007, the next bargaining session, Respondent
proposed a mileage matrix where drivers within a 75 mile radius would receive $.55 a mile the
first year, and stop pay was increased to $17 a stop. Giles responded that no area contracts
were based on mileage and stops, and that the employees expect hourly pay. Giles was told
this was Respondent’s final offer. Giles testified Respondent’s final offer was incomplete as the
Union was still waiting on language for work rules since November, although he testified work
rules had been given to him on November 9. Giles testified that language was missing in other
areas, and that Hanson began the January 15, meeting by stating that Respondent had been
working on economic proposals and language, but that Hanson failed to discuss the outstanding
language issues during the meeting. On January 16, 2007, Giles told Cannon the employees
Continued
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I reject any contention that the parties November 9, tentative agreement on
subcontracting somehow remedies Respondent’s unfair labor practices or somehow withdrew
the issue of Respondent’s use of owner operators as an issue between the parties. First, the
Union never withdrew its unfair labor practice charge over the matter revealing that it was still a
bone of contention between the parties. Second, Giles felt that Respondent violated the terms
of the understanding by its increased usage of owner operators precipitating the January 15
strike. Giles raised the issue of Respondent’s unfair labor practice towards the end of the
parties’ December 8 session, the last session before the strike, and his notes reveal that Giles
specifically raised bargaining unit work as an issue during the parties last session on January
17. That it is a continuing issuing is further established by the fact that Respondent continued to
use owner operators throughout the strike, and was using them as of March 2, 2007, when the
Union made its unconditional offer to return to work. Hanson’s March 7, 2007, letter to the
_________________________
unanimously voted down Respondent’s final offer. However, Giles testified the parties did not
reach an impasse in negotiations and no one ever declared impasse. The parties met on
January 17, 2007, with a federal mediator, and at that time Hanson laid out five economic areas
in dispute. Giles responded in addition to the five items mentioned there were still issues as to
rules and regulations and bargaining unit work. Hanson stated a lot of the language issues will
fall into place as they get the other areas of the contract done. During the meeting, the mediator
told Giles that Respondent was willing to discuss a weekly guarantee, on condition that the
drivers were available five days a week including Saturdays and they could not refuse loads if
hours were available. The parties then met face to face, and Hanson repeated the terms
relayed by the mediator. Giles asked how Respondent would determine the weekly guarantee,
and Hanson stated it would be a weekly minimum. Giles stated they were not any closer to
where they were five hours ago, and asked about miles, hours, and stops. Hanson stated
Respondent was not interested in hourly wages.
In sum, wages were discussed at five bargaining sessions beginning on December 6, and
Respondent made movement on December 6, 7, and January 15, 2007. Respondent also
floated an additional proposal on January 17, 2007, for some type of weekly minimum pay,
which was rejected by Giles. Respondent remained steadfast in its refusal to pay by the hour,
while Giles insisted on some formula of hourly pay. I do not find at General Counsel contends
that Respondent made its January 15, 2007 offer with a desire to provoke an impasse. There
was substantial movement in that offer from its prior offer of December 7, and in fact some form
of mileage matrix had been suggested by Giles during negotiations. One consideration against
an impasse finding was that there had been movement by the parties with respect to wages at
all the negotiation sessions in which wages were discussed, and no declaration of impasse had
been made. In fact, despite representations that the January 15 offer was its final offer,
Respondent floated the framework for another proposal on January 17. However, I do not need
to decide whether the parties were at impasse on wages as of the January 15, offer, as I have
already concluded that an impasse was precluded by Respondent’s unfair labor practices. Of
more significance was Respondent’s unilateral implementation of at least the economic
components of its January 15, 2007, offer near the start of the strike when the parties were not
at a valid impasse, and Respondent’s conditioning the end of the lockout on the Union’s
agreeing to the January 15 offer. Moreover, Hanson’s statements during the January 15 and
17, bargaining sessions revealed an acknowledgement by him that in addition to economics
there were some language issues Respondent had been working on that needed to be resolved
between the parties, yet Respondent did not present proposals on the language issues at that
time, and they were not discussed at either of those sessions. Respondent’s written proposal
on January 15, only dealt with economics, so Respondent’s final offer was not presented in the
form of a complete agreement leaving terms of what Respondent’s final offer actually was to be
murky.
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Union was somewhat misleading when he stated Respondent had hired 24 permanent
replacements of the striking employees, but failed to mention Respondent’s continued use of
owner operators, who Hanson conceded at the hearing, did not constitute permanent
replacements. Cannon testified Respondent was still using some owner operators out of
Landover at the time of the unfair labor practice trial, although they had lost both the
southern and northern New Jersey runs shortly after the start of the January 12, 2007,
strike. Thus, owner operators continued to perform bargaining unit work which did not
require a layover as it had been doing before the strike.
Another indicia that that Respondent’s lockout was discriminatorily motivated was
its allowing pre-strike bargaining unit employees Smith and Simms who had worked
throughout the strike to continue to work after the lockout. Respondent’s can point to no
legitimate business justification for its partial lockout of only strikers and others, who
perhaps were not strikers, but who did not work during the strike. In this regard, Prevost
testified that upon the implementation of its final offer it no longer had staffing problems.
The drivers were also in fungible positions in that Respondent can point to no special skills
of Smith and Simms that separated them from the rest of the drivers justifying their recall.
Moreover, Respondent had lost both its northern and southern New Jersey runs early on
during the strike, but Hanson informed the Union on March 7, that Respondent had 24
permanent replacement drivers, and Respondent admittedly was still using owner
operators so it is clear that Respondent’s retention of Smith and Simms during the lockout
was not a result of legitimate operational needs. I do not find as persuasive Respondent’s
arguments in its brief that its allowing Simms and Smith to work during the lockout was just an
oversight. First, Hanson informed Giles in Hanson’s March 7, letter that the lockout was limited
to those that “have been on strike.” Smith and Simms did not participate in the strike, and
clearly by the terms of Hanson’s letter the lockout was specifically designed not to include them.
Moreover, the evidence revealed that Respondent went through elaborate procedures in order
to keep Simms working during the strike including having him work out of other locations and
having his loads shipped from the Landover dairy to him at a Ryder facility to allow him to avoid
crossing the picket line. I have concluded that Respondent was fully aware and intentionally did
not lock out Smith and Simms as it did the other employees as a reward for their crossing the
picket line and working during the strike.
While Hanson suggested that 26 drivers ceased working at the time of the strike,
he contended that only 21 were actual strikers implying there is an issue as to whether five
individuals actually joined or supported the strike. However, Hanson represented that
Cannon sent his March 7, 2007, letter to strikers as well as to other employees. Implicit in
that contention is that the letter had been sent to all bargaining unit employees who were
not working at the time. Thus, even assuming Hanson was correct that not all employees
who did not work were active supporters of the strike, Cannon’s March 7, letter addressed
to strikers signaled that all employees who did not work during the strike were being
locked out as “strikers” as a result of the strike. By not locking out the two employees who
crossed the line and worked during the strike, Respondent discriminated against all of the
locked out employees based on the strike in general and their refusal to cross the picket
line and work. Any non strikers who refused to cross the picket line were swept into
Respondent’s unlawful lockout as a result of the employees’ unfair labor practice strike.
See, McGaw Of Puerto Rico, Inc., 322 NLRB 438 (1996). Thus, given Respondent’s overall
background of animus towards the employees’ union activities I find Respondent’s actions
of only locking out strikers and possibly non-strikers who did not cross the picket line as
additional evidence that the lockout was unlawfully motivated.
I also find that Respondent unlawfully conditioned an end to the lockout on the
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Union’s acceptance of its final offer, because implicit in that offer was the acceptance of
Respondent’s unilateral diversion of bargaining unit work to owner operators, a new
classification of employee, which Respondent had improperly removed from the bargaining
unit as part of its strike preparation plans. See, Allen Storage & Moving Co., 342 NLRB 501
(2004). I find that Respondent’s March 7, 2007, lockout of strikers as well any possible
non strikers who did not cross the picket line constituted an unlawful lockout in violation of
Section 8(a)(1) and (3) of the Act.128 In making this finding, I note that I have also
previously found that Respondent violated Section 8(a)(1) and (3) of the Act by failing to
accept the Union’s unconditional offer to return to work on behalf of unfair labor practice
strikers on March 2, 2007.129
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Union represents Respondents employees in the following unit appropriate for
collective bargaining:
All full-time and regular part-time company driver employees and hostlers
employed by the Employer making deliveries from its domicile at 5 S. Club Drive,
Landover, Maryland; but excluding all office clerical employees, professional
employees, managerial employees, guards and supervisors as defined in the
Act.
4. The Respondent violated Section 8(a)(1) of the Act by:
a. Engaging in the surveillance of employees because they engaged in union
activities.
b. Creating the impression of surveillance of employees’ union activities.
c. Informing employees that they should not serve as a middleman between
employees and management and that if employees had complaints they should
be told to go directly to management.
d. Coercively interrogating employees concerning their union activities.
5. Respondent violated Section 8(a)(1) and (3) of the Act by:

128 Since I find that the lockout was discriminatorily motivated, I need not reach the General
Counsel’s contention that Respondent’s conduct was inherently destructive of employee rights.
129 Respondent conceded on the record by counsel’s admission that there were at least 21
strikers. To the extent the any other individuals status as a striker becomes relevant to the
remedial requirements of this decision, it can be litigated by the parties during the compliance
stage of these proceedings. There is a possible dispute that I am aware as to four named
company drivers as to whether they were strikers. Drivers Bright and Hughes were out on the
road on Friday, January 12, 2007, and crossed they picket line on January 13, to return their
trailers and did not work thereafter; Frost crossed the picket line and worked once on January
12, but not thereafter; and Hudson crossed the picket line once on January 15, but did not pull a
load. Cannon testified that he had conversations with all or most of these individuals early on in
the strike, and they related that they were afraid to cross the picket line. Whether or not these
individuals actively participated in the strike at some point in time or can otherwise be argued to
be strikers remains an issue for compliance proceedings, if necessary. In this regard, the strike
ended on March 2, and I have concluded that Respondent unlawfully locked out all of its other
pre-strike employees, including the aforementioned individuals, who did not work during the
course of the strike on March 7.
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a. Discharging its employee Angelo Jackson on May 25, 2006, because he
engaged in union activities.
b. Informing unfair labor practice strikers that they had been permanently replaced
and refusing to recall them upon their March 2, 2007, unconditional offer to return
to work.
c. Locking out unit employees starting March 7, 2007, because employees had
engaged in protected activity and in order to discourage such activities.
6. Respondent violated Section 8(a)(1) and (5) of the Act by:
a. Engaging in direct dealing with employees and converting them to an owner
operator position thereby bypassing the Union the employees’ collective
bargaining representative.
b. Transferring bargaining unit work to owner operators, who were employees that it
had improperly removed from the bargaining unit, without bargaining in good faith
with the Union.
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 unlawfully discharged employee Angelo Jackson, unlawfully failed to
recall unfair labor practice strikers upon their unconditional offer to return to work, unlawfully
locked out bargaining unit employees because employees in the bargaining unit engaged in an
unfair labor practice strike, and therefore must offer them reinstatement and/or recall to their
former positions and make them whole for any loss of earnings and other benefits, computed on
a quarterly basis from as applicable the date of their discharge, the date of their unconditional
offer of reinstatement, and/or the entire lockout period continuing until the date of a proper offer
of reinstatement and or recall, less any net interim earnings, as prescribed in F.W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).130
Having found Respondent unilaterally transferred bargaining unit work to owner
operators, it must rescind its agreements with owner operators and restore the transferred work
to bargaining unit employees and make them whole for any losses they may have suffered as a
result of the transfer under the formula prescribed in as prescribed in F.W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). To the extent the transfer caused losses to existing unit employees those losses can, if
necessary, be determined in a compliance proceeding.
Having found that Respondent committed violations of Section 8(a)(1)(3) and (5) of the
Act which impacted upon the parties negotiations for an initial contract the General Counsel’s
request that the Union’s certification year be extended for six months from the date Respondent
begins to bargain upon request with the Union is granted. Respondent’s directing dealing with
an employee began shortly after the Union won its representation election, and unilateral its
transfer of bargaining unit work to owner operators began within one month of the Union’s
certification. That transfer led to a dispute between the parties early on in negotiations, and as I
have found in large part led to an unfair labor practice strike, which when it ended resulted in the

130 The General Counsel argues that interest should be compounded on a quarterly basis.
This is a matter of a change in Board longstanding policy, which is better left to the Board.
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unlawful lockout of bargaining unit employees. See, Mar-Jac Poultry, 136 NLRB 785 (1962).
The General Counsel cites Five Star Mfg., Inc., 348 NLRB No. 94, (2006), slip op. at 1,
arguing the egregious nature of Respondent’s conduct warrants a broad order as part of the
remedy. In Five Star, the Board issued a broad order although the employer there did not have
a prior history of unfair labor practices. The Board considered the totality of circumstances in
assessing whether a respondent’s behavior exhibits an opposition to the purposes of the Act
which would provide “an objective basis for enjoining a reasonably anticipated future threat.” In
Five Star Mfg, Inc., as here, the employer engaged in a sustained and ongoing course of
unlawful conduct in response to a union drive. However, unlike the instant case, Five Star was
a family owned operation with no prior history of union activity. In the instant case, Respondent
is a large operation with 17 terminals located around the country, four of which have contracts
with other Teamsters Locals and seem to operate in relative labor tranquility. While
Respondent reacted in a sustained an unlawful manner in response to the union campaign at its
Landover facility, given Respondent’s history, I do not find that a broad order is warranted, at
this time, unless Respondent continues in its course of conduct.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended131
ORDER
The National Labor Relations Board orders that Respondent, Quickway Transportation,
Inc., with its main offices located in Nashville, Tennessee, and with a facility located in
Landover, Maryland, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a)Engaging in the surveillance of employees because they engaged in union
activities.
(b) Creating the impression of surveillance of employees’ union activities.
(c) Informing employees that they should not serve as a middleman between
employees and management and that if employees had complaints they
should be told to go directly to management.
(d) Coercively interrogating employees concerning their union activities.
(e) Discharging employees because they engaged in union activities.
(f) Informing unfair labor practice strikers they had been permanently replaced
and refusing to recall them upon their unconditional offer to return to work.
(g) Locking out unit employees because employees had engaged in protected
activity and in order to discourage such activities.
(h)Engaging in direct dealing with employees and converting them to an owner
operator position thereby bypassing the Union as the employees’ collective
bargaining representative.
(i) Transferring bargaining unit work to owner operators without bargaining in
good faith with the Union.

131 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(j) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union for a collective bargaining agreement in
the certified bargaining unit, with the certification year extended to six months from the
date good faith bargaining begins, and if an understanding is reached, embody the
understanding in a signed agreement.
(b) Within 14 days of the date of this order restore work that has been transferred
to owner operators and terminate the contracts of those owner operators, and make
whole bargaining unit employees where it can be established they lost work to the owner
operators.
(c) Within 14 days of the date of this order offer Angelo Jackson reinstatement to
his former position, discharging the occupant of that position if necessary, or if that
position no longer exists, to a substantially equivalent position without prejudice to his
seniority or any other rights or privileges previously enjoyed, and remove any reference
from the Respondent’s files of Jackson’s unlawful discharge, and within 3 days
thereafter notify Jackson in writing that this has been done and that the discharge will
not be used against him in any way.
(d) Within 14 days of this Order offer the employees who were unfair labor
practice strikers who were denied reinstatement on March 2, 2007, recall to their former
positions terminating, if necessary, any replacements who occupy those positions, or if
those positions no longer exist, to substantially equivalent positions without prejudice to
their seniority or any other rights or privileges previously enjoyed.
(e) Within 14 days of this Order offer the employees who were locked out by
Respondent on March 7, 2007, recall to their former positions terminating, if necessary,
any replacements who occupy those positions, or if those positions no longer exist, to
substantially equivalent positions without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(f) Make Angelo Jackson, the unfair labor practice strikers, and the locked out
employees whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy section of this
decision.
(g) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post at its Landover Maryland
facility, copies of the attached notice marked “Appendix.” 132 Copies of the notice, on
forms provided by the Regional Director for Region 5, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other

132 If this Order is enforced by a Judgment of the 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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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 March 22, 2006.
(i) 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.
Dated, Washington, D.C. September 12, 2008
_______________________
Eric M. Fine
Administrative Law Judge
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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 any union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT engage in the surveillance of employees because they engaged in
activities on behalf of Drivers, Chauffeurs & Warehousemen Teamsters Local Union No. 639
a/w International Brotherhood of Teamsters, or any other labor organization.
WE WILL NOT create the impression of surveillance of employees’ union activities
amongst our employees.
WE WILL NOT inform employees that they should not serve as a middleman between
employees and management and that if employees have complaints they should tell the
employees to go directly to management.
WE WILL NOT coercively interrogate employees concerning their union activities.
WE WILL NOT discharge employees because they engaged in union activities.
WE WILL NOT inform unfair labor practice strikers they have been permanently replaced
and refuse to recall those strikers upon their unconditional offer to return to work.
WE WILL NOT lock out employees because employees have engaged in protected
activity and in order to discourage such activities.
WE WILL NOT engage in direct dealing with employees and convert them to owner
operator positions thereby bypassing the Union as the employees’ collective bargaining
representative.
WE WILL NOT transfer bargaining unit work to owner operators without bargaining in
good faith with the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union for a collective bargaining agreement in
the certified bargaining unit, with the certification year extended to six months from the date
good faith bargaining begins, and if an understanding is reached, embody the understanding in
a signed agreement.
WE WILL within 14 days of the date of the Board’s order, restore work to bargaining unit
to company drivers that has been transferred to owner operators and terminate the contracts of
those owner operators, and make whole bargaining unit company drivers where it can be
established they lost work to the owner operators.
WE WILL within 14 days of the date of the Board’s order offer Angelo Jackson
reinstatement to his former position, discharging the occupant of that position if necessary, or if
that position no longer exists, to a substantially equivalent position without prejudice to his
seniority or any other rights or privileges previously enjoyed, and remove any reference from our
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files of Jackson’s unlawful discharge, and within 3 days thereafter notify Jackson in writing that
this has been done and that the discharge will not be used against him in any way.
WE WILL within 14 days of the date of the Board’s Order offer the employees who were
unfair labor practice strikers who were denied reinstatement on March 2, 2007, and/or who were
locked out on March 7, 2007, recall to their former positions terminating, if necessary, any
replacements who occupy those positions, or if those positions no longer exist, to a substantially
equivalent positions without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make whole: Angelo Jackson for his May 25, 2006, discharge; the unfair labor
practice strikers who were denied reinstatement on March 2, 2007; and the employees locked
out on March 7, 2007, for any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy section of Board’s decision.
QUICKWAY TRANSPORTATION, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
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, 410-962-3113.
JD–50–08
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
QUICKWAY TRANSPORTATION, INC.
and 5-CA-33111
5-CA-33257
5-CA-33446
5-CA-33497
DRIVERS, CHAUFFEURS & WAREHOUSEMEN TEAMSTERS
LOCAL UNION NO. 639 a/w INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Table of Contents
Decision 1
Statement of the Case 1
Findings of Fact 2
I. Jurisdiction 2
II. Alleged Unfair Labor Practices 2
C. The Union campaign 4
D. The surveillance, Jackson’s discharge,
and the creation of the impression of surveillance 5
1. Creation of impression of surveillance 5
a. Respondent’s witnesses 6
b. Analysis 10
2. The surveillance and discharge of Angelo Jackson 13
C. The interrogations 19
D. The diversion of bargaining unit work 22
1. The use of temporary drivers 22
2. Bargaining unit driver Branch is offered
to convert to be an owner operator 23
3. The contracting with owner operators 27
4. Contract negotiations August 8 to October 4 28
5. The October 15 strike vote 35
a. Credibility 38
6. Contract negotiations November 7 to December 8 40
7. Testimony of Respondent’s witnesses concerning
the need for and use of owner operators 44
8. The January 12, 2007 strike 51
9. Contract negotiations January 2007 54
E. Analysis 58
1. The unlawful transfer of work to owner operators 58
a. Legal principles 58
b. Respondent unlawfully diverted
bargaining unit work 62
1. Respondent’s use of owner operators
was presented to the Union as a fait accompli 68
2. The owner operators were statutory employees 74
JD–50–08
5
10
15
20
25
30
35
40
45
50
116
3. Respondent violated Section 8(a)(1) and (5)
of the Act by diverting bargaining unit work
to owner operators for layover and
non-layover runs 76
4. Direct dealing 83
F. The strike beginning on January 12, 2007
was an unfair labor practice strike. 87
G. Respondent unlawfully refused to reinstate unfair labor
practice strikers on March 2, 2007, and continued in
its unlawful conduct by locking them out on March 7, 2007 95
1. The strike ends on March 2, 2007 95
2. Analysis 99
CONCLUSIONS OF LAW 108
Remedy 110
ORDER 113
Appendix