Roadway Package System, Inc

National Labor Relations Board - Board Decisions

Jan 17, 1989

292 N.L.R.B. 376 (N.L.R.B. 1989)

376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Roadway Package System , Inc and Steven Trimble
and Michael Johns and Richard Andrzejewski
and Darrell Cooper and Michael Malaspina and
Vic Chomic and Local 299, International Broth-
erhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , AFL-CIO'
Cases 7-CA-26384, 7-CA-26550(3), 7-CA-
26550(5), 7-CA-26550(7), 7-CA-26747, 7-
CA-26951, and 7-CA-27253
January 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On September 2, 1988, Administrative Law
Judge Thomas R Wilks issued the attached deci
sion The Respondent filed exceptions and a sup
porting brief, and the General Counsel filed an op
posing beef
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
In the underlying representation case (7-RC-
18212), the Board adopted the finding of the Re
gional Director that the Respondent's contract
pickup and delivery drivers are employees and not,
as the Respondent contends, independent contrac
tors who are excluded from the protection of the
Act In the instant unfair labor practice case (7-
CA-27253), the judge found that the Respondent
had refused to bargain with the Union, as the rep
resentative of the drivers, in violation of Section
8(a)(5) of the Act 3 In his decision, however, the
judge broadly discredited the testimony of the
charging party witnesses, including that of Michael
Johns, Richard Andrzejewski, and Darrell Cooper,
who were the only employee witnesses to testify
on behalf of the Union in the representation hear
ing The Respondent now excepts to the judge s
failure to reconsider, in light of his credibility reso-
lutions, the determination of the drivers' status as
employees 4 The Respondent reasons that the Re-
i On November 1 1987 the Teamsters International Union was read
nutted to the AFL-CIO Accordingly the caption has been amended to
reflect that change
2 The judge inadvertently gave several incorrect case citations that
were noted and corrected
9 The judge dismissed the remaining cases which alleged violations of
Sec 8(a)(1) (3) and (4) No exceptions were filed to his decision in that
respect
4 The Respondent also excepts to the judge s rejection of its offer to
introduce evidence discovered since the close of the representation pro
ceeding that it contends establishes that the Union (Local 299) has a
conflict of interest that precludes it from representing employees in the
gional Director made that determination on the
basis of the testimony of witnesses who have since
been discredited Because those witnesses' testimo
ny is unworthy of belief, the Respondent argues,
the Regional Director's determination cannot
stand, and consequently cannot be the basis for
finding an 8(a)(5) violation
We find no merit in the Respondent's exception
The Board's usual rule is that representation case
findings are not subject to relitigation in a "relat-
ed" subsequent unfair labor practice proceeding
(e g , where, as here, an employer is testing the
union's certification in an 8(a)(5) case) Air Transit,
256 NLRB 278, 279 fn 2 (1981), enf denied on
other grounds 679 F 2d 1095 (4th Cir 1982), Serv
U-Stores, 234 NLRB 1143, 1144 (1978) 5 Although
we recognize that there may be exceptions to that
general rule,6 we find that this case does not
present one of those exceptions
The Respondent contends, in essence, that we
should reopen the representation case in order to
reconsider the drivers' employee/independent con-
tractor status in light of the judge's credibility de
terminations in the unfair labor practice case Sec
tion 102 48(d)(1) of the Board's Rules and Regula
tions, however, provides that the record will be re-
opened only if the new evidence would require a
different result if adduced and credited See Seder
Foods Corp, 286 NLRB 215 (1987) After careful
consideration of the Respondent's contentions, we
find that the judge's evaluations of the employee
witnesses testimony in this case do not compel a
result contrary to that reached in the represents
tion proceeding 7
unit We find no merit in that exception The Respondent asserts that its
evidence shows that Local 299 and its international the International
Brotherhood of Teamsters want to put the Respondent out of business to
protect their interest as representative of the employees of the Respond
ent s chief competitor United Parcel Service The thrust of that evi
dence however is that the Teamsters was interested in obtaining con
tractual terms for the Respondents drivers that were similar to those of
UPS drivers There is only one isolated statement that could be con
strued as directly supporting the Respondents claim and it involves a
remark by a Teamsters official in a local other than Local 299 The only
documents relating specifically to Local 299 do not support the Respond
ent s conflict of interests claim Thus the Respondent has not proffered
evidence sufficient to require a hearing Roadway Package System 291
NLRB I fn 1 (1988) In so finding we do not rely on Nabco Corp 266
NLRB 687 (1983) cited by the judge
5 By contrast a finding in a representation case may be relitigated in a
later unfair labor practice case in which independent violations (i e
violations unrelated to the representation case) are alleged Air Transit
supra at 279 Serv U Stores supra at 1144
e See e g Steelworkers (Wagner Industrial Products) 162 NLRB 1349
(1967) modified on other grounds 386 F 2d 981 (D C Cir 1967)
7 Insofar as the Respondent contends that because of the judge s ad
verse credibility determinations the drivers testimony in the represents
tion case should be generally discredited that contention does not require
the Board to reopen the record Evidence offered simply to discredit or
impeach a party s witnesses has been rejected as not affording a basis for
a new or reopened hearing Publishers Printing Co 272 NLRB 1027 JD
Continued
292 NLRB No 52
ROADWAY PACKAGE SYSTEM 377
In the first place, much of the evidence support-
ing the Regional Director's finding that the drivers
are employees was contained in the drivers stand
and contract with the Respondent,8 and thus was
not dependent on the drivers' testimony The con
tracts clearly provide that either the Respondent or
the driver may terminate the contract without
cause at any time , that the contract is not assigna
ble by either party without the other's consent, that
the driver must personally maintain a neat , clean,
presentable appearance and maintain his van in like
fashion, and that the driver must not use the van in
any manner or for any purpose detrimental to the
Respondent's image Thus, the Regional Director's
findings that the drivers have no proprietary inter
est in their routes, that they can be terminated at
any time without cause , and that they must main
tarn their personal appearances and the appearances
of their vans to the Respondent's standards are
based on the Respondent's own uncontroverted
evidence
Second, a great deal of the testimonial evidence
on which the Regional Director relied consisted of
uncontroverted statements concerning the Re
spondent's policies toward its drivers Thus, with
out contradiction, (1) Andrzejewski testified that
he had not been allowed to negotiate any of the
terms of his contract with the Respondent, (2)
Johns stated that the "core zone" rates paid to
drivers had been changed by the Respondent, (3)
Andrzejewski testified that drivers were not al-
lowed to use their vans to deliver packages for
anyone but the Respondent, and (4) Johns asserted
that Terminal Manager Patrick Gillihan had in
formed him that he would lose stops if he did not
keep proper records9 and that he was required to
deliver every package that the Respondent had
loaded on his van Those statements dealt with
matters that were certainly within the Respondent's
knowledge, and were made at the hearing before
Gillihan testified 10 Under those circumstances,
that Gillihan was not called on to rebut those ele
ments of the drivers' testimony may fairly be con
fn 1 (1984) NLRB v Jacob E Decker & Sons 569 F 2d 357 365 (5th Cir
1978) NLRB v Sunrise Lumber & Trim Corp 241 F 2d 620 625-626 (2d
Cir 1957)
8 A copy of the contract was placed in evidence in the representation
hearing by the Respondent
8 The records in question apparently were required only by the Re
spondent not by law or regulation Johns testified that as far as he knew
service crossing packages (to indicate the reasons for nondelivery) is
not required by Department of Transportation (DOT) regulations Gilli
ban testified concerning the reasons for service crossing but did not mdi
cate that the practice was mandated by regulation
10 Johns statement that Gillihan had told him he had to deliver all
packages placed on his van is the sole exception That statement came in
rebuttal to Gillihan and was made shortly after Gillihan had concluded
his testimony There was no surrebuttal
strued to mean that he could not have done so i i
Accordingly, even if we were to agree with the
Respondent that the drivers' testimony was gener-
ally unreliable, we still would not find that the
above statements were unworthy of belief Conse-
quently, the Regional Director's findings that the
Respondent had unilaterally established contract
rates and changed "core zone' rates, that drivers
are not allowed to use their vans for other employ-
ers, that drivers must keep records required by the
Respondent, and that drivers cannot refuse to make
deliveries are not susceptible to attack based on the
witnesses' credibility 12
Further, some of the drivers' testimony cited by
the Respondent is far less inconsistent than the Re-
spondent urges Thus, the Respondent cites a pas-
sage in Johns' testimony in the unfair labor practice
case in which Johns states that a change in his ter
ritory had been worked out by mutual agreement
between him and the Respondent The Respondent
asserts that that testimony is inconsistent with
Johns' testimony in the representation case, in
which, according to the Respondent, Johns
claimed that the Respondent "completely con-
trolled" the drivers' delivery areas In the represen
tation case testimony cited by the Respondent,
however, Johns stated that the Respondent re
duced the size of his territory at his own request
We find no material inconsistency in Johns' two re-
countings of that event
Similarly, the Respondent asserts that Johns testi-
fied in the representation case that he was not al-
lowed to take his van home, but admitted in the
unfair labor practice hearing that he had taken his
van home several times for repairs and mainte
nance That assertion is only partly correct Johns
did testify in the representation case that he was
not allowed to take his van home, but he also testa
feed in that proceeding that he had taken his van
home in order to have maintenance work done on
it Thus, although Johns testimony in this respect
casts doubt on the Regional Director's finding that
1 1 Indeed Gillihan corroborated one significant item of the drivers
testimony Notwithstanding his assertions that the Respondent has no dis
ciphnary rules for drivers and that drivers can set their own hours of
work Gillihan admitted in the representation hearing that he had told
Andrzejewski your contract is terminated one day when he reported to
work at 10 am after being absent without a replacement 2 days earlier
12 In the course of the representation proceeding Gillihan did contra
dict parts of the drivers testimony by asserting that certain of the Re
spondent s policies toward the drivers are not mandatory but only re
quested or suggested Thus Gillihan testified that drivers are requested
but not required to wear uniforms and to call in if they are going to be
absent Styling such company policies as requests instead of rules or
requirements however does not preclude a finding that the Respondent
controls the drivers methods of operations The Board has observed that
control may be exerted by means of such suggestions or requests as well
as by strict requirements Amber Delivery Service 250 NLRB 63 65 fn 5
(1980) modified on other grounds 651 F 2d 57 (1st Cir 1981)
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
drivers are not permitted to take their vans
home,13 that testimony is not self-contradictory
Finally, the Respondent observes that the judge
rejected Cooper's claim that his financial difficul-
ties were caused by the Respondent's requiring him
to rent a van from it while his van was being re
paired That observation is true enough, but it is in
no way inconsistent with Cooper's representation
case testimony, on which the Regional Director
relied, that he was required to rent the van
In summary , we find that none of the testimonial
difficulties relied on by the Respondent compel a
result different from that reached in the representa
tion case 14 Specifically, we find that the Respond-
ent has not offered to adduce anything that would
compel us to reject the Regional Director's find-
ings that (1) the drivers perform functions that are
an essential part of the Respondent's business, (2)
they have an exclusive working relationship with
the Respondent that does not enable them to pick
up other business, (3) they do business in the Re-
spondent's name and under its supervisors, and sell
only its services, (4) their contracts with the Re-
spondent can be terminated at any time without
cause , (5) the areas of delivery, and the numbers of
stops and packages, are determined by the Re-
spondent, (6) the drivers have no proprietary inter-
est in their routes, (7) they must keep records re
quired by the Respondent (and not by law or regu
lation), (8) they must wear uniforms , and must
maintain their own and their vans' appearances to
the Respondent's standards, and (9) some drivers
have been disciplined for derelictions Consequent-
ly, there is no reason for us to reexamine the Re
gional Director's findings that entrepreneurial deci-
sions affecting the drivers profit and loss picture
are not made by the drivers, and that the Respond
ent tells the drivers how to perform their work
tasks well beyond the point of simply dictating the
result , or his conclusion that the drivers are em-
ployees and not independent contractors See
Roadway Package System, 288 NLRB 196 (1988)
Accordingly, we shall adopt the judge's Order
13 Gillihan testified that the Respondent had no restrictions on drivers
taking their vans home In any event the Regional Director did not spe
cifically rely on that finding in determining that the drivers are employ
ees
'4 In fact the judge made numerous findings to which the Respondent
has not excepted that are consistent with the drivers status as employ
ees Thus the judge found that drivers did not have the discretion to
accept or reject parcels placed on their vans that Vic Chomic actually
had been terminated for refusing to make deliveries at the Royal Oak K
Mart that the Respondent had unilaterally changed Michael Malaspina s
route without his consent and that prior to his discharge Chomic had
been told by Gillihan that before he could go to work he must change
from his street clothes to his uniform (the last despite Gillihan s testimony
in the representation case that drivers are not required to wear uniforms)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Roadway
Package System, Inc, Redford, Michigan, its offi
cers, agents, successors, and assigns, shall take the
action set forth in the Order
Michael R Blum Esq and Charles F Morris Esq, for
the General Counsel
Robert D Randolph Esq (Buchanin Ingersoll) of Pitts
burgh Pennsylvania , for the Respondent
Terrence F Srsen Esq , of Pittsburgh Pennsylvania, for
the Respondent
Michael A Taylor Esq and Fred W Suggs Jr Esq (Og
letree Deakins Nash Smoak and Stewart), of Green
ville, South Carolina for the Respondent
Jerome S Coleman Esq (Coleman Webster and Brad
ford), of Farmington , Michigan , for the above entitled
Individual Charging Parties exclusive of Vic Chomic
DECISION
STATEMENT OF THE CASE
THOMAS R WILKS Administrative Law Judge This
case involves a consolidated prosecution of alleged unfair
labor practice charges filed against Roadway Package
System (Respondent or RPS) by the above entitled indi
vidual employees, and Local 299, International Brother
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO (the Union) The litiga
tion of this matter encompasses six separate alleged dis
criminatory terminations of drivers and other acts of dis
crimination and coercion by the Respondent all of
which occurred over a period of time from mid Novem
ber 1986 through May 6 1987 during which time the
Union sought and obtained certification by the Board as
exclusive driver collective bargaining agent in Case 7-
RC-18212 In addition to the discrimination and coercion
litigation this matter also involves litigation of Respond
ent s refusal to honor the Boards certification of the
Union as bargaining agent that resulted in the issuance of
a complaint in Case 7-CA-27253 that was consolidated
at trial on the unopposed motion of the General Counsel
Part of the defense of the discrimination and test of certi
fication issues is the Respondents contention that the
drivers are not employees as defined by the Act, but
rather are independent contractors
The trial of this matter was conducted on September
16 through 18 October 6 through 8, and October 22,
1987 on which last date the hearing was adjourned sine
die on the conclusion of litigation of all cases except that
of Case 7-CA-27253 i e the test of certification case
Thereafter motions countermotions and supporting
briefs were submitted by the parties that addressed the
General Counsels Motion for Summary Judgment in
Case 7-CA-27253, the issue of whether Respondent had
raised a litigable issue in that case to warrant resumption
of the trial and the General Counsels posthearing con
tangent motion for severance of Case 7-CA-27253
ROADWAY PACKAGE SYSTEM
On December 21, 1987 I issued an order whereby the
hearing was closed a determination was made that no
litigable defense was raised by Respondent in Case 7-
CA-22753 severance of Case 7-CA-27253 was denied,
and a date for briefs was set That order is reproduced
and attached as Appendix A and contains a more pre
cise chronology of the pleadings, a description of the
issues, and position of the parties and material evidentia
ry rulings made at the trial with respect to Respondent s
discrimination defense regarding the employees status
issue
On January 20 1988, I received from Respondent a
motion for reconsideration of the December 21 Order
That motion was denied by order issued February 16
1988, and is reproduced and attached as Appendix B I
Briefs were filed by the parties on or about February
1, 1988 The Respondent and the General Counsel each
filed motions to correct transcript which are granted
Based on the entire record in this case, including my
observation of witness demeanor and on the record in
Case 7-RC-18212 of which I incorporate here by virtue
of my determinations to permit limited litigation of em
ployee status in the discrimination cases and based on
the briefs of the parties I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
At all times, Respondent a State of Delaware corpora
tion has maintained its principal office and place of busi
ness at 410 Rouser Road, Coraopolis Pennsylvania (the
principal office) Respondent maintains other installations
in the States of Michigan, Ohio, Indiana and other
States Respondent is and has been at all times material
engaged in the business of pickup and delivery of small
packages The installation located at 12080 Dixie Street
Redford Michigan is the only facility involved in this
proceeding During the year ending December 31 1986
which period is representative of its operations at all
times material Respondent in the course and conduct of
its business operations described above in paragraph 3
derived gross revenues in excess of $50 000 from the
transportation of freight and commodities in interstate
commerce between the State of Michigan and points lo
cated in other States During the same period of time,
which is representative of its operations during all times
material Respondent in the course and conduct of its
business operations performed services valued in excess
of $1 million of which services valued in excess of
$50 000 were performed in and for various enterprises lo
cated in States other than Michigan outside the State of
Michigan
Respondent is now and has been at all times material
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
I In the text of those orders the discrimination allegations are referred
to as 8(a)(1) and (3) violations However these allegations also include
8(a)(4) violations
II LABOR ORGANIZATION
379
Local 299, International Brotherhood of Teamsters
Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO (the Union) is, and has been at all times mate
rial a labor organization within the meaning of Section
2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
The Respondent, often referred to in the record as
RPS has in recent years commenced national parcel de
livery operations in direct competition with the domi
nant established competitor United Parcel Service
(UPS) In March and April 1985, five of the alleged dis
criminatees were hired Trimble was hired in Janury
1986 All performed package pickup and delivery driver
services at the Redford, Michigan terminal in suburban
Detroit which is one of many nationwide RPS facilities,
which include hubs and terminals Owner operators of
tractor trailer equipment provide inter hub/terminal car
riage Owner operators (of package pickup and delivery
vans), referred to in the records variously as contract
drivers or P & D contractors, transport packages via
walk in type pickup and delivery vans from shippers
to terminate and from terminals to the consignees These
contract drivers are supplemented on need by temporary
drivers whose services are obtained through another
business entity All the alleged discrimmatees were con
tract drivers except for Trimble, a temporary driver
During the time period in which the alleged discrimin
atees were hired Respondents Redford operation was
expanding in customers serviced Each driver serviced a
specific core zone i e, geographic area centered on
greater Metropolitan Detroit which included Ann Arbor
to the west and Mt Clemens to the north As more cus
tomers subscribed to the RPS service the core zones
were according to expressed policy condensed and
more drivers were engaged During most of 1986 the
Redford terminal manager was Tom Schirr As contract
driver Johns testified the volume of business had in
creased to the problem level by May 1986 and in conse
quence, Schirr had promised to acquire more new driv
ers to relieve the delivery load on each of the drivers
However, as Johns testified in late August or early Sep
tember 1986 Schirr had returned from a managerial
meeting with his superiors at the regional RPS headquar
ters in Columbus Ohio and announced that there were
to be no further reductions in core zones that there were
to be fewer drivers, and that all drivers must undertake
to deliver everything assigned to them for delivery, i e
no more undelivered package backlogs That announce
ment caused Johns and his fellow drivers immediate con
sternation
Although the drivers were dissatisfied with the oper
ation of the terminal during the summer of 1986 RPS
management also was dissatisfied Respondents uncon
troverted testimony in part corroborated by General
Counsel witnesses reveals that the Redford terminal was
experiencing an inordinately low 60 percent timely de
livery rate i e delivery on the date promised, and of
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
less than 4000 packages per day, between 700 to 800
packages were stacked on the dock undelivered Johns
testified to instances of packages being left to stand on
the dock for periods of up to 2 weeks General Counsel
witness Scott Wieman a former coordinator whose re
sponsibilities, including inter aha supervision of load
ers conceded in cross examination that the loaded com
plement consisted of part time college students of whom
there was a high degree of employment turnover and
who, in consequence of lack of experience, frequent ab
senteeism , and/or other deficiencies, caused a significant
amount of nightly package misloading and such daily
negligence as leaving the internal compartment van
lights on so as to drain the vehicle battery power to the
consternation of the drivers on their morning arrival
General Counsel witness, contract driver Robert Biluk
conceded in cross examination that he found it necessary
to re sort his loads daily which consumed up to an hour
in time and on one occasion he found it necessary to
confront his loader at a special meeting Chomic admit
ted the same and added that his van was never loaded
properly He also admitted that Manager Schirr failed to
enforce numerous RPS work rules and in effect, the op
eration of the terminal was not effectively executed
In October 1986 Terminal Manager Schirr was terms
nated on October 8 and replaced by Pat Gillihan on Oc
tober 13 Also on October 6, Rick Meyer entered on
duty as the terminal operations manager These moves
had been preceded by the early September 1986 hiring of
Dan Carney as a coordinator trainee
Without controversion, Meyer testified that a prime
RPS sales marketing feature is its representation of an
ability to trace the present whereabouts of all packages
in the delivery process This he claimed is a vaunted
advantage over its arch competitor UPS He explained
that on his third day of employment, an RPS regional
manager confronted him with the Redford terminals de
livery failure problem In consequence he thereafter
evaluated the operation and it is his testimony that he
concluded that because of a lack of control of the
drivers there was an uneven distribution of individual
core zone delivery volume and a high degree of selective
delivery i e cherry picking by the drivers who were
paid at a per package per stop rate in order to obtain the
most productive deliveries with the least amount of driv
mg and time consumption Meyer testified without con
troversion that one method utilized in RPS operations
involved a recordkeeping function by drivers for unde
livered packages known as service crossing which in
volved annotations on the package shelf He testified that
he had observed nonenforcement of that policy at the
Redford terminal He testified that his first task was to
clear the docks of unloaded packages
Gillihan testified that on his assignment to the Redford
terminal he was charged with the duty to immediately
implement and enforce RPS policy that he discovered
was not being effectuated Meyer testified that he and
Gillihan consulted and that Meyer thereafter devised a
method of leavening heavy individual core zone peaks
by assigning some of that zone s delivery to other less
burdened nearby zones for that particular experience
time period This policy he characterized as flexing
and thus he acquired the nickname of Flex In cross
examination he admitted that he did not enforce the
noncross service penalty on day one but shortly there
after, following a grace period of a couple weeks
maybe
In cross examination , Biluk in further reluctant admis
sions, conceded that on the hiring of Gillihan Meyer,
and Carney, almost immediate changes in operations
were effected and although some temporary drivers were
hired the RPS rules were reinforced to such an extent
that the number of undelivered packages was palpably
reduced and things were cleared up and packages
were no longer left on the docks without a reason
Thus it was through Meyer that he arranged personally
to confront and educate the night crew loader assigned
to his van Biluk conceded that prior to the managerial
change and its new vigorous enforcement of outstanding
RPS operation rules, he probably would not service
cross an undelivered package although he admitted that
the concomitant recordkeeping, sheeting, had always
been the existing rule Malaspina, however testified that
he had always service crossed his undelivered packages
except the week of his discharge Johns testimony con
firmed that some drivers did not accept or comply with
that rule as he asserted that he never had service crossed
or sheeted his undelivered packages He even denied that
it had ever been a rule
Malaspina, in cross examination admitted that he had
submitted to the investigating Board agent a copy of a
letter that he had in his possession That letter dated Oc
tober 8 1986, addressed to All RPS contract drivers
and signed by RPS Vice President John P Chandler,
contained a variety of advice and instructions one of
which stated
another way a contractor can exercise fiscal respon
sibility is by avoiding financial penalties Don t set
yourself up for a claim by driver releasing to a
non residential customer or by allowing a tempo
rary employee to sign for receipt (and have the con
signee later disclaim signature ) Accurate sheeting
insures that you re paid for every delivery and main
tains your customers satisfaction with our collect
and tracing systems
Alleged discriminatee Trimble admitted that changes
in operations came immediately on the change in man
agement e g, his delivery times were changed and the
delivery routes were flexed He testified that on the
onset of flexing perhaps even before Gillihan s arrival
he observed a commotion on the loading docks when
Meyer was attempting to flex Johns route in the pres
ence of several drivers , including Johns Cooper Biluk,
and others who openly scorned and laughed at Meyer
and his flexing efforts in what Trimble characterized a
hilarious ' manner He conceded however that the flex
mg continued , clearly to the dislike and consternation of
the drivers
B Union Organizing Efforts
The drivers were dissatisfied with what they had per
ceived to be adverse treatment under the management of
ROADWAY PACKAGE SYSTEM 381
both Schirr and Gillihan Chomic testified that in a con
versation with Gillihan he explained the drivers motiva
tion for seeking union representation as follows
We needed protection It [Respondent] was
cutting our pay [by manipulating the routes ] telling
us where to run how to run [i e deliver] what
time [to deliver ] and [Respondent] left us with no
alternative but to get some backing
In the summer of 1986 , Wieman requested of Schirr
that he discharge Johns for refusing to deliver an as
signed load According to Wieman , he later rescinded
that request on receipt of a subsequent apology from
Johns However , the incident rankled Johns He testified
that when Schirr had returned from Columbus in late
August 1986 and announced the expectation that every
thing had to be delivered , that was the very day that
prompted him to first contact the Charging Party Union
which subsequently put him in contact with its agents
Smith and Merritt He testified that subsequent to his
conversations with Smith and Merritt he arranged one or
more meetings with fellow employees at a local bar Fur
ther he testified that the first such meeting followed on
his threatened discharge for his refusal to service a par
ticular site, i e , the Selfridge National Guard Air Base
He testified that at the first meeting he had with drivers
Darrell Cooper , Richard Andrzejewski Victor Chomic,
and two other nondiscrimmatee drivers they discussed
possible union representation and how to organize,
whereupon Johns revealed to them his earlier contact
with Merritt and Smith who he explained , desired to
meet with them In cross examination he denied that
Schirr had threatened him with discharge as early as
May 1986 for refusing to service the Selfridge site and
asserted that although the subject was discussed in May
the actual discharge warning came in late August or
September 1986 In so doing, he contradicted his pretrial
affidavit which placed his refusal to service the base and
the threatened discharge in May 1986 In attempting to
reconcile his confusing testimony he then testified that
he had contacted the Union also in May 1986 He testa
fled unconvincingly It s what I recall at this particular
time
Cooper testified that he had frequently complained to
Schirr of unwieldly large core zones of a too lengthy
workday, and that the drivers were angry According to
Cooper he and Johns first talked seriously of union rep
resentation in July and August but they got really sera
ous in September conversations at Lee s Bar
Cooper testified that as early as April 1986 he wore a
UAW windbreaker and UAW hat and was teased by
Schirr who told him to take off the jacket because we
don t want a union in here In any event because of the
warmer weather he had no further use for it He testified
that in September he had a conversation at Lees bar
with Bannon where Cooper stated that by its ill treat
ment of the drivers and unfulfilled promises for improve
ments that RPS was just asking for union organizing at
tempts, to which Wieman merely responded that he
thought that the drivers were not entitled to union repre
sentation because they were independent contractors
and that they could bring their complaints to Schirr
Cooper testified that he felt he had a good rapport
with Scharr and often did take complaints to him He tes
tified that he often drank socially at Lee s bar with both
Wieman and Bannon and often complained to them
about working conditions
Johns testified , with codriver corroboration , that two
meetings were held in October 1986 between the two
union agents and some of the RPS drivers at the nearby
Mama Mia Pizza Restaurant Neither of the union agents
was called as a corroborative witness About 13 drivers
attended the first meeting on October 23 at which union
representation authorization cards were distributed and
signed by drivers including Johns, Chomic Cooper, and
Trimble the only temporary driver present Andrze
jewski was present but it is not clear whether he execut
ed an authorization card Malaspina testified that he only
attended the second more heavily attended meeting on
October 30, at which he executed an authorization card
Other drivers executed cards at both meetings
On October 24 1986 the Union filed with the Region
al Director in Case 7-RC- 18212 a petition for certifica
tion of bargaining representative for a unit of all full
time contractor drivers but excluding temporary and
dock workers , as well as supervisors clericals, and other
employees
On November 14, the Regional Director caused a
hearing to be held on that petition at which driver Johns
testified on behalf of the Union That hearing was ad
journed to the announced date of December 4 at which
Johns, Andrzejewski , and Cooper testified as union wit
nesses The hearing was closed on that date but, on De
cember 31 the Regional Director issued an order re
manding proceeding for further hearing and notice of
hearing
The issue of the first two proceedings was the employ
ee status of the contract drivers The announced issue of
the remand hearing held on January 5 1987 was the em
ployee status of temporary drivers i e whether they are
employees of RPS or of the entity Contract Staffing
Services , which provides their services to RPS or
whether they are employees of both No drivers testified
at that hearing
On February 19 1987 the Regional Director issued
his Decision and Direction of Election where he found
both contract drivers and temporary drivers to be em
ployees under the definition of such in the Act and de
termined the appropriate bargaining unit to be
All contract drivers and temporary drivers em
ployed by Roadway Package System s, Inc at its
[Redford] facility but excluding dock employ
ees office clerical employees , guards and supervi
sors as defined in the Act
Subsequently, on March 4 the Respondent filed with
the Board its request for review of the Regional Direc
tor s Decision and Direction of Election By Order dated
March 19 1987 the Board granted review but affirmed
the Regional Director 's decision
On March 20 1987 the Regional Director conducted
an election among the employees in the bargaining unit
Driver Chomic served as the union observer The tally
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of ballots revealed that of approximately 40 eligible
voters, 27 had voted for representation, 10 against, 7
nondeterminative ballots were challenged, and 1 was
even voided. On March 27, the Respondent filed objec-
tions to the conduct affecting the results of the election.
These objections related to alleged improper union con-
duct at the polling place and, based on an investigation,
were overruled by the Regional Director who issued his
supplemental decision on objections and certification [of]
representation on April 30, 1987.
On May 13, 1987, Respondent filed with the Board its
request for review of the Regional Director's decision on
objections which was denied by the Board on July 27,
1987. As detailed in Appendix 13, the Respondent has
since refused to honor the certification.
C. Respondent's Awareness of and Hostility Toward
Union Activity
Except for two witnesses, former coordinator Scott
Wieman and driver Biluk, the General Counsel's case
rests on the testimony of the alleged discriminatees, of
whom credibility deficiencies will be discussed at length
further on. The General Counsel, in the brief submitted
by her counsel, places great emphasis on the testimony
of Wieman whom he argues was uncontroverted and
conclusively probative of Respondent's awareness of and
animosity toward union activity which manifested itself
in surveillance of and coercive interrogation of union ac-
tivities. As the General Counsel has done in the brief, I
will first consider the strategic testimony of Wieman and
will evaluate other evidence of independent violations of
Section 8(a)(1) of the Act as I consider the evidence of
the alleged 8(a)(3) and (4) discharges seriatim.
Many of the alleged violations of Section 8(a)(1) of the
Act are based on the activities of Wieman, Craig
Bannon , Robert Hillis, Richard Manner, or Tom Gustaf-
son, whose supervisory and agency status is denied by
Respondent, who rests its defense regarding these allega-
tions on the assertion that the General Counsel has not
proven their alleged status. They were therefore not
called to testify in behalf of Respondent.
Wieman was employed by Respondent at Redford
from 1985 until April 17, 1987, when he resigned. He
worked variously as a day and night coordinator. He tes-
tified in generalized terms that as a day coordinator he
was "responsible" for 28 drivers whom he "tried to
help" through "observation rides" with respect to their
delivery and driving methods. He did not explain. He
also testified that Schirr utilized Wieman's prior UPS ex-
perience and that he, Wieman, "tried to implement some
of the UPS methods" at the new Redford RPS facility.
At some unspecified time Wiemann was moved by Schirr
to the nighttime inbound coordinator position, where he
remained until 4 weeks after Gillihan entered on duty. In
that position, he was "responsible" for the unloading of
the inbound delivery trailer-trucks and transfer of pack-
ages onto the vans for daily delivery. He testified, "My
authority there, as I assumed, was to train , request hiring
of more personnel, and discharge if necessary, but I
never had to exercise that authority." Gillihan later
moved him to "day time driver supervisor [and] coordi-
nator ," where he "rode with drivers again."
Regarding Richard Manner, Wieman testified that
Manner, as an account representative, solicited and serv-
iced accounts, i.e., customers.
Wieman testified that he first became aware of union
organizing activities at the Redford terminal about 5 to 6
weeks after Gillihan's commencement of management,
i.e., mid- to late-November. At that time Gillihan sum-
moned to his office and met with Meyer, Wieman,
Manner, coordinators Carney and Bannon , and an indi-
vidual identified as Steven Burns. Gillihan announced
that the Union had petitioned the Board for an election
for contractor driver representation; Gillihan said noth-
ing more to them at that meeting except that he would
keep them informed of the status of that proceeding and
that otherwise "it's business as usual." To the following
suggestive General Counsel questions, Wieman testified
as follows:
Q. Now, around this same period of time, did-I
ask whether or not Mr. Gillihan had asked any spe-
cial duties of you with respect to keeping an eye on
employees.
A. He said-he directed us to let him know if we
heard anything about union activity.
Q. This was at the meeting?
A. Yeah.
Q. Okay, other than that, had you and Mr. Gilli-
han engaged in other observations of employees?
Taking his lead from the last question, Wieman then pro-
ceeded to testify that on an unknown date which is
beyond his recollection, he, Gillihan, and an RPS coordi-
nator now in Cleveland, Ohio, drove to the Mama Mia
Pizza Restaurant parking lot. He testified in conclusion-
ary terms that the purpose of that trip was to discover
who attended the union meeting and that Gillihan asked
him whether he had recognized anyone's "car" in that
parking lot, to which he responded by identifying Johns'
Renault. They did not enter the restaurant. Wieman also
saw a vehicle that he identified somehow as a "299" van.
He testified that he was aware of a union meeting there.
On the court's specific request for a foundation for this
testimony and what was stated, rather than what was
speculated by Wieman, he responded:
It was my speculation. I really don't remember if
[Gillihan] said, let's drive through here and see if
they're having a meeting. I don't remember him
saying that.
Wieman conceded that the only recollection he had of
the event was Gillihan's question about whether Wieman
could recognize a vehicle in the lot. Even on further
leading questioning he could recall no more. This fore-
going generalized, conclusionary testimony adduced by
leading questions, from a witness who gave every ap-
pearance of eagerness to cooperate but who could not
recall essential elements of the event, totally fails to justi-
fy the General Counsel' s reliance on it in his brief as pro-
bative evidence of surveillance of union activity. What
little that can be derived from it can equally support a
conclusion that on some unknown date the three men
went out, perhaps to have a meal or a drink, and Gilli-
ROADWAY PACKAGE SYSTEM
han for reasons of his own wished to avoid encountering
any of the drivers and, having discovered that Johns car
was parked there they all drove off Wieman s testimony
that he was aware that a union meeting was being held
was without explanation or foundation and of no proba
tive value, particularly in light of the nature of his testa
mony described above and his recollective deficiencies of
this event Further, in the limited context in which it was
given, Gillihan s request to be informed of knowledge by
alleged supervisors/agents of union activities does not
constitute sufficient evidence of an instruction to engage
in unlawful activities If anything Gillihan s expressed
reaction to the news of union organizing efforts appears
restrained i e his instruction to go about business as
usual
The General Counsel adduced further testimony from
Wieman in support of paragraph 10(b) of the second
amended consolidated complaint where on November
14, 1986, onerous working conditions were alleged to
have been imposed on the Charging Parties, including,
inter alia , changing regular routes, arbitrarily de
ducting money from their pay, supervising improper
loading of packages onto their vans, and leaving
compartment lights on in Andrzejewski s van result
ing in a dead battery
Wieman s attention was directed to the first day of the
representation hearing, i e, presumably the hearing on
November 14 Wieman testified that he attended the
hearing on that date He was asked whether in reference
to that date the new terminal had made changes in the
way employees were paid With visible perplexity he
responded as far as I know they were paid packages
per package and per stop, as long as I was there There
after, he was led to testify about the enforcement of cer
tarn rules concerning certain paper processing and record
annotation of the delivery status of packages by the driv
ers as contingencies for their receipt of payment for de
livery When asked whether this was effective after the
date of the first hearing, he answered in an uncertain
manner I believe so yes He denied the General
Counsels suggestion that changes were made regarding
the recording of the number of packages entered on their
service sheets When prodded further he testified that
incompleted driver delivery records i e the driver s bill
to the Company were to be no longer tolerated and cor
rected for the driver, but would henceforth be cause for
nonpayment He was not sure whether this rule was en
forced before or after November 14 Regarding nonpay
ment for illegibly filled out billing forms i e sheeting,
suggested by the General Counsel he testified illegibil
ity never came into play ' On reference to his pretrial of
fidavit, he recalled that another new rule was the with
holding of payment for the driver s failure to print out a
legible consignee signature Wieman then acquiesced to
the General Counsels assertion in the form of a question
that the changes occurred after the November 14 hear
ing In cross examination Wieman testified that all the
new rules regarding driver recordkeeping and payment,
etc were applied to each and every contract driver and
temporary drivers employed by RPS The complaint
383
only alleges a selective imposition of onerous working
conditions i e on the Charging Parties
The General Counsel argues that Wieman was ordered
to and did engage in coercive interrogation of employ
ees particularly driver Kevin Belisle Since about Sep
tember 1986 Wieman had bowled in an independent
bowling league on the same team with contract drivers
Kevin Belisle and Vincent Pizzu Wieman testified that
Tom Gustafson contract relations manager, whose
supervisor/agency status is denied on or about Novem
ber 14 1956, instructed Wieman to resign from the
league No context for the instruction was given, but it
frustrated rather than encouraged interrogations of union
activities
According to Wieman s uncontradicted testimony in
direct examination the following occurred at the Red
ford terminal offices in February 1987 Gustafson con
ducted a meeting with Gillihan, Meyer, Wieman Ac
count Representatives Burns and Manner, and Coordina
tor Bannon At this time Wieman had been promoted to
account representative position but had not yet been as
signed his new duties, i e he was still a coordinator
Gustafson instructed the assembled group on how to
conduct themselves during the union election campaign
and gave them pamphlets on how to behave He specifi
cally ordered them not to question employees about
union organizing activities but that they should feel
free to write down and report to Gillihan or Gustafson
any information volunteered to them regarding meetings
or execution of union cards Gustafson stressed that such
information must not be solicited by them nor should
they initiate conversations They were ordered to memo
rize the printed limitations on their conduct to be found
in pamphlets Clearly Respondent put the coordinators in
a position of becoming its informational conduit, i e , its
eyes and ears during the election campaign, and consid
ered them to be representatives of management by virtue
of instructions concerning their behavior in the cam
paign Regardless of Gustafson s disputed status, admit
ted supervisor and manager Gillihan and Meyer were
present and acknowledged Gustafson s authority and
thereby made clear to those attending that Gustafson s
instructions were to be obeyed The above evidence
however undermines any notion that they were to be
utilized as agents for coercive unlawful election interfer
ence The General Counsel adduced further testimony
from Wieman in support of his assertion of unlawful in
terrogation
Wieman testified without contradiction to the follow
ing events Wieman had been at the RPS headquarters in
Pittsburgh, Pennsylvania, and at Chicago, Illinois for
about a week in each city for training Gustafson told
him apparently on an earlier unclear date that he wanted
his presence at the Redford terminal during the preelec
tion period to try and to work with the drivers not to
have the union election After more confusion and after
resort to a calendar Wieman testified that he returned to
the Redford terminal on February 23 1987 Wieman tes
tified When I got back Pat Gillihan asked me to ride
with Kevin Belisle, to see what I could find out about
the Union According to Wieman, it was part of a coor
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dinator's routine duties to ride with the drivers. On Feb-
ruary 25, Wieman did ride with Belisle. Wieman an-
swered "yes" to the General Counsel's questions about
whether he did "discuss the union," whether he did dis-
cover Belisle's feelings about it, whether he reported
back to Gillihan ("I believe I did"), and whether he had
filed earlier "reports" on other employees. In direct ex-
amination , he testified, when asked how he gained this
information, that the drivers volunteered the information
during the discussion about delivery methods. In cross-
examination , at first he testified that he did not recall in-
terrogating any driver regarding the execution of a union
card. When confronted with his pretrial affidavit given
to a Board agent, he admitted it as true and correct. It
stated: "I never asked any driver whether he had signed
a union card." Belisle did not testify. There is no support
in the record testimony of Wieman to warrant the Gen-
eral Counsel's characterization of it as unrefuted evi-
dence of coercive interrogation. Wieman's testimony
clearly fails to support the allegations of the complaint as
amended on August 25, 1987, paragraphs 8(h)(1) and (j),
relating to surveillance on October 30, 1986, and Febru-
ary 23, 1987, and interrogation on February 23, 1987.
His testimony fails to disclose that Weiman was in-
structed to engage in any unlawful activities. His instruc-
tions from Gustafson and Gillihan are ambiguous and
equally susceptible to the interpretation that he merely
report back information volunteered by garrulous em-
ployees who, themselves, initiated union-oriented conver-
sations, particularly in light of Gustafson's earlier orders.
Such information could be useful for legitimate campaign
tactics and not necessarily violative retribution. The
General Counsel does not argue the rationale found in
the dictum in Cannon Electric Co., 151 NLRB 1465, 1468
(1965), which, in any event, was reversed by the Board
in Resistence Technology, 280 NLRB 1004 (1986).
Contract driver Robert Biluk was called by the Gener-
al Counsel and testified about the imposition of onerous
working conditions. He had been hired in March 1986 as
a temporary driver and became a contract driver in Sep-
tember 1986. He testified that in October 1986, through
"negotiation" with Meyer, he accepted the core zone of
former contract driver Loeffler. He admitted that he had
the discretion to reject that offer. With respect to flex-
ing, he testified that he usually, but not always, was given
a choice in accepting the ad hoc change in his delivery
route to accommodate peaks and valleys of package
volume, i.e., "flexing." He testified that in the Novem-
ber-December 1986 period, Respondent "began enforcing
some things that probably hadn't been done before," i.e.,
deduction for incorrect package sheeting and illegibility
of consignee signatures . He testified: "Things like just
making sure that your paperwork is in proper order, you
know," and "they just began watching it a lot more
closely [driver check-in] because a lot of errors were
coming up and to alleviate the problem, they more or
less cracked down on driver check -in." In cross-examina-
tion, he admitted that illegible consignee signatures had
been a recurring problem and that he had been subject to
the new rules of recordkeeping. He also admitted that
these rules had been effectuated in October and November
1986.
Biluk testified that it was not until the pizza restaurant
meeting on October 23 that he became aware of any
union discussions among employees. He testified that on
that date he had seen a notice posted on the bulletin
board maintained by Respondent in the room reserved
for drivers to do their paperwork. The notice openly an-
nounced that a union meeting was to be held at the res-
taurant at which the union organizers would speak to the
drivers. On reading the notice, Biluk approached Bannon
and asked him where the pizza restaurant was located,
and Bannon answered, "Yeah, are you going to the
meeting?" Biluk answered, "Yes" and was told that it
was located "just down the street on Plymouth [Road]."
Bannon said nothing more.
The only complaint allegation involving Bannon is
confined to paragraph 8(a) of the second amended con-
solidated complaint that alleges that, on or about Octo-
ber 24, Bannon created the impression of surveillance of
employees' union activities and appears to be related to
another incident to be discussed below. The incident
with Biluk is not argued in the General Counsel's brief.
However, I conclude that it constitutes neither evidence
of surveillance nor, in its context, coercive interrogation.
Other evidence of alleged coercive and discriminatory
conduct adduced by the General Counsel is found solely
in the testimony of the alleged discriminatees which will
be evaluated below as each Charging Party's case is
evaluated seriatim in chronological order of their termi-
nations and, finally, in consideration of the record as a
whole.
D. Steven Trimble: Case 7-CA-26384
Trimble commenced employment as a temporary
driver at the RPS Bedford terminal June 2, 1986, after
having been telephonically interviewed by Schirr, and
personally interviewed by Bannon who later informed
him of his hiring, oriented him about his duties, assigned
him his routes, and assigned him a rented van. Trimble
worked for about a month on an "on call basis." Subse-
quently, both Bannon and Wieman discussed with Trim-
ble the prospect of his being assigned to the Lake Orion,
Oakland County route, i.e., a nonfull-time contract driver
route. In a final discussion, although Trimble was reluc-
tant to accept it and had protested a lack of knowledge
of Oakland County, Wieman ordered him to get a map
and study it. Trimble testified that he thus "accepted"
that assignment . The contiguous Counties of Oakland,
Macomb, and Wayne (Detroit and Redford, etc.) consti-
tute the Detroit metropolitan area . In July 1986, Trimble
commenced the service to Lake Orion. He testified that
he worked on a flat rate of pay, 5 days per week; that he
drove from 160 to 200 miles or more per 10- or 12-hour
day, depending on the number of packages, which
ranged from 50 to 100, and stops, and that he drove the
same route until November 1986. He testified, without
foundation for his conclusions, that all full-time tempo-
rary drivers drive the same routes daily. Johns testified
that he had initially been employed by Respondent as a
temporary driver and, by virtue of that position, he had
been subject to changes in route assignment and that he
had been so forewarned on his hiring. He did not testify
ROADWAY PACKAGE SYSTEM 385
as to his weekly hours of employment Cooper corrobo
rated Trimble with his own experience as a temporary
driver
The complaint alleges that on or about November 10
and 12, 1986, Respondent discriminatorily imposed on
Tumble more onerous working conditions by assigning
to him additional cities and increasing the length of his
workday It also alleges that Respondent discriminatorily
discharged him on March 12 Trimble is also involved in
allegations of coercive interrogation by Gillihan
Tumble testified to the following sequence of events
He commenced servicing the Lake Orion route in early
July At some unrecalled date in August, Terminal Man
ager Schirr and Coordinator Bannon conversed with
Trimble They informed him that contract driver Gary
Loeffler, with whom they were dissatisfied, was about to
terminate or be terminated and that Trimble could
assume Loeffler s van and his route if he were so inter
ested They told him it would be a profitable route They
tendered that option to him and left it open for accept
ance at any time Apparently Loeffler was soon termi
nated but Trimble had not been approached again and he
took no initiative of his own until an unrecalled date,
which could have been early, middle, or late October
when he was introduced to the new manager , Gillihan
Trimble told Gillihan of his expectation for the assump
tion of Loeffler s core zone and his van Gillihan told
him that he foresaw no problem to get Trimble into a
route as soon as possible on the payment of $500 in
order to assume Loeffler's lease/purchase agreement for
the delivery van, i e , the common procedure under
which contract drivers acquired their own vans through
financing with the General Electric Credit Corporation
Loeffler s route had been assigned elsewhere Driver
Andrzejewski testified that when Loeffler was terminat
ed in September or October part of the route was as
signed to Biluk Biluk testified that occurred on Loef
fler s termination Trimble testified that the paper
work for the van purchase was presented to him by
Gillihan and which he signed in Gillihan s office at the
end of the day on October 24, i e the day after the first
union meeting Trimble identified a copy given to him of
the agreement that he signed which was admitted into
evidence despite his confusion in identifying it That doc
ument reflected that RPS was the seller but also blank
spaces for the essential elements of the purported pur
chase agreement i e price It contained a purported but
not authenticated signature of Gillihan It does resemble
closely an authenticated signature admitted into evi
dence Trimble testified that Gillihan told him something
about the necessity for further paper processing that was
necessary prior to the transfer of van title but he could
not recall what was said Trimble identified another doc
ument as the standard mechanism for van lease/purchase
but testified that he had never been presented with it be
cause ` the papers haven't come yet Trimble testified
that this processing involved a credit check Gillihan tes
tified that he had no conversations with Trimble regard
ing van lease/purchase but he had been aware that the
paperwork had been in process at the time of Trimble s
termination, i e the cycle was never completed He
was unaware of what core zone might be assigned to
Trimble Clearly Loeffler s route had been immediately
given to others prior to October 27 and was not being
held for Trimble The only thing in abeyance was Trim
ble s purchase of a van There is no evidence of whether
the length of such processing was unusual Trimble testi
feed that afterward he spoke to Gillihan every night
about the anticipated event He did not disclose what
was said except that on November 7 or 10, he was told
that the papers were lost
Trimble testified that he first became aware of any em
ployee interest in union representation on the very day
of the first union meeting at the pizzeria on October 23
which he attended as the only temporary driver He tes
tified, without corroboration that he accepted five union
cards which he took away with him and for which he
thereafter solicited driver signatures during nonwork
time in the cabs of the drivers vans Presumably he con
veyed these cards to the Union but he did not so testify
On October 24, Tumble made a routine delivery to
the Union Lake K Mart store at which he conversed
with two female dockworkers, together and separately
about I 1 am He revealed to them the union meeting of
the night before and, in a jocular conversation, they told
him, Well, we 11 make you our union steward He re
sponded I would be glad to be a steward, I d be glad
to get the Union in
According to uncontradicted testimony the following
sequence of events occurred on October 27 On comple
tion of his route that evening , Trimble was summoned by
Bannon to a meeting with Gillihan alone in his office
Gillihan told Trimble that an account representative had
conveyed to him that one of his customers, i e K Mart
at Union Lake had disclosed that Trimble was talking
about the Union and about being a union steward
Trimble laughed and said You got to be kidding, we
don t have a union here and denied it Gillihan said
Well I got to know these things The conversation
then was diverted to other matters No more context was
provided about the Union Lake K Mart reference Trim
ble testified that he then asked Gillihan about the status
of his van lease/purchase agreement but at that point
before he could respond, Gillihan was interrupted by a
visitor with an urgent problem Trimble left and immedi
ately approached Account Representative Manner and
ascertained that Manner had serviced the Union Lake K
Mart and had reported the union referenced conversa
tion Trimble ascertained the informant was one of the
female dockworkers He then responded, You got to be
kidding Nothing more was said
Trimble attended the October 30 union meeting at the
pizzeria He testified that he spoke up at the meeting and
revealed the conversation with Gillihan concerning the
Union Lake K Mart incident and that he told the drivers
to stick together and that no matter what happens
you know, we need to get the union in , and other
things of which he had no recall but for which he was
applauded Malaspina characterized Trimble s remarks as
a speech but had no recollection of what he had said
Thereafter Trimble testified that he engaged employees
in conversations about the Union individually and pri
vately More union cards were signed thereafter
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Manager Meyer testified, without contradiction, to the
following events During the week preceding July time,
he was approached by the Brighton area core zone con
tract driver Steve Bell who suggested a realignment of
parts of certain contiguous areas Bell had been servicing
the Highland and Milford areas which are immediately
adjacent, about 11 miles northeast of Brighton Bell com
plained of problems servicing that extension of his area
and proposed a tradeoff whereby he could acquire serv
ice of the Wixom area, which was about the same dis
tance away but located southeast and more importantly
accessible from the 196 freeway from Brighton, and
eliminate Highland and Milford Bell argued that it
would be more convenient and profitable for him as it
would concentrate and increase his stops Meyer con
firmed this by studying the number of stops involved in
the proposal He therefore effectuated the tradeoff and
assigned the Milford and Highland service to the Lake
Orion service route Lake Orion is about 20 miles north
east from a point equidistance between Milford and
Highland
Trimble testified that his normal route had previously
taken him from the Redford terminal northwest to
Wixom, thence further northwest to the edge of Milford,
then back east to Union Lake, then several points north
to Clarkston, then east to Lake Orion, and finally Oxford
and Lenard, about 10 miles north of Lake Orion, after
which he returned south to the terminal in Redford
On November 10 Meyer informed Trimble that he
was to include the Milford and Brighton area in his de
livery zone The addition, of course would not effectu
ate an increase or decrease in his flat rate of pay, but
Trimble perceived the change as an imposition of more
work with no additional reward despite the fact that he
no longer had to service Wixom Meyer s testimony that
Bell was correct that Wixom would effectuate for Bell
an addition of a larger more concentrated and thus more
profitable core zone for a contract driver in return for
the abandonment of a more spread out less concentrated
area is uncontradicted and credited A flat rate driver s
interest is not governed by the number of stops because
it has no affect on his pay Fewer stops for a temporary
driver means less work Trimble testified that the change
effectuated about four or five more delivery stops in Mil
ford and several more in Highland and points further
west of Union Lake He testified that on the 10th even a
stop in Hartland was included, i e, west of Highland He
concluded that it added anywhere from 10 to 20 miles
to his entire trip, i e , a 5 percent to 10 percent increase
In direct examination he did not specify what if any in
crease, resulted in packages from his normal range of 50
to 100 per day, nor in stops which normally ranged from
30 to 50 per day He did not reveal how many Wixom
stops were removed nor how much mileage was elimi
nated He testified that he usually arrived back at the
Redford terminal between 7 to 7 30 p in At one point in
his testimony he fixed his normal workday at a maximum
of 12 hours, and at another time at 11 or 12 hours, i e ,
inclusive of the Wixom area Trimble testified that when
Meyer informed him of the route tradeoff, he protested
that he was not able to service such an expanded area
but that Meyer responded Either do it or we will get
somebody else that will According to Tumble, he an
swered, I will do my best, but recalled nothing else
According to Meyer s more detailed, unrebutted and
credible testimony there was more to the conversation
Trimble did protest but Meyer tried to explain the reason
for the change and why he thought it was feasible, point
ed out his theory on the map several times, and urged
him to give it a shot Trimble complained, as he did
when he first was assigned Lake Orion that he did not
know the area Meyer ordered him to take his time and
to learn it but Trimble continued to resist, whereupon
Meyer insisted that it was his decision and that it be
done During that discussion Meyer pointed out to Trim
ble that Wixom was more easily accessible to Bell via I
96 from Brighton where he was serving than Milford
Highland were from Brighton and that the latter two
towns were more easily accessible to Trimble via the
east west major highway, M 59, which ran from High
land directly east to Trimble s core zone area This is ap
parent on a casual inspection of the map Contrary to
Trimble s assertion Meyer testified that on November 10
he did not have any Hartland packages loaded on Trim
ble s truck because Hartland is directly north of Brighton
via freeway U S 23 and is incorporated into the Brigh
ton service area
Trimble testified that he delivered all packages loaded
in his truck on the 10th except those for Highland, Mil
ford and Hartland because he didn t have the time
Logistically his route would have included that area into
the early phase of his delivery as he would have serviced
these areas after Union Lake deliveries Therefore, he ex
plained that he assumed that he would not be able to
service the rest of his route had he attempted the newer
unfamiliar area He gave no foundation for this conclu
lion He returned the new area packages which he re
ported as DNAs, i e, deliveries not attempted From his
testimony it is clear that the Wixom area packages had
been loaded on Bell s truck thus there must have been a
concomitant reduction in service time and mileage but
Trimble was silent in his testimony about whether he
gave it any consideration On cross examination Trimble
refused to estimate the number of stops he normally
made to Wixom He testified in direct examination that
he did not recall his morning departure time but he re
called arriving back at 8 00, 8 30, maybe 9 00 o clock
at night but conceded that he really did not know the
time but it was late He testified that he put in 11
hours that day, which significantly is what he had esti
mated as within the range of a normal workday, if not
below it
In cross examination on confrontation with his own
signed delivery records he admitted that on November
10 he had delivered only 52 packages and had failed to
deliver 12 packages for the Milford Highland communi
ties Those records also reveal that the number of stops
he made were also at the low end of his normal range of
stops Also indicated was a pickup and delivery start
time of 9 am and end time of 7 30 p in and delivery
time of 10 1/2 hours in contradiction to Trimble s testi
mony Initially in cross examination he testified that it
had not been unusual for him to fail to deliver to entire
ROADWAY PACKAGE SYSTEM
communities When pressed for an example and for eluci
elation , he equivocated evaded , and finally admitted that
it was not usual to fail to deliver to entire communities
and that he could recall no such instance where he had
ever done so in the past
In cross examination , Tumble conceded that because
his packages had already been loaded on November 10,
he spent probably only 10 minutes sorting them prior to
his departure In direct examination , Trimble testified
that he normally arrived at 7 30 a in In cross examina
tion , he evasively equivocated about whether 7 a in was
his normal starting time and then , contrary to the com
plaint allegation and other witnesses, testified that it
changed so much that he could not recall He testified
that starting times were changed on the outset of the
new managers arrival to 8 30, 9 00 o clock He then
was unable to recall the hour his new starting time had
been set However , a 9 a in departure time appears inor
dinately late In further cross examination , he was unable
to recall that Gillihan and Meyer had effectuated any
changes in the drivers starting times
Trimble s unfounded conclusions , his admissions, his
evasions , his inconsistencies and his own contradicting
delivery records not only fail to establish that he had
been given an inordinately burdensome assignment on
November 10, but rather reveal him to be a most unreli
able witness , particularly when coupled with a most hest
tant , uncertain , and unconvincing demeanor The Gener
al Counsel in redirect examination elicited from Trimble
that he had 2 hours' sleep after he had finished his work
the night prior to his testimony This testimony might
explain some of his demeanor deficiencies but it does
nothing to enhance his testimonial reliability However
he appeared alert though at times confused, during cnti
cal examination
Trimble testified that he did not report for work on
November 11 because of a family emergency , having
telephoned his intent to RPS sales representative Steve
Burns at 6 30 a in He subsequently secured and took to
work on November 12 a doctor s excuse from his chil
dren s pediatrician He did so, he explained , not pursuant
to Respondents policy but his own policy Trimble tes
tified that he arrived and discovered that his load, in
cluding Hartland Milford, and Highland was not loaded
in his van as pursuant to his universal past experience,
and he proceeded to again argue and protest his assign
ment with Gillihan , initially on the dock and then in his
office in the presence of Meyer Trimble testified that he
recounted to Gillihan his experience on November 10,
i e , the additional areas assigned and stated to him that
he did not have enough time to make the deliveries that
he would be here three extra hours and would not
get off until 1000 or 11 00 o clock at night, from deliv
ery Trimble testified that Gillihan said, You got to do
it Trimble asked Meyer, while at that time on the
dock why his truck was not loaded and Meyer said,
We didn 't have the time Trimble testified that in an
angry agitated state, he then proceeded to load his own
van
Meyer testified that Trimble 's intended van had been
requisitioned by him during the night to process missorts,
i e, the inefficient loader tended to pile up assorted pack
387
ages at the end of the mobile belt transport which caused
packages to stack onto the dock area Meyer testified,
without rebuttal , that he routinely drove a rental van to
load missorts and then transport them back to the large
truck delivery areas He drove that particular van he
testified without contradiction , because the Lake Orion
route was one of the lighter routes i e 50 to 60 boxes
which could be stacked and easily loaded When Trimble
arrived , the van was parked there and about 50 to 60
packages were stacked for it on the dock Meyer testified
that a loader would need only 15 to 20 minutes to load
that amount , but he ran out of time to utilize a loader for
this job Trimble could not recall how many packages
were to be loaded , nor the number of stops
Meyer testified that Trimble was angry about the non
loading of his van and he tried to assuage him by telling
him that he was probably just as well off inasmuch as
loading would not take that long and packages would be
in proper order saving the 15 to 20 minutes Trimble nor
mally spent in re sorting the loaded van Meyer testified
that Trimble started to load but it was at this point that
he again protested the Milford Highland assignment stat
ing, Look , I ve told you I cant deliver this I don t
want to learn it According to Meyer, they both repeat
ed the discussion they had on November 10 at which
point Meyer stated , 'Steve , you re a temp [sic] driver I
need this done " Further protests were made by Trimble
and, according to Meyer , he again urged Trimble let s
give it a shot Meyer testified that it was at that point
Trimble and he went into the main office for the final
confrontation with Gilhhan who had been on the and
dock overheard their discussion
Trimble testified that as he was loading his truck he
had conversed with three other drivers Gillihan ob
served him talking and hollered at him Are you
loaded up? Hurry and get loaded up and get out' Trim
ble testified , inconsistently with foregoing testimony that
he usually arrived at the terminal at 7 a in, and therefore
this incident must have occurred at 7 30 a in In reaction
to being hollered at, Trimble testified that he ceased
loading and went into Gillihan s office to confront Gilli
han and Meyer Trimble testified that he reiterated his
prior protest but that Gillihan insisted Well you got to
do it whereupon Trimble stated If the Union was in
here you would not be doing us like this Trimble testa
feed that Gillihan then said Your services are no longer
required According to Trimble he was ordered to
remove his RPS shirt and leave by the front door which
inconvenienced his access to his parked automobile
Trimble protested being talked to like a dog as he de
parted Despite his testimony and demeanor which sug
gested that he had been enraged Trimble in cross exams
nation denied that he was angered
Meyer did not recall precisely what caused his en
trance into Gilhhan s office with Trimble in tow but his
narration of the confrontation differed significantly He
recalled that as they proceeded, Trimble was still pro
testing and that Gillihan interjected and told Trimble,
Steve it was Rick s decision You ve got to try it Ac
cording to Meyer Trimble answered I in not-I in just
not going to do it I don t want to do it Meyer testified
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that on that response, Gillihan told Trimble that his serv-
ices were "no longer required," but Trimble responded,
"You can't fire me, I quit." He confirmed the request for
the RPS shirt. In cross-examination, Trimble admitted
that he had refused to deliver his assigned load.
Trimble testified that he was subpoenaed by the Union
and appeared in the Regional Office hearing room, but
did not testify at the November 14 hearing. That same
day, Friday, he received a letter from Nancy McNeill,
employee supervisor of contract staffing, asking him to
contact her. On Monday, November 17, he telephoned
her. She told him that Gillihan reported that he had re-
fused to perform his assigned job and walked off. Trim-
ble denied this to her and recounted to her his testimony
above. She told him he could return if he agreed to do
his job and that she would arrange for Gillihan to con-
tact him.
On Tuesday, November 18, Gillihan telephoned him
and, according to Trimble's uncontradicted testimony, he
told Trimble to report to his office at 7 a.m. November
19. Despite Trimble's prior testimony about normally ar-
riving at 7 a.m., he testified that he demanded Gillihan
explain why he should report at 7 a.m. instead of 7:30
a.m. "because I was not supposed to come in til 7:30."
Gillihan responded that they had to have a meeting.
Trimble contacted a union representative who told him
that he had a right to demand the presence of another
driver during the meeting. In cross-examination, Trimble
conceded that Gillihan indicated that he wanted him to
make deliveries on November 19 and that, on his arrival
at the terminal, he saw his name written on an assign-
ment board for "some other area I was not familiar
with," perhaps the Mt. Clemens area. Trimble testified
that he arrived at the RPS terminal at 6:50 a.m. on No-
vember 19 and exchanged a friendly greeting with
Chomic, but that the fellow driver who had agreed to be
present with him had not yet arrived. According to
Trimble, about 7 a.m. he entered Gillihan's office alone
and was followed there shortly by Gillihan and Meyer.
According to Trimble, the following conversation
ensued. Trimble immediately demanded the presence of
another driver. Gillihan refused and told Trimble "to get
it straight" that he was a temporary driver hired by a
temporary service "who will do and go" where sent by
Gillihan. Trimble then demanded again the presence of
another driver and was again refused. Trimble insisted
again, stating that his union organizer had informed him
of such right. Meyer stated, "You don't have any
rights." Trimble asked the identity of his route and was
told that he had no route but was to start "all over from
the beginning" as an on-call driver. He again asked for
another driver as witness. To that Gillihan asked, "Are
you refusing an order?" Trimble testified that he re-
mained silent to which Gillihan stated, "Well, if you
don't speak up I'm taking it that you are refusing an
order." Trimble testified he responded:
Whether I say yes or no . . . I can say-If I don't
say anything, you cannot say that I refused an
order. Until I say yes or no, that's when you can
say that I refused an order. But I have not said yes
or no.
Trimble then kept his silence and Gillihan concluded,
"Well, as far as I'm taking it, you are refusing an order."
Trimble asked again for a witness and was refused and
told to leave the premises, again by the front door. Ac-
cording to him, a pushing match ensued when he tried to
leave by the back door but eventually he departed. In re-
iteration of this testimony in response to the General
Counsel's attempt to identify what specific order Gillihan
had referred to, i.e., to work as an on-call driver, Trim-
ble added that he explicitly asked what route he was to
have and was told none and what truck he was to drive
and was told "You don't have a truck that you're sup-
posed to be getting."
Trimble testified, however, that when he had entered
the terminal he had seen his name on the assignment
board for a route other than the Lake Orion route. He
had no knowledge of whether it was a permanent assign-
ment. When asked by the General Counsel why he did
not accept that route, he answered, "Why didn't I take
it? I did not refuse anything that day." In cross-examina-
tion, Trimble threw a cloud over his entire foregoing tes-
timony when he testified that on November 19, after he
read the assignment board, he did not see the van nor
the load he was assigned nor did he ask Gillihan what
area he was to service because the reason he never got
to that point was because of his insistence on the pres-
ence of another party before meeting with Gillihan and
Meyer in the office. This admission appears to contradict
his testimony that he was told that he would be reduced
to an oncall driver or that there was any reference to his
specific assignment because it "never got to that point."
Further, the admission appears to corroborate Gillihan's
version of the encounter which parallels much of what
Trimble testified except to the reference to oncall duties
and reference to the truck purchase deal. Essentially, ac-
cording to the detailed, convincing testimony of Gilli-
han, he told Trimble that he was expected to perform as
a temporary contract staffing employee at which point
he insisted on the presence of another driver pursuant to
the Union's advice. Gillihan refused and told him to "get
straight" that he was expected to perform his duties as a
temporary driver and was asked if he understood. Trim-
ble refused to answer despite a repeated request to do so
and was told that his refusal to do so would be construed
as a "No." Gillihan testified he then asked Trimble "if he
was willing to accept the conditions of RPS, and that is
to deliver every package every day, no matter what the
route," and was met again with silence. Gillihan again
admonished that he interpreted silence as a refusal and
asked again and received no response. Gillihan then or-
dered him to leave. He denied any specific reference to
Trimble's use as an oncall driver or to the van purchase
agreement. In more general terms, Meyer corroborated
Gillihan.
As noted above, Trimble's testimony is impaired by
very serious deficiencies. Additionally, his demeanor was
unconvincing as it revealed not only a tendency of hos-
tility and evasion on cross-examination, but also a lack of
recollective certainty and assurance on direct examina-
tion. Furthermore, Trimble gave the impression that his
answers were calculated and not freely candid. For ex-
ROADWAY PACKAGE SYSTEM 389
ample, though several times he freely testified in direct
examination to a factual point when that same point in
cross examination was posited to him he denied it, hest
tated evaded and sometimes he gave a different re
sponse as for example , his starting time and his past his
tory of nondeliveries These testimonial and demeanor
impairments are so strong that I must credit Meyer and
Gilhhan when their testimony conflicts with Trimble
In and of itself, the testimony of Trimble fails to estab
lish that he had been assigned burdensome duties subse
quent to reports of his union comments at K Mart Fur
ther, this evidence discloses that Trimble had been resist
ant to the new assignments prior to union activities, that
new managers had commenced to make changes in work
rules and assignments prior to known union activities
that Trimble refused to comply with a work assignment
not demonstrated to be burdensome or otherwise dis
criminatorily motivated that he was apparently dis
charged for such refusal, that he was offered reinstate
ment under terms not shown to be burdensome or dis
crimmatory that he was discharged again because he re
fused to acknowledge the right of Respondent to change
his work route on the discretion of its lower manager
and his refusal to participate in a discussion over the
terms of his reinstatement without the presence of a wit
ness was clearly unprotected conduct (E I du Pont &
Co, 289 NLRB 627 (1988) Nothing in Trimble s own
testimony reveals that Respondent had manifested hostile
ty toward him because of his own suspected union ac
tivities or sympathies The K Mart incident, which was
prompted by Trimble s publication of his union sympa
thies in a jocular conversation with employees of a cus
tomer during the performance of his work duties alone
does not reveal that kind of animosity No evidence in
the entire record suggests that temporary drivers out
right refusals to accept ordered route changes have been
previously treated by RPS as acceptable behavior Sup
port for a conclusion that Trimble s termination was pre
textual and motivated by antiunion animosity for his
known or suspected union activities, if it existed, must be
found in the testimony of his fellow discriminatees
The K Mart interrogation as evidence of coercive con
duct violative of Section 8(a)(1) must also be evaluated
in the context of the entire course of the organizing cam
paign It occurred at the outset of union activity was not
repeated with Trimble or other drivers and was jokingly
denied by Trimble who had used it as a means of en
couraging union support which it clearly did not tend to
inhibit Furthermore because of Trimble s credibility, I
cannot with certainty conclude that his recollection was
accurate or complete I therefore am unable to conclude
that it constituted coercive interrogation
E Darrell Cooper Case 7-CA-26550(7)
Cooper was hired in March 1985 as a temporary
driver after an interview by Schirr but on notification by
Bannon who later assigned his route to him by offering
him the option of available routes As a temporary driver
using a rented van Cooper testified that he serviced the
same area all the western Detroit suburbs, 5 days a week
until July 1985 when he purchased a vehicle and became
a contract driver The occasion for a vehicle purchase
was the departure of contract driver Dennis Whiteman
who had serviced the Detroit core zone Cooper vehe
mently protested Schirr s order that he service Detroit
Schirr insisted that if Cooper desired to continue servic
ing a regular route on a full time basis that he must
become a contract driver by purchasing his own van,
otherwise he would be terminated Cooper did purchase
a vehicle but it was a new van and not Whiteman s old
van and he did service Detroit for about 1 week On his
refusal to further service Detroit, Cooper was assigned a
smaller portion of his former route which was again geo
graphically reduced in January 1986 to yet a smaller
core zone at Ann Arbor and Ypsilanti Because of ex
panding business volume in February, he lost part of Yp
silanti and again in the early summer of 1986 , his zone
was reduced to parts of Ann Arbor alone At some point
prior to Labor Day 1986, it was again reduced on the
continued hiring of new drivers and on Schirr s request
to which Cooper readily agreed as he had been beg
grog for an area reduction of his increasingly busy serv
ice area In the fall of 1986, Cooper testified that for
several days he also serviced Ypsilanti when a temporary
driver had quit and when Meyer had ordered him to do
so in the absence of any available driver He testified It
was like a flex, I guess I just normally did whatever
I was told
After his final core zone condensation Cooper was
left with 80 to 85 delivery stops no less than about 200
delivered packages and about 6 to 8 pickup stops for 150
normal size packages to sometimes as much as 3000 small
purchases i e , 8 by 3 inches by 1/2 inch At that time
three other drivers had serviced Ann Arbor and Ypsilan-
ti, i e Mike Malaspina Jim 0 Connor, Joe Dick, and the
temporary driver who serviced Ypsilanti and some of
Romulus and Belleville until that core zone was assumed
by contract driver Al Blake Cooper serviced middle
Ann Arbor Malaspina serviced east and north Ann
Arbor Dick serviced west Ann Arbor Dexter and on
an occasional exchange with Cooper pursuant to mutual
negotiation south Ann Arbor Cooper testified
Anyway I tried to keep all their packages counts just
about the same
Cooper testified that initially all drivers loaded their
own vehicles pursuant to compensation based on what
he termed a `weird formula for what was then about 2
hours of loading time He testified that in January 1986,
loading compensation stopped and loaders were hired
who ultimately proved unsatisfactory as they just start
ed throwing packages behind people s trucks and 60 to
70 percent of his packages remained unloaded on the
dock He testified that he took it on himself to come in
early at 7 am and sort the packages that were im
properly loaded and stacked and which often confused
his route with that of Malaspina and Dick and load
them with the help of Dick and Malaspina for whom ar
rival at 9 30 to 10 am he testified was not unusual
This situation involved the confusion of 4 routes and 600
packages and endured from August 1986 through De
cember 1986 Cooper then testified in his cross examina
tion that initially the greatest problem had been improp
erly loaded vans, but that the failure to load as high as
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
70 percent of the loads occurred in either "early Octo-
ber, late October or early November." His demeanor
suggested a great uncertainty about what month in
which this occurred. During his direct examination,
Cooper was often confused about dates. Regarding to a
variety of questions, he often requested that the question
be repeated as he appeared to grope and agonize for a
response. Moreover, Cooper tended to modify his testi-
mony to the General Counsel's advantage after listening
to the General Counsel's arguments and objections. He
also tended to do the same thing when Respondent's
counsel sought his reiteration of testimony given in
direct examination . He also modified his testimony when
confronted with prior inconsistent testimony, e.g., that
was given during the representation proceeding. In sev-
eral critical areas, his testimony was contradicted by
documentary evidence.
Cooper testified that he attended the October 23 union
meeting at the pizzeria. Without any further explanation
of the precise time or details about specific location and
context of the occurrence, Cooper testified that on "that
night," i.e., October 23, he saw coordinator Bannon
drive through the parking lot of the pizzeria. The prox-
imity to the restaurant is not disclosed. There is again no
description of that area as to suggest that Bannon was
there for no purpose other than surveillance of the union
meeting, i.e., access to other stores, etc. Nor is it clear
whether Bannon drove there before, during, or after the
meeting . Cooper testified further that he had what he
called a "hilarious" encounter with Bannon the next
morning in the terminal' s main office, of which he nar-
rated only the following details. Cooper walked in and
Bannon asked, "Well, how was the meeting last night?"
Cooper answered, "Well, you should know; you know,
you were there [i.e., drove through the parking lot]."
Bannon "just laughed it off." Cooper testified that he
also attended the October 30 meeting. The context of the
October 23 incident which Cooper treated with amused
hilarity is insufficient to support a finding of coercive
conduct.
Cooper testified to another alleged instance of coer-
cion, but this time it involved Night Coordinator Bob
Hillis. Cooper described Hillis as "a real young character
a young dude" whom "management just struck
[strung?] along also" and who was simultaneously attend-
ing school, probably college. Cooper described Hillis as
a person with whom he "got along pretty well" and
with whom he had frequent conversations in the morn-
ing, as their shifts overlapped, "because he always knew
the scoop." The purported coercion is to be found in the
following cryptic, context-free testimony:
So, one night I came in , don't ask me exactly the
date, I knew it was sometime in `86, he asked-he
said, "Well, you know management is going to start
putting pressure on you all." I said, "What do you
mean?" He said, "Well," he said, "the man said he
could play hardball also."
The General Counsel's assertion in his brief that Hillis'
threatened management "pressure" because of employ-
ees' union activities is unsupported by this testimony. Al-
though Cooper hesitatingly placed the event as having
occurred at an unknown time after a union meeting on
the General Counsel's explicit direction to the date of a
union meeting, there is no specific reference to union ac-
tivity in the conversation itself and there is no context in
the account to compel such inference. Cooper admitted
an uncertainty concerning the date. He testified, "My
memory is really bad when it comes to dates." Combined
with the uncertainty concerning its date, this testimonial
account effects an ambiguity which could as easily raise
an inference that the threat of pressure was in response
to management's perception of poor work performance
or lack of employee cooperation regarding the effort to
improve delivery performance, i.e., flexing that had been
rediculed by the drivers, or to some other grievance
with the driver, or with Cooper.
In support of the complaint allegations relating to on-
erous work assignments and other retaliatory conduct in
early and mid-November, the General Counsel elicited
the following testimony from Cooper. When asked by
the General Counsel whether following the union meet-
ing he experienced "another change" in his route,
Cooper testified:
That's about the time Flex [Meyer] started flexing.
It wasn't really a change, per se, on a day to day
basis. It was just one day. A couple of times-one
time Craig Bannon loaded my truck full to Livonia
and I went in to talk to Pat [Gillihan] about it. Pat
said, "Well, go back out and talk to Rick Meyer."
Cooper placed the event during the first week of No-
vember. As previously noted, other witnesses, including
Trimble, placed the onset of flexing prior to the first
union meeting on October 23. Cooper confronted Meyer
on the dock and, according to Cooper, he protested that
his truck was loaded with "all of Livonia" and he said,
"There's no way I'll do Ann Arbor." Meyer responded
that Cooper's regular route was light that day. Cooper
than protested that the Livonia core zone was "so low
that it wouldn't be profitable" for him to deliver to Li-
vonia and then to travel further southwest to service
Ann Arbor. Meyer then considered the protest and al-
lowed Cooper to remove the Livonia load in apparent
acquiescence to Cooper's wishes. But then the General
Counsel elicited Cooper's testimony that the removal of
the Livonia load resulted in an unusually light Ann
Arbor delivery of 20 to 30 stops, i.e., exactly the reason
proffered by Meyer for his flexing of the Livonia load to
Cooper. Cooper testified that it was unusual to experi-
ence a light load in November, i.e., during the peak
season. The General Counsel adduced no delivery
records into evidence to support Cooper's testimony that
this event actually occurred in November nor that the
Ann Arbor route was not light that day as Meyer repre-
sented to Cooper. If the incident did occur in November,
there is no evidence to establish that it deviated from the
normal business reason assigned flexing that had initiated
for all drivers prior to October 23, much like the Ypsi-
lanti episode described above, which Cooper testified
that with respect to flexing he just routinely accepted as
he "just normally did whatever I was told." Without
ROADWAY PACKAGE SYSTEM 391
foundation or elucidation, Cooper testified that the occa
sion for a light Ann Arbor delivery happened a few
times in November He did not testify as the General
Counsel asserts in the brief, that he was requested again
to service Livonia
Meyer testified that Cooper s route was not changed
during the period from October 20, 1986, through
Thanksgiving 1986 His corroborating testimonial sum
mary of documentary evidence i e, Cooper s delivery
records was neither challenged nor rebutted by the Gen
era] Counsel who had access to those records In view of
Cooper s poor recollective reliability, I credit Meyer
There is no documentary or testimonial evidence on
which to conclude that Cooper s Ann Arbor loads were
artificially manipulated or shifted to other drivers in No
vember The evidence therefore fails to sustain a finding
that Cooper s service areas had undergone unusual
changes after the start of known union activities
As the General Counsel points out, almost all his wit
nesses testified to the institution by Respondent of a rule
requiring all drivers to service cross all their DNAs
remaining on their vans at the end of the delivery day
under threat of nonpayment of their submitted bill for
delivery service, i e , the settlements However, some
were more extensive and clearer than others As found
above however it is clear that Meyer and Gillihan rein
stituted enforcement of neglected rules and promulgated
new rules for purported business reasons at the very
onset of their assumptions of their duties The General
Counsel alleges that these rules were disparately en
forced With respect to proper service crossing under
threat of nonpayment, Cooper testified that Gillihan
started the practice at the end of October [or] beginning
of November at the time when he started getting kind
of hard on changes He referred to the imposition of
these changes as affecting us Cooper testified that
perhaps in the first week of November he and Johns
confronted Gillihan in the terminal driver checkout
room on an occasion when Johns returned with a
bunch of packages after deliveries He testified that
Johns and Gillihan argued whereupon Gillihan stated
Well you will write up all DNA s You will put an X
[in the appropriate space] and write up all DNA s on
packages , to which Johns said Hey there s no refer
ence in our contract about us doing it after we get
back Cooper testified that Gillihan responded Well
you think you re so smart 111 get you 111 get my turn
Johns testified that he was informed of a change in the
method of sheeting from the way he had been doing it
under Schirr at an imprecise date he believed it to be in
November He recalled the checkout room incident as
having occurred probably' the last week of November
He testified that in addition to Cooper, also present
were Andrzejewski and Al Blake Johns version of the
incident corroborated Cooper with minor variations
except that Johns testified also
I said-I asked him you know if he wanted to put
it in writing to service cross it and sheet it [that he
should], put it in writing [and if], it was an order,
you know I d consider it
Johns testified that it was at that point Gillihan said that
no, he wouldn t do that, and that he would get even or
whatever with me Johns testified that there had been
no past policy requirement that drivers service cross
However, in this regard he appears to contradict both
Biluk and Malaspina Biluk testified it had been an RPS
company rule that Schirr had not enforced whereas Ma
laspina testified that he always had service crossed his
DNAs In cross examination Cooper fenced with coun
sel about his past practice regarding service crossing of
DNAs He testified that he service crossed if there were
a few but not if he had more than six or seven He then
testified that he did not have that amount frequently
When asked if this occurred as frequently as once every
3 months, he answered, I might and I might not
When pressed to recall a single occasion he claimed that
there was only one such occasion when he was a tempo
rary driver and that was about it
Andrzejewski was silent regarding this confrontation,
and his only reference to DNAs was that he had very
few prior to October 23 Chomic testified variously that
quite a few times during his entire tenure he did not
service cross undelivered packages and that other drivers
never serviced crossed DNAs prior to the election
Regarding the time prior to the `election, he admitted
the possibility that he had been admonished about his
failure to do so and that he may have been docked a
day s pay for it but he could not recall the date Settle
ment records appear to show that Chomic was docked
on April 23, 1987, for failure to sheet He testified that
changes regarding service crossing and nonpayment oc
curred after the election The testimony of the alleged
discriminatees about the promulgation of the service
crossing rules is too inconsistent and contradictory to
support a conclusion that it was a new rule effected im
mediately on Respondent s awareness of union activities
although it is clear that the pay docking penalty was a
new policy instituted by Meyer as he admitted Further,
the testimony of Cooper and Johns regarding Meyer s
threat of retribution because of lack of context and refer
ence to union activity cannot be concluded to be neces
sarily a threat to retaliate for union activities rather than
what it appeared to be i e a promise of retribution for
driver resistance to changes in operations including en
forced service crossing , flexing and others i e Johns
arrogant response to the service crossing order
The General Counsel argues that the nonservice cross
ing penalty rule was instituted shortly after the peti
tion was filed by the Union The evidence does not
clearly fix the date but at best sets the enforcement of it
during the same week i e within 2 weeks after day
one of Meyer s management The General Counsel
argues that it was disparately enforced He cites Cho
mic s nonpayment on April 23, 1987 and an incident on
January 9 1987, when Johns was told to service cross
his DNAs, whereas he asserts Biluk, a nonactive contract
driver experienced misloads that he merely `tossed off
his van with impunity prior to delivery First, it is not
clear that Biluk was a nonunion activist It should be re
called that he asked Bannon for instructions about the
pizzeria location on October 23 However, not loading a
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
few patently missorted packages is not equivalent to
loading and transporting packages all through the core
zone, returning with undelivered packages remaining on
the van and not service-crossing them or purportedly
leaving behind a substantial part of a prepared load.
Biluk explicitly testified that whereas previously he prob-
ably would not have service-crossed misloads identified
en route on the truck nor would he service-cross at all if
he could "get away with it," he has done so since the
promulgation of the punitive rule and the renewed en-
forcement of service-crossing revived on Gillihan's en-
trance on duty. There is no convincing evidence that all
or any nonunion activist drivers were excused from the
enforcement of these rules. Rather, all the witnesses'
own testimony suggests that these rules were universally
applied. The incident involving Johns on January 9,
1987, will be discussed below regarding whether more
was involved than the removal of a few misloads prior
to departure.
The Respondent's position regarding Cooper is that
because of a longstanding financial delinquency, he had
reneged on his obligation to pay for his vehicle and thus
abandoned his van and his employment. Under a
lease/purchase agreement dated June 28, 1985, five to
seven monthly payments were due at $557.79 per month,
to be paid to the creditor, General Electric Credit Cor-
poration (GECC). The General Counsel contends that
Cooper's admitted inability to fulfill the van installment
purchase obligations to the third party creditor was due
to Respondent's discriminatorily motivated, improperly
continued over-deductions from Cooper's settlement
checks of payment for the use of a rental van during a
short period of time when Cooper's vehicle had under-
gone repairs. That is, because of a shortfall in his deliv-
ery settlement payments from RPS, Cooper could not
meet his van payment obligations. Cooper also testified
that Respondent improperly deducted other amounts
from his delivery settlement payment checks and with-
held payment of paychecks.
Cooper testified that on payday, Friday, November 7,
1986, his van was not provided with a load and that Gil-
lihan explained that it was because Cooper's truck pay-
ments had been delinquent . In fact , Cooper's last month-
ly payment to the creditor had been in July and his van
was in imminent danger of repossession. Cooper testified
that he told Gillihan that the problem was that RPS kept
deducting a weekly van rental payment long after
Cooper had ceased using that rented vehicle, despite his
understanding that both Schirr and Gillihan were sup-
pose to correct the error. In fact, Cooper was charged
by RPS for $55 each for 26 days or more of van rental
despite his use of a rental van for only those days when
his own van had been undergoing repairs in August
1986. Regional Manager Young testified that the deduc-
tion was for 26 days. Cooper testified that it lasted about
9 consecutive weeks. Gillihan told him that there was
nothing he could do but that Cooper must talk to RPS
Regional Manager Young who was to be at the terminal
on Monday. Cooper testified that his problem was com-
pounded because Gillihan did not give him his settlement
payment check in November for the pay period ending
October 31, which was to have been delivered with all
such checks from the Pittsburgh headquarters. Cooper
testified:
Well I asked Pat about the check. I said , "Pat, well,
can I have my check?" And he said, "well, It's not
here. It's lost." He didn't say it was lost. Excuse
me. That would be-he said something to the effect
that it wasn't there.
Cooper testified that the failure to present his paycheck
when due was unprecedented. Then he testified with
visible perplexity when asked again by the General
Counsel whether it was unprecedented. "Yes-well, no.
I can 't say that. Paycheck [sic]. This is the first time
yeah." In cross-examination, Cooper testified that he did
receive his settlement check but not until Monday, July
10. In rebuttal cross-examination when confronted with
his settlement records and canceled settlement checks,
Cooper admitted that he did receive his paycheck on
Friday, June 7, 1986. Furthermore, Cooper's own pickup
and delivery records dated and signed by him on No-
vember 7, 1986, reveal that he did indeed commence
pickup and deliveries at 9:15 a.m. and ceased at 6 p.m.
Cooper testified that he was not paid for services per-
formed on November 7. Then he changed that to No-
vember 5 which he says was not paid until the end of
November. He totally confused this situation by testify-
ing that he had not actually performed services for a day
in November. Because of his confusion and lack of con-
text, I can make no conclusions about the November 5
compensation.
In direct rebuttal testimony, Cooper testified that an
entire day's pay was withheld for services performed on
October 28, 1986, i.e., from the Friday, November 7,
paycheck which was due for the pay period ending Oc-
tober 31. Uncontradicted, credible evidence reveals that
an adjustment was made pursuant to normal routine
processing which resulted in payment correction by the
November 28 check for the period ending November 21,
the earliest that could be amended. Cooper apparently
forgot that in earlier testimony he explained that work
was withheld from him on October 27 and 28. This will
be discussed below.
Cooper testified that the dispute with RPS regarding
over-deductions charged by RPS for the use of a rental
van predated the union activity and went back to August
when his van was mechanically serviced at Standby
Power, a truck repairer. He claimed that despite his
nonuse of the van and his numerous repeated protests to
Schirr and then Gillihan and despite their assurances of
corrective action, the deduction continued. He testified
that when he complained to Schirr that the deductions
were "putting me out of business," Schirr merely took
his settlement sheets and promised corrective action.
Cooper testified that he continued to write checks for his
van purchase on Schirr's urging but that "it would
bounce on me everytime." RPS was the assigned collec-
tor of the van purchase payment on behalf of GECC to
whom it forwarded the payments.
For the months of September, October, and Novem-
ber, Cooper issued 15 checks which his bank refused to
honor because of insufficient funds. Cooper's checking
ROADWAY PACKAGE SYSTEM
account records reveal that during those 3 months he
made only one deposit which was for $600 on October
13 and maintained a balance of a few dollars despite his
testimony on cross examination that it was his practice to
deposit at least 80 percent of his settlement checks into
that account and despite the fact that for those 3 months
he had received 13 settlement checks of a total value of
$8 173 82 Cooper claimed that the continued excess de
duction of 6 additional weeks of nonincurred rental of
$275 per week incurred an RPS debt to him of $1645
Yet Cooper s bank records reveal a shortfall in deposit
far in excess of the RPS debt to him and supports Re
spondent s argument that his financial problems were not
the result of the RPS debt to him, but rather the result of
a large financial problem
Regional Manager Young testified that at some date in
October 1986 Cooper had confronted him and told him
of his van payment delinquency and the RPS over
charge In response , Young promised to investigate He
testified that he found the local records to be incomplete
and therefore he took recourse to the Pittsburgh head
quarters records and communication with the vehicle re
pairer , where he found that Cooper had been charged by
RPS for 26 days, i e , 5 weeks and 1 day, for the truck
rental whereas the truck was disabled for only 11 work
ing days Young testified that he recommended to his su
pervisor a restitution to Cooper of $825, i e , 15 work
days at $55 per day, which would be paid directly to the
vehicle creditor GECC leaving Cooper with a past due
van purchase payment total of $1403 for the months of
August, September , October and the November prepay
ment Young testified that the $55 per week deduction
stopped at the 26th week He testified that he subse
quently met with Cooper and presented this proposal to
him
Initially , Cooper testified that he met with Young and
discussed the foregoing proposal on November 11 He
was silent about an earlier confrontation On cross exami
nation when confronted with a photocopy of his checks
to GECC signed and dated October 29, he retracted his
testimony and said that he must have met with Young on
October 29 because he did sign the check when dated
and it was at that meeting He then gave confused and
inconsistent testimony when confronted with prior repre
sentation case testimony about whether there was one or
more meetings with Young on October 28 and/or Octo
ber 29 He admitted to being confused about those dates
He insisted , however that his van was not loaded on Oc
tober 27 and 28 and he was not permitted to deliver on
those dates Cooper s own signed , unrebutted settlement
records reveal that he performed services for a full day
on all three dates of October 27, 28, and 29
Cooper testified that at the October 29 confrontation
with Cooper, at which Gillihan was present , he acqui
esced to Young's representation that only $825 was due
him by RPS because he felt it was futile to challenge
him Therefore, he testified that he agreed to the propo
sition and that he gave Young a check for $1403 but
that , on Cooper s revealing a lack of funds in his ac
count Young promised to hold the check until an inde
terminate time when Cooper could cover it Young
denied that testimony Young testified that Cooper
393
agreed to provide Gillihan with a check for $1403 to be
delivered to GECC Gillihan testified that Cooper pre
sented him with that check and asked him to hold it but
that he accepted the check but stated to Cooper that his
financial problems were with GECC and that he would
follow through with instructions to convey the check to
GECC and that Cooper should make that request for
holding to GECC Cooper had no such conversation
with GECC The check was ultimately presented for
payment three times and returned to GECC and record
ed as part of a larger total overdraft The first bank pres
entation and rejection of the check occurred on Monday,
November 17 Within a period of 3 weeks, it was again
presented to the bank and again twice more rejected and
returned to GECC Cooper was notified Initially, before
being confronted with his checking account records
Cooper testified in cross examination that previously he
had not what he would really consider a problem As
noted above , the bank records revealed an extremely se
rious problem
Cooper testified that he only worked for a half day on
October 29 His signed settlement record reveals he start
ed pickup and delivery at 9 a in and ceased at 6 p in
with a total delivery of 168 packages in 55 stops and
pickup of 79 packages at 5 stops
Cooper testified that a day or two before November
14 he presented his subpoena to Gillihan and told him he
was to testify but Gillihan told him that he must have a
replacement Cooper claimed that that s kind of short
notice He testified that Gillihan threatened that he
must have a replacement or you can be terminated,
and he therefore agreed to obtain one He testified that
he had never before been told that failure to provide a
replacement would incur punishment , i e not me per
sonally, no Despite this testimony Cooper testified fur
ther that he utilized one of two replacements I would
use all the time Accordingly Cooper must have recog
nized the obligation to provide a replacement as he ad
mitted to have done so in the past Gillihan testified that
the most he stated to Cooper was to do what he has
done in similar circumstances with other drivers i e, to
remind him that his contract with RPS obliged him to
provide daily service to a core zone and thus he was
obliged to provide a replacement In cross examination
about whether he had arranged for a replacement on No
vember 14 Cooper testified I in pretty sure I did Nor
mally whenever I was out I d always get somebody to
take my route for me Cooper appeared at the hearing
but did not testify Cooper testified in direct examination
that he did not receive his paycheck on November 14
but that its delivery was delayed until November 17, and
that on receipt he complained to Gillihan that this was
the second such consecutive occurrence As noted
above he admitted in cross examination that he actually
did receive the November 7 check on that date , accord
ingly , I find this testimony to be inherently improbable
Further, he testified, without recourse to any corroborat
ing documentation that RPS continued to deduct the
$275 weekly van rental
Cooper testified, without any detail that he had noti
feed RPS of his intended appearance at the scheduled
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representation case resumed hearing set for Thursday,
December 5, 1986 Johns testified again Cooper and
Andrzejewski also testified Cooper testified that on the
hearing date he was so ill that he was about to fall on
[his] face' and he therefore informed Gillihan, who had
been at the hearing, that he was too ill to report for
work and Gillihan told him, Okay Cooper, 111 see if I
can get a replacement for you if not, you try to find a
replacement Cooper testified that he promised to do so
but doubted that he could on such short notice He did
not clarify whether this communication occurred at the
hearing room after he had testified or by telephone later
Cooper testified that on Friday, December 5, he tele
phoned the terminal and left a message in an unspeci
feed manner to the effect that he was ill with the flu and
a temperature of 104 degrees
Despite his serious illness, Cooper felt fit enough to
travel to the terminal, apparently alone, where he ar
rived at 5 or 6 p in and according to his testimony, he
confronted Gillihan alone in his office with a request for
his paycheck He did not clarify whether he still had a
104 degree fever during that confrontation He testified
that Gillihan refused his request and testified as follows
He said I was terminated He said it was no-be
said G E C C done-they want my keys, they want
to repossess my truck and I was terminated I asked
him could I still have my check He said no
Cooper s demeanor exhibited hesitation and uncertainty
The General Counsel asked him to repeat his account of
the conversation in detail Thereafter, he gave a more
detailed account but one that was marked by lengthy
hesitations and given after a long pause not revealed in
the transcript Purportedly Gillihan told Cooper that he
could not be given his paycheck because GECC was re
possessing his vehicle and had demanded its keys and
Gillihan asked Cooper to execute some kind of a written
release Cooper testified that he protested if he could re
ceive his paycheck due that day then he would be in a
position to pay the past due GECC debt but that Gilli
han refused stating No way Cooper I ve helped you
enough Cooper then purportedly again asserted that if
Gillihan tendered his paycheck that he could cover the
debt but Gillihan responded Well you don t need a
truck because your are terminated The more in direct
examination he was asked to repeat segments of the con
frontation, the more inconsistent was his account He
was asked again what Gillihan stated in reference to his
termination and he testified that Gillihan said I was ter
minated because I didn t have a truck Regarding the
demand for his paycheck he testified
[H]e said he couldn t give it to me He said some
thing about Pittsburgh [RPS headquarters] said
don t give it to me or Pittsburgh had it one of the
two And I said well- he said Well he said
I have nothing else for you Cooper
Then Cooper testified when asked by the General Coun
sel whether he signed any papers at the meeting
No He had my check in one hand and another
paper in another hand I seen my check He said
sign this and I said , I won t I won t sign it It
was a release form I know what it was It was a
release form
The last bit of testimony seemingly suggests that Gillihan
was tendering the check in return on condition of an
execution of some sort of release form
In cross examination , Cooper reiterated that he saw his
paycheck in Gillihan s hand In a pretrial affidavit dated
April 21, 1987 given to a Board agent in reference to
this meeting, he had testified, Gillihan said he couldn t
give me my paycheck He didn t know where it was
Cooper testified that in vain he sought Gillihan s deferral
of termination until Cooper could speak to Cloonan, a
GECC credit representative in change of his loan ac
count There is no clear evidence in the record on which
to conclude that the paycheck purportedly withheld on
December 5 would have been for an amount sufficient
enough to cover the debt owed to GECC However,
Cooper testified that he surrendered his van keys to Gil
lihan on December 5 and, subsequently on Tuesday, De
cember 9, he fulfilled his stated intention to speak with
Cloonan He did not explain why he had surrendered the
vehicle while he still entertained the notion of some ac
commodation with GECC In direct examination testi
mony about the next sequence of events, Cooper admit
ted to a confused recollection about what occurred and
then he remembered that Gillihan had told him that he
ought to have received by Federal Express on December
5 written notice of van repossession from GECC with in
structions to deliver the keys to RPS He then testified
that he telephoned Cloonan on Friday but she was
absent and he did converse with her by telephone on
Monday December 8, at which time she extended the
repossession deadline because he asserted to her in that
conversation the nonreceipt of repossession notice That
notification provided an escape on immediate payment of
the entire delinquent debt of $1 429 81 and on execution
of an attached paycheck deduction authorization of
future installments by RPS on a pro rata basis from each
weekly settlement check At first he testified that he
told Cloonan that he first received the notification from
Gillihan on December 5 Then he retracted this testimo
ny and asserted that he told Cloonan that he had not as
yet received any notification
Cooper testified that he returned to Gillihan s office on
Monday December 8 and told Gillihan of the 5 day ex
tension and requested his settlement check due in order
to make my payments He testified that Gillihan said
that his paycheck was not at Redford but in Pittsburgh
and that he was unable to help him However Cooper
testified that he met alone with Gillihan again on De
cember 9 pursuant to Gillihan s telephonic summons that
morning On his arrival, according to Cooper, Gillihan
bid him entry to the office presented him with a copy of
the repossession notification and asked him to execute an
acknowledgement of receipt of the notification also
dated December 1, 1986 Cooper testified that on his
own insistence on signing it he dated it December 9
1986 because he received the notification about that
date Cooper testified that he then asserted to Gillihan
that if he could be given the settlement check due on
ROADWAY PACKAGE SYSTEM 395
December 5 that he had sufficient additional funds to
pay the outstanding $1 429 81 but that Gillihan refused
and stated that he was terminated His checking account,
however revealed a balance of only a few dollars as of
December 4 Cooper did not testify that he actually pos
sessed sufficient funds with the paycheck to pay the
GECC debt but only that he made such claim to Gilli
han
Further with hesitancy and uncertainty, Cooper testi
fled
He said-and then, I said-we-words went back
and forth and the I remember distinctly he asked me,
he said, was it worth it?' I said what was worth
it?"
He said, voting for that Union' and that s the
last thing I said-I just turned around and get mad
and walked out
He testified that he never did receive the pay deduction
on December 5 and had never been notified in writing of
his termination Regarding Gillihan s alleged reference to
the Union, as noted above, Cooper at first claimed a dis
tract recollection of the words used, i e, voting, which is
peculiar because no actual balloting was yet to come for
some time In any event, when the General Counsel in
further immediate direct examination asked Cooper again
to repeat Gillihan's final statement, he hesitated in appar
ent perplexity, paused, and testified as follows
A [Gillihan said] Was it worth it
Q And you said?
A I said, Worth what?
Q And he said?
A Going for the Union Voting for the Union
Accompanied in a surprised, quizzical tone of voice,
counsel for the General Counsel exclaimed more than
asked, voting for the Union? Cooper then paused and
with a puzzled expression stared at counsel and gave the
following testimony
A Something to the-I know it was about the
union either testifying -or voting or-anyway it
had something to do with the union
This sequence of question and answer reveals either
that Cooper was trying to accommodate and contrive his
testimony concerning what he perceived the friendly in
terrogator wanted as he had done in other testimony, or
that in reality he had no real recollection of what the
union reference was, if there was such reference at all
In cross examination Cooper contradicted his initial
direct testimony about having received the repossession
notice for the first time when Gillihan handed it to him
on December 9 He now testified that he had received
the repossession notification prior to speaking with
Cloonan possibly as early as Sunday but probably on
the 8th,' in the morning On redirect examination he an
swered Yes' to the General Counsel's suggestion in the
form of a question that he actually received two copies
of that document He testified that he received one copy
by Federal Express delivery at some unknown time after
the December 4 hearing and after the Gillihan meeting
on December 5 This in no way reconciles Cooper's tes
timony on cross examination with his direct examination
in which he based his request for an extension of time
from GECC on December 8 on the grounds that he had
not as yet received a copy of the repossession notifica
tion as of that date and had not received it until Decem
ber 9
Cooper admitted in cross examination that on Decem
ber 19, 1986, on request of Standby Power Inc, he exe
cuted an authorization to RPS to assign to it only
moneys owed by RPS to Cooper to satisfy its j udgment
in the amount of $1,051 62 for the unpaid August repairs
made to Coopers van There is insufficient credible evi
dence to conclude that any outstanding RPS debt to
Cooper exceeded Cooper s prior debt to Standby Power
On December 9, 1986, Cooper filed an unfair labor
practice charge against Respondent in Case 7-CA-26467
and then admittedly left town for a month or so
during which absence his charge was dismissed for lack
of cooperation in the investigation The instant charge
was filed by him on March 19, 1987
Gillihan testified that subsequent to the December 4
hearing he had no contact with Cooper until acknowl
edgment of receipt Monday, December 8, when Cooper
telephoned him to inquire about his settlement check
Gillihan gave the following account He informed
Cooper that he had received the GECC notification and
requested Cooper to come to his office to sign an ac
knowledgment of receipt, which he agreed to do and
which he did on Tuesday, December 9 Gillihan testified
that the notification itself was in a sealed envelope and
that he delivered it directly to Cooper on signed receipt
and told him that it was a delinquency notice for the van
payment debt and that Cooper ought to take care of it
Gillihan denied that Cooper surrendered directly to him
the keys to his van on December 9, and he denied Coop
er s testimony with reference to NLRB testimony being
worth it He denied that he had terminated Cooper's
contract for services to RPS on that date He testified
that after December 4 1986 Cooper had never returned
to the terminal to service his core zone nor had ar
ranged for any replacement
By letter dated January 27 1987 from GECC Credit
Manager Boyd to RPS head of finance, Schaeffer it was
confirmed that because of Cooper s default since Decem
ber 5, 1986 in the van lease/purchasing agreement and
because Cooper surrendered the van to RPS on De
cember 9 and pursuant to an outstanding agreement
RPS was to assume the possession of the van on assump
tion of the debt until such time as the lease/purchase is
transferred to a new lessee Gillihan testified that he as
sumed that Cooper turned over the van to someone at
the RPS terminal but it was not him and that the van
was left in the RPS terminal yard as of December 9,
1986 Thereafter RPS assumed the cost of further sub
stantial repairs to it and consigned it to its maintenance
manager John Howe for transfer to another RPS facili
ty
There is no evidence that either Standby Power on
GECC are joint or allied employers with respect to this
case, or that they acted in collusion There is no evi
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dence to support the General Counsels assertion that
Respondent took the initiative of notifying Standby
Power of its debt to Cooper
Because of Cooper s extremely serious credibility defi
ciencies including but not limited to shifting, inconsist
ent, and contradictory testimony, his admitted and dem
onstrated untrustworthy memory and his poor, uncon
vincing demeanor I find his uncorroborated testimony
most difficult to accept even had it not been contradict
ed Accordingly, I must credit Respondent witnesses
testimony and discredit that of Cooper whenever such a
conflict exists
Based on the foregoing credited testimony and docu
mentary evidence, I conclude that Cooper s continued
employment as a driver under Schirr was conditioned on
his purchase and maintenance of his own van, and that
subsequently he defaulted in his van payments, aban
doned possession of his truck and his obligations under
the lease/purchase and ceased servicing RPS clients, as
he was unable to do so in the capacity Schirr had condi
tioned his continued employment, long before the union
activity The General Counsel has not demonstrated with
clear, credible, convincing evidence that RPS colluded
with GECC and Standby Power to cause Cooper s finan
cial inability to continue with his van payments, nor that
had it not been for the withholding by RPS of moneys
due to Cooper, his van would not have been foreclosed
Because Cooper's testimony regarding the nonreceipt
of his December 5 paycheck remains unrebutted and be
cause Standby Power was apparently notified by pay
ment of moneys RPS owed Cooper I conclude that
Cooper's December 5 paycheck was not given to him on
December 9 or thereafter However because of the con
fusion in and unreliability of Cooper's testimony, I
cannot conclude Respondent discriminatorily withheld
and made deductions from Cooper s paycheck in retalia
tion for his union activities or his testimony before the
Board nor that Respondent had subjected him to new
and arduous work rules and work duties for discrimina
tory reasons
F Richard Andrzejewski Case 7-CA-26550(5)
Richard Andrzejewski started his RPS employment at
the Redford terminal in April 1985 as a contract driver
Although he owned his own delivery van Schirr decid
ed that it was not appropriate and obliged him to pur
chase a new somewhat different van which he did via
the same type of lease/purchase agreement described
above in Cooper s case Andrzejewski s core zones in
cluded northern parts of Detroit the municipal enclave
of Hamtramck (a city surrounded by Detroit), the adja
cent suburbs of Harper Woods and the five small suburbs
that separate the eastern edge of the city from Lake St
Clair and which each have the name Grosse Pointe or
a variation of it Subsequently like Cooper and other
early employed drivers, his zone was compressed and he
lost the service to Hamtramck Andrzejewski testified
that prior to November 14 1986 he serviced an average
of 60 to 75 daily stops and delivered 120-150 packages
and experienced very few misloads or DNAs (packages
for which delivery was not attempted for one reason or
another)
Andrzejewski testified that he attended both union
meetings on October 23 and 30 at the pizzeria, was
present at both representation case hearings pursuant to
subpoena, and testified at the December 4 hearing as a
union witness
According to his testimony and his delivery settlement
records Andrzejewski did not service his route on Octo
ber 21 He testified that he was unsuccessful in his at
tempt to telephone the terminal on the morning of Octo
ber 21 because the telephone lines were busy He testi
feed that his mother had undergone surgery of an unspec
ified nature that day in Florida and he wanted to be
around It is unknown whether he had advance notice
of this surgery In any event, he testified that the next
day when he arrived for duty at 10 am concededly
tardy and for him unusually so his truck was loaded but
he did not work because Gillihan peremptorily greeted
him as follows
This is no time to be coming into work, I in termi
nating you We re cleaning out your truck right
now I want the keys to your truck I want you off
the property in five minutes or I in going to call the
police
Andrzejewski testified that despite his equity in the van
he surrendered his truck keys without protest and de
parted and promised to return Friday October 24, for
his paycheck
Andrzejewski's settlement records reveal that he deliv
ered for 2 full days on October 20 and 22 He testified
with assurance that he was not absent on Thursday No
vember 23 but rather on 1 or 2 days before the union
meeting Thus his absence must have been October 21
but this makes his testimony concerning November 22
deliveries inexplicable Unfortunately, his full settlement
records were not adduced into evidence and there is a
gap from October 23 through 30 However because of
his certainty that the absence preceded the union meet
ing and was either October 21 or 22 I find that it must
have been October 21 Accordingly he was discharged
for the first time according to his testimony rather
abruptly prior to any evidence that Respondent was
aware of his or other employees union activities
This first termination is not alleged by the General
Counsel to have been discriminatorily motivated, and
Respondent offered no rebuttal to it The General Coun
sel adduced this evidence he stated to simply fill
in the background of how this employee fared while
working there and explicitly disclaimed it as evidence
of unlawful discrimination In any event it demonstrates
that Andrzejewski had motivation to seek union repre
sentation and reason to feel aggrieved It also displays
Respondents preunion awareness, rigorous attitude
toward Andrzejewski's absence from work, and late ar
rival It is puzzling in that according to his testimony
Andrzejewski had been terminated before the first union
meeting and had according to his impression no further
employment connection at the time but he purportedly
attended the first union meeting
According to Andrzejewski s testimony, he received
his check at the terminal on Friday and was invited to
ROADWAY PACKAGE SYSTEM
return Monday October 27, for a meeting with Gillihan
who, at that time and after the union meeting notice pub
lication, offered reinstatement to the aggrieved Andrze
jewski who had attended the meeting along with apolo
gies for his hasty action
It is the General Counsels position that after Andrze
jewski attended the first representation hearing at which
he did not testify, his fortunes with RPS immediately
plummeted again The first incident of alleged harass
ment is the replacement driver requirement incident to
which Cooper testified as noted above Andrzejewski
testified that he Cooper, and Johns were all in Gillihan s
office when their union served subpoenas were discussed
Unlike Cooper Andrzejewski did not testify to a threat
of discharge for failure to provide a qualified replace
ment , but rather only that Gillihan reminded them of the
obligations to provide a replacement When asked
whether this rule had been ever enforced before he an
swered to my knowledge, no This testimony con
trasts starkly with his own discharge experience in Octo
ber and with Cooper s admission that it had been his
standard practice to provide a replacement when absent
Johns testimony is silent on this point Andrzejewski did
not testify to any specific prior instance of absence other
than that for which he was terminated on October 22
His testimony fails to establish that he was subjected to a
newly instituted work rule by Gillihan s reminder of a
preexisting obligation and is inconsistent with that of
Cooper
Andrzejewski testified that prior to November 14,
with respect to the loading of his van, he never really
had any problems He testified that his loads were
always neatly stacked and loaded in proper order and
that he had very few mis loads or DNAs This testi
mony contrasts with the foregoing testimony of the Gen
eral Counsels witnesses concerning the preexisting prob
lems with loaders and suggests that either Andrzejewski
is not credible or by some freakish circumstance he had
been blessed with effective loaders who as he claimed
had always neatly stacked his loads in proper sequence
After the November 14 hearing he characterized the
loading of his van as suddenly having become impossi
397
ble i e, the packages were loaded in incorrect sequence
required for proper delivery In contrast to Cooper who
testified that he usually spent 15-20 minutes re sorting
his loads even prior to November 14, Andrzejewski testi
feed that now he was compelled for the first time to re
sort his loaded packages He testified about the way his
van had previously been loaded
I never really had problems My van was-boxes
were placed in the right order everything has
stacked up neat I really had a good-I never had a
problem
However after November 14 re sorting now occupied
him for 1 1/2 hours because he found his van was filled
up to such an extent and packed so tight that he had
to remove all packages for re sorting because he could
not even walk through the aisle of the load area of the
van
In addition to the loading problems Andrzejewski tes
tified that after November 14 he experienced Consider
ably more packages put on my truck which hindered me
from servicing my route on a productive scale He esti
mated that his heavy loading occurred 3 days out of the
5 day week He also testified that he now found that at
least three or four times a week his interior van lights
had been left on He claimed that had never happened
before, despite General Counsel s witness Wieman s testi
mony regarding its past prevalence among the other
drivers experiences prior in preunion organizing times
Regarding the foregoing generalized conclusionary
testimony about delivery load, the General Counsel sub
mitted selected settlement records from October 13
through November 29 and no delivery records These
were supplemented in part by Respondents introduction
into evidence of Andrzejewski s other delivery records
of November 11, 12, and 20 and December 1-4 and 10
1986 A post November 14 deviation can be seen in those
records from the range of package volume Andrzejewski
normally transported if the higher number of undelivered
packages are calculated Andrzejewski s settlement and
delivery records disclose the following
1986 Pkgs Delivered Stops Estimated DNAs
Total Delivery Pkgs Total Pickup &
Carried Delivery Hrs
10/13 138 82 0 138 9 1/2
10/14 95 41 0 95 8
10/15 172 76 0 172 9 1/2
10/16 145 62 0 145 8 1/2
10/17 160 61 0 160 8 1/2
10/20 146 68 0 146 9
10/22 123 64 0 123 8 1/4
10/30 152 80 2 154 9
11/4 82 44 0 82 8 1/2
11/6 149 71 9 149 9 1/2
11/10 108 68 7 115 9 1/2
11/11 133 74 4 137 9 1/2
11/12 133 70 7 140 9 1/4
11/13 101 54 3 104 9 1/4
11/14 (date of hearing)
11/17 110 57 11 121 9 3/4
11/18 101 67 0 101 8 1/2
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1986 Pkgs. Delivered Stops Estimated DNAs
Total Delivery Pkgs. Total Pickup &
Carried Delivery Hrs.
11/19 163 69 8 171 9-1/2
11/20 103 48 70 173 9
11/21 141 51 0 141 9
11/24 152 72 50 202 9-3/4
(Nov. 26-27 were holidays)
11/29 143 80 50 193 9-3/4
12/1 146 62 30 176 8-1/2
12/2 105 58 20 125 9-1/4
12/3 107 52 20 127 8-1/2
12/5 156 54 7 163 9-1/2
12/10 145 38
The average number of stops for both periods of time
pre- and post-November 14 remains about the same, ex-
clusive of the DNA destined stops. These selective
records, however, do not disclose how many DNAs can
be attributed to any particular stop. There is also no tes-
timony on this point. Thus, any given number of. DNAs
for any particular day can possibly have been destined
for one stop or as many as there are DNAs. It is thus
impossible to determine how much more time would
have been consumed to effectuate a complete delivery.
Further, there is no testimony or other evidence to show
that Andrzejewski's DNAs were to be shipped to con-
signees outside of his regular core zones, that they were
misloads or merely packages he failed to deliver within
his normal work hours for other reasons. There is also
no testimony concerning the selective size of the DNAs
in relation to other packages, nor in relation to the loads
carried before and after November 14.
The above records show that a package volume sig-
nificantly in excess of Andrzejewski's previous high Oc-
tober delivery did not occur inclusive of DNAs, until
November 24 and again on November 25 and 29. On De-
cember 1, the total, with DNAs, was almost equivalent
to the pre-November 14 high of October 15. Even with
DNAs, December 5 was close to average, and December
2 and 3 were within the upper half of his normal range
of deliveries.
A further factor to be considered is one which the
General Counsel raises in another context, to be dis-
cussed below, but which he ignores in Andrzejewski's
situation, i.e., the conceded normal pre-Christmas season
acceleration in business volume. No records were sub-
mitted for Andrzejewski's 1985 pre-Christmas delivery
volume, but that would not be too significant because of
the fact that, like other core zones, his was also part of
an expanding business operation. Accordingly, pre-
Christmas 1986 package volume most probably was
heavier in 1986. Because it was an expanding business, it
was normal to expect heavier loads. Thus, several driv-
ers sought or readily accepted core zone compression for
that season.
Despite his testimony about unwieldly punitive loads,
Andrzejewski testified further that after the November
14 hearing and after he had testified at the December 4
hearing, he experienced "changes" in his "routing"
whereby for the first time he was not loaded with any
Grosse Pointe area packages which, because of its con-
centration of 10 to 15 stops, had been very productive in
the past. He hesitatingly estimated that this occurred
"probably three-four times, five times." Andrzejewski
did not testify, however, that he had been assigned to
service any area other than his normal route. The Gener-
al Counsel adduced no probative, nonhearsay testimony
to establish that any other driver serviced the Grosse
Pointe areas during that time other than the date of his
absence. No records reflect such a deviation.
Meyer testified that he was in charge of Andrzejew-
ski's preloading from October 20 until the start of his va-
cation at the end of November 1986, and that he did not
alter Andrzejewski's route nor did he reassign to another
driver the Grosse Pointe deliveries. Coordinator Carney
testified that he and Scott Wieman substituted for Meyer
in load supervision during Meyer's vacation absence
from December 1 through 5, 1986, and that during that
time Andrzejewski was loaded and did deliver packages
for the Grosse Pointe areas on December 1 and 3, but
not December 2 and 5. He was corroborated by Andrze-
jewski's signed settlement and delivery records. Carney
testified that on December 2, he flexed Andrzejewski's
Grosse Pointe deliveries to another driver because of 30
undelivered packages (DNAs), that Andrzejewski had
returned and left in his van on December 1 after a deliv-
ery of 146 packages for 62 stops in 8-1/2 delivery hours,
as documented by the uncontested delivery records. Ac-
cordingly, Carney decided on December 2 to flex away
Grosse Pointe to avoid further DNAs. On December 2,
however, although Andrzejewski had delivered 105
packages in 58 stops during 9-1/4 hours, he still returned
with 20 DNAs. On December 3, Andrzejewski delivered
107 packages to 52 stops in 8-1/2 hours. Carney testified
that on December 5 he decided to again flex off Andrze-
jewski's Grosse Pointe deliveries because of the large
number of DNAs left by temporary drivers used in
Andrzejewski's absence on December 4. He testified that
this necessitated splitting the route on December 5. The
delivery records reveal that on December 5, Andrze-
jewski delivered 156 packages to 54 stops and returned 7
DNAs, i.e., a very normal day.
It appears that Andrzejewski was simultaneously com-
plaining of an increase of his loads in his core zones to
the burdensome level, but" also objecting to the removal
of part of those core zones . In essence , thus his com-
plaint allegation seems to be that Respondent, for retalia-
ROADWAY PACKAGE SYSTEM
tory reasons, took away a part of Andrzejewski s route
which he, without foundation, characterized as more
productive That characterization was not reduced to a
dollar and cents equivalent nor to any other measurable
comparison The evidence does not disclose that Re
spondent changed his route but rather shows that on
what were limited occasions, it ` flexed part of an other
wise large load at a time when Andrzejewski had in
creased DNAs and pursuant to a "flexing practice con
ceived and instituted prior to union activities and prior
to November 14 for apparent reasonable business motiva
tion There is no evidence regarding the amount of deliv
eries that were flexed away nor that they were not
flexed to a driver whose load was susceptible to augmen
tation Although Andrzejewski testified that he had
never been flexed out of the Grosse Pointe area previ
ously he did not testify that he had never been subjected
to the flexing out of a less desirable part of his regular
route Meyer testified, without contradiction, that he did
flexing with Andrzejewski within the adjacent Detroit
area within the city limits after October 20 with another
Detroit driver Further, although Andrzejewski claimed
that he had never before November 14 been flexed out
of the Grosse Pointe area, he admittedly did not have so
large a number of DNAs in the past Yet, there is no tes
timony or evidence in the record to support a conclusion
that the increased DNAs and the increased loading were
deliberate missorts or arbitrary increments to Andrze
jewski s normal route rather than the result of a normal
increase of business within his regular core zones which
he decided were undeliverable in the time he allotted to
himself for daily deliveries
Andrzejewski testified to two further alleged onerous
employment conditions one of which involved a client
called Production Tool located in northeast Detroit
Andrzejewski initially serviced this client in early
summer of 1986 when he according to instruction com
menced morning stops to solicit pickups but didn t have
too many deliveries to make there He claimed that a
morning stop was convenient because otherwise it would
disrupt his afternoon delivery sequence to the Grosse
Pointes Accordingly because of a lack of pickup
volume there Schirr had agreed to the morning pickup
after an initial 1 week period of fruitless afternoon ap
pearances Although Schirr told Andrzejewski to contin
ue to make appearances to demonstrate an RPS presence,
Andrzejewski testified that he ceased making stops there
He testified that in the latter part of October Meyer
demanded to know why he had stopped servicing Pro
duction Tool and why he did not appear there each
afternoon Accordingly Andrzejewski resumed the serv
ice under protest but on Gillihan's insistence He placed
this event within the next week after his first discharge
and well before he had given any indication of being a
union supporter The incident, however demonstrates
the friction with and resistance to the newer managers
who attempted to implement their judgment on how to
run the deliveries and which preceded and may have
motivated the union organizing efforts
The last incident of alleged burdensome assignment in
volved service to the Eastland shopping mall located at 8
Mile Road and Kelly Road in Harper Woods just at the
399
Detroit city limit Eastland had been one of his regular
consignees Andrzejewski testified that this service
became a problem only in the last week of his employ
ment which ended on December 10, 1986 More specifi
cally, Andrzejewski testified that on December 10, he
had delivered only 38 stops because of an enormous
load of boxes consigned to the Walden Book store in the
Eastland mall which required tedious, time consuming,
multiple deliveries by handtruck As the above cited
records indicate, on two occasions in October he deliv
ered only 41 and 44 stops at which time he delivered
fewer packages He frequently serviced between 50 to 60
stops Moreover, on December 10, he delivered 145
packages in 9 1/2 hours Andrzejewski testified that on
past occasions Respondent sometimes utilized tempo
rary drivers for such large single deliveries but he re
called but one such instance where 25 boxes were deliv
ered to a Dan Gooley dealership by way of a tempo
rary driver He gave no details, i e , whether on any of
these occasions he was obliged to request a temporary
driver assistance There is no indication that he protested
the December 10 loading , nor that such a delivery is ex
traordinary Past practice appears to have been sporadic,
i e, sometimes ' a temporary driver was used Andrze
jewski testified that as a consequence of delay at the mall
he returned with a lot of undelivered packages" origi
nally consigned to his regular route He testified that he
returned to the terminal between 5 30 and 6 p in which
should be noted is not a particularly late return for him,
i e, he admitted it was his usual return time
The evidence fails to demonstrate that the Eastland
delivery load was an unusual event that resulted from
the deliberate contrivance of Respondent to saddle
Andrzejewski with a particularly unprecedented burden
Andrzejewski testified that he was ill on Thursday,
December 11, with a head cold and he called early in
the morning that day and spoke with someone at the ter
minal , whom he could not identify, and that he asked
that his van not be loaded He also testified that he again
called on Friday and spoke with a person whom he did
not identify and stated that he was still ill and that he
would return to work on Monday Meyer testified that
he was in charge of loading during that time, had accept
ed all incoming calls but had received none from An
drzejewski
Andrzejewski testified that later that day about 9 a in
on Friday December 12 he telephoned Gillihan and
asked if his paycheck had arrived and was told yes, it
had He testified that he arranged for a former RPS
driver to transport him to the terminal and that he spoke
to Gillihan alone in the office He testified that Gillihan
ripped one page from a multiple page document and
stated I ve got your paycheck here, but if you want
your paycheck you've got to sign this paper Andrze
jewski testified that he did not know what the multiple
page document was but that when Gillihan laid a paper
down on the desk for him to sign he recognized it as a
termination which Gillihan demanded that he sign in
order to rceive his check He claimed that he signed the
paper and was told that he was not needed there any
more and that he was terminated In direct examination
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he testified that he assumed that he had been terminated
for the failure to report for work on Thursday and
Friday an implicit recognition that he had engaged in
conduct that put him in jeopardy of discharge He testi
feed that Gillihan told him he was not going to be paid
for the day of December 10 because he had only deliv
ered 38 stops In confusing testimony, Andrzejewski then
claimed that Gillihan refused to give him a paycheck on
November 10, but he was silent about the receipt of the
paycheck due on payday December 10 for the preced
ing pay period and presumably received on signing the
termination paper
Cross examination elicited a different complexion on
the exit confrontation than was revealed by Andrze
jewski in his answers to the General Counsel s examina
tion He admitted that he like Cooper had since the Oc
tober payment been delinquent in his monthly install
ments to GECC due under his van lease/purchase con
tract Inexplicably, when confronted with the second sig
nature page of the form default repossession notification,
identical to that discussed above and which bore his sig
nature dated December 12 Andrzejewski identified it as
the termination paper he had signed for Gillihan Gilli
han testified later that he did in fact present the entire
document to Andrzejewski
In further cross examination when asked whether it
was not his practice to sort out his loads prior to deliv
ery he answered that it all depended on several fac
tors but that he had found it good business practice to
re sort his loads en route Thus, although it had not been
his normal practice to re sort loads prior to delivery de
parture he conceded the necessity to have done so at
some point during delivery He testified that the week
before or the week of Gillihan s arrival as new manager
he arranged to meet his new loader at 8 a in in order to
instruct him about proper sequence loading When asked
whether prior to this confrontation the loader had mis
loaded the sequence Andrzejewski was hesitant and eva
sive Certainly there had to have been some significant
problem with his loader to have caused this encounter
But he testified
He was doing okay He was doing okay There
were times when he told me that-he said that he
was-I said Sometimes you put too much on
and he says well they told me to load it that
way ' He says that he had no control over that
Andrzejewski testified that he had no awareness of
whether his loader had subsequently been replaced
which event was not unlikely because of high loader
turnover
The loader encounter and the need for it, i e, improp
er loading and the need to spend time re sorting, oc
curred well in advance of Andrzejewski s appearance as
a prospective witness and before his first discharge
which preceded his union activities and is in accord with
other General Counsel witnesses testimony Thus An
drzejewski contradicted his direct testimony that he
never had improper loading problems prior to November
14 and that excessive loadings were some of the changes
that were instituted after November 14, alleged retalia
tion for his appearance as a prospective union witness
Furthermore his testimony is either not supported by his
own records or it is inconsistent with it In addition to
inconsistency in his testimony it is also inconsistent with
that of other General Counsel witnesses
Accordingly, I find that either Andrzejewski s testimo
ny is false or that it was so grossly exaggerated as to de
bilitate its reliability
Gillihan testified that on December 12 Andrze_jewski
appeared in his office for the receipt of his settlement
check He testified about the following confrontation
Gillihan told Andrzejewski that he had his check and he
also had a copy of the default notification from GECC
dated December 9 1986, which he asked Andrzejewski
to sign and which he did sign on being presented with
the entire document It should be noted that the page
signed by Andrzejewski in the last paragraph states
GECC will not consider reinstating this lease unless it
receives from you within 5 days of the date of this letter
full payment of all amounts due and the signed authors
zation form Having read this document and signed it, it
is incredulous that Andrzejewski should claim either that
he thought he signed a termination notice or that he was
unaware that van repossession was involved Gillihan
denied that he conditioned receipt of the December 10
settlement check on execution of the default receipt ac
knowledgment Gillihan denied that Andrzejewski raised
a question about being paid for December 10 and denied
that any conversation about it had transpired He testi
fled that Andrzejewski never again appeared at the Red
ford terminal had not provided a replacement during his
absence, and had abandoned his van at the terminal The
van was subsequently assigned by GECC to RPS and
cleaned repaired and sent to its Dayton Ohio facility
Gillihan testified that he telephoned Andrzejewski and
attempted to speak with him several times during the
week of December 15 through 19 Only on the first at
tempt he actually communicated and conversed with
him and asked whether Andrzejewski intended to return
to work but Andrzejewski responded that he did not
know and had not decided whether he desired to return
to work as a contractor
Meyer testified that Andrzejewski did not service his
route on December 8 and 9 and that it was assigned to a
temporary driver He was not contradicted Andrze
jewski was silent regarding those dates
In redirect examination Andrzejewski testified that he
never received any further communications from RPS
after he had been told he was terminated He testified
that he was flabbergasted by the suggestion first raised
in cross examination that he walked away from a big
$10 000 investment, i e the van, and was not terminat
ed He did not clearly testify what actual equity he had
in that van However by his own testimony, he did in
fact surrender the van and did walk away from this in
vestment on both occasions when he was terminated
without any attempt to maintain his payments and/or ar
range for assignment to another lessee and reimburse
ment for his equity, as there is evidence other drivers
tried to do without total loss of their investment
ROADWAY PACKAGE SYSTEM 401
Andrzejewski testified that he would have made the
November payment installment had it not been for the
termination but that in any event he did have another
truck However, he conceded that truck had been explic
itly disapproved for service on behalf of RPS As noted
earlier, Schirr as he had done with Cooper insisted that
Andrzejewski purchase this specific van
On January 15 1987 Andrzejewski filed an unfair
labor practice charge alleging a discriminatory discharge
That charge was later dismissed by the Regional Direc
tor for lack of cooperation in the investigation as An
drzejewski admittedly failed to keep appointments with
the investigator
Because of the above recited deficiencies in Andrze
jewski s testimonial reliability I must credit the testimo
ny of Meyer, Gillihan, and Carney I conclude that the
General Counsel has not adduced clear, credible unam
biguous, competent, probative evidence that Andrze
jewski was subjected to the burdensome conditions of
employment subsequent to November 14 I find that he
did, in fact, cease to service his route without notice, and
thereafter appeared at the Redford terminal to accept his
check and to acknowledge receipt of a payment default
and van repossession notice whereupon he abandoned his
van and his service contract with RPS By abandoning
his van, he, thus like Cooper removed a condition subse
quent to his RPS continued services By abandoning his
service contract, he thus rendered moot whether his con
duct warranted discharge again, as it had on October 22
G Michael Johns Case 7-CA-26550(3)
Johns commenced services with RPS at Redford in
May 1985 as a temporary driver until June 3, 1985 when
he became a contract driver for the northeast suburbs ad
jacent to Detroit , including St Clair Shores, Mt Cie
mens, Fraser Roseville , and East Detroit which were
directly north of Andrzejewski s core zones Subsequent
ly, in October 1985, his route was condensed to St Clair
Shores and the southeast part of Mt Clemens Driver
Loeffler assumed service to Fraser part of Mt Clemens,
Roseville, and also part of Warren , a geographically
large suburb immediately west of Johns former core
zones and directly north of the Detroit city limits Johns
testified that this arrangement had been achieved on
mutual agreement subsequent to a meeting with Loef
fler Terminal Manager Schirr and coordinators Wieman
and Bannon
In November 1985 pursuant to a contract with the
General Services Administration RPS commenced serv
ice to the Selfridge Air National Guard Base to the im
mediate east of Mt Clemens and on the shore of Lake
St Clair
When the General Counsel asked Johns whether he
had serviced the air base he commenced a testimony
both on direct examination but more so on cross exams
nation, that was severely debilitated with broad conclu
lions generalizations evasions , internal and external con
tradictions inconsistencies , calculation to greater self in
terest lack of spontaneity , garrulousness verbal fencing
and demonstrable falsehood His totally unconvincing de
meanor and testimonial unreliability exceeded that of
Trimble , Cooper, and Andrzejewski Only the highlights
of these deficiencies will be discussed here I discredit
Johns wherever his testimony conflicts with any other
witness
Although at various points in his testimony, Johns im
plied and stated that he did not consider the air base as
part of his route it is clear from his entire testimony that
it had been assigned to him earlier in November 1985
that it had been serviced by him unwillingly and under
protest and that his resistance to servicing the base had
been the cause for Schirr s threat to terminate him prior
to any overt union activities According to Johns, he
could not service the air base on a daily basis after
January or February 1986 because the receiving area of
the base closed between 2 45 to 3 15 p in and he was
unable to get to the base earlier in the day and also he
considered the type of consignments to be a nuisance to
handle
Gillihan testified that early in his assumption of duties
he discussed with Johns the best way to service the air
base He testified, without contradiction, that after seek
ing the advice of driver Biluk, who was knowledgeable
of the area, he relayed that advice to Johns, i e , the most
logical route was to service the air base first in the morn
ing Records reveal that on at least 2 days in November
Johns did dust that and successfully delivered normal
loads without DNAs or misloads
Johns testified that the volume of air base deliveries in
creased considerably in March 1986 which necessitated
the first of several confrontations with Schirr Johns tes
tified that he agreed to service the base if possible Air
base volume increased further in May 1986, and Schirr
insisted that Johns must service the base daily because of
the lack of drivers but that possibly Bob McCarthy
would take on the area in June or July 1986 when he
became a full time driver In cross examination he testi
fled that Schirr did not threaten discharge in May for re
fusal to service the air base, but rather in late August or
September 1986 In his pretrial affidavit he placed his
protest of impossibility of service to the air base and
Schirr s consequent threat of discharge as having oc
curred in the last week of May
Johns testified that under the agreement he thereaf
ter serviced the air base periodically not daily
through June and August and when he did not McCar
thy or temporary drivers were used, but that sometimes
the air base consignments would sit on the docks for up
to two weeks which caused one particularly memora
ble search for a package On his delivery records dated
November 6, he had entered a written protest alluding to
an earlier June 1 1986 protest of an inability to serv
ice the air base which he reiterated and then stated,
This must go on a new route as suggested in the past
[i e it must be removed from where it was assigned-
Johns daily route]
That Johns was threatened with discharge for refusal
to service the air base is not disputed Johns placed it in
late August So at least once if not twice such a threat
had been made The General Counsel witness Wieman
testified to what was clearly the August incident He tes
tified that he observed that Johns deliberately refused to
load and deliver packages that Wieman had staged for
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him on the dock behind his van and that when Johns re
fused to do so Wieman asked Schirr to discharge him
He testified that Schirr did not proceed with the dis
charge because Johns had apoligized This testimony is
significant because it reveals that Johns did not have the
discretion to accept or reject the air base deliveries nor
any other loads placed on his van, and that he recog
nized his misconduct by apologizing Also, this testimony
reveals that prior to overt union activity, Wieman had
frequently staged, i e , arranged for a driver s load on the
dock but did not load it
In redirect testimony, Wieman conceded that it was
very common practice" to stage packages on the dock
behind a driver s van and to ask him to take them with
him" because of the inexperienced and ineptitude of the
loaders and that it often saved time for the driver This
testimony clearly contradicts Johns and other testimony,
e g , that of Andrzejewski to the effect that prior to
overt union activities, packages were always neatly
loaded In view of his recommendation to terminate
Johns, which Schirr threatened to effectuate drivers
clearly had no discretion to refuse to load and deliver
staged parcels
Johns recalcitrance regarding the air base deliveries
and vulnerability to discharge, together with his and
other contract drivers resistance to other instances of at
tempted managerial control of their daily delivery oper
ations e g flexing, service crossing, sheeting, etc , preci
pitated the union organizing efforts in which he partici
pated as discussed earlier
On the General Counsel's direction of his attention to
the date of the second union meeting and after asking if
he recalled having a conversation with Mr Wieman
about the organizing drive he agreed that he did But
he placed the event as having occurred sometime be
tween the two union meetings at Lee s Bar He testified
that while five or six unnamed drivers were sitting at a
table he went up to the bar and encountered Wieman
who customarily drank with them and had earlier lis
tened to their complaints about working conditions
Johns testified that Wieman asked him at the bar what
is this another union meeting? According to Johns, he
said, Yeah, at which point Wieman asked Have you
signed a card ' and when told Yeah stated I figured
you'd be at the bottom of this Wieman stayed at the
bar and then departed
Wieman did not corroborate Johns In cross examina
tion Wieman at first claimed that he did not recall
making a card signing query but, when confronted with
his pretrial affidavit testified that he never asked any
driver whether he had signed a union card I credit
Wieman Accordingly, in view of Johns unreliability as
a witness his lack of corroboration, and partial explicit
contradiction by Wieman I conclude that even if an en
counter took place, Johns, at the very least exaggerated
what was said Given the context of Wieman s past
drinking and friendly gripe sessions with these drivers at
the same bar and Johns testimonial unreliability I find
insufficient bases to conclude that this incident consti
tutes coercive interrogation as alleged and argued by the
General Counsel I further find Johns testimony insuffi
ciently reliable to postulate employer awareness of his
union activities on it
The General Counsel argues that after Johns Novem
ber 14 testimony he was subject to special new treat
ment , i e, discriminatory changes in work conditions
Johns testified that on November 1 after the petition
was filed, 2 weeks prior to but not after his November
14 testimony as a union witness, he was subjected to a
change in his route, i e, he was taken completely out of
St Clair Shores' and told to service the area that Loef
fler had earlier taken from him, i e Mt Clemens Fraser
Roseville plus East Detroit He testified that his route
was changed daily to such an extent that he never knew
where he was to deliver from one day to another In
cross examination, he admitted that in September or Oc
tober 1986, Loeffler had terminated his services for RPS
He also admitted that he had a specific flex area He also
testified, as had Andrzejewski, that the way the vans
were loaded also then changed as packages were just
thrown into the trucks so as to impede access through
the van aisleway, and loading sequence was no where
near what was requested and was totally disorganized,
contrary to universal past practice He testified that this
necessitated the expenditure of 1 to 2 hours of sorting
time The reader is directed above to my evaluation of
Andrzejewski s testimony on these points
Concerning the impact of these changes, Johns testi
fled that during the first week, because of the route
changes, he lost $150 and the second week he lost $175
when during both weeks he was removed from St Clair
Shores He testified that these estimates were based on
his comparison of 2 weeks in October when he had serv
iced St Clair Shores He insisted that the losses contra
ued through November and December
Wieman testified that it had been the practice to try
to keep a contract driver in the same area in order to in
crease his familiarity with addresses and thus his effec
tiveness He testified that at one point Johns was re
moved from St Clair Shores entirely and assigned to the
Mt Clemens delivery which Wieman characterized as a
disadvantage because of a lower concentration of busi
nesses, i e , it was spread out and required more driving
time Wieman testified that he had a conversation with
Gillihan about this assignment He could not recall the
date but hesitantly answered, when the General Counsel
alluded to the hearing and whether it was after the
hearing Yes I believe so ' Wieman testified that
during this conversation, the context of which was not
testified to Gillihan stated, We changed Johns route
and we re going to starve him out The statement seems
to be an announcement of an intention of implementing a
future act Yet according to Johns the changes occurred
about November 1 not after the November 14 hearing
Gillihan did not deny this statement and the General
Counsel relies heavily on it as evidence of antiunion re
taliatory intent Again, however, the General Counsel
relies on a statement out of context in a conversation
where there apparently was no reference to union activi
ties and the date was not fixed with any certainty It
must be kept in mind that up to this point that Johns and
the Redford management had been going toe to toe in
ROADWAY PACKAGE SYSTEM
confrontations on managerial operational decisions one
of which flexing, was openly ridiculed, and the other,
service crossing was arrogantly subject to Johns con
siderations only if put in writing If this statement is evi
dence of hostility, it can as well be interpreted as hostili
ty to Johns behavior other than his union organizing of
forts
With respect to the assignment of Johns back to areas
previously serviced by Loeffler, there is no argument
made that these areas were not in need of service, par
ticularly since Loeffler had been terminated The Gener
al Counsel relies solely on Johns generalized testimony
as to negative impact and the limited corroboration by
Wieman Yet, there is no evidence that it would have
been unreasonable to assign to Johns Loeffler s areas
which Johns had serviced in the first place, even before
Loeffler Further, more importantly, scrutiny must be
made of Johns generalized testimony of negative impact
and actual change of route The undisputed evidence of
Johns actual weekly gross earnings commencing for the
week ending October 17, 1986, and through the week
ending December 19, 1986, disclose that no such reduc
tion in pay occurred inasmuch as his average daily earn
ings actually increased and remained at a higher level
Therefore, had Johns experienced any reduction in
income, it occurred prior to his overt, known union ac
tivities, but even such reduction is not proven, but
merely a matter of speculation
The General Counsel and witness Johns had access to,
and scrutiny of, Johns delivery records for a substantial
period of time during the trial, yet no documentary evi
dence was adduced to conclusively prove Johns conclu
sionary assertions In cross examination Johns insisted
that his delivery route was changed immediately after
the representation case petition filing on October 24
After a lengthy overnight scrutiny of his November and
December delivery records he was unable to identify
significant deviations from his routing to areas outside of
his normal core zones The General Counsel cited Johns
delivery records in its argument that in 1986 he delivered
no or few packages to St Clair Shores on November 18
and 26 and December 2 5, 30 and 31 The General
Counsel cites Johns testimony to the effect that his wit
ness stand inspection of his December 2 delivery records
revealed no St Clair Shores packages This testimony
however, contradicts earlier admitted testimony given at
the December 4 hearing that on December 2 2 days ear
her he had in fact many undelivered St Clair Shores
packages left in his van which he did not record as
DNAs after having delivered that day The records for
the other 5 days in 1986 thus merely show that he did
not deliver to St Clair Shores but are not in fact conclu
sive that he had no loads for St Clair Shores In any
event the delivery records clearly reveal that contrary
to his testimony he did deliver to St Clair Shores during
the first 17 calendar days of November In patently disin
genuous testimony during cross examination Johns re
vealed that his definition of a change in route encom
passed any incident involving any misloaded packages
The General Counsel ignored the evidence of Johns
actual earnings and relied on his testimony that nondeliv
ery to St Clair Shores was equivalent to a starving out
403
strategy and the evidence that disclosed only 5 days in
1986 of nondelivery but not necessarily nonloading of
St Clair Shores packages The General Counsel asserts
that on January 1987 Respondent `redoubled its efforts
to starve Johns out
Johns testified initially in direct examination that the
foregoing alleged route changing and improper van load
ing continued unabated after the first of the year at the
end of the Christmas season package volume peak, at
which time all the temporary drivers were terminated
and all available work was distributed to contract driv
ers He testified that he had taken his van home to per
form some mechanical work on it over the New Year s
holiday and that he therefore loaded his own van when
he returned it on the morning of January 5 Loading co
ordinator Carney testified credibly that he was in charge
of stacking Johns packages for his missing vehicle on
January 5 In conjunction with Johns own delivery
record submitted on that date, Carney testified credibly,
without rebuttal, that he loaded Johns packages which
Johns delivered within Johns' own regular route, i e, St
Clair Shores and Mt Clemens, contrary to the General
Counsel s misstatement of Carney s testimony in the
brief Even Johns did not claim an exclusion from St
Clair Shores on January 5 The settlement records for
that date reveal 153 delivered packages to 80 stops with
no DNAs, and 2 pickup stops covering 139 miles
On Tuesday January 6 Johns testified that he arrived
and found two notes on his van one from Loader Super
visor Ross and one from Meyer each instructing him to
deliver additional areas on January 6 and 7, i e,
Fraser, Mt Clemens the Selfridge Air Base Roseville,
and East Detroit, and that packages for these areas had
been loaded onto his vehicle along with packages clear
ly misloaded, i e for consignees in other States He testi
feed that he observed that all other trucks in the area had
been neatly loaded but that his load looked as though the
packages had been randomly thrown in with such disor
der that it was not possible to walk through the van
Loading coordinator Carney identified the two Janu
ary 6 notes on Johns van from Ross and Meyer The
former stated, Please Run Roseville & Fraser Today
The Meyer note addressed to Gentlemen ' explained
that because of the arrival at the terminal of only two
delivery trailers, the volume for that date was very low
and as a result all drivers were flexed way out In the
note Meyer solicited questions but stated that packages
on vans were to be delivered and not thrown back onto
the dock Carney testified that according to his observa
tion Johns load was in no more disorder than any other
van that morning Meyer testified that he had posted
copies of his note in numerous areas throughout the ter
minal He testified to the facts stated in that note and ex
plained that he flexed all contract drivers to assure a full
day s work for each one and that no temporary drivers
were assigned work
The only cited contradiction to Meyer s testimony was
elicited from Biluk who had succeeded to Loeffler s por
tion of the Mt Clemens route He testified that he did
not personally receive a copy of Meyers route He ad
mitted that he was flexed in January When asked wheth
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er the flex was involuntary he alluded to a time in Janu
ary when his route was changed per mutual agreement
The answer refers to a change of assignment and does
not appear responsive to the question of a flex, i e tem
porary daily balancing of loads In cross examination he
admitted however , that flexing occurred when dnvers
loads were either too light or too heavy and if an adja
cent route is susceptible to accommodate more or less its
own load He also explained that misloads can be distin
guished from additional flexed loads which usually incur
a series of new consignees and not a few isolated ad
dresses, which he often unloaded himself on discovery
He testified that on occasion packages were flexed off his
van on his request and he was asked to deliver into an
adjacent area when his load was light He testified, We
negotiated on things like that i e, with Meyer or
Carney He testified that changes in his delivery area
generally came about by my asking for them In
answer to a leading question in redirect examination, he
testified My basic route has not changed without gener
ally my consent The implication is that generally but
not always , there was mutual agreement to changes that
occurred in his daily delivery route including flexing,
i e , he generally acquiesced in flexing requests made on
him and his requests were generally honored He admit
ted in further cross examination that in January 1987
business volume was considerably reduced with a conse
quent reduction of temporary driver usage He explained
in redirect examination that what drivers would be
flexed into which areas was a matter subject to fluctua
tion in business volume He did not deny that extensive
flexing occurred on January 6 nor that other dnvers re
ceived written flex notices
Biluk admitted that it was a normal occurrence for
him in the morning to find his van only partially loaded
with the receiving load left on the dock or around the
truck and that he daily re sorted his packages He did
not corroborate Johns as to any distinctiveness regarding
the state of Johns load on January 6 I do not find
Biluk s testimony to be a contradiction to that of Carney
and Meyer , but rather find it to a great extent consistent
with their testimony and not corroborative of Johns tes
timony
Johns delivery records for January 6 reveal that he
performed a full days work in 11 1/2 hours of total
loading , re sorting , pickup and delivery and 10 1/2
hours of driving , pickup and delivery during which he
delivered 146 packages to 57 stops and picked up 44
packages at 6 stops covering 140 miles However Johns
entered on the face of his settlement report a notation
that he had removed 11 stops at the dock prior to terms
nal departure as perceived misloads and 21 stops left
on out of area [and] 27 [Roseville and Fraser packages]
recorded as misloads intended for another van
Johns testified that on January 6 he started to remove
packages from his van on discovering what he had char
acterized in direct examination as misloads or loads
beyond his core zones but was ordered by Meyer to
stop unloading and to deliver the loaded packages He
then became confused on the witness stand and placed
the event on January 9 On cross examination he testa
feed that he did remove packages from his van or had
started to remove packages from his van before being
halted on January 6 He admitted that these packages
were consigned to the air base
The General Counsel suggests in the brief that the
heavier workday discredits Meyer s testimony of low
volume deliveries but adduced no other comparative evi
dence on the point The fact that Johns package volume
was high does not contradict Meyer It was Meyer s
intent to accomplish at least a full workday for each con
tract driver at the expense of not using temporary driv
ers at all and by the use of flexing There is no evidence
that this was not done There is no evidence that the
nonuse of temporary drivers and flexing resulted in a dis
parately larger workload for Johns or any alleged dis
criminatee nor that the larger volume effectuated, some
how lower earnings No comparative evidence was ad
duced
Johns testified that on January 7 his van was again
loaded haphazardly and, after registering a complaint to
Meyer who alluded to the ineptitude of a new loader, he
departed the terminal and re sorted his load at the first
stop en route He testified that it took him 10 or 11 hours
to complete his route , which was an hour more one
way or the other than January 6 He identified a normal
route completion time as being 8 or 9 hours , apparently
exclusive of loading or re sorting He is not supported by
the documentary evidence His settlement record for
January 7 has his entry for total pickup and delivery
hours as 8 1/4 and 8 hours With respect to January 6
he explained that one figure included re sorting time Ac
cordingly , his own entry indicates a normal day of only
15 minutes of re sorting time It further reveals a deliv
ery of 87 packages at 50 stops and a pickup of 25 pack
ages at 3 stops covering 125 miles He also noted
32 Pkg 23 stop over
73 stops on truck [left after delivery]
Let s be realistic
His attached delivery records reveal that of an excess of
30 returned packages 26 were recorded by Johns as mis
loads intended for another van but virtually all of which
were addressed to Fraser Johns testified that on January
7 Coordinator Hillis instructed him to change his sheet
ing records and cross indexing of these returned pack
ages to that of the status as DNAs i e did not attempt
deliveries but that he refused Gillihan testified to an
earlier conversation where Johns refused to accept Gilli
han s definition of a DNA
According to Johns on January 8 his van was loaded
maybe not quite as bad as it had been and it was a
lighter day Johns own delivery records revealed that he
delivered 104 packages to 54 stops picked up 12 pack
ages at 1 stop covered 108 miles entered no DNAs had
a few insignificant returns and effected delivery in 9
hours or 8 3/4 hours exclusive of sorting In fact it was
not substantially less heavy than the day before from the
standpoint of package volume although significantly
fewer miles were covered A change in Johns routine
was that Coordinator Wieman rode with him as an ob
server Such an occurrence was neither unprecedented
for Johns , nor for Wieman whose job function entailed
ROADWAY PACKAGE SYSTEM 405
such observational rides Gillihan testified that the pur
pose of the coordinator was to provide guidance and as
sistance for the improvement of the driver 's delivery
methods However , according to Johns, Wieman told
him he was there to assure that Johns actually delivered
the Fraser addressed packages that had been loaded on
Johns' van
Johns testified that as soon as he had departed and
while en route on the expressway , Wieman asked him if
he had heard anything" about the Union and the Na
tional Labor Relations Board proceedings hearing deci
sion Johns testified as follows He responded with a
guess as to the date of decision issuance Wieman who
had been at the November hearing asked what tran
spired at the December session and Johns related Gilli
han s testimony at that hearing regarding the drivers
unknown freedom i e, their discretion as independent
contractors Wieman responded that yes that is the way
Respondent intended to run the terminal from then on
Wieman said , What s happening with the Union Johns
answered that we were waiting for the [Board s] deci
sion ' as was RPS Then they talked about how Johns
truck was loaded that day Wieman then asked Johns if
he was involved in bunging a union in Johns admitted
he was the person who had contacted the Union but that
other employees were involved Johns protested the
way the Company was harassing the various individuals
at this particular time Wieman asked what he meant by
harassment ' Johns replied , You riding with me is a
form of harassment Wieman insisted that it was not
harassment but a timestudy John characterized that re
sponse as bullshit , and insisted that the loading of the
truck was harassment Wieman purportedly said `Yes'
and agreed that van loading was a form of harassment
Sometime during this discussion which , according to
Johns, occurred en route to the first stop Wieman stated
that he could not work in a union environment Johns
insisted that RPS was a very profitable enterprise and
employed many employees and supervisors To this
somewhat nonresponsive statement , Wieman then stated
that he just felt he couldn 't work under a union envi
ronment
Johns testified that at the first stop Wieman helped
him to re sort the packages and that it took about 40
minutes to do so This , as noted is not supported by
Johns own time entries he had himself written on his
settlement report When Wieman insisted that Fraser be
delivered Johns accepted that order but told Wieman
that he would then be unable to complete the delivery to
Mt Clemens or the air base Johns testified that he had
not been able to get 30 or some additional stops that
day, including the air base and that Wieman agreed with
him at the end of the day that there was no way hu
manly possible that one man could cover the amount of
miles and stops on a given day as we had [loaded] that
day, despite the fact that he had covered only 108
miles
Johns is contradicted by his own completed delivery
records for January 8 which he was confronted with on
cross examination and which he admitted disclose nonde
livery for only two packages Johns insisted that on Jan
uary 8 there were other undelivered packages on his van
which he had not re sorted that day because he had
sheeted the very same packages on January 6 and 7
He testified that on January 6 he commenced noting on
the face of his settlement report the existence of excess
improper loaded packages , yet no such notation was
made on the face of the January 8 report
In direct examination , the General Counsel did not
elicit the corroboration of his own witness Wieman as to
the January 8 incident In cross examination , Wieman re
called having accompanied Johns as an observer in Janu
ary 1987 However , he had no recollection of asking him
whether he had heard anything about the Union or what
was happending with it He denied asking Johns if he
were involved in bringing the Union in, and he denied
telling Johns that misloading his van was a form of har
assment He admitted that he did assist Johns in rear
ranging his load inside the van but that he did this with
every driver with whom he rode and that it took no
longer than it had with the other drivers He had no
recollection of telling Johns that there was no way hu
manly possible for a contract driver to deliver all the
packages on his van or to encompass all the miles in
volved
In view of the fact that Johns drove only 108 miles in
8 3/4 hours to deliver 104 packages on January 8, it
seems unlikely that Wieman would have concluded that
it would have been impossible to deliver 30 more pack
ages Furthermore , according to Johns with Wieman s
acquiescence he agreed to accept Wieman s order and to
deliver Fraser at the expense of other areas which result
ed in the return of 30 packages He justified the nonre
cordation of those packages because he insisted he had
already sheeted them as having been returned on January
6 and 7 Yet the 27 returned packages on January 6 were
for Roseville and Fraser and on January 7 26 packages
predominantly for Fraser , were returned Accordingly it
is highly improbable that if Johns did have 30 packages
returned on January 8 they were still undelivered from
January 6 and 7 as previously sheeted misloads Johns
January 8 records show effected delivery to Fraser, St
Clair Shores and Mt Clemens
I credit Wieman s denials Because of the inherent
probability of Johns testimony in light of Wieman s de
nials, the lack of Johns corroboration his own delivery
record , nonsubstantiation if not contradiction I discredit
all of Johns testimony regarding the alleged interroga
tion by Wieman I find that even if a conversation did
occur , it related to a noncoercive discussion of the open
state of Board proceedings I further find that in view of
Wieman s testimony regarding the prior common prac
tice to engage in such observational rides, there is no
basis to find the incident to have constituted disparate
treatment or retaliatory harassment particularly in view
of Johns resistance to delivery to areas which constitut
ed part of his own route i e the air base
Johns testified that after January 8 his loads were not
reduced but got worse and that the very next day,
Friday January 9 , his van had been loaded for 120
some stops and over 200 packages , inclusive of pack
ages addressed to out of state or out state locations, i e
obvious misloads His van can accommodate a 250 pack
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
age load . Johns testified that in Meyer 's presence he un-
loaded those packages and placed them in front of him
on the dock . Meyer blamed the misloading on a new
loader . Johns testified that he continued to remove pack-
ages but as he did so, Meyer and Carney insisted that he
had been assigned only 66 stops despite his removal, at
his count , of 60 packages destined for 30 to 40 stops. Ac-
cording to Johns, at this point a confrontation ensued be-
tween himself, Carney , Meyer , and Gillihan out on the
dock by his van . During this encounter , according to
Johns, he insisted that he was unable to service all the
loaded addresses for the number of stops in the unspeci-
fied square miles involved . He testified that they
watched him remove packages and, when Johns pointed
out that none of them had been previously service-
crossed and had been "on the truck all week" and not
removed, he was told it was his obligation to unlaod
them . He testified as follows. Gillihan told him not to go
anywhere until he met with him first . Johns continued
unloading . Carney , Meyer , and Gillihan watched but
then went into the office . After having sorted for about
an "hour or so," Johns testified he entered the office at
8, 8:30 or 8 :45 a.m . and announced his immediately immi-
nent delivery departure but that Gillihan said he could
not leave. Johns retorted, "Well I get paid for delivery,
and that 's what I am intending on doing."
Johns testified that Gillihan ordered Meyer or Carney
to lock the terminal gate , but that he , Johns, got to his
truck , approached the closed gate, pulled up his van and
observed that Gillihan had parked his private passenger
vehicle in front of the gate , while Malaspina pulled up
behind him in his own van. Johns characterized his pre-
dicament as "willful bondage or human bondage." Johns
proceeded on foot to open the gate and to bodily push
Gillihan 's parked vehicle away, telling the protesting
Gillihan that " it wasn't a good place for him to park."
Johns proceeded to drive off in his van and heard the
sound of the gate banging against his van as he passed,
and went about his delivery route. He testified , " I deliv-
ered my route that day, delivered everything that was on
my truck."
Johns' settlement records reveal that he reported de-
livery on January 9 of 103 packages to 49 stops covering
only 112 miles. He entered a pickup and delivery start at
9:05-9 :45 a.m ., ending at 6 p . m. with a total of 8 hours
and 55 minutes and 8 - 1/4 hours with no DNAs or signif-
icant nondeliveries . There were no deliveries to St. Clair
Shores. He did not service-cross or sheet the packages
that he had removed before departure nor did he make a
special notation on the face of his report as he had done
on January 6 and 7 . He testified that he returned the van
to his home on the evening of January 9 and, in self-con-
tradiction , when he did so there were 30 to 37 undeliv-
ered packages remaining on the van. Johns gave a con-
fused and shifting explanation of the particular mechani-
cal service that was required by him at his home. He
also gave contradictory testimony about the drivers' past
practice of taking their vans home.
Johns testified that on the evening of January 9 he re-
turned to the terminal in a private passenger vehicle, es-
corted by a friend , and turned in his report and obtained
his paycheck . First, he claimed that he forgot to record
the undelivered packages , then he testified that he was in
too much of a hurry to do so but that he recorded them
on Saturday , January 10, and handed it in after his termi-
nation . He testified that the consignees were in the Mt.
Clemens area . He testified that during or prior to his
actual delivery on January 9 he had contacted the Union
but did not reveal the conversation.
The unrebutted testimony of Coordinator Carney,
whom I credit, reveals a radically different perspective
regarding Johns' conduct on January 4. He testified as
follows: On arriving , Johns commenced throwing pack-
ages out of his truck . When asked about it , Johns told
Carney, "I don't do this." When told he was needed to
service those consignees , he said , "No." When told to
service-cross the face of the packages thrown off, he re-
fused , uttering an obscenity . Meyer joined them on the
dock . Johns reiterated to Gillihan with obscenity, "Fuck
the service crosses. Fuck you Dan ." Johns asserted that
the packages were not "his packages."
Johns testified that he arrived at the terminal on
Monday morning, January 12, at 6 : 12 a.m. He testified to
the following sequence of events . He observed a rental
truck parked in his slot at the dock and that it was
loaded with packages for St . Clair Shores and Mt. Cle-
mens. He then abutted the rear ends of both vans and
proceeded to transfer the load to his van . Johns testified
that about 6:20 a.m., after transferring six or seven pack-
ages for the St. Clair Shores K-Mart , Gillihan, and
Meyer approached . Johns testified in direct examination
that he also had on board packages from Friday that
were not delivered because the consignee business was
closed, i.e., 35 packages.
Johns testified that Gillihan entered his van through
the rear load area and asked what he was doing. When
told that Johns intended to service his route , Gillihan
said he was not being dispatched that day. Johns insisted
to Gillihan that he was there to deliver and that he did
not get paid if he did not deliver . Gillihan told him to
remove the packages . Johns insisted to Gillihan that he
had retained the packages all weekend and that he in-
tended to deliver them . Gillihan shouted to Meyer out-
side the van to close the gate . Johns went forward to the
driver 's seat , told Gillihan to get out , and started the van
and proceeded to drive through the lot and out of the
terminal through the gate at less than 15 miles per hour
because of some snow and ice patches on the ground and
slush on the street . After he reached a point "halfway
down the street ," in third gear Gillihan came forward
from the load area . Johns testified he assumed Gillihan
had left the van earlier . Gillihan now demanded to be let
off the van and threatened a charge of theft and kidnap-
ping. Johns testified that in consideration to Gillihan's
cashmere coat and dress shoes, he proceeded to a less
slushy area 2 blocks down the highway to stop and let
Gillihan out . I credit Gillihan 's testimony that Johns did
not stop but merely slowed down at a point on the divid-
ed highway which served as a reverse direction turning
point, at which Gillihan jumped out. I find unbelievable
Johns' testimony that he was unaware that Gillihan was
still on the van.
ROADWAY PACKAGE SYSTEM
Johns testified that he then proceeded and delivered
his area and thereafter telephoned the Union again and
talked with Representatives Smith and Merritt who
based on what he narrated of the event to them, told him
to contact Gillihan the next morning to find out if I was
still employed there Thus he recognized as did the
union agents , that he had engaged in conduct that made
him vulnerable to discharge When confronted with his
settlement report of January 12, on cross examination he
conceded that he had delivered 65 packages to 37 stops
in a 140 mile drive that commenced at 6 12-6 25 a in and
ended at 2 30 p in for a total of over 8 hours He identi
feed 26 of the delivered packages as those that had been
left over on his van from January 9, and he conceded
that he made deliveries to St Clair Shores addressed
other than K Mart The General Counsel makes light of
Gillihan s entrapment, pointing out that because of the
slow speed, Gillihan could have easily jumped out earls
er The argument is self defeating If I accept Johns tes
timony that he drove slowly because of snow ice and
sleet , then I must conclude that it would have also been
hazardous for Gillihan to have jumped off, even at a
slow rolling speed
Johns testified, without contradiction, that he tele
phoned Gillihan on Tuesday and was told to report in
He did so but when he backed his van into its normal
slot, Gilhhan approached with Meyer and Carney and
told Johns that they did not desire his services any fur
ther and presented a termination letter to him He re
ceived another termination of contract notification by
subsequent mail on Wednesday, June 13
Gilhhan testified that his involuntary ride with Johns
on January 12 was the culminating event to a series of
actions by Johns which constituted a resistance to Gilli
ban s efforts to gain efficient operational control at the
Redford terminal and which determined the need for
Johns' termination In addition to evidence of such resist
ance already discussed, Gillihan testified that pursuant to
Coordinator Bannon s complaints that Johns, in the face
of Bannon s threat of discharge, had refused to accept
consignments within his area that day by throwing air
base packages off his van he personally tendered to
Johns on December 5 a warning letter Johns denied re
ceipt of the letter I credit Gillihan The letter accused
Johns of removing packages addressed to recipients
within his area as listed on an attached sheet, including
the air base It stated that further such removal would
not be tolerated and threatened termination
Unlike Andrzejewski Johns retained possession of his
van
Regarding the complaint allegation of arbitrary pay
deductions, Johns provided no foundation for his gener
alized testimony that he was not paid in consequence of
his incorrect recordation of bar code numbers required
by Gillihan s revitalized nondisparately enforced rules
Although Johns claimed that he was given no opportune
ty to correct errors, his own pickup and delivery settle
ment record for November 26 shows three packages
were added that had been erroneously omitted from his
November 25 count I credit Carney s testimony that
such errors caused by the computers rejection of an in
407
correct bar code are subject to subsequent correction
and, when corrected, the driver is paid
Based on the foregoing factual findings, there is no
basis to warrant a finding that Johns was known to Re
spondent as a prime union organizer prior to his testimo
ny as union witness, nor that Johns was subjected to co
ercive interviews discriminatory harassment, disparately
enforced rules arbitrary pay deductions or to a retaliato
ry discriminatorily motivated manipulation of his routing
by either starvation or excessive loading If Gilhhan did
make the starvation threat to Wieman the facts reveal
no such implementation, and either cast doubt on Wie
man s credibility on this point or suggest a different-
perhaps ironic-meaning to be found only in the full
context of the conversation, which he did not provide
H Michael Malaspina Case 7-CA-27647
The General Counsel asserts in his brief that on the
termination of Johns, Respondent had removed all of
the outspoken Charging Party Union supporters with
the exception of Malaspina Although the General Court
sel established that Johns, Andrzejewski, and Trimble
had been union supporters, there is no evidence on
which to conclude that they and Malaspina were the
only outspoken union supporters during the successful
union campaign The General Counsel objected to any
disclosure of the identities of other prounion employees
The General Counsel alleges and argues that Malaspina
had expressed prounion sympathies to Respondent s
agents and was thereafter subjected to actions of coer
cion and retaliatory onerous changes in routing and im
proper truck loading which caused Malaspina s emotion
al outburst that provided the pretextual basis for his ter
mination i e an act of insubordination on March 12,
1987
Malaspina commenced services for RPS as a contract
driver on April 22 1986 when he assumed a former con
tract driver s van lease/purchase contract Through an
undisclosed manner of initial assignment , Malaspina serv
iced the Ann Arbor and Ypsilanti area west of Detroit
On direct examination Malaspina testified initially that
from his entrance on duty at RPS he serviced Ann
Arbor and Ypsilanti until the alleged discriminatory ac
tions occurred In cross examination he conceded that
shortly before Schirr s termination, coordinator Bannon
informed Malaspina that because of increasing business
volume in Ann Arbor that it was to be split off and Ma
laspina was ordered to choose as a route Ann Arbor, Yp
silanti , or Canton Township also in the same area Mala
spina chose Ann Arbor Shortly thereafter in September
1986, according to Malaspina s testimony Schirr alleged
ly told Malaspina that he had made a good decision be
cause Ann Arbor was expected to grow to 75 stops per
day In consequence of this forced decision in Septem
ber part of Malaspina s route was taken from him i e
the eastern parts of Ypsilanti The eastern parts of Ann
Arbor not previously serviced by him were added In
redirect examination, Malaspina testified that he had
serviced Ypsilanti exclusively prior to September 1986
The number of stops he had serviced had increased to 65
but dropped later to 50 or 55 subject to business fluctua
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion There was an immediate but temporary drop in the
number of packages he delivered within his new route
which subsequently gradually increased
Malaspina testified that throughout his service at Red
ford, his van was always only partially loaded and by
loaders who failed to do jobs properly and that Cooper
who serviced the adjacent Ann Arbor core zones, came
in daily 1 1/2 hours ahead of Malaspina to organize the
loads on both his own and Malaspina s van which were
incorrectly loaded every day by loaders who failed in
their duties After Cooper s termination, Malaspina testi
feed that he commenced organizing his own loads on his
arrival at 8 a m He testified that this resulted in no new
arrival time because he had always arrived at 8 a m and
had had no problems regarding his arrival time He was
contradicted by several other General Counsel witnesses
who testified to his daily tardy arrival time-about 9 30
to 10 a m In particular Wieman testified that Mala
spina s consistently late arrivals caused him problems in
the performance of his duties as loading coordinator I
conclude that Malaspina had in fact a habit of tardiness
until Cooper s termination when he started to arrive ear
her because he could not rely any more on the earlier
arriving Cooper to organize his loads for him He admit
ted that throughout his tenure from April 1986 until
March 1987 he was subjected to continual and disorderly
misloading of his van He admitted that there were occa
sions when the addresses he serviced changed pursuant
to the flexing policy
At one point in his examination Malaspina testified
that from his observation of Cooper s stacking and load
ing packages and transferring incorrect loads and his fre
quent tradeoff with Cooper as to delivery stops he was
aware of their relative loads back from April through his
Coopers tenure i e , Malaspina delivered an average of
130 to 150 packages for 50 to 55 stops and picked up at 3
or 4 stops covering 125 to 135 miles whereas Cooper de
livered an average of close to 200 packages and made 7
to 10 pickups for the same distance
Malaspina attended only the second union meeting at
the pizzeria on October 30 1986 when he signed a union
representation authorization card He recalled very little
of that meeting He recalled that Trimble made a
speech, the contents of which made such little impact
that he could not recall any of it Apparently Trimble s
account of an alleged coercive interview had little
impact on the audience , or his impassioned encourage
ment mitigated any inhibition of the successful signing of
union cards thereafter
Malaspina testified that he had attended that union
meeting pursuant to word of mouth notification from
Johns According to Malaspina on the afternoon of Oc
tober 30 after he had arrived back from his deliveries be
tween 4 30 and 5 30 p m while walking from his truck
to the office with delivery reports in hand Manager
Meyer walked up to him and in 60 to 90 seconds stated
that there was no meeting tonight Mike and
smirked and kind of laughed and walked off Mala
spina testified that he was puzzled Johns then entered
the terminal and Malaspina testified that he then asked
Johns whether the union meeting was still scheduled for
the evening and he was assured that it was This incident
is alleged and argued to be coercive conduct
Meyer testified that through the period from October
20 through November he had performed the duties of a
loader coordinator which necessitated a workday from 8
p m until his departure at 10 or 11 a m , but not later
than noon the next day He denied not only having made
such a statement but he also denied his presence at the
terminal on October 30 during the afternoon and early
evening hours His testimony regarding his absence was
not rebutted or contradicted, nor was Malaspina cor
roborated by any witness who claimed to have seen
Meyer there at that time Johns, whose lack of credibil
ity is noted above, testified that Malaspina did attribute
to Meyer such a statement in their conversation on Octo
ber 30 in which Malaspina just kind of laughed it off
However Johns confirmed that on that very date Meyer
was indeed functioning as the night loading coordinator
He did not place Meyer in the terminal on October 30 at
4 p in or thereafter He could not even recall where he
had his conversation with Malaspina The union meeting
was at 7 to 7 30 p in according to Malaspina Wieman s
testimony concerning the dinner time drive to the
pizza restaurant parking lot with Gillihan excluded the
presence of Meyer Wieman testified that he also worked
on the night shift as a coordinator until November It is
not clear how many night coordinators were employed
on October 23 through 30
Malaspina did not testify nor appear at the representa
tion case hearings However he testified to the following
terminal meeting with Gillihan on payday Friday De
cember 5 at 5 or 5 30 p in He and Chomic were called
by Gillihan into his office to clean up a situation Gilli
han purportedly told them that Cooper Johns and
Andrzejewski had testified earlier in the day at a Board
hearing to the effect that contract drivers were treated
as employees and not as independent contractors Gilli
han asked them How do you feel about that? Mala
spina then listed a series of interactions which he assert
ed was indicative of an employer employee relationship
i e Gillihan s alleged instruction to report at the termi
nal no later than 7 30 a in to wear RPS legended items
of clothing and Bannon s order to Malaspina to stop
wearing a Detroit Tiger baseball cap in place of an RPS
labeled hat Malaspina then expressed to [Gillihan] that
a union would be good for this place and then Mala
spina asked whether Gillihan agreed Gillihan stated that
he could not respond to the question According to Ma
laspina, Chomic thereupon stated that he wanted to say
a few things Chomic asked Gillihan, is there any
possible way that we could get benefits, job security
through Rodeway First Malaspina testified that Gilli
han again said he could not answer After hesitation and
confusion which was endemic to his testimony Mala
spina changed that testimony to the effect that Gillihan
answered no to Chomic whereupon Chomic asked
whether voting for the Union would hurt or cause
their loss of employment or cause drastic changes in
employment but Gillihan assured him that there would
be no effect on their employment
ROADWAY PACKAGE SYSTEM 409
Chomic s testimony of this encounter differed On
direct examination he first testified that he had no con
versations with RPS managers regarding them at the
time of the hearings After a leading question he agreed
that yes indeed there had been a conversation with Gilli
han about employees being treated as employees He
could not recall the date but hesitantly placed it after
one of the hearings, in Gillihan s office with Malaspina
According to him Gillihan said that he wanted to estab
lash greater mutual communication with the drivers
Chomic admittedly had poor recollection of the incident
and what was stated He testified that Gillihan asked
them what we felt was wrong and why we felt it was
wrong According to Chomic he then responded to
Gillihan that the drivers needed protection against RPS
with respect to cutting our pay, telling us where to run,
how to run what time [to run] Chomic testified that
the core zone was adjusted every 6 months which result
ed in an immediate loss in earnings Cooper however
had literally begged for such condensation Therefore,
route manipulation affected dnvers differently Thus,
Malaspina set forth grievances to Gillihan which appear
to consist of alleged preexisting conduct as something
that had first occurred after the union organizing efforts
Gillihan purportedly explained that the growth of buss
ness had made necessary the condensation of routes with
concomitant core zone adjustments, but that more stops
would also gradually accrue Chomic had no recollection
of anything Malaspina stated and was silent regarding
the discussion of the status of contract drivers as employ
ees He thus failed to corroborate Malaspina s testimony
which purported to establish Respondents awareness of
Malaspina s prounion sympathies Chomic s self serving
testimony of his own participation in the conversation
was inconsistent with Malaspina s testimony and made
himself appear to be more a union advocate The inci
dent was not alleged as nor argued to constitute coercive
interrogation Gillihan gave no testimony concerning this
incident
The General Counsel in the brief argues that immedi
ately after Malaspina had disclosed his prounion sympa
thies to Gillihan on December 5, the Respondent began
making unexpected changes in his route in which Ma
laspina had previously serviced Ann Arbor area exclu
sively for months The General Counsel alleged that an
attrition of Malaspina s Ann Arbor route commenced
after Coopers termination on December 9 but before
Christmas 1986 Malaspina testified that it occurred
about a month after Cooper s departure which he placed
on December 5 More accurately however Malaspina
had shared the Ann Arbor area with Cooper, having
only the smaller eastern section and that part only since
September when he had been ordered to make a choice
in a forced route condensation Thus, the General Court
sel is arguing that the same type of route manipulation
which preceded the union constituted discriminatory re
taliation when continued after Malaspina s sympathies
were allegedly disclosed to Gillihan The premise of the
theory is that the subsequent route manipulation was ad
verse to the dnvers monetary interests Yet as noted
above Malaspina s and Johns' complaints about loss in
ducing route changes preceded the union organizing ac
tivities
As further evidence of antiunion motivation the Gen
era] Counsel cites a conversation testified to by Mala
spina between himself and Wieman that allegedly oc
curred 1 day after the route manipulation which Mala
spina placed as occurring right before Christmas Ma
laspina testified that his route was reduced to 14 stops
and that he was given an additional 3 packages addressed
to 2 cities west of Ann Arbor outside of his normal
route Thus Malaspina complains one and the same time
that his work was reduced and stops outside his route
were added for 1 day He did not explain how this dif
fered from normal flexing Malaspina testified without
contradiction, that he protested immediately to Gillihan
and asked whether Gillihan intended to put him out of
business by loading his vehicle with only 14 stops Gilli
han denied to Malaspina that such was his intention Ma
laspina did not indicate whether there was anything fur
ther to the conversation Gillihan did not testify about
this incident In any event, Malaspina s stops rose imme
diately thereafter Malaspina did not indicate how many
packages he delivered on that date nor did he testify
about what, if any actual loss of earnings he had in
curred Further no comparative evidence was adduced
by the General Counsel with respect to the workload of
other drivers on that day nor whether any other driver
serviced any of Malaspina s normal route Furthermore,
uncontradicted testimony in the record including that of
General Counsel witness Wieman placed the end of the
peak Christmas season as having occurred 2 weeks
before Christmas The General Counsel adduced no evi
dence to the contrary Malaspina had made no observa
tion of the loading dock nor any knowledge of that
week s business volume
RPS Vice President Chandler s October 8 1986 letter
admittedly possessed by Malaspina stated in part
Another area that requires some planning is on the
revenue side of your business Obviously package
volume is a key factor in your income The prudent
contractor will realize that revenue (settlement) has
its peaks and valleys For example contractors who
were working with us in 1985 know that there's a
seasonal peak of activity between now and Thanks
giving that s followed by a volume decline between
Thanksgiving and New Year s A good businessman
banks the extra money he earns at peak times so
that he 11 have it when there s a temporary down
turn
Despite his possession of that information Malaspina tes
tified that he had no awareness of a Christmastime slump
in delivery business activity
Malaspina testified that the next day Wieman rode
with him when he reviewed 27 Ann Arbor stops for an
unspecified number of deliveries It was not unusual for a
coordinator to ride with Malaspina as he admitted that
Bannon had engaged in the very same observational
function during Schirr s management i e , to sit observe,
and make notations on a clipboard Malaspina testified
about this incident in a disjointed manner that was inter
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rupted by lengthy introspective pauses and hesitations
His demeanor exhibited uncertainty and confusion Mala
spina testified without elucidation of context that he
and Wieman were talking about the Union, and he tes
tified as follows that Wieman stated that,
the Company didn t want a union in there, that they
would-if a union did get in there that they would
come down hard on us make us work harder make
us work extra hours, give us more difficult stops
And basically, they would work us really hard
After a pause, he added,
all the coordinators, they would be riding with
us more, observing us more he suggested to me
that I shouldn t say anything to anybody about
what we had discussed He said if he-if he heard
about it that he would know where it came from
Malaspina testified that he asked Wieman how he felt
about the Union but that Wieman refused to answer and
that he also asked whether the reduction in his stops was
because they knew I was voting for the union, to which
Wieman again wouldn t give a correct-a straight
answer' Malaspina testified that he more or less asked
Wieman if they were trying to get rid of me, but that
Wieman only answered Is it that hard to see what
they re trying to do to you?
General Counsel witness Wieman who was questioned
about other instances of alleged coercive conduct, was
not called on by the General Counsel to corroborate Ma
laspina Malaspina s testimony thus portrays Respondent
promising longer and harder workdays in retaliation for
union activity to a person who was allegedly being re
taliated against at the very same moment with the very
opposite of that threatened a lighter and therefore less
productive workload
The conduct attributed to Wieman is inconsistent with
the earlier statements attributed above to Gillihan where
Gillihan gave assurances against reprisals It is also in
consistent with the early Gillihan instructions to Wieman
to conduct business as usual " before the time of the
hearings It is also inconsistent with the instructions Gus
tafson gave at the time of the hearings to not initiate
confrontations nor to ask questions about union activity
and to avoid driver association to the extent of quitting
the bowling league Also, according to Wieman, the
effort to actively use Wieman as a passive union activity
voyeur did not commence until early March 1987 Thus
Malaspina s testimony, although not contradicted by
Wieman, is not only not corroborated by him but incon
sistent with his testimony
Malaspina testified that only during the holidays did
his deliveries" decrease He did not specify his actual
volume of deliveries and no records were adduced to
corroborate his conclusionary testimony nor to specify
exactly what amounts were involved Malaspina testified
that after the holidays i e , on an unspecified date his
delivenes" increased He testified they did go up I d
say-I d say about three weeks after Christmas, maybe
four weeks a month-February, at the end of February,
I mean at the beginning of February Malaspina testi
feed that in mid January he was then making about 35 to
45 stops Thus the reduction in Malaspina s workload
fluctuated, started at the end of Respondents season s
peak and slowly elevated but not to a level experienced
at season s peak
Malaspina testified that he found a note from Coordi
nator Carney on his van one morning This, he testified,
was unprecedented for him The note indicated that he
had no pickups that day After having complained to
Gillihan about it, he was told by Gillihan to proceed to
make his usual pickup stop, which he did and from
which he accepted packages The next day, according to
Malaspina he received another note, this time from
Meyer who advised him not to make any pickups He
again protested to Gillihan Malaspina testified after a
lengthy pause that Gillihan made some sort of allusion to
Meyers decision in Meyers area of operational discre
tion Malaspina demanded an explanation from Gillihan
who responded that he had none When Malaspina pro
tested again, claiming that it was not fair to cancel his
pickups, Gillihan retorted Well, these pick ups aren t
yours, they re the Company s we can give them to who
we wish to give them to [sic] Malaspina could not
recall how many packages he delivered that day but he
testified that despite his conversation with Gillihan that
morning he made his usual pickup stops and encountered
no comments on his return with the packages he picked
up However on the third morning Gillihan summoned
Malaspina to his office and told him during a conversa
tion the context of which Malaspina could not recall,
that he should not make any pickups Malaspina testified
that he walked right out of Gillihan s office while Gilli
han was attempting to speak to him Malaspina testified
about his pique with Gillihan that morning
he was talking and I dust walked out and left I
didn t-I didn t want to sit there and waste the rest
of my day discussing on a measly three or four do]
lars to waste my hour or two a day To sit there
and talk to him It was-it was basically he was
always right and I was always wrong or the driver
was always wrong
For the third day in a row, Malaspina ignored instruc
tions and again made pickups Malaspina s testimony re
veals that he apparently did not calculate the loss of
these pickups to be monetarily significant that he resent
ed any managerial control over his route assignments and
that he had had a running series of confrontations with
Gillihan regarding Gillihan s attempt to control the ter
minal delivery and pickup operations that proceded the
union activity
Malaspina testified that another driver Bob Winkel
man had been servicing Cooper s Ann Arbor route and
that Malaspina was told by a coordinator that Winkel
man was to be credited for Malaspina s pickups which
had been reassigned Thus he considered it futile to con
tinue making his pickups against orders Exactly what
pickups Malaspina lost and for how long is not clear
from his testimony He testified that he had previously
serviced three or four pickups i e one at C P H A
which entailed a range of 20 to 70 daily packages of
ROADWAY PACKAGE SYSTEM 411
medical literature another at Gelman Sciences that
could involve 30 or 40 packages another was Domino
Pizzas main office involving 80-120 10 inch by 5 inch
envelopes and which then was in the process of moving
to a new building north of Ann Arbor and which Mala
spina testified that he inherited from Cooper on or about
November 20, and a once or twice a week pickup at K
Mart Department Store Cooper had requested Mala
spina to service Domino s Pizza's account because it had
moved to the geographic area that Malaspina had serv
iced The trade was not explicitly approved by RPS
Malaspina testified in cross examination that at some un
specified time his stops were restored to him However,
he testified further that with respect to the specific
changes in pickups that he was only deprived of the
C P H A stop on two specific occasions but that the
Domino pickup was cancelled entirely He did not tes
tify explicitly when and if he did lose remaining pickups
Again, no records were adduced on this point
Meyer testified that in early 1987 he received a report
which he confirmed with Account Representative Burns
that the Dominos client had complained about Mala
spina s service and had requested another driver He tes
tified he transferred that pickup to Winkelman Further,
he testified that because Domino s was located a few
blocks from C PH A, both at the far north end of the
area and north of Ann Arbor, that it made sense to also
assign C PH A to Winkelman His testimony was un
contradicted and unrebutted Thus Domino s pickup re
turned to where it had been prior to November 20 in
the route previously serviced by Cooper, and the adja
cent C P H A pickup logically went with it Malaspina
testified that he had been unaware of any complaint
about his service In cross examination, Malaspina testi
feed that after he started to service Dominos Pizza, it
stopped doing business with RPS He testified that an
unidentified person at Domino s told him that the failure
to effectuate delivery of a certain item picked up at the
headquarters to the consignees before 4 p in was the
cause The problem with this testimony is that it is con
tradictory to Malaspina's initial testimony that the
Domino pickup was transferred, not canceled
Malaspina testified with no specificity regarding the
precise monetary impact of this reassignment nor was
any comparative evidence introduced as to Malaspina s
earnings, expenses and/or driving time vis a vis non
union or prounion activists
The General Counsel alleges that a couple of weeks
before the election' a conversation occurred in which
Malaspina made some prounion remarks that led to im
mediate retaliation which manifested itself in the real
signment of the Ann Arbor route to other drivers Mala
spina testified after a lengthy hesitation that in early
March about 5 or 6 o clock, on Thursday he was in the
drivers room compiling his daily delivery records as
other drivers came and went, with Gillihan at a recep
tion area when driver Jeff Lukasic entered In a marked
ly changed tone of voice and stilted cadence, suggestive
of memorized recitation, Malaspina started to testify
about what was said as follows Lukasic asked Gillihan
if the Union would do anything for us, whereupon
Gillihan answered the Union wouldn t do a fucking
thing for us Then oblivious of the significance of his
demeanor and his remarks, Malaspina testified in direct
examination as follows
A and I don t know how it came up to
where he was asking us about why the state had
said we were employees and the government said
we were not employees
Q Uh huh
A I mean-no yes-do I have that right9 [look
ing questioningly at counsel for the General Coun
sel]
Q I don t know [by counsel for the General
Counsel]
A On my deposition Mr Connelly [the Board
agent], I think, he stated it wrong twice
Q Just-
A I in not sure
Malaspina went on hesitatingly to narrate a discourse be
tween Gillihan and Lukasic where, according to Mala
spina, Gillihan solicited an opinion about why the Feder
al Government, i e, the Board, had concluded, contrary
to a state agency that the drivers were not employees
According to Malaspina he proffered the explanation
because the Federal government knows we re being
fucked The drivers laughed, as Gillihan reddened and
appeared a little upset With this testimony Malaspina
gave the impression that not only was he not testifying
from sponteneous recollection, as he rarely appeared
spontaneous but that he was testifying to a memorization
of a script which he felt he had bungled and sought
rescue from an embarrassed counsel Malaspina was not
corroborated but neither was he contradicted by Gillihan
who was not questioned about this incident
Malaspina testified that the following workday
Monday, March 9, he arrived to find that the packages
staged on the dock for him to run consisted of addressed
packages for Ann Arbor Livonia, Farmington Hills
Rawsonville and Belleville He testified that he had pre
viously delivered to Livonia a few times after Coop
er s termination and also the Rawsonville and Belleville
areas when he had serviced the Ypsilanti route but he
was unfamiliar with Farmington Hills
In fact Respondent admitted that Malaspina s route
was deliberately changed to exclude all of Ann Arbor
Regioinal Manager Young testified that the realignment
was initiated by a suggestion to him from drivers Win
kelman and Hartley during the first week of March
Those two drivers sought an expansion of their adjacent
routes by the absorption of Malaspina s route Winkel
man had been servicing the former Cooper route in Ann
Arbor while Hartley had been servicing Ypsilanti
Canton, and Belleville The proposal would also relieve
Hartley of Canton and Belleville Young testified that
the two drivers urged that their proposal would be to
their mutual benefit i e with better service to customers
and more profit to themselves Young passed on the sug
gestion to Gillihan for consideration Gillihan testified
that, on consultation, Meyer agreed that the suggestion
was workable and he decided to execute it, admittedly
without consultation with Malaspina Young admitted
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that such consultation with the affected driver is general
ly, but not always a good business practice Young testi
feed, as did Chomic and others that Respondents busi
ness was an expanding one and that routes are periodi
cally redefined not always to the satisfaction of the driv
ers Therefore, he explained that he did not view it as a
necessary good management practice to consult with the
immediately adversely affected driver, where in a short
period of time that driver would have an opportunity to
replace his earnings in a new area , which is the usual ex
perience With respect to Malaspina Young testified that
Malaspina s performance had been a critical motivating
factor i e , he had been consistently late in arriving at
the terminal which was located 30 miles from the Ann
Arbor service area, and there had been at least one com
plaint about his service Young was not controverted and
there was no rebuttal to his testimony
Loading Coordinator Carney testified that he received
notice of the implementation of the route change by note
received on Sunday evening, March 8 Carney testified
that he did not immediately assign Malaspina a specific
established route of established core zones although that
had been his ultimate intention He testified that for the
Monday route he constructed a load for which delivery
ability to that area had posed a problem Carney testified
when he had informed Malaspina of this change Mala
spina protested but, on Carney s urging of the need to
effect service for the packages partially loaded and
staged for loading at Malaspina s truck, he acquiesced,
loaded his vehicle, and departed Carney also testified
that he told Malaspina that one of the reasons for the
transfer was Malaspina s past record of high DNAs Ma
laspina testified that he previously had few DNAs No
documentary evidence was adduced on this point
Malaspina testified without contradiction however
that before he departed he went into Gillihan s office to
ask about it but Gillihan refused to discuss it Mala
spina could not recall what he said to Gillihan Mala
spina testified that he departed and sought to do the best
he could in delivering an unfamiliar area, but that he
did not deliver all his packages He admitted that he only
sheeted a few of those undelivered packages He had no
recollection of the specific amount of packages loaded
His settlement record reveals that on March 9 he deliv
ered 66 packages to 33 stops including Livonia Redford
(an area much smaller but adjacent to Livonia s eastern
limit) and Famington Hills covering 110 miles in 8 1/2
hours with no pickups Of these stops, only seven were
in the unfamiliar Farmington Hills area and almost all at
the same or nearby address on the same road The ad
dresses in Livonia were also concentrated and located on
easily located, major thoroughfares A terminal return
hour of 5 p in was recorded The General Counsel ad
duced no comparative evidence concerning Malaspina s
precise workload in the weeks preceding March 9, but
33 stops is clearly near the lower end of the range of 35-
45 stops in January Furthermore, Malaspina testified
that even during September through October his stops
fluctuated from the 45 to 50 daily stops Also, as Mala
spina testified elsewhere, the number of stops always
fluctuated in accordance with business fluctuation No
DNAs were listed for the settlement record and only a
few packages were returned undelivered for which Mala
spina admitted that he did service cross on his sheet Ma
laspina s records fail to support his suggestion implied in
his testimony, that he was handicapped by a strange
routing of farflung addresses
In redirect and re cross examination, Malaspina testi
feed that when he first confronted Gillihan on Monday
and asked why his route was taken away Gillihan assert
ed complete discretion to do so Malaspina then protest
ed that Gillihan showed him no respect He explained
that he became upset
because he wouldn t talk to me like a man He
would just treat you like you worked at Burger
King or something He didn t give me any respect
So, there was no use in trying to go on with the
conversation when you re not looked upon as an
equal
In redirect examination , Malaspina placed the lack of re
spect accusation and his reaction as having occurred
during the pickup transfer confrontation earlier in Janu
ary In cross examination he placed it during the route
transfer confrontation He was clearly uncertain
Malaspina testified that on Tuesday March 10 he ar
rived and found a load prepared for basically the same
area as March 9 and which previously was serviced di
rectly by the coordinators i e, Wieman or Meyer and
one of which involved a delivery of 35 to 60 packages at
the K Mart warehouse in Canton Township where a
lengthy-delayed unloading was routinely involved He
testified without specification and without documenta
tion that he did not make any money on that route
by implication because of the delay at K Mart It is Car
ney s uncontradicted testimony that before Malaspina de
parted he had again protested the assignment stating I
don t do this I do Ann Arbor
Malaspina s delivery pickup and settlement records
reveal that on March 10 he delivered 113 packages to 32
stops and picked up 6 packages at 1 stop over a route
110 miles within a total pickup and delivery time from
10 am to 2 50 p in but with 30 DNAs The records
reveal a package delivery at one Livonia stop on a major
artery, a second stop delivery of 12 packages at the K
Mart Canton warehouse, a delivery of about 70 packages
in Canton Township of which 33 were to a single ad
dress on a major road then a second stop at the same K
Mart for another 8 packages then a few more stops in
Canton and then to 4 stops and 8 packages to Plymouth
Road in Livonia of which the southwest corner is adja
cent to the northeast corner of Canton Each community
is about 36 square miles in area and each a perfect geo
graphic square In effect he serviced a concentrated area
covering the northern part of Canton and to a much
smaller extent the southern part of Livonia where in
both areas he delivered and picked up a total of 38 pack
ages in a moderately short workday Malaspina testified
that he was not able to deliver more packages and im
plied that he returned with many more because of the K
Mart stop Malaspina testified that in the past he aver
aged only 3 to 5 undelivered packages a day but during
this week he returned about 15 to 20 packages daily from
ROADWAY PACKAGE SYSTEM 413
the Canton Livonia route and that on at least one of
those days he did not service cross or sheet his undeliv
ered packages despite his past practice of always doing
so He explained that he did not do so because he had
spent too much time looking at the map and loading
packages in proper sequence
The record does not support Malaspina s suggestion
that the K Mart stop involved such a delay as to have
precluded a total delivery within his normal range of de
liveries, particularly given the shortness of his total de
livery and pickup time even granting a 10 am depar
ture The General Counsel did not make clear Mala
spina s testimony concerning how this route economical
ly or otherwise disadvantaged him from what he would
have earned for the same period in his old route and ad
duced no other evidence on this point
Malaspina testified that on Monday or Tuesday
Carney told him that the driver assigned to his old area
in Ann Arbor had been having difficulty locating the ad
dresses and working all deliveries Neither Winkelman
nor Hartley were called to testify nor were their records
adduced into evidence
On Wednesday, March 11, about 8 am before enter
ing the terminal , Malaspina encountered Union Agent
Smith at some unidentified location outside passing
out undescnbed union literature to unspecified persons
Malaspina testified that he talked to Smith for about 20
minutes but failed to disclose any facts from which it
could be inferred that an RPS manager was in a position
to observe it, nor whether other drivers were present
and doing the same thing
Malaspina testified that he next entered the terminal
and discovered Gillihan and Carney unloading Ann
Arbor packages from his van that they explained to him
had been misloaded He testified that they ceased as he
approached Malaspina testified that he told them, Get
the fuck off my truck You have no reason to do that
He testified that Gillihan responded that the packages
were RPSs and could be given to the drivers it chose
and Malaspina should quit or do whatever he wanted
if he did not like it Malaspina testified that he could not
locate his ignition key in the van and when he asked its
whereabouts Gillihan dangled a key in his hand and
claimed that the truck belonged to him and that he did
not have to get off However, Gillihan walked away In
explicably, according to Malaspina, Carney stated, in ref
erence to his early comment about the unsatisfactory
performance in Ann Arbor by Malaspina s replacement,
that Gillihan had told him that he was considering rein
stating to Malaspina his Ann Arbor route and he agreed
with Malaspina that exchange was stupid Carney
denied this conversation
Malaspina testified that he had then hailed down
Young who was passing by and that after putting the
question to him Young admitted that he had never heard
of taking away a productive route from a driver with a
good performance record Young denied making this
statement in his differing account of the meeting
Malaspina testified that Gillihan then called him to the
office and demanded that he service cross and sheet all
the [undelivered] packages that were left from the day
before " Malaspina claimed that he responded "no prob
lem, and went and did it and that it involved quite a
few stops Thereafter, Malaspina claimed that he sub
mitted the records to Gillihan in his office and waited
while he checked it until Young, who was present, told
Gillihan to give Malaspina s van keys to him so he could
go to work and then he did so Young denied this When
asked what occurred next Malaspina testified, Nothing,
I just handed in my paperwork and left I didn t want to
converse with the people '
Malaspina s delivery records show that on March 11
he delivered 95 packages to 36 stops and picked up 48
packages in 1 stop, in a route of 115 miles during a 9
hour pickup and delivery time commencing at 8 am
The route covered Livonia Canton and some Ann
Arbor stops which Carney testified were misloads
These records disclose 12 DNAs and 12 packages re
turned because the address was unlocatable
Malaspina testified the next thing that occurred was
his termination The following morning he arrived and
on finding his truck parked not at his lot and empty he
kind of got an eerie feeling , knew what kind of hap
pened Malaspina testified that in the office in the pres
ence of Carney, Secretary Al Blake, Gillihan, and others,
he was told he was terminated by Gillihan who also re
fused his request to use the telephone and that the two of
them got involved in an argument and pushing contest
over the use of the office telephone Malaspina testified
that Gillihan asked him for the keys to his van but that
Malaspina claimed he did not have it and he departed
without the van for which he had made installment
lease/purchase payments Of course, if Gillihan had re
tamed the keys as Malaspina had earlier testified he
would not have asked for them later Thus, according to
Malaspina there was no reason proffered for his dis
charge and no precipitating incident for it following Car
ney s alleged statement that restoration of his Ann Arbor
route had been contemplated
Other more reliable testimony indicates much more
did occur Carney testified that on Wednesday morning
Malaspina observed that his van was again loaded with
Canton and other non Ann Arbor packages and became
very upset and stated with obscenities and expletives that
he only delivered to Ann Arbor Carney testified that 20
minutes later he saw Malaspina and Gillihan emerging
from the office and heard them arguing
Gillihan testified that prior to their emergence onto
the dock area he and Malaspina had engaged in a heated
discussion in the office which started when Gillihan re
quested that Malaspina sheet and service cross his pack
ages in accordance with the guidelines Gillihan had set
out earlier and if he failed to do so Gillihan would not
be able to process his settlement claim According to
Gillihan Malaspina went berserk and called him a series
of extremely vituperative sexually referenced obscenities
of which faggot was the mildest Malaspina then de
manded to know, in obscene terminology, why Gillihan
was adversely affecting him his family and his pay and
rejected the proferred business explanation with the
claim that Gillihan was acting in retaliation to Mala
spina's expected prounion vote The argument then con
tinued onto the dock where Malaspina shouted at Gilli
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
han that he "would " or should go home , get a gun
and "blow off' their "fucking heads Gillihan testified
that the threat was that Malaspina would do it Carney
and contract driver Donald McDonald , an apparently
disinterested observer on the dock , testified that Mala
spina shouted that he should or ought " to get a gun
and blow off their fucking heads McDonald, for
whom no bias nor other credibility defect was demon
strated, confirmed Carney's testimony that about 8 40
a in Malaspina was in an uproar and had shouted at Gil
lihan while throwing parcels out of his van, disembark
ing periodically for face to face cussing at Gillihan,
Meyer , and Carney while complaining about being
changed from one route to another
Carney testified that when he tried to speak to Mala
spina , who had thrown one package at him, he was told,
I should go home and get a gun and blow your fucking
head off, too He testified that Malaspina departed
leaving a pile of 30 packages he had thrown onto the
dock
Malaspina was not called to rebut this testimony In
cross examination , he had testified when asked whether
he had made a similar , but not identical , threat of actual
intended action , he sheepishly responded , That was
never said Also , in redirect examination , he denied that
he had thrown a package at Carney, but did not deny
throwing them elsewhere nor cursing , nor shouting
Thus he made no explicit denials of the actual testimony
of Gillihan Carney, and McDonald
Gillihan and Carney denied the retention of Mala
spina s van keys Gillihan testified that Malaspina s
former van is now utilized as a spare van Gillihan testi
feed that because of the pendency of the NLRB petition,
a decision to terminate Malaspina s contract for his be
havior was delayed pending clearance with the Pitts
burgh office
Because of the convincing corroboration by McDon
ald I credit the testimony of Gillihan and Carney that
Malaspina shouted amidst a vituperative series of gross
insults to Gillihan uttered during a patent display of in
subordinate conduct that he would or should go home,
get a gun and blow off their heads In the context, I find
that the difference in language is of little significance
Moreover , regardless of McDonald s corroboration, I
must credit the testimony of Carney Gillihan and
Young wherever it conflicts with Malaspina Even
where Malaspina is not contradicted in critical areas, I
find myself unable to accept his testimony In addition to
the discrepancies and inconsistencies in his testimony
noted throughout his demeanor was so poor that I have
no confidence in the reliability of his testimony He dis
played no certainty whatsoever of what he testified and
as noted, openly sought guidance from the General
Counsel about whether his testimony was correct His
hesitations were frequent and prolonged , often punctuat
ed by lengthy stares at the ceiling or at the floor with
head in hands , or pleadingly at the counsel for the Gen
eral Counsel during direct and cross examination It may
have explained some of his behavior when the General
Counsel asked him if he was nervous on the stand and he
replied that he was in terror ' but it does not cure the
unreliability of his testimony Moreover, he did not im
press me as being terrified Rather , he appeared simply
confused , uncertain and highly tense
I find that Meyer made no statement to Malaspina
about the union meeting of October 30, 1986 Because of
Malaspina s lack of credibility I must reject his testimo
ny where it has not been corroborated by another Gen
eral Counsel witness who witnessed the episode, even
where Respondents agent did not contradict it Thus, I
do not find that it was he who expressed to Gillihan on
December 5 the opinion that a union representative
would be good for the employees, nor can I credit his
testimony about the event because of its inconsistency
with Chomic 's own self serving testimony
However , even had Malaspina made his prounion sym
pathy known to Gillihan on December 5, no overt action
occurred until a month later However, what occurred
was not shown to have been disparately adverse treat
ment The General Counsel demonstrated merely that
during the Christmas holidays, Malaspina s number of
stops was reduced This was based on Malaspina s own
generalized testimony and was bereft of other corrobora
tive testimonial and/or documentary comparative evi
dence It is even devoid of reference to actual compensa
tion loss and package delivery count Furthermore, the
reduction occurred during the seasonal lull
Concerning Malaspina s alleged conversation with
Wieman , I must infer that Wieman 's corroboration was
not elicited because he would testify adversely I do not
credit Malaspina that Wieman implied that Malaspina s
workload had been reduced in retaliation for union activ
ity while simultaneously and incongruously threatening a
heavy work schedule as future retaliation Had the Gen
eral Counsel adduced competent credible evidence of
actual disparate treatment at that time Malaspina's testi
mony of the conversation might have been enhanced
somewhat
Despite the alleged implied acknowledgment by
Wieman that Malaspina had been subjected to a reduc
tion in work because of suspected union loyalty and de
spite Malaspina s alleged expression of union loyalty to
Gillihan earlier, his workload admittedly increased
through January until it leveled off on February 1 where
at one point he testified it was equal to his September
through October levels As noted above, his confusing
testimony about the loss of some pickups in January for
an unknown limited time is insufficient to conclude that
an adverse action was taken particularly in view of the
failure of the General Counsel again to show that he ac
tually suffered some kind of comparative loss even in
the absence of Respondent witnesses proffered motiva
tional, uncontroverted explanations, which I credit
By Malaspina's own testimony he had recuperated all
his so called route manipulation losses by February 1
However, the General Counsel cites the alleged March 5
conversation with Lukasic and Gillihan as cause for an
other descent in what appears to have been a roller
coaster ride of fortunes and misfortunes in Malaspina's
career with RPS In this regard , Malaspina s testimony
of the event was marked by such testimonial and de
meanor confusion and unreliability that I cannot accept
his account to what actually was said, despite its noncon
ROADWAY PACKAGE SYSTEM
tradiction However, assuming that Malaspina made
some kind of statement not ambiguous on its face on
which Respondent might infer prounion sentiment the
subsequent change in route assignment , regardless of Re
spondent s proffered motivational explanation has not
been demonstrated by the General Counsel to constitute
actual adverse, disparate treatment no matter how much
Malaspina disliked it or characterized it as such to Gilh
han Although the testimony of Young, Carney, and
Gillihan is not corroborated by Winkelman and Hartley
or a Domino s Pizza representative neither is it rebutted
or controverted in any way
I have credited Respondents version of the emotional
outburst by Malaspina which precipitated Malaspina s
termination of his contract The General Counsel has
proffered no evidence to demonstrate that misconduct of
equal severity has been tolerated and on its face, such
conduct would warrant an inference of reasonable cause
for termination of services, particularly as it culminates a
series of Malaspina s open resistance and emotional re
sentment to control over his route and the imposition of
service cross and sheeting rules
Malaspina felt that he was treated as an employee, not
an equal Any conclusion that Respondents proffered
reason for discharge is pretextual must be found in a
review of the evidence of the record as a whole as there
is insufficient evidence adduced by Wieman s testimony
to establish sufficient evidence of knowledge and hostili
ty to his known union activity to warrant such conclu
sion
I Vic Chomic Case 7-CA-26951
The General Counsel alleges in this case that Respond
ent promulgated to Chomic and enforced on him an un
lawful literature distribution prohibition rule on August
9 1987 It further alleges that Respondent discriminated
against Chomic, the Union s election observer by arbi
trarily deducting money from a paycheck and withhold
ing his paycheck of March 20, 1987 and by terminating
his service contract on May 7 1987 The General Coun
sel argues that in spite of removing all the vocal union
supporters Respondent lost the election and also discov
ered in the process that Charging Party Chomic was an
extremely vocal supporter of the Union against whom
it retaliated The General Counsel adduced no conclusive
evidence that the other discriminatees were the only
vocal union supporters However Respondent clearly
attempted to identify them in its preelection campaign as
such
Other than the evidence specifically alluded to above
the General Counsel has adduced into evidence only one
preelection campaign document i e a March 10, 1987
letter signed by Gillihan The letter is evidence that Re
spondent urged employees to vote against the Union, and
that Gillihan characterized the Board hearings as has
sling with Johns Andrzejewski Cooper, and Trimble
The letter is not alleged to nor does it contain any co
ercive statements It is ignored in the briefs The letter
impugns the discriminatees support of the Union i e
Johns testified at the hearing because he did not want
to continue to deliver Selfridge It alleged that Andrze
jewski and Cooper were at the hearings because they
415
were delinquent in their van payments It imputed Trim
ble s presence to a desire to pick and choose what
routes he would run The letter speculated that unlike
Cooper and Andrzejewski who seemed to have
dropped out of the picture, Johns and Trimble were
still hanging around and were doing so probably be
cause of a desire to become union stewards The letter
characterized terminals who had stewards like Trimble
and Johns as a fight every day-continuous chaos
The letter stated, With people like that around, getting
something done becomes twice as difficult You hate to
get out of bed in the morning The letter then described
Johns last workday and recited the failure to sheet the
DNAs the cursing and swearing and Gillihan s en
trapment in the van With respect to Trimble the letter
cited his refusal to accept a route and a refusal to leave
the terminal until escorted out The letter then stated it
was evident that Johns intended to play a big role if
the Union won the election but accused him of having a
lack of understanding of a proper terminal operation be
cause of his resistance to assigned pickup and deliveries
It accused Johns of failing to understand that the drivers
business and RPS business is the delivery and pickup of
packages and that the objective is customer service and
the only effective means to mutual productivity It stated
that neither RPS nor the drivers can afford a battle
royal every time Mike Johns refuses to deliver Selfridge
or every time Steve Trimble wants to drive someone
else s route It terminated
It looks to me like Mike Johns Steve Trimble
and Local 299 come as a package If you vote no
on March 20 the Johns Trimble-Local 299 pack
age will not be delivered to the Redford terminal
Vote NO and keep the troublemakers out of
here We have work to do
The letter does evidence a hostility toward the discri
minatees However it contains no threats It does not
suggest nor imply that any of the discriminatees were
terminated because of union activities Rather the letter's
recitation of the discriminatees faults is consistent with
its defense in this proceeding Its hostility toward the dis
crimmatees in that letter is not directed toward their pro
tected activities per se but rather toward their alleged
motivations for seeking union representation i e their
misconduct malperformance of obligations and duties
and resistance to proper terminal management It thus at
tempted to ally the union cause with a group of nonde
sirable self seekers Accuracy aside I see nothing in this
document that reveals a deep seated animosity toward
these employees because they sought union representa
tion as such
As the General Counsel correctly alleges Respondent
discovered the postelection volubility of Chomic In
direct examination, Chomic testified that he commenced
his services for RPS at Redford on April 4 1986 as
what he was then informed by RPS to be an independ
ent contractor' After the General Counsel nudged his
attention to the term temporary driver Chomic then
testified that when he was engaged by RPS he was told
that he was to be a temporary driver and later on
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
July 7, 1986, Terminal Manager Schirr "put me in a ve-
hicle," and told him that he was now an "independent
contractor." Chomic's participation in union activities
prior to the election consisted of attending and executing
a union card at the October 23 union meeting, which he
recalled was also attended by drivers Lukasic, Fred
Feldman, and Dave Gadjowski. He did not attend the
representation case hearings. He testified to no other
preelection union activities.
As described above, Chomic and Malaspina purported-
ly engaged in a conversation with Gillihan, of which
they both gave inconsistent accounts and which Chomic
guessed occurred in either October, November, or De-
cember 1986. As discussed above, the inconsistency and
lack of mutual corroboration precludes me from con-
cluding with any certainty what Gillihan may have said,
in what context it was set and, therefore, whether it was
coercive. No coercive conduct is alleged to have been
perpetrated by Gillihan on December 5, the date fixed
by Malaspina, although it does allege coercive interroga-
tion by him on October 27 and December 9. The Gener-
al Counsel 's argument does not address this issue.
On March 20, 1987, Chomic served as an official union
observer at the Board-conducted election at which the
other discriminatees voted under nondeterminative, chal-
lenged ballots. Of 39 ballots counted, excluding 1 void
ballot and 7 challenged ballots, the Union received 27
votes whereas only 10 voted against representation.
These results so enthused Chomic that he went out to
the dock area and "gave a couple big yells," one of
which he remembered was "kick ass," after which he
went out in front of the terminal building and with raised
arms and "real loud" yelled "kick ass" to the union
agents waiting on the public street. Chomic then went
back through the office area from which he came in
order to return back to the dock area to commence his
daily route. Walking through the office, he encountered
Gillihan who made a comment about having "fun."
Chomic testified that Gillihan stated, "Mr. Chomic, now
I'm going to have some fun with you." Gillihan testified
that he stated only, "Now the fun begins."
Chomic testified that he serviced the two communities
of Royal Oak and Southfield, of which he claimed with-
out documentation, specificity, or foundation that the
former was more productive, having more stops and a
higher package count. In redirect examination, he also
testified that he serviced Berkley but was silent about its
business volume. He testified that Royal Oak included
"one of the biggest" K-Mart warehouses in the area,
which, unlike Malaspina's Canton warehouse, Chomic al-
legedly prized highly, stating, "That's where I made my
money."
Chomic explained that while a driver is paid a core
zone rate, i.e., a flat fee which is paid for each zone
entry which varies from zone to zone, and a stop fee, it
is the package count which makes a route remunerative.
He further proferred the following conclusion, "I just
couldn't make any money in Southfield." Chomic testi-
fied that he usually departed on his daily deliveries from
7 to 7:30 a.m. and returned to the terminal at 3:30 to 4
p.m. Chomic testified that he departed later on March
20, and returned at 5 p.m. and had a conversation with
Gillihan which was alleged by the General Counsel to be
evidence of animosity toward Chomic following the
election. Chomic testified that when he encountered Gill-
ihan who, on observing a number of returned packages,
asked the reason for their nondelivery, to which Chomic
responded that his delivery area was too large, encom-
passed two of the metropolitan area's most trafficked
intersections (in Southfield) and ought to be reduced.
Gillihan responded by threatening to take away Royal
Oak from Chomic. Chomic testified that he became an-
gered, told Gillihan he was "crazy," that he had to keep
Royal Oak. Gillihan purportedly retorted that it was his
route to assign where he wanted. According to Chomic,
a "pushing session" followed; Gillihan threatened to as-
sault Chomic and Chomic invited him to "go for it"; but
nothing happened and "just words passed." Chomic
thereafter retained Royal Oak and Southfield, as well as
Berkley. The threat to remove Royal Oak, however, is
proffered as evidence of hostility toward Chomic be-
cause of his having acted as union observer with such
gusto.
Gillihan testified that he did have a conversation with
Chomic on the occasion of his return to the terminal
with undelivered packages. However, his version was as
follows: He noted the undelivered packages and asked
whether they had been service-crossed and indexed in
the sheeting, but Chomic responded that he had not done
so and that he had not had time to do so. He testified
that there was no pushing match and there was nothing
further to his conversation, and they both parted.
Chomic's cross-examination revealed his inability to
give simple, forthright, and spontaneous answers to
simple questions without evasion and verbal fencing. In
cross-examination, Chomic insisted that he returned later
than usual on March 20 because of his late departure
caused by the election but, after denial and evasions in
cross-examination, he conceded that a client known as
Golf Mart Royal Oak had requested him to return after
other deliveries and make a pickup "as late as possible"
that day. Chomic's pickup record reveals that the Golf
Mart pickup was made at 4:20 p.m. on March 20. In
cross-examination, Chomic first denied that he was ex-
pected to service-cross undelivered packages at the end
of the day. Then he changed this testimony, stating that
it had been an unenforced rule. Then he testified, when
asked under what circumstances he did not service-cross
undelivered packages , that he would not do so "if you
didn't have time," i.e., "if you wanted to go home." At
first, he could not recall whether he had any DNAs on
March 20. Then he was not sure. When pressed, he ad-
mitted that he did. When asked again, he testified, "I
would think so, but I can't swear upon that." He conced-
ed that some of those DNAs may have been for his
prized account, i.e., the Royal Oak K-Mart warehouse
which contains the national K-Mart watch repair serv-
ices. Chomic evaded and refused to answer the question
regarding whether the K-Mart deliveries entailed pre-
dominantly small packages and refused to give an esti-
mate of the size of packages delivered there. He testified,
"How am I supposed to know what the sizes are. I don't
get a ruler out and measure them."
ROADWAY PACKAGE SYSTEM 417
In redirect examination, Chomic testified that during
his tenure there were quite a few times when he did
not sevice cross undelivered packages but he could not
recall how many times In contradiction to the Gener
al Counsel s own witnesses , he testified that nobody
service crossed and he was aware of no such rule prior
to the election In the same breath, he conceded that yes
prior to the election he may have been spoken to
about a failure to service cross and that he was unable to
affirm or deny whether he had ever been docked in
pay for that failure Contradicting other witnesses he
testified that after the election, there had been a change
in the service crossing requirement pursuant to an an
nouncement in a note distributed by Gillihan, i e non
payment for noncompliance
In further direct examination, as he listened to the
General Counsels persistent questioning which focused
on the minutiae that was involved in service crossing, he
changed his testimony from an estimate of 10 or 20 sec
onds per package He now testified to the General Coun
sel Excuse me you re right it did take longer He then
raised his estimate to a range of 5 or 10 minutes for 10
packages After more of the General Counsels question
ing about what he estimated for 50 packages not deliv
ered on March 6 he guessed that an hour would be con
sumed in the effort
In direct examination Chomic testified that the core
zone rate changed daily, then in cross examination he
conceded that it changed only when the core zones were
periodically changed, i e every 6 months He admitted
that his actual recollection changed during the trial as he
sat and listened attentively to the statements of counsel
for the General Counsel and counsel for the Respondent
made during the trial
Chomic testified that on payday, March 20 at 5 or
5 30 p in his paycheck was not ready for him when he
asked the coordinator for it and when the coordinator
told him that Gillihan would not talk to him about it
until Monday morning he became so upset that he
jumped through the check in window and proceeded
into Gillihan s office where he was meeting with two
salespersons Chomic testified
I asked him where my check was and he said it
warn t here I said this has never happened before
My check s always been here Where is it at' He
goes They didn t send it I said you know
That s crazy you know, it s got to be here It s
always here He said Its not here He goes
Get out of my office
I go Pat I need my money I ve got to pay,
pay bills He goes I told you I told you I d talk
to you-talk to you later about it, and I don t want
to talk to you at all about it
And then a few words-[I don t recall] what
exact words were said to each other he said words
to me I said words to him, and you know that s
where he left it He said, you know, You re not
getting paid today 111 check on it
Chomic testified that he had never failed to receive a
Friday settlement payment He was not contradicted
There is no evidence whether any other nonalleged dis
cnmmatee failed to timely receive a settlement check It
may have been unprecedented for Chomic, but it was
not shown to be unprecedented for everyone else
Gillihan testified that Chomic s check was missing,
that Chomic did upbraid him for the missing paycheck,
that there was nothing that could be done that late in the
day that he telephoned the Pittsburgh RPS headquarters
Monday April 23 and was told that a check had issued
that a stop payment order was thereafter issued and that
another replacement draft issued Tuesday, March 24
Chomic testified that on Friday March 27, he received
two paychecks, one due on March 20 and one due on
March 27 In cross examination Chomic identified two
canceled checks to him of only slightly differing amounts
and one of which was in the same computerized type
print as regular paychecks Both were cashed by him on
March 27 One was dated March 20 and one was dated
Tuesday, March 24, and apparently manually typed
Gillihan identified the check dated March 24 as the re
placement check for the one due on March 20 This testi
mony raises questions that are unanswerable by the limit
ed evidence in the record, e g, it is not clear whether all
settlement checks are dated on a Friday Cooper s settle
ment checks for example are dated on a Friday And it
is not clear whether the date on the check reflects the
date of intended receipt or the date of the last day of the
pay period on which it was based Chomic admitted sur
prise when confronted with the evidence during cross
examination that the checks he cashed were not dated 1
week apart He did not know the usual day of the week
his checks were normally dated There is no evidence
that Chomic received and cashed a third check dated
March 27 The documentary evidence supports Gillihan s
unrebutted testimony that the check dated March 24 is a
replacement check for one that had issued and been
claimed lost and is not the one due on March 27
During his examination Chomic referred to pay
checks In cross examination he displayed an eagerness
to take cues from objections and testify accordingly For
example he was asked about settlement check Fol
lowing objections by counsel for the Charging Party to
the use of that phrase Chomic claimed that no indeed
he did not know what a settlement check was despite
his awareness that his compensation for services check
was always stapled to a settlement summary and
based in turn on settlement records filled out by him
Here and elsewhere, he displayed a disingenuous guard
ed attitude toward his testimony
The next event that the General Counsel argues was
retaliatory fun was a nonpayment to Chomic for his
services of March 23 In direct examination he admitted
that this was not a new occurrence as he could remem
her at least two such previous occurrences or possibly
only one other day which he could confirm by check
ing his records but which he was not asked to do
The General Counsel did not proffer his records
Chomic could not recall the reason for the nonpayment
He testified that his pay was shorted for March 23 and
he thereafter confronted Gillihan who explained when
asked the reason that he was not paid that day, because
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he had failed to execute the appropriate sheeting by en
tering and recording through the assigned code number
on his record for nondelivered packages Chomic
claimed that Gillihan said, Its now Roadways money
Chomic did not testify to having said anything further in
protest
Gillihan testified that pursuant to the earlier preelec
tion prepetition, preovert union activity universally ap
plicable policy announcement discussed earlier Chomic
was not paid for the deliveries of March 23 because he
refused to sheet numerous undelivered packages on that
date as other drivers had similarly been punished
Chomic did not claim to Gillihan, nor did he testify, that
he in fact failed to service cross numerous undelivered
packages on March 23 In cross examination , after listen
ing to objections to Respondents proffered exhibit his
settlement record of March 23, on the grounds that it did
not reveal the reason for nonpayment Chomic incredibly
testified in contradiction to his direct examination, I
don t know the reason I wasn t paid that day I don t
recall the reason
The next event in the alleged deteriorating relationship
between Chomic and Respondent forms the basis for the
complaint allegation concerning distribution of union lit
erature Chomic had prepared 40 handwritten notices of
a driver meeting scheduled for April 11 at noon to dis
cuss potential collective bargaining demands He testified
that on April 8, he started handing them out at the RPS
terminal More specifically he testified that as he drove
his van into the terminal yard he saw one driver clock
ing out and gave him a notice Chomic testified that
next at 3 30 to 4 p in or 4 30 to 5 p in Gillihan ap
proached him and he handed Gillihan a leaflet Chomic
became hesitant and confused He changed his testimony
and said that Gillihan stated he had seen the foregoing
incident where Chomic had handed a leaflet from his
van when entering the yard Chomic paused deliberated
and haltingly testified He told me he said-excuse me
Let me get my thinking-thought right He next testified
hesitantly that Gillihan asked him what he had handed
out looked at it and said You can t hand these out on
company property Chomic testified that he responded
No problem I 11 be out in the street tomorrow morning
before the drivers get in to hand them out Chomic tes
tified that prior to this occasion on some unspecified
date there had been posted on the wall a no solicitation
paper which he understood was intended for ven
dors and nonemployees He could only recall that it
stated No solicitations on company property' and
could not recall the remainder of the notice which he
characterized as a nice little letter He had no idea
how long it had been posted possibly as long as his
tenure Chomic did not attempt to distribute on the
premises after that There is no other evidence of any
other attempts at literature distribution unsuccessful or
otherwise, during the pre or postelection period in
volved in this case There is no contradiction by Gilli
han but Chomic s testimony was so confused and his de
meanor so poor that in the light of his credibility prob
lems discussed elsewhere I can premise no findings on
this testimony
After a failure of recollection and leading questions,
Chomic testified to another encounter with Gillihan
which he was unable to place as before or after the April
8 conversation He recalled that a conversation occurred
in which a reference was made to our contract, and
where Chomic stated that all any of the drivers wanted
was a contract we could live with, that we could both
live with and in which Gillihan stated Well it is now
out of my hands You people brought this on yourself
[sic] It is completely out of my hands now When
counsel for the General Counsel asked whether anything
was said about messing with each other he testified
that at the end of the conversation Gillihan also stated
Listen, the only thing we can do is Ill stop fucking
with you if you stop fucking with me Chomic testified,
I said Pat that s fine We ve got to work together to
make this business go I shook his hand and that was-
to my knowledge that was the end of it Because Cho
mic s recollection of this conversation is selective and he
omitted the text and more importantly what words led
to those final remarks it is impossible to conclude that
Gillihan s remarks constituted a reference to retaliation
for union activity The mutual fucking could refer to
union activity and retaliation for it it could refer to a
discussion of possible bargaining demands, it could refer
to other statements each made in that conversation or it
could refer to Gillihan s legitimate management decisions
and changes and Chomic s and/or the other drivers re
sistance to them Similarly the you brought it on your
selfcan refer to retaliation or it can refer to the pros
pect of tedious collective bargaining
Gillihan testified that after March 23 he summoned
Chomic to his office sat him down told him that they
both had a job to do that he understood that he had
problems that he also had problems that he had a busi
ness to run and that his job was to make them both prof
itable He testified that he stated Okay Vic look Ill
stop fucking with you if you stop fucking with me
Chomic said he understood shook hands, and that was
the end of it according to Gillihan
Gillihan testified without contradiction or rebuttal and
corroborated by Meyer to the following continued en
counters with Chomic in April a period of time ignored
by Chomic and the General Counsel
For the first part of April Gillihan had no problem
with Chomic s performance but on the morning of April
17 Friday, after he had been dispatched, Chomic re
turned to the terminal at 10 am with his undelivered
load He parked and commenced to unload despite
Meyer s protest that he had no other means to get deliv
ery for those packages Chomic insisted that he had to
get the door to his van fixed and could not work with it
in that condition i e , a broken rear door latch Meyer
offered the use of another vehicle Chomic responded,
Look I cant do it I ve got to get my door fixed
When asked if he was refusing to make any attempt at
delivery, Chomic answered Yeah I guess I am Does
that mean I in terminated9 Meyer said he would not
terminate him on the spot like that but simply asked
him to service the packages Chomic again refused to
service the packages and he refused to service cross and
ROADWAY PACKAGE SYSTEM
sheet them as well Meyer , Chomic, and Gillihan then
met in the office where Chomic adamantly refused to at
tempt delivery service that day despite Gillihan s re
marks that his service contract obligated daily delivery
service The packages remained on the dock that day
On Monday , April 21 Chomic appeared in his street
clothes in Gillihan s office and asked whether he had
work for that day Gillihan told him that , of course he
did but Chomic must change into his RPS uniform
Chomic told Gillihan that he did not get his van repaired
over the weekend because the repairer, Standby Power
did not have the right parts Then Gilhhan told Chomic
to wait in the office for a few minutes , Chomic howev
er walked off and muttered , What an asshole Gillihan
pursued him to the dock and asked him what he said
Chomic answered , What do you think I said? and ac
knowledged the comment
That Monday , Meyer agreed to Chomic s request to
take time to get the door latch repaired at the nearby
Standby Power Meyer split Chomic s now double sized
accumulated load and partially loaded the van to permit
access to the rear door for repair service from within
Meyer pointed out to Chomic that 60 to 70 packages re
mained to be loaded for 2 or 3 stops Chomic promised
to return after the latch was repaired but failed to do so
and left those packages on the dock
On Tuesday , Meyer asked coordinator Michaeljohns
to keep an eye on Mr Chomic so that he took all his
packages for delivery Later Chomic came to Meyer and
stated , Rick , if you don t tell him [Michaeljohns ] to shut
up I in going over there and punch him in the mouth
At some unknown date Chomic did get his van door
latch repaired
On Wednesday May 6, Chomic did not deliver about
40 to 50 packages that had been fully loaded on his van
and addressed to the Royal Oak K Mart, the stop which
Chomic testified to at least twice was his desirable mon
eymaker He testified that he did not service cross the
undelivered packages because it was too large a number
According to Meyer Chomic told him the next morning
Thursday , that he did not want to make the delivery be
cause the stop takes too long and refused to service it
after repeated requests and insisted that he did not want
to spend time at that stop Chomic testified that on
Thursday his van was partially loaded and staged for
loading with not only the Thursday packages but also
with those Wednesday undelivered K Mart consign
ments and totaled about 100 packages for K Mart alone
Chomic testified as follows
[Meyer] came to me and he starts handing me the
packages I said , I in unable to take the stops
today I need to talk to you people about this I
go, I just want to work with you I don t want to
leave the stop This is the only way we make any
money anymore anyway [and] I make any
money ' And he-you know he said , There s
nothing I could do for you, you know its your
stop '
I said, Flex, listen I can t I can t justify sitting
two hours at one stop I just-I lost money He
goes it s your stop I go, I know it is I want it
419
I go but I-all that I want to do is talk to [Gilh
han] about it He goes Well [Gillihan ] doesn t
want to talk to you I go, you know What am I
supposed to do about that) I go We need to get
some communication going between us for this
stop K Marts is our biggest account We cant
leave it sit He goes well, its-you know there s
nothing I can do I go, well , its-you know
there s nothing I can do I go well , there s noth
ing I could do He goes you telling me you re
leaving this stop? I go, I in not going to have to
It s not on my truck there s-I can t take it
Chomic departed without any of the 100 K Mart con
signments , having rejected the direct orders of Meyer
and Gillihan to load the K Mart packages He testified
that as he left, Meyer stated Go ahead do your route,
and thereby implicitly acquiesced in the K Mart nonde
livery
Chomic testified that on May 7 he had delivered be
tween 80 to 100 stops and over 200 packages after he
had departed the terminal at 7 30 a in and returned he
guessed , at 4 to 5 p in He testified that in his 2 year ex
perience his daily average number of stops had been 90,
where he delivered 200 packages He testified that he
had delivered virtually all the loaded packages on May
7 To commence delivery at 7 30 a in , he must have ar
rived before 7 30 a in particularly in light of his testimo
ny that he sometimes needed upwards of one half to 1
hour to rearrange the loaded or staged packages
In explanation for this behavior Chomic testified that
within a few days after the Board conducted election
there had been an order issued in the form of a written
notice to all drivers , except those who delivered to cer
tam kinds of large institutions e g automobile plants
whereby 75 percent of the drivers were prohibited from
arriving at the terminal earlier than 7 30 a in unless spe
cifically exempted Chomic claimed that this order inter
fered with his normal 6 am arrival which in turn en
abled him to reach the K Mart located at the northern
part of his route before the UPS competitor delivery
there and avoid having to wait on the UPS van unload
ing at the K Mart dock Chomic testified that it only
took 10 to 15 minutes to unload his own van at the K
Mart dock It is Meyer s testimony that the unloading of
the UPS truck involved the same amount of time He
based his estimate on his prior employment experience at
UPS elsewhere , where he executed timestudies of UPS
deliveries Chomic testified that there were times
when two vans arrived before him He testified that he
had to wait for 1 3/4 hours while the UPS driver of
fectuated the UPS delivery to K Mart Chomic testified
that compliance with Gillihan s order caused UPS to
beat me there every time because of the 7 30 a in traf
fic buildup and that he complained futilely to Gilhhan a
number of times, ' but that Gillihan refused to listen to
him Gillihan conceded that Chomic had occasionally
complained generally about delivering to the K Mart fa
cihty Meyer testified that Chomic had complained to
him previously about the high volume of packages in
volved at the one stop , not the hour of departure Ac
cording to Meyer Chomic never previously refused to
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
deliver at the K-Mart location. Moreover, Meyer testi-
fied that every driver complained about some stop on
their route which they disliked . It should be recalled that
Malaspina disliked the K-Mart stop without qualification
about departure times.
Chomic testified in cross-examination that , unlike the
day before, the K-Mart packages had not been loaded on
his van on May 7. When asked if that was the basis for
his refusal to effectuate their delivery, he testified hesi-
tantly, "I don 't think that 's-no, I don ' t think I said that.
I don 't recall saying that." When counsel for Respondent
insisted on the answer to his question , i.e., the reason for
nondelivery, rather than what Chomic stated to Meyer
or Gillihan , he asked a repetition of the question. Then
he testified, "No, that's not the only reason." He testified,
when asked if it were part of the reason , "Yeah , I think.
Yes." He then testified, when asked the rest of the reason
for not attempting delivery:
I wouldn ' t be able to service that customer if I
would have taken that package , and K-Mart is our
biggest account , when I was there. . . . Because I
had too many packages and I 'd have to wait
around , I did not want to wait around. I lost money
waiting around ... . That was one of the problems.
That there was [also] a lack of communication.
They wouldn 't talk to me about it . I needed to
leave earlier and, like I say, I cannot service that
account properly leaving at that time.
Of course , it is clear from his own testimony that K-
Mart 's service would not be improperly effectuated even
if Chomic were compelled to wait for unloading, as he
testified, but rather his own delivery service to other
areas might be impacted unless he worked longer hours,
and it is those areas that he gave his own personal priori-
ty and not priority to K-Mart , Respondent 's most impor-
tant account . Clearly, his own testimony reveals that in
his own mind the K-Mart high-volume delivery was not
as desirous as he first suggested when he testified to the
alleged threat to take away Royal Oak that was alleged-
ly made in response to his own suggestion for a route
condensation . Meyer 's testimony that the nature of Cho-
mic's prior complaints was not the departure time but
the high volume of packages to K-Mart is thus enhanced.
Chomic's own settlement record for March 22 reveals
that Southfield , which he testified was nonproductive
and had much fewer deliveries than Royal Oak, had a
package count delivery of 75 packages for 41 stops (zone
205) as compared to 25 packages in 14 stops for Royal
Oak (zone 220). On that date he returned at 4 p.m.
The most damaging part of Chomic's testimony about
his purported inability to service the K-Mart facility is
his initial insistence on direct and cross -examination re-
garding the postelection pre-7 : 30 a.m . terminal entry pro-
hibition from which he was not exempted . He testified in
redirect examination , without documentary corrobora-
tion, that he always serviced the Royal Oak K-Mart first
because it was his highest volume stop and he was
obliged to beat the 8 :45 a.m . appearance of the UPS van.
He insisted that because the initiation of this postelection
terminal arrival rule, he was constrained to arrive at 7:30
a.m. at Redford and then sort his load, and then he left
whenever he had completed the chore . In direct exami-
nation , he had estimated that to be a one -half to 1-hour
chore. He testified , without corroboration , in redirect ex-
amination that before the election he had departed the
terminal at 7 a.m . after having arrived at 5:30 to 6 a.m.
He estimated the trip to K-Mart from the terminal at 45
minutes, for what on the map appears to be about a 12-
mile drive , for an arrival at 9 a.m. or later . He estimated
his actual new departure from Redford to be from 8 to
8:30 a.m . He insisted that despite his requests to Gillihan,
he was refused permission for an earlier terminal entry.
He testified lamely that he refused to rearrange his order
of deliveries because he wanted to do K-Mart first so as
to prevent potential confusion between K -Mart packages
and others in the delivery sequence . In further redirect
examination , he testified that the only different factor on
May 6 and 7 was that "I just got tired of losing money."
He explained that if he spent too much time at K-Mart,
he would have been in danger of not being able to com-
plete 'delivery at the end of his route to an unspecified
number of retail outlets at unspecified locations that time
of day. The General Counsel adduced no detailed testi-
monial nor documentary evidence to specify the mone-
tary losses Chomic would have incurred for effectuating
a high volume delivery to K-Mart . Chomic did not testi-
fy that K-Mart delivery would have been jeopardized
had he reversed or otherwise changed the route se-
quence. His proffered explanation regarding potential
confusion in packages is unconvincing . Furthermore, on
cross-examination, he admitted that on March 20 some of
the DNAs may have been K -Mart packages that got out
of order anyway, i.e., small watch packages . Clearly he
gave greater priority to other non-K-Mart stops for the
time period he allotted to himself for the delivery day. If
there had been less business volume for Southfield as he
had first testified, it would be more logical to first deliv-
er to K-Mart and risk nondelivery later in the day to
Southfield, which is located between Royal Oak and the
Redford terminal, or to reverse the sequence and clear
up the less busy area first , rather than to abort K-Mart
entirely.
The evidence discloses that Chomic was not prohibit-
ed from pre -7:30 a . m. access to the terminal after the
election . In testifying about the May 7 confrontation, he
unwittingly revealed that he had departed the terminal at
7:30 a.m. and executed an actual delivery and pickup of
about 200 packages to 80 to 100 stops in 8-1/2 to 9-1/2
hours and returned between 4 and 5 p . m., an arrival time
not excessively late in comparison with that of other
drivers noted above . In cross-examination when con-
fronted with his records , he acknowledged the following
morning arrival and departure times and total hours
worked driving and sorting, etc.:
Date Arrived Departed Total Hrs.
4/20/87 7 a.m. 7:30 a.m. 8.5
4/21/87 7 a. m. 8 a.m. 9
4/22/87 9:30 a.m. (unspecified) 7
4/23/87 7 a.m. 7:45 a.m. 9
ROADWAY PACKAGE SYSTEM 421
Date Arrived Departed Total Hrs
4/24/87 7ain 7 30 am 9
Arithmetically, it is clear that on four of those occasions,
he must have returned at 4 p in or earlier
In further redirect examination , Chomic testified in be
fuddlement when again asked what the new starting time
was
Okay, I'm not sure There were times-every other
week [Respondents counsel] refreshed my memory
on this That one week we would start at 7 00, the
next week we would start at 7 30 Next week we d
start at 7 00, the week after wed start at 7 30
Every other week I in not saying every other
week Every week that start times were changed,
that's why I am starting at 7 o clock here [sic]
Clearly, he was at a loss to explain the contradictions of
this testimony
The General Counsel ignores the evidence and tests
mony of Chomic himself as he states in his brief that the
permissible morning terminal driver access time was set
at 7 30 a m The General Counsel s assertions of adverse
impact are based solely on the conclusionary and uncon
vincing testimony of Chomic The General Counsel ad
duced no corroboration of the alleged postelection new
terminal access rules nor its unrelenting application to
Chomic However, according to Chomic, the rule was
not devised solely to harrass him but was promulgated
for and directed to at least 75 percent of the drivers and
there is no evidence of its disparate enforcement Chomic
referred to its compliance in the plural Further, by Cho
mic s own ultimate admissions he was not obliged with
out exception to conform to the rule as he originally tes
tified
The complaint actually alleges as an act of coercive
retaliation that Gillihan, on or about November 6, 1986,
promulgated an onerous ' rule requiring employees to
appear at the terminal no later than 7 30 am The
General Counsels brief ignores this allegation Malaspina
testified that during his December 5 confrontation he
cited this rule to Gillihan as indicia of employer employ
ee relationship He did not testify about its actual pro
mulgation nor the date of it, i e , was it a rule set at his
commencement of route servicing or later? The General
Counsels documentary evidence reveals that between
November 6 and 25, 1986 Andrzejewski arrived after
7 30 a in As noted above , Malaspina arrived between
9 30 and 10 a in Trimble recalled no newly promulgated
starting times after the union organizing efforts Not only
has the General Counsel failed to establish that an oner
ous arrival time rule was newly promulgated in Novem
ber, such a rule was not shown to be onerous as, indeed
Chomic claimed that an earlier than 7 30 a in arrival was
desirable From what I glean from the record, each driv
er s starting time can vary on the proclivities of each
driver e g Johns records reveal very early arrivals,
whereas Cooper came in early while Malaspina came in
later If a driver consistently arrived so late that it affect
ed his prompt deliveries to a distant area, it created prob
lems for the loading coordinator, as Wieman testified
Thus, an appropriate arrival time for business reasons
had to be geared to the loading and staging done over
night by the loaders who finished in the morning, some
times at 8 to 8 30 am The General Counsel has not
demonstrated that Respondent acted in a retaliatory way
by effectuating either too early a driver arrival time in
November 1986 nor too late an arrival time in January
1986, either for the employees as a whole or for Chomic
or any other discriminatee in particular, nor that any
such rules were disparately enforced
On the afternoon of May 7 after Chomic s return to
the terminal, he was confronted by Gillihan who testified
that Chomic returned at his customary 3 30 to 4 30 p in
return time Gillihan testified that at the drivers check in
counter, he demanded to know whether Chomic had still
refused to comply with the order to deliver to the Royal
Oak K Mart and, on such acknowledgment by Chomic,
he notified him that his contract was terminated and that
he should surrender the van s Michigan Public Service
Commission vehicle license plate or tag and other RPS
owned items He testified that Chomic responded with
some choice adjectives which he ignored, and that he
followed Chomic to the dock and into the load area of
his van He testified that Chomic said, Get the fuck out
of my truck According to Gillihan, he explained to
Chomic that he wanted to assure removal of RPS owned
items but Chomic said, I don t care and walked out of
the load area and slammed the door, which in effect
locked Gillihan in the load area where he remained until
later released by a coordinator On further demand for
RPS items, Chomic entered the vehicle and threw out
through the driver s compartment delivery records
pickup books, and clipboards Ultimately, Chomic de
parted and his termination of services was confirmed by
subsequent letter
Chomic testified that the confrontation occurred on
the dock where the two had a conversation which start
ed as Gillihan demanded to know why Chomic had not
effectuated the K Mart deliveries Earlier in direct exam
ination , he testified that Gillihan acquiesced in his depar
ture without the K Mart load by giving him permission
to depart in the morning This is not only inconsistent
with the testimony of Meyer and Gillihan but it is in
consistent with Gillihan s reaction as described by
Chomic on his return Chomic testified that he needed
to talk about it because I just-I can t justify sitting at
a place for two hours to unload a stop Chomic testi
feed
And he said you know, It s your stop, you have
to do it Its yours Mr Chomic you re fucking
fired Get out I don t want to see you around here
anymore
According to Chomic he removed the few RPS pack
ages on the van and other items and after Gillihan ex
plored it, he drove his van home He testified that they
had an argument over two undelivered items that had
been sitting on the van for 2 months because of a reject
ed delivery acceptance He testified to the receipt of a
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
termination letter. His attention was redirected by the
General Counsel to that final confrontation, and this time
he attributed one more final comment to Gillihan. He
testified:
As I was walking back to my truck . .. "Now,
Chomic go join the rest of your buddies on the un-
employment line." And there were words said and
he said he was going to kick my ass again , clenched
his fist. I threw my stuff down. I said , "Go ahead,
make my case stronger." And he-you know, he
never moved.
In cross-examination, Chom:ic denied that he locked
Gillihan in the van. Then he admitted that he closed the
door, effectively sealing Gillihan within inasmuch as the
door could not be opened from within, as apparently the
latch was still defective. With. respect to Gillihan's al-
leged final statement about the unemployment line, there
was no reference to it in his pretrial affidavit. In redirect
examination , Chomic explained that he did not put "ev-
erything" into his affidavit and that at the time of trial he
recalled additional things "because of what's been said
here, and plus my notes." In re-cross-examination, he ad-
mitted that he had those same notes with him at the time
he submitted his affidavit to the Board agent.
Because of Chomic's contradictory, contradicted, in-
ternally inconsistent, externally inconsistent, shifting tes-
timony and his extremely poor demeanor which mani-
fested itself as noted above, inter alia, in his hesitations
and other mannerisms indicative of an uncertain and
poor memory and lack of candid spontaneity, I discredit
him wherever he is contradicted.
The foregoing evidentiary analysis reveals a lack of
clear, convincing, credible, probative evidence to sup-
port a conclusion that Chomic was subjected to a post-
election threat of personal retaliation and route loss after
his "kick ass" election victory battle cry; that his pay-
check was withheld for arbitrary retaliatory reasons; that
moneys were deducted from his compensation in conse-
quence of a discriminatory and disparately enforced rule;
that he was subjected to a discriminatory and invalid no-
distribution rule; that he or any other driver was subject-
ed to an onerous morning terminal arrival time; that he
was ordered to comply with assignments that would
have reduced his income significantly; nor that his insub-
ordination was prompted by disparate discriminatory
treatment; nor that Respondent's termination of his serv-
ices for such insubordinate conduct constituted disparate
treatment.
J. Conclusions Re 8(a)(1), (3), and (4) Allegations
The General Counsel has the burden of proving the
case.
The Board stated in the Wright Line case:2
... we shall henceforth employ the following
causation test in all cases alleging violation of Sec-
tion 8(a)(3) or violation of Section 8(a)(1) turning
on employer motivation. ]First, we shall require that
2 Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cit.
1981), cert. denied 455 U.S. 989 (1982).
the General Counsel make a prima facie showing
sufficient to support the inference that protected
conduct was a "motivating factor" in the employ-
er's decision. Once this is established, the burden
will shift to the employer to demonstrate that the
same action would have taken place even in the ab-
sence of the protected conduct.
In the Wright Line case, the General Counsel had ad-
duced evidence of employer knowledge and hostility di-
rected to an employee of admirable work record because
of that employee's active role in a union organizing cam-
paign , suspect timing of the adverse action, the departure
from past disciplinary practice, and the lack of significant
impact of the reason advanced for the cause of adverse
action toward the employee. A variety of factors can
thus give rise to an inference of unlawful motivation suf-
ficient to establish a prima facie case. In cases involving
alleged discriminatory group or individual layoffs, the
Board has frequently cited the facts of suspect timing
coupled with hostility toward employee representation3
in support of a finding of a prima facie case.
In the absence of evidence of expressed union animus,
a prima facie case might not be shown where the evi-
dence gives rise to, at most, a suspicion, i.e., the prof-
fered reason for the layoff, lack of work, was contradict-
ed by the hiring of new employees to perform the work
of the laid-off employees.4
In this case the General Counsel's argument is pre-
mised on the proven fact that three of the alleged dis-
criminatees testified as union witnesses at a Board hear-
ing, one was present at that hearing pursuant to subpoe-
na and one more was the vociferous union observer at
the Board-conducted election. Within 6 months, all the
alleged discriminatees had terminated or been terminated.
Immediately, suspicions arise under a post hoc propter
hoc analysis. However, this is the limit to what the Gen-
eral Counsel has proven.
My findings in each of the cases are not strengthened
by their analytical reference to the record as a whole.
The General Counsel has not proven any of the 8(a)(1)
allegations with credible, probative evidence. It has not
been proven that Respondent was aware of the union ad-
vocacy of Malaspina. It has not been proven that Re-
spondent entertained that degree of hostility indicative of
retaliatory motivation. It has not been proven with com-
petent, credible, probative evidence that the alleged dis-
criminatees had been subjected to coercion, harassment,
onerous assignments, changes of working conditions,
economically adverse route manipulation, or otherwise
treated in a disparate fashion. Accordingly, I find that
the General Counsel has not met the burden of proof re-
quired by Wright Line.
3 See, for example, Balch Pontiac Buick, 260 NLRB 458, 463 (1982);
Dutch Boy, Inc., 262 NLRB 4 (1982); Acme Die Casting Corp., 262 NLRB
777 (1982); Rain Ware, 263 NLRB 50 (1982). With respect to 8(a)(4) vio-
lations, see Montag Oil Co., 271 NLRB 665 (1984).
" Delta Hosiery, 259 NLRB 1005, 1010 (1982), re layoff of employee
McGrady.
ROADWAY PACKAGE SYSTEM 423
In view of my factual findings, I conclude that all the
independent 8(a)(1), (3), and (4) allegations of the con
solidated complaint ought be dismissed
It is therefore unnecessary for me to make any findings
with respect to Respondents defense to the 8(a)(1), (3),
and (4) allegations premised on the alleged independent
contractor status of the alleged discnminatees However,
the issue will be mentioned below with respect to the
8(a)(5) allegation analysis
clusive collective bargaining agent for the unit employ
ees and since July 7, 1987 the Respondent has refused
4 By refusing on and after July 7, 1987 to recognize
and bargain with the Union Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act Respondent has in no other manner vio
lated the Act as alleged in the amended consolidated
complaint
K The 8(a)(5) Allegations-Test of Certification
By order dated December 21, 1987 and February 16,
1988, each attached as Appendix C, I have set forth the
elements of the test of certification issue which encom
passes the 8(a)(5) allegations as well as my conclusion
that Respondent has admitted the operative allegations of
the complaint in that case, but has raised no litigable de
fense As noted above, I have not found it necessary to
evaluate Respondent's defense to the 8(a)(1), (3), and (4)
complaint allegations premised on the alleged independ
ent contractor status of the alleged discriminatees The
evidence of the employee status of the discriminatees
was permitted in consequence of my interpretations of
Board precedent, e g, Air Transit, 256 NLRB 278 (1981)
That precedent limits the relitigation of a representation
case issue narrowly to an unrelated unfair labor practice
litigation As was recognized by all counsel at the trial,
consolidation with the 8(a)(5) complaint case did not of
fectuate a representation case res judicata, nor collateral
estoppel with request to the employee status 8(a)(1), (3),
and (4) defense Therefore, consolidation does not effec
tuate the converse regarding the 8(a)(5) defense Accord
ingly, having found that the Respondent admitted the
operative allegations of the complaint that set forth a re
fusal to honor the Board certification and recognize and
bargain with the Union without having raised a litigable
defense, I grant the General Counsels Motion for Sum
mary Judgment
CONCLUSIONS OF LAW
1 As found above in the findings of fact Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and the Union is a
labor organization within the meaning of Section 2(5) of
the Act
2 Following the election held on March 20 1987 the
Union was certified on July 27, 1987 as the collective
bargaining representative of the employees in the follow
ing appropriate unit
All contract drivers and temporary drivers em
ployed by Roadway Package system Inc at its fa
cility located at 12080 Dixie Avenue Detroit
Michigan, but excluding dock employees, office
clerical employees guards and supervisors as de
fined in the Act
The Union continues to be the exclusive representative
under Section 9(a) of the Act
3 Since May 26 1987, the Union has requested the
Respondent to recognize it and bargain with it as the ex
THE REMEDY
Having found that the Respondent has violated Sec
tion 8(a)(5) and (1) of the Act, I recommend that it be
ordered to cease and desist, to recognize and to bargain
on request with the Union, and, if an understanding is
reached, to embody the understanding in a signed agree
ment
To ensure that the employees are accorded the serv
ices of their selected bargaining agent for the period by
law the initial period of the period of the certification is
to be construed as beginning the date the Respondent
begins to bargain in good faith with the Union Mar Jac
Poultry Co, 136 NLRB 785 (1962), Lamar Hotel, 140
NLRB 226, 229 (1962), enfd 328 F 2d 600 (5th Cir
1964) cert denied 379 US 817 (1964) Burnette Con
struction Co, 149 NLRB 1419, 1421 (1964), enfd 350
F 2d 57 (10th Cir 1965) 5
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed6
ORDER
The National Labor Relations Board orders that the
Respondent, Roadway Package System Inc, Redford
Michigan its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Refusing to recognize and bargain with Local 299
International Brotherhood of Teamsters Chauffeurs
Warehousemen and Helpers of America AFL-CIO as
the exclusive collective bargaining representative of the
employees in the bargaining unit
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request bargain with the Union as the exclusive
collective bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment and, if an understanding is reached embody
the understanding in a signed agreement
5 The General Counsels request for a visitatonal clause is denied as
such a provision is unnecessary in the circumstances of this case
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All contract drivers and temporary drivers em-
ployed by Roadway Package System, Inc., at its fa-
cility located at 12080 Dixie Avenue, Detroit,
Michigan; but excluding dock employees, office
clerical employees, guards and supervisors as de-
fined in the Act.
(b) Post at its Redford facility in Detroit, Michigan,
copies of the attached notice marked "Appendix A."7
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that all other allega-
tions of the amended consolidated complaint are dis-
missed.
r If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
Local 299, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO as the exclusive collective -bargaining repre-
sentative of the employees in the bargaining unit.
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 as the
exclusive collective -bargaining representative of the em-
ployees in the following appropriate unit on terms and
conditions of employment and, if an understanding is
reached , embody the understanding in a signed agree-
ment:
All contract drivers and temporary drivers em-
ployed by Roadway Package System, Inc., at its fa-
cility located at 12080 Dixie Avenue, Detroit,
Michigan; but excluding dock employees, office
clerical employees, guards and supervisors as de-
fined in the Act.
ROADWAY PACKAGE SYSTEM, INC.
APPENDIX B
ORDER CLOSING HEARING AND DENYING
CONTINGENT MOTION FOR SEVERANCE,
AND SETTING DATE FOR FILING OF
BRIEFS
Subsequent to the filing of a representation petition
under Section 9(c) of the Act and a hearing on that peti-
tion, the Regional Director of Region 7 on 19 February
1987 issued a Decision and Direction of Election where-
in he directed an election in a unit of contract drivers
and temporary drivers employed by Roadway Package
System, Inc., the Respondent herein, at its Detroit
Michigan terminal. Upon a Request for Review of that
decision, the Board, by Order dated 19 March 1987, re-
viewed and upheld that decision wherein it was conclud-
ed that the contract drivers and temporary drivers were
employees as defined by the Act and not independent
contractors. On 20 March 1987, an election was conduct-
ed which certified that a majority of bargaining unit em-
ployees had designated the petitioner Union, Local 299,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, the Charging
Party herein, as exclusive collective-bargaining agent.
Respondent filed objections to the election which. alleged
certain improper conduct in the voting area. On :30 April
1987, the Regional Director after an investigation over-
ruled the Objections and certified Local 299 as bargain-
ing agent. Respondent requested review of that decision
which, in part, requested a hearing. By Order elated 27
July 1987, the Board sustained the Regional Director and
denied that request.
Pursuant to an unfair labor practice charge, the Re-
gional Director on 23 September 1987 issued a Com-
plaint in Case No. 7-CA-27253 which alleged violation
of Section 8(a)(1) and (5) of the Act by Respondent's re-
fusal to honor the certification of bargaining agent in
that it refused to recognize and bargain with Local 299.
A trial was ordered to be held on 11 January 1988. An
Answer was filed on 6 October 1987 by Respondent
which admitted the operative allegations of the Com-
plaint but which raised four affirmative defenses.
Previously, commencing on 12 November 1986, cer-
tain unfair labor practice charges were filed which had
resulted in the issuance of Complaints and ultimately to
an Order Consolidating Cases, Second Amended Com-
plaint and Notice of Hearing in the balance of cases set
forth in the above caption except for the Complaint
issued in Case No. 7-CA-26951 which issued on 9 June
1987 and which was consolidated by Order of 10 June
1987. The Consolidated Complaint alleged discriminato-
ry acts, inclusive of employment terminations against
certain drivers, which were alleged to be violations of
Section 8(a)(1) and (3) of the Act.
The trial in the consolidated 8(a)(1) and 8(a)(3) cases
was opened before me on 16 September 1987 and litigat-
ROADWAY PACKAGE SYSTEM
ed on various dates in three separate sessions thereafter
On the first day of the resumption of the third session on
19 October 1987 the General Counsel upon prior notice
given during the hiatus in the preceding week, moved
orally on the record to consolidate the proceeding with
the outstanding 8(a)(1) and (5) Complaint There was no
objection to that motion Respondent was now represent
ed concurrently by two separate counsel, each assigned
separately to the discrimination and refusal to bargain
matters Despite some reservation I was persuaded by
the General Counsels argument that the consolidation
was appropriate and I consolidated these matters by oral
Order on the record on 19 October 1987 Immediately
thereafter the General Counsel expressed an intent to
move for summary judgment on the grounds that the
answer to the 8(a)(5) Complaint did not appear to raise a
litigable issue I decided to litigate the balance of the
8(a)(1) and (3) cases, to adjourn the entire matter without
date upon completion of that litigation, and to entertain
on a date certain a written motion with supporting brief
from the General Counsel I so ordered the General
Counsel and also ordered the Respondent to file on a
date certain a written response and supporting answering
brief containing argument and support for its position
that summary judgment was not appropriate and why its
affirmative defense raised litigable issues I expressed the
intention of either resuming the trial if I determined that
litigable 8(a)(5) issues were raised, or of issuing an Order
closing the hearing if none were demonstrated
On 3 November 1987 I received General Counsel s
Brief In Support of Motion for Summary Judgment on
the Pleadings in Case 7-CA-27253 which recited that
Respondent had by its Answer admitted the operative al
legations of the Complaint and had raised no litigable of
firmative defense, i e , that the affirmative defenses
sought to relitigate issues which were or which could
have been litigated during the representation case pro
ceeding The General Counsel also reiterated the appro
priateness of consolidating all the Complaints It was co
gently asserted that during the 8(a)(3) proceeding the
employee status of the discriminatees was raised and liti
gated as one of Respondents defenses and that failure
to consolidate these matters could result in inconsistent
decisions with respect to employee status of the same in
dividuals caused by differing forums of the same agency
considering only parts of all the evidence available on
the issue, and that Consolidation will assure that all of
the evidence available is considered by all forums at all
levels
On 24 November 1987 I received Respondents Brief
In Opposition to Summary Judgment and thereafter a
brief in support of General Counsels motion and in re
sponse to Respondents beef The General Counsel filed
no response to Respondents brief but on 4 December I
received the General Counsels contingent Motion to
Sever Cases i e, if Motion for Summary Judgment were
concluded by me to be meritorious, to allow for a quick
decision by the Administrative Law on this matter On
7 December 1987 I received Respondents Reply to the
Response of Local 299, and its opposition to the contin
gent Motion to Sever With respect to the latter Re
spondent observes that if such motion were granted and
425
a Decision issued granting summary judgment Respond
ent would be put to unnecessary burden and expense by
being forced to litigate two separate proceedings posse
bly with two separate appeals to the Sixth Circuit
United States Court of Appeals Respondent s argument
appears to echo General Counsel s initial argument for
consolidation, and it may be helpful to review briefly the
interrelation of issues in these cases
During the 8(a)(3) litigation Respondent raised the em
ployee status in its defense i e , there could be no dis
crimination under the Act because the drivers were not
employees as defined by the Act but were independent
contractors The General Counsel sought to preclude liti
gation of this issue on the ground initially that it was res
judicata and thereafter on the ground of collateral estop
pel, inasmuch as employee status was resolved by the
Board in the representation case I concluded that the
Respondents position was better supported by Board
and Court precedent, particularly Air Transit Inc, 256
NLRB 278 (1981) In that case a defense was raised to a
motion for summary judgment upon pleadings in an
unfair labor practice case involving 8(a)(1) allegations
that no employees were coerced inasmuch as the victims
of the alleged coercion were not employees as defined
by the Act despite a prior representation case determma
tion that they as taxi drivers occupied positions as em
ployees and not independent contractors The Board
stated
In a case such as the instant case which involves in
dependent violations of the Act that are unrelated
to a prior representation case, the findings in that
prior representation case are subject to challenge
and may be litigated Subject of course to reconsid
eration and to any additional evidence adduced in
the unfair labor practice case, the Board may
accord a certain persuasive relevance a kind of
administrative comity to the prior representation
case findings [footnote omitted]
The Board thereupon considered again its original deci
sion and in absence of any additional evidence it reaf
firmed its earlier findings
In this proceeding over the objection of the General
Counsel I accorded Respondent the opportunity to
adduce additional evidence as to employee status
Whether it adduced sufficient new evidence and whether
reconsideration of the prior representation case findings
warrants a different finding of nonemployee status is, of
course incidental to the litigation of the 8(a)(3) allega
tions The 8(a)(3) defense is in effect a challenge to the
basic unit determination in the representation case upon
which the 8(a)(5) case is ultimately posited Because of
this relationship I conclude that continued consolidation
is appropriate regardless of my determination as to the
litigability of Respondents 8(a)(5) affirmative defenses
With respect to Respondents affirmative defenses to
its admitted refusal to honor the certification, they are
four in number (1) that the Complaint does not set forth
a claim upon which relief can be granted (2) that the
drivers are not employees within the meaning of the Act
(3) that misconduct by Local 299 occurred in and around
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the voting area, and (4) "The Charging Party is fraught
with a conflict of interest which compromises its duty of
loyalty to Respondent 's Detroit drivers, and accordingly
the Charging Party was improperly certified."
The General Counsel 's brief in support of Motion for
Summary Judgment accurately recites the admissions of
operative 8(a)(5) allegations , and also argues that the af-
firmative defenses are either a general legal conclusion
or a restatement of issues litigated in the representation
case proceeding . The first three defenses clearly are
what the General Counsel contends . I find , however,
nothing in the representation case relating to an issue of
conflict of interest . Respondent 's opposition brief deals
solely with that fourth defense which it characterizes as
a litigable issue which has been raised by it as a result of
newly discovered evidence . With its briefs Respondent
has submitted offers of proof in the form of affidavit and
documentary evidence . Much of this material in fact
post -dates the representation case proceeding and is of
very recent origin . There is no effective rebuttal to its as-
sertion that the evidence is newly discovered and could
not have been discovered at the time of the representa-
tion case proceeding.
The Board has consistently refused to relitigate in a re-
lated 8(a)(5) proceeding issues that were or could have
been raised in a prior representation proceeding , and has
refused to litigate newly discovered evidence which,
even if adduced and credited , would not effect a differ-
ent result . See, for example, Seder Foods Corp., 286
NLRB 215 (1987 ), which cites Pittsburgh Glass Co. v.
NLRB, 313 U.S. 146, 162 (1941); Nabco Corp., 266
NLRB 687 ( 1983); secs. 102.48 (d)(1); 102.67(f) and
102.69 (c) of the Board 's Rules and Regulations . See also
E-Z Davies Chevrolet, 161 NLRB 1380 ( 1966), where the
Board stated : "an evidentiary hearing is not a matter of
right where there is nothing that a trier of fact may de-
termine . Neither we nor the courts are bound to `hear'
what is legally insignificant" [footnote omitted].
The essence of Respondent 's argument is that Local
299 should be denied certification because of a lack of
representational competency arising from a predetermi-
nation to execute its statutorily mandated duties in a
manner that would "lack the single -minded purpose to
advance the interest of the [bargining unit employees]."
The Board has in the past been loath to prejudge a pe-
titioning union ' s probable prospective representational
behavior or misconduct as an impediment to initial certi-
fication, but rather it has preferred to grant certification
and leave for future evaluation subsequent actual repre-
sentational conduct . See, for example, Handy Andy, Inc.,
228 NLRB 447 (1977); Alto Plastics Mfg. Co., 136 NLRB
850 (1962).
In very limited circumstances the Board has precluded
initial certification where there is a conflict of interest
pregnant in a business or institutional relationship with
the employer or its competitors which inherently re-
strains the bargaining agent 's advocacy of the interest of
bargaining unit employees . It is these cases upon which
Respondent relies citing , inter alia, Bausch & Lomb Opti-
cal Co., 108 NLRB 1555 (1954); Welfare and Pension
Funds, 178 NLRB 14 (1969); Seafarers International
Union , 138 NLRB 1142 (1962); Oregon Teamsters ' Securi-
ty Plan Office, 119 NLRB 207 (1957). See, also, H. P.
Hood & Sons, Inc., 205 NLRB 833, 837-838 (1973); St.
John's Hospital and Health Center, 264 NLRB 990 (1982);
Universal Fuels Inc., 270 NLRB 538, 540 (1984).
Respondent argues and proffers evidence to demon-
strate that Local 299's representational competency is
disabled not by a business or institutional relationship
with an employer, but rather by a pre-existing alliance or
conspiracy between itself, its international union and Re-
spondent's chief competitor in the industry, United
Parcel Service, herein called UPS. That conspiracy, it al-
leges, seeks as its object a collective-bargaining agree-
ment identical to that which approximately 20 or more
local Teamster unions have negotiated with UPS. It
argues, ". . . the Teamster's thrust is to represent RPS
drivers in order to guard against losing negotiating
power with UPS, `force' RPS to pay UPS wages, etc.,
and keep collecting revenue of nearly $3,500,000.00 a
month in UPS members dues." This object, Respondent
argues, allies the interest of Local 299 with that of UPS
in that a UPS type wage and benefit would be ruinous to
Respondent and either drive it out of business or make it
less of an economic threat to UPS which prior to RPS's
relatively recent inception had dominated the industry,
but which now views Respondent as having made dan-
gerous inroads into the market.
The Respondent's offer of proof purports to demon-
strate that UPS had dominated the market place, that
Respondent has made inroads in that market place, that
an officer of UPS communicated in writing to the Team-
ster International President a reference to Respondent
which as a nonunion employer is a threat to its own
well-being and the jobs of union members, that the Inter-
national Union viewed Respondent as a threat to the jobs
of its UPS members, that it communicated this threat na-
tionwide to its UPS members, that it encouraged and as-
sisted in the organizing of various Respondent distribu-
tion centers, including Detroit, that Local 299 "had
made the negotiation of a national UPS-type contract the
cornerstone of the Teamsters campaign at RPS," that
Local 299 and other Teamster locals have openly ap-
pealed to RPS drivers for support of this goal, that the
International Union has assisted in the organizing activi-
ties of the locals and Local 299, that UPS employed
drivers have assisted in their organizing efforts, that non-
Local 299 Teamsters agents at other locations in the
course of organizing efforts have accused Respondent of
taking away Teamster jobs and the Teamsters would
"strangle" Respondent or force it out of business if it did
not agree to UPS type contract conditions. The offer of
proof does not purport to establish that Local 299 is con-
strained by its relationship with the International Union
and UPS to engage in bargaining calculated to put Re-
spondent out of business regardless of what concessions
Respondent might make in bargaining.
Respondent argues that I should not lightly deny its
request to adduce the foregoing evidence and that it is
wiser to err on the side of permitting excessive litigation
than to curtail its possible right to a hearing. Indeed, I
have given Respondent's appeal the most careful consid-
eration, and I do not dismiss it lightly. Certainly if Re-
ROADWAY PACKAGE SYSTEM
spondent were arguing an institutional or inherent finan
cial relationship between Local 299 and UPS, a relevant
issue would be joined Respondent, however is arguing
and offering to prove an intention of future conduct con
sisting of a course of bargaining for economic demands
which would be detrimental to its competitive business
advantage It appears that the objective of preserving the
jobs of employees already represented by Teamster
unions by organizing and seeking to uplift the wages and
benefits of nonunion employer competitors carries with it
an inherent conflict of interest I know no Board prece
dent or legislative history of the Act that would support
this proposition
It has been long recognized that uniformity of industry
standards is a legitimate bargaining objective lawfully
supportable by resort to economic power, although the
manner in which that objective is pursued in bargaining
may constitute bad faith bargaining when put to the test
Graphic Arts International Union Local 28 (James H
Barry Company et al), 235 NLRB 1084 (1978) Chauf
feurs Teamsters and Helpers Local 301 (Merchants
Moving and Storage Inc) 210 NLRB 783 (1974) Truck
Drivers Oil Drivers Filling Station and Platform Workers
Union Local 705 (Kankakee Iroquois County Employees
Association) 274 NLRB 1176 (1985)
The offer of proof demonstrates that the Teamsters
have been starkly open in their bargaining objectives in
the course of organizing Respondents drivers Affidavits
of RPS drivers who were solicited by Teamster agents
reveal that they have evaluated for themselves whether
these objectives advance their own best interests There
is no showing that the evidence would reveal that the in
terests of the unit employees would necessarily be sub
verted by the Teamsters bargaining goals which of inci
dental necessity benefit UPS and UPS unionized employ
ees To permit litigation into the issue raised by Re
spondent would insinuate into the Board s processes a
profoundly novel unnecessary and potentially extensive
examination into the motivations and bargaining objec
tives of a petitioning union at a premature stage of pro
ceedings Whether the bargaining objectives are in the
interest of the petitioned for unit employees is best left at
the present to their evaluation choice and support or re
jection Litigation of potential speculative bargaining
misconduct at this point is therefore unwarranted prema
ture and not conducive to the orderly and expeditious
processing of these cases Accordingly Respondents re
quest to resume the hearing to litigate what I conclude
are irrelevant affirmative defenses is denied For reasons
noted above severance of these matters at this stage is
427
also inappropriate and the motion for severance is
denied Accordingly I issue the following
ORDER
The hearing in the above captioned matter is closed
and written briefs are due in Washington D C, on the
30th day after issuance date of this order
APPENDIX C
ORDER DENYING MOTION FOR
RECONSIDERATION
By motion dated 5 January 1988 but received by me
on 20 January 1988, Respondent moved for reconsider
ation of the Order which closed the hearing upon the
conclusion that Respondent had not raised a litigable
issue in its proffered affirmative defense to the 8(a)(5)
and derivative 8(a)(1) allegations
Having reconsidered Respondents arguments I am
still unable to reach any different conclusion Respond
ent, in its Motion For Reconsideration argues that it
ought to be provided the opportunity at trial to discover
by subpoena probative evidence as to the alleged rela
tionship between the Union and its chief competitor Re
spondent argues that it might be able to pro-,a an inher
ent relationship which is an impediment to the Union s
representational competency Again I conclude that the
inherent debilitating relationship Respondent suspects
might exist is not inherent in the sense that it is a nec
essary consequence flowing from the essential structural
or business relationship of the parties It is rather an ad
hoc tactical relationship Respondent suspects arises from
the alleged collusion and agreement of two parties
whereby the Union would engage in a future coruse of
conduct in a manner that might be to the detriment of its
bargaining obligation to its constituency 1 e the unit
employees That future course of conduct is thus not a
necessary consequence that must flow from a relation
ship inherent in the strict sense of the word It is a
consequence that might realize if the Union were to exe
cute its bargaining duties in a certain manner With re
spect to the possibility that a breach of its bargaining
duties might occur, I adhere to my conclusion that litiga
tion of that possibility is premature and is best left to
future forums if actualized and I further adhere to my
conclusion that the probing now into representational
motivations and bargaining objectives would lead to a
litigational quagmire that is as unnecessary as it is with
out Board precedent and authority
Accordingly Respondents motion is denied