Yellow Freight Systems

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 309 (N.L.R.B. 1993)

309
313 NLRB No. 15
YELLOW FREIGHT SYSTEMS
1 No exceptions have been filed to the judge’s finding that the Re-
spondent violated Sec. 8(a)(1) by questioning Mendez during his em-
ployment interview about his union sentiments, by threatening that
it would not hire employees who actively pursued their rights under
Sec. 7 of the Act, and by stating that the Respondent did not intend
to hire Mendez because he had been seen talking with a shop stew-
ard.
2 In adopting the judge’s decision, we note that he failed to resolve
certain inconsistencies between the testimony of Union Steward Ray-
mond Cozette and Branch Operations Manager Mark Graybill.
Cozette testified that there was an agreement to add Mendez to the
Respondent’s seniority roster because he had worked more shifts
than the other casual drivers, while Graybill testified that he had
agreed to add Mendez because he was the best driver. Resolution
of this disparity would not affect the outcome of the case, in view
of the judge’s core reliance on the undisputed fact that there had ini-
tially been an agreement to hire Mendez.
The judge also refers at one point in his analysis to the Respond-
ent’s failure and refusal to hire Giorlando. It is clear from the con-
text, however, that Mendez’ name should replace Giorlando’s at that
place in the decision.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
4 We note that Mendez was already driving for the Respondent, al-
beit on a casual basis.
5 The Respondent failed to introduce any documentary evidence
that any driver had been rejected who had a driving record inconsist-
ent with the requirements set out in the memo. The Respondent in
its reply brief refers to art. 41 of the contract which provides for
the discontinuance of casual employees should they not meet the
employer’s hiring standards and qualifications. We note that Mendez
never had his employment as a casual discontinued, which further
detracts from the Respondent claim that Mendez did not meet the
Respondent’s employment criteria.
6 Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951).
Yellow Freight Systems, Inc. and Brotherhood of
Teamsters & Auto Truck Drivers, Local 85,
International Brotherhood of Teamsters, AFL–
CIO and John B. Mendez. Cases 20–CA–24053
and 20–CA–24610
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 3, 1993, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision in
which he found, inter alia, that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by refusing to
hire Juan Mendez as a permanent employee (i.e., put
him on the seniority list) because he engaged in pro-
tected concerted activity, and that the Respondent vio-
lated Section 8(a)(1) by threatening to terminate em-
ployees immediately if they engaged in an unauthor-
ized walkout, notwithstanding contrary provisions re-
garding the availability of the discharge sanction in the
parties’ collective-bargaining agreement. The Respond-
ent filed exceptions1 and a supporting brief and the
General Counsel filed an answering brief. The Re-
spondent then filed a reply brief. We affirm the
judge’s rulings, findings,2 and conclusions and adopt
the recommended Order.
1. The Respondent does not dispute that its decision
to add a casual driver other than Mendez to its senior-
ity roster was, as found by the judge, impermissibly
based on Mendez’ protected activity. Rather, the Re-
spondent contends, citing Wright Line,3 that it would
not in any event have hired Mendez as a permanent
employee because of his driving record. In support of
its contention, the Respondent points to a memoran-
dum, dated April 24, 1990, about ‘‘Driver Require-
ments.’’ That memorandum calls for rejection of an
applicant who has acquired more than one moving vio-
lation within the previous 13 to 24 months or more
than two moving violations within the previous 25 to
36 months. Other than the uncorroborated and discred-
ited testimony of Mark Kilpatrick, the Respondent’s
manager of its human resources department for the
Tracy (California) Region, the Respondent presented
no evidence that the memo had ever been applied in
a way that would have disqualified Mendez.4 The Re-
spondent’s exception thus challenges the judge’s credi-
bility resolution rejecting Kilpatrick’s testimony that he
had rejected every applicant for a regular position
whose driving record did not meet the criteria of the
April 1990 memorandum and that he would have re-
jected Mendez had he been selected.5 Absent a clear
preponderance of evidence that convinces us that a
judge’s credibility resolutions are incorrect, the
Board’s established policy is not to overrule them.6
We find no basis in the record for reversing the
judge’s findings.
Indeed, the Respondent’s conduct, as revealed by
the record, belies its assertion that Mendez’ driving
record disqualified him from being added to the se-
niority roster. For 4-1/2 months, the Respondent had
full knowledge of Mendez’ driving record; yet it pro-
ceeded with a background check, a drug scan, a phys-
ical examination, an accident investigation, and a per-
sonal interview subsequent to its receipt of that infor-
mation. Some of these steps involved participation by
the Respondent’s central labor relations office.
When Mark Graybill, the Respondent’s South San
Francisco branch operations manager, mentioned to
Mendez in late November that there was a problem
with his driving record, Mendez noted that two of his
violations would be removed by the end of January.
Graybill did not then nor thereafter mention that their
removal would not resolve the problem. To the con-
trary he replied that in that case ‘‘sometime after Janu-
ary or February, we’ll put you on the seniority list.’’
Then, at the beginning of March, Graybill scheduled
Mendez for an interview with Michael Bloss, manager
of the South San Francisco branch. When Bloss inter-
viewed Mendez, he also failed to mention that
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982).
8 177 NLRB 452 (1969), enfd. 424 F.2d 628 (6th Cir. 1970) (per
curiam).
9 202 NLRB 347 (1973), enf. denied 491 F.2d 388 (3d Cir. 1974).
Mendez’ driving record was a problem. Instead he
questioned Mendez about his views of the Union,
warned him that he was falling out of favor because
of his pursuit of grievances, and told him he would
never be hired if he hung around with the ‘‘wrong
people.’’ In view of the foregoing, we agree with the
judge that the Respondent’s post hoc rationale is
pretextual, thus eliminating its Wright Line defense.7
2. The Respondent has excepted to the judge’s con-
clusion that it violated Section 8(a)(1) of the Act by
threatening to terminate employees if they walked out
in a dispute over their union representative’s access. It
argues that the anticipated walkout did not amount to
protected activity because it would have abrogated the
ban against walkouts in the parties’ collective-bargain-
ing agreement. In connection with its argument, the
Respondent also urges us to reexamine the Board’s
holdings in Wagoner Transportation Co.8 and Food
Fair Stores.9
As the judge reports, in Wagoner and Food Fair, the
Board held that provisions in the respective collective-
bargaining agreements, like those in the instant case,
which limited the employer’s disciplinary options to
something short of discharge for participation in an un-
authorized strike of less than 24 hours, rendered en-
gagement in such action protected activity under Sec-
tion 7 of the Act. The Board held the no-strike clauses
in the same agreements did not waive employees’ Sec-
tion 7 rights not to be discharged for striking. In deny-
ing enforcement in Food Fair, the United States Court
of Appeals for the Third Circuit held that the restric-
tion on discipline did not create an exception to the
contractual ban on strikes, and therefore did not pre-
serve employees’ statutory right to engage in a walk-
out of less than 24 hours. We respectfully disagree.
It is well established that the waiver of a statutory
right, such as the right to strike, must be ‘‘clear and
unmistakable.’’ Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983). The parties’ collective-bargain-
ing agreement in the instant case limits the right to
strike, but does not totally waive it. Although the par-
ties’ master agreement prohibits walkouts in all but a
few situations, which are irrelevant here, the same arti-
cle of the master agreement provides that the local
union shall, if an unauthorized work stoppage occurs,
make every effort to persuade employees to return to
work.
Regarding discipline, the Employer:
during the first . . . [24 hours] of such unauthor-
ized work stoppage . . . shall have the sole and
complete right of reasonable discipline, including
suspension from employment, up to and including
thirty (30) days, but short of discharge, and such
employees shall not be entitled to or have any re-
course to the grievance procedure. In addition
. . . if any employee repeats any such unauthor-
ized strike . . . during the term of this Agree-
ment, the Employer shall have the right to further
discipline or discharge such employee without re-
course for such repetition. After the first . . . [24
hours] of an unauthorized stoppage . . . and if
such stoppage continues, the Employer shall have
the sole and complete right to immediately further
discipline or discharge any employee participating
in any unauthorized strike . . . and such employ-
ees shall not be entitled to have any recourse to
the grievance procedure.
Thus, in the give and take of negotiating an agree-
ment, the Respondent has agreed to a restricted right
for employees to engage in a limited work stoppage
without fear of discharge, albeit for only once during
the term of the collective-bargaining agreement. In ex-
change, the Union has promised to exert its power to
get employees back to work quickly, thereby minimiz-
ing any business disruption. Under such circumstances,
the Respondent’s right to discipline is not unfettered
and the employees have not clearly and unmistakeably
granted a total waiver of their right to strike. Their
limited right to strike without fear of discharge re-
mains protected under Section 7 of the Act. Accord-
ingly, as in Wagoner, the Respondent’s threat to termi-
nate employees who exercised that right violated Sec-
tion 8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Yellow Freight Systems,
Inc., South San Francisco, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Paula R. Katz, for the General Counsel.
Ronald E. Sandhaus, for the Respondent.
Andrew H. Baker (Beeson, Tayer & Bodine), for the Union.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which I held a hearing on August 27–28,
1992, is based on unfair labor practice charges filed against
Yellow Freight Systems, Inc. (Respondent), by Brotherhood
of Teamsters & Auto Truck Drivers, Local 85, International
Brotherhood of Teamsters, AFL–CIO (the Union), in Case
20–CA–24053 on June 11, 1991, and by John B. Mendez
(Mendez), in Case 20–CA–24610 on April 22, 1992. The Re-
gional Director for Region 20 of the National Labor Rela-
311YELLOW FREIGHT SYSTEMS
1 In its answers to the complaints herein, Respondent admits it
meets one of the Board’s applicable discretionary jurisdictional
standards and is an employer engaged in commerce within the mean-
ing of Sec. 2(6) and (7) of the Act, and that the Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
2 General Counsel’s unopposed motion to correct transcript is
granted.
3 General Counsel’s unopposed motion to accept late filed brief is
granted.
tions Board (the Board), on behalf of the Board’s General
Counsel, issued a complaint in Case 20–CA–24053 on July
30, 1991, and a complaint in Case 20–CA–24610 on May
28, 1992, and on May 28, 1992, issued an order consolidat-
ing these cases for hearing.
The complaint in Case 20–CA–24053 alleges that on May
28, 1991, Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act), when Mike Bloss, the
terminal manager of its South San Francisco, California facil-
ity, engaged in the following conduct: ‘‘in the presence of
employees, denied the Union’s authorized agent access to
employees for the purpose of investigating and processing
grievances’’; ‘‘calling the police and, in the presence of em-
ployees, threatening to have the Union’s authorized agent ar-
rested’’; and ‘‘threatened to terminate employees if they en-
gaged in Union and other protected concerted activities.’’
Respondent filed a timely answer to the complaint denying
the commission of the alleged unfair labor practices.
The complaint in Case 20–CA–24610, as amended at the
hearing, alleges that the Respondent violated Section 8(a)(1)
of the Act, when Mike Bloss, its South San Francisco termi-
nal manager, engaged in the following conduct: on March 6,
1992, ‘‘interrogated employees about their union and/or pro-
tected concerted activities’’ and ‘‘threatened that it would not
hire employees who engaged in Union or other protected
concerted, activities,’’ and early in March 1992, ‘‘told em-
ployees that an employee would not be hired because he en-
gaged in Union or other protected, concerted activities.’’ The
complaint further alleges that ‘‘since on or about April 1,
1992, Respondent has refused to hire [Mendez]’’ because of
his Union or protected activities, and by refusing to hire
Mendez violated Section 8(a)(1) and (3) of the Act. Re-
spondent filed a timely answer to the complaint and to the
amended complaint, denying the commission of the alleged
unfair labor practices.1
On the entire record,2 from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs of the General Counsel and Respondent,3
I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent, a corporation, is a trucking company engaged
in the transportation of freight throughout the continental
United States. Its only facility involved in this case is its ter-
minal located in South San Francisco, California, where, dur-
ing the times material, it regularly employed between 40 and
50 truckdrivers and dockworkers.
The Union is the exclusive collective-bargaining represent-
ative of the dockworkers and truckdrivers employed at the
South San Francisco terminal. The Respondent and Union
are parties to two collective-bargaining agreements which
govern the terms and conditions of employment of these em-
ployees. These agreements, both of which are effective by
the terms from April 1, 1991, through March 31, 1994, are
respectively entitled, ‘‘National Master Freight Agreement’’
(National Agreement), and ‘‘Local Pickup and Delivery Sup-
plemental Agreement’’ (Local Agreement). The agreements
include a grievance procedure which covers any grievance or
controversy affecting the mutual relations of the parties.
During the time material, Terry Hart was the Union’s busi-
ness representative who, on the Union’s behalf, represented
the dockworkers and truckdrivers employed by Respondent
at the South San Francisco terminal. Raymond Cozzette,
Charles McLin, and Lawrence Holland were employed dur-
ing the time material at the terminal as truckdrivers. They
also were union shop stewards and assisted Hart in represent-
ing the bargaining unit employees.
Since February 1991, Michael Bloss has been employed as
manager of the South San Francisco terminal. He has overall
responsibility for the operation of the terminal. Next in the
managerial chain-of-command is Mark Graybill, who has
held the position of terminal operations manager since Au-
gust 1990. Graybill’s job as operations manager is to oversee
the day-to-day operation of the terminal. Next in the super-
visory chain-of-command, during the times material, were
Operations Supervisors Matt Hilton, Mike Johnston, Gary
Margolis, and Mike Vega. During all times material Bloss,
Graybill, Hilton, Johnston, Margolis, and Vega, in their re-
spective positions, were supervisors of Respondent within the
meaning of Section 2(11) of the Act and agents of Respond-
ent.
B. Respondent’s Refusal to Hire Mendez as a Regular
Employee (Case 20–CA–24610)
1. The evidence
Respondent employs approximately 40 plus dockworkers
and truckdrivers classified as ‘‘regular’’ employees at its
South San Francisco terminal, whose names are listed in the
order of their seniority, on a roster referred to as the senior-
ity list or roster. The ‘‘regular’’ dockworkers and truck-
drivers are called to work in the order of their seniority.
Only after they all have been offered the available work can
Respondent, under the terms of its agreement with the Union,
employ other employees, referred to as ‘‘casual’’ employees.
Respondent hires its casual employees through the Union’s
hiring facility, as required by its agreement with the Union,
and on most occasions calls for its casuals by name. During
the time material, Charging Party Mendez, who is a member
of the Union, was employed by Respondent as a casual
truckdriver at its South San Francisco terminal. He was em-
ployed by Respondent, after being referred to Respondent
from the Union’s hiring hall facility.
Under certain circumstances, Respondent is required by
the terms of its agreements with the Union to add one or
more casual employees to its seniority roster of regular em-
ployees. When and how Respondent does this, is established
by terms of the agreements, as follows.
The agreements provide that ‘‘[a] casual is an individual
who is not on the regular seniority list’’ and that ‘‘[a] casual
may be either a replacement casual or a supplemental cas-
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As set forth in the governing collective-bargaining agreement,
supra, if a casual works 70 8-hour shifts in 6 consecutive months
he/she is placed on a preferential hiring list for future regular em-
ployment and is given preference not just for casual work assign-
ments, but when Respondent adds another individual to its seniority
list, preferential casuals must be offered the positions in the order
they were placed on the preferential hiring list.
ual’’ and that ‘‘[r]eplacement casuals may be utilized by an
Employer to replace regular employees who are off due to
illness, vacation or other absence.’’
The National Agreement provides:
Starting with the quarter beginning April 1991 and con-
tinuing each quarter thereafter, the Employer shall add
one additional employee to the regular seniority list for
each sixty-five vacation replacement days worked by a
casual during each vacation quarter.
The Local Agreement provides:
Any casual . . . used by the Employer for seventy
(70) eight (8)-hour shifts within six (6) consecutive
months shall be placed on a preferential hiring list for
future regular employment, and shall be selected for
regular employment in the order in which he/she was
placed on the preferential hiring list. . . . His/her se-
niority date will be the date he/she is put on the senior-
ity list. Failure of the Employer to add casuals from the
preferential hiring list in this order shall subject the
Employer to a runaround claim.
Casual employees on the preferential hiring list shall
be offered available extra work in seniority order by
classification as among themselves.
The hiring procedure used by the Respondent’s South San
Francisco terminal, when it adds another regular employee to
its seniority list, is as follows. The applicant is selected from
among the employees currently being employed as casuals at
the terminal, with those classified as preferential casuals
being given preference.4 All applicants, including those clas-
sified as preferential casuals, who are being considered must
fill out a series of forms such as a United States Department
of Transportation (DOT) driver’s written examination, a
motor vehicle driver’s certification and a DOT driver’s road
test. Additionally, the applicants sign receipts for various in-
structional manuals, material handling guides, and manuals
covering Federal safety regulations. The applicants are then
given a physical examination, which includes an alcohol/drug
screen test. Lastly, a background investigation is ordered. All
of the above-described paperwork is transmitted to the Re-
spondent’s regional human resources department (HRD) lo-
cated in Tracy, California. The personnel employed in the
HRD review all of the paperwork covering an applicant to
determine if he/she meets all applicable companywide cri-
teria.
On September 6, 1991, Terminal Manager Bloss and Op-
erations Manager Graybill met in Bloss’ office with Union
Representative Hart and Union Stewards McLin and
Cozzette. One of the topics discussed was the applicability
of that provision in the National Agreement which provided
that,
[s]tarting with the quarter beginning April 1991, and
continuing each quarter thereafter, the Employer shall
add one (1) additional employee to the regular seniority
list for each sixty-five (65) vacation replacement days
worked by a casual during each vacation quarter.
Hart, the union spokesperson, took the position Respondent
had been using an excessive number of casuals as vacation
replacements and in view of the aforesaid contractual provi-
sion was obligated to add additional regular employees to the
seniority list. Bloss, Respondent’s spokesperson, disagreed as
to the number of regular employees Hart claimed Respondent
was obligated to add to the seniority list, but agreed to inves-
tigate Hart’s claim and stated if his investigation revealed it
had merit, Respondent would add more regular employees to
the seniority list. The meeting ended with Bloss and Hart
agreeing to check their respective records to determine the
actual number of regular employees that Respondent, by vir-
tue of the aforesaid contract provision, was obligated to add
to the seniority list.
This description of the September 6 meeting, including the
date of the meeting, is based on the mutually corroborative
testimony of General Counsel’s witness Hart and Respond-
ent’s witness Bloss. I considered that General Counsel’s wit-
nesses McLin and Cozzette testified that Bloss agreed to add
two employees to the seniority list and also testified that
what the parties agreed to research was who those two em-
ployees would be. However, their testimony was not cor-
roborated by the testimony of Hart, the Union’s spokesperson
at this meeting. Instead, Hart’s testimony about the meeting
in essence corroborated Bloss’ testimony, and contradicted
McLin’s and Cozzette’s. In this respect Hart testified that the
meeting concluded with Bloss stating he would check Re-
spondent’s records and if the records substantiated Hart’s al-
legations that Respondent needed to hire more regular em-
ployees that Respondent would comply. Thus, it is clear
from Hart’s testimony that Bloss did not agree to add two
regular employees to Respondent’s seniority list and to check
Respondent’s records to determine the identity of the two
whom it intended to add.
However, Operations Manager Graybill testified that he
reached an agreement with Cozzette that Graybill, for the
Respondent, and Cozzette, for the Union, would check their
respective records to determine the number of shifts worked
by casual drivers Cromartie, Mendez, and Giorlando, for the
purpose of determining which of them would be added to the
seniority roster, if Respondent was obligated to add a casual
or casuals to its seniority roster of regular employees.
In September 1991, following the September 6 meeting,
Union Shop Steward Cozzette informed Operations Manager
Graybill he had checked the Union’s dispatch records and
they showed that casual drivers Cromartie and Mendez had
worked the most shifts and therefore should be the two cas-
uals added to Respondent’s seniority list. Graybill agreed this
was what the Respondent’s records revealed and stated that
because Cromartie had worked the most shifts Respondent
would hire him and a week later would hire Mendez.
Graybill also stated he would arrange for Cromartie and
Mendez to take their physical examinations.
In September 1991, following the September 6 meeting,
Chief Union Shop Steward McLin asked Graybill, in sub-
stance, when Respondent intended to add Cromartie’s and
313YELLOW FREIGHT SYSTEMS
Mendez’ names to the seniority list. Graybill replied by stat-
ing he did not know because Respondent had not completed
the necessary paperwork, but assured McLin that Respondent
intended to place Mendez’ and Cromartie’s names on the se-
niority roster.
The above-described September 1991 conversations be-
tween Graybill and Cozzette and McLin are based on
Cozzette’s and McLin’s testimony. When asked whether he
recalled having any discussions with McLin or Cozzette
about placing Mendez on the seniority roster, Graybill’s testi-
mony was vague and evasive; he testified that while he did
not ‘‘recall’’ speaking with McLin or Cozzette about that
subject, he might have done so, but testified he did not ‘‘spe-
cifically recall’’ making representations to ‘‘anyone’’ about
whether or not Mendez would be hired, and further testified
that as a result of his research of the Company’s records he
only agreed to hire Cromartie, not both Cromartie and
Mendez.
I rejected Graybill’s testimony and credited the testimony
of McLin and Cozzette because when they gave their afore-
said testimony their testimonial demeanor was good, whereas
when Graybill gave his aforesaid testimony his testimonial
demeanor was poor. In addition, McLin’s and Cozzette’s tes-
timony that in September 1991 Graybill agreed to add
Mendez’ as well as Cromartie’s names to the seniority roster
is corroborated by the fact that commencing in late October
1991, as described in detail infra, Graybill arranged for
Mendez, as well as Cromartie, to fill out all of the paperwork
and to take all of the examinations which Respondent re-
quires of applicants, whom it intends on adding to its senior-
ity roster.
On or about September 24, 1991, when Mendez came to
work, he was called to Graybill’s office, at which time
Graybill asked him if he liked working at the Respondent’s
South San Francisco terminal, asked where he lived, and dis-
cussed the fact that Mendez had also worked for Respondent
at its terminal in Tracy, California, and stated that Mendez
might be in luck because Respondent was ‘‘looking to hire
two people here in this terminal and we are considering to
hire you and Bill Cromartie.’’ Mendez indicated he was
happy to hear this. Graybill told him Respondent intended to
start processing his application and told him that after the ap-
plication had been processed and a background check had
been conducted, that Graybill would arrange for Mendez to
take a physical examination which included a drug test.
Graybill did not indicate that Mendez’ qualifications must be
reviewed by Respondent’s HRD.
The aforesaid description of Mendez’ conversation with
Graybill is based on Mendez’ testimony. Graybill testified
that sometime in October 1991 he asked Mendez if he was
interested in a job as a regular employee with Respondent
and, when Mendez answered in the affirmative, Graybill told
him to complete the necessary paperwork and take the nec-
essary examinations and specifically told him that whether or
not he would be hired was dependent on the decision of Re-
spondent’s HRD. I credited Mendez’ testimony because his
testimonial demeanor, which was good, was better than
Graybill’s when they testified about this conversation.
On or about October 25, 1991, Graybill gave Mendez the
documents he had to fill out and be familiar with, as a condi-
tion of being hired by Respondent as one of its regular em-
ployees. These documents which Mendez promptly filled out
and returned to Graybill, or acknowledged he had read them
by signing a receipt, included the following: driver’s written
examination; motor vehicle driver’s certification; hazardous
material shipments guidelines for casual drivers and dock-
workers; hazardous materials handbook; work safety with
chemicals pamphlet; Federal Motor Carrier Safety Regula-
tions; worker’s compensation pamphlet. Graybill, when he
gave these documents to Mendez, told Mendez that he would
then have to take a physical examination, which would in-
clude a drug/alcohol test, after Respondent had completed his
background investigation. A few days later Graybill notified
Mendez that he had passed the background investigation and
that his physical examination was scheduled for November 4,
1991. On that date, Mendez in fact took the physical exam-
ination and passed.
During this period of time (late October 1991) casual em-
ployee Cromartie filled out and familiarized himself with the
same preemployment documents as Mendez and, like
Mendez, his background was investigated and he passed that
investigation and, like Mendez, he was given and passed a
physical examination. Unlike Mendez, he was hired by Re-
spondent as one of its regular drivers and added to its senior-
ity roster on November 18, 1991.
In 1991 Cromartie and Mendez were the only casuals em-
ployed by Respondent who Respondent treated as if it in-
tended to hire as regular employees. I have considered that
Bloss and Graybill testified that in September and October
1991 Respondent was also considering the addition of three
of its casuals to the seniority roster: Cromartie, Mendez, and
Giorlando. It is undisputed, however, that Respondent never
had Giorlando undergo the above-described preemployment
process which Cromartie and Mendez were required to go
through and which the record reveals Respondent requires of
all of its casuals as a condition of their being hired as regular
employees. Neither Bloss nor Graybill were able to give a
reasonable explanation of why, if, during the period of Sep-
tember–October 1991, they were considering the hire of
Giorlando as a regular employee, they failed to have him,
like Mendez and Cromartie, undergo the preemployment
process it requires of all of its applicants for employment.
Under the circumstances, I find that Respondent during the
fall of 1991 was not considering Giorlando as one of the cas-
uals it intended to add to its seniority roster.
During the fall of 1991 the Union took the position that
Respondent, under the terms of its collective-bargaining
agreements with the Union, was obligated to add several cas-
uals to its seniority roster of regular employees, because of
the number of vacation replacement days worked by casuals.
Respondent disagreed that it was obligated to add that many.
It did conclude, however, that it was required to add two cas-
uals to its seniority roster of regular employees (Tr. 448–
449). It was apparently based on this conclusion that Oper-
ations Manager Graybill, as I have found supra, agreed to
add both Cromartie and Mendez to the seniority roster.
The Union, however, was not satisfied with Respondent’s
agreement to add two of its casuals to the seniority roster of
regular employees, and on November 4, 1991, filed a written
contractual grievance, under the contractual grievance-arbitra-
tion procedure, alleging that during the relevant 6-month pe-
riod Respondent had employed casuals to work a total of 425
vacation replacement days and that because of this Respond-
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Based on Cozzette’s testimony. Graybill denied telling ‘‘anyone’’
that Mendez could not be added to the seniority roster because he
did not pass the drug test, and further testified that if an employee
flunks the drug test Respondent cannot employ him. I credited
Cozzette’s testimony because his testimonial demeanor was good
when he gave this testimony, whereas Graybill’s was poor.
ent was obligated to add six casuals to its seniority roster of
regular employees.
On receipt of this grievance, Bloss immediately spoke to
Respondent’s area labor relations manager about the matter.
The area labor relations manager told Bloss that the Union’s
grievance was untimely as to the great bulk of the vacation
replacement days worked by the casuals and that because of
this the grievance was meritorious only insofar as it would
obligate Respondent to add one casual employee, Cromartie,
to its seniority roster, because Cromartie had worked a suffi-
cient number of hours to become a preferred casual, under
the terms of the collective-bargaining agreement. On Novem-
ber 18, 1991, as I have found supra, Respondent added
Cromartie to its seniority roster of regular employees.
Graybill testified that early in November 1991, Bloss told
him it would be unnecessary for Graybill to continue proc-
essing Mendez’ employment application for regular employ-
ment. Graybill further testified that Bloss explained that Re-
spondent was not obligated to add any one to its seniority
roster of regular employees, as contended by the Union, be-
cause the Union’s grievance was untimely.
Graybill also testified that he then, still early in November
1991, telephoned Respondent’s human resources department
(HRD) located in Tracy, California, and spoke to Mary
Yelton, the assistant to the HRD manager for the Tracy re-
gion. He testified he told her that in view of the cost associ-
ated with the process of handling employment applications
and the time it takes up, that the HRD did not have to con-
tinue to process Mendez’ application because ‘‘there was not
going to be a hire . . . we were not going to hire anyone,’’
and that Yelton replied, ‘‘Okay, that’s fine,’’ and this ended
the conversation.
On or about November 7, 1991, Graybill spoke to Mendez
and told him he could not hire him as a regular employee
right then, but would do so sometime in December 1991, and
told him that in the interim he would work him as much as
possible, that whenever he had work for a casual driver he
would treat Mendez like a ‘‘preferred casual’’ and have the
Union’s hiring hall facility refer Mendez ahead of any other
casuals for Respondent’s work. Graybill gave Mendez no
reason why Respondent had to postpone his employment as
a regular employee.
The above description of Graybill’s conversation with
Mendez is based on Mendez’ testimony. I considered that
Graybill testified that in November 1991 he specifically told
Mendez, ‘‘we would not be hiring anyone based on the
grievance and the untimeliness issue,’’ and his further testi-
mony that he never informed Mendez that he would be given
preference in work assignments over other casuals, or used
words to that effect. I rejected this testimony and credited
Mendez’ aforesaid testimony because Mendez’ testimonial
demeanor was good, whereas Graybill’s was poor, when they
testified about these matters. In addition, Mendez’ testimony
that Graybill did not indicate to him that Respondent had
stopped processing his employment application and was not
going to hire him as a regular employee, but instead indi-
cated that his hire had only been temporarily postponed, is
corroborated by Graybill’s subsequent conversations with
Mendez and with Union Shop Stewards McLin and Cozzette,
set forth, infra.
On November 12, 1991, while making a delivery for the
Respondent, the truck which Mendez was driving damaged
the customer’s property. That same day Mendez submitted an
accident report to Respondent and a few days later was in-
formed by Graybill that the Company would have to inves-
tigate the accident and if it determined Mendez was at fault,
it would not be able to hire him. Later that month, Graybill
informed Mendez that the Company’s investigation had
cleared him of any responsibility in connection with the
aforesaid accident and it would not be held against him, but
there was now an issue concerning Mendez’ ‘‘driving
record.’’ Mendez stated his driving record had not previously
been an issue and asked why it had now become an issue.
Graybill answered, ‘‘because [of] the insurance.’’ Mendez
stated that two of the four moving traffic violations which
were on his traffic record would be removed in January
1992. Graybill replied that in that case ‘‘sometime after Jan-
uary, or in February, we’ll put you on the seniority list.’’
It is undisputed that Mendez had received four moving
traffic citations on the following dates: January 5, 1989; Feb-
ruary 6, 1989; May 27, 1990; and August 21, 1990. It is also
undisputed that Mendez received no further traffic citation in
1991 or 1992. The State’s motor vehicle regulations provide
that traffic citations are automatically removed from a driv-
er’s record after 3 years.
In January 1992 the Union’s chief shop steward, McLin,
asked Graybill why Respondent had not added Mendez’
name to its seniority roster. Graybill answered that Mendez
had either one or two moving traffic citations that were sup-
posed to be cleared up in the near future and until those cita-
tions had been removed from his record, ‘‘they would hold
off on things,’’ but would consider hiring him when the cita-
tions were removed from his record.
During the period from late January 1992 through mid-
February 1992, on three or four different occasions, Union
Shop Steward Cozzette asked Graybill why Mendez had not
been hired and was informed that the reasons for Respond-
ent’s failure to add Mendez’ name to the seniority roster was
that Mendez’ paperwork had not returned from Respondent’s
general office. However, in the last such conversation
Cozzette had with Graybill in February 1992, Graybill, who
initiated the conversation, stated that the reason Mendez had
not been hired was because he had not passed his drug-alco-
hol test, that the results had come back ‘‘positive.’’5
Late in 1991 or early in 1992 Mendez asked Operations
Supervisor Mike Johnston why Johnston that day had as-
signed overtime work to casual driver Giorlando without first
offering Mendez the opportunity to work the overtime.
Mendez stated he thought he was entitled to work the over-
time. Johnston replied it was the Company’s policy to assign
overtime on a first-come-first-serve basis and since
Giorlando had been there ahead of Mendez he was assigned
the overtime.
A few days later, while in the Company’s breakroom,
Mendez complained to Union Shop Steward Cozzette about
this; he told Cozzette what had happened and that he felt
Johnston should have asked him to work the overtime in-
stead of Giorlando and that Johnston had informed him the
315YELLOW FREIGHT SYSTEMS
Company assigned overtime work to the casuals on a first-
come-first-serve basis, and asked Cozzette whether they
could do that. Cozzette replied he would look into the matter
and if he discovered the Respondent was not following the
collective-bargaining agreement he would file a grievance.
The record establishes that Mendez’ conversation with
Cozzette was overheard by Operations Supervisor Hilton
who was sitting at the time only a few feet away in the
Company’s dispatch office.
Late in December 1991 or in January 1992 Mendez com-
plained to Operations Manager Graybill that Respondent was
not calling him for the available casual work, and asked if
he had done sometime wrong, and reminded Graybill that
Graybill had previously assured him that in the interim, be-
fore Respondent hired him as a regular employee, it would
give preference to him for the available casual work.
Graybill told Mendez he had done nothing wrong and indi-
cated he did not know why Mendez was not being called for
the casual work because it was Operations Supervisor Hilton,
not Graybill, who did the dispatching for the Company.
Mendez promptly spoke to Hilton, who explained to Mendez
that Hilton’s failure to ask the Union to refer Mendez for
casual work was due to the fact that Hilton had forgotten
Mendez’ name.
Immediately after his conversations with Graybill and Hil-
ton, Mendez spoke to Union Shop Steward Cozzette and told
him that although Graybill had promised that Respondent
would give him preference when it assigned casual work,
that he was being bypassed by Respondent for this work in
favor of other casuals. Also in late December and in January
1992, Mendez spoke to Cozzette about this problem on two
or three occasions. Subsequently, in about February 1992,
Cozzette went to Graybill and asked why Respondent was
working around Mendez and using other casuals. Graybill
denied Respondent had been doing this. He told Cozzette
that when they called the Union for casuals that they asked
for Mendez by name, but ‘‘they could not get a hold of
him.’’
In February 1992 Mendez complained to Union Shop
Steward Cozzette that when Respondent requested that the
Union refer him for casual work, it was specifying that he
be referred for the work shift which starts at 9 a.m. rather
than for the earlier 8 a.m. work shift, which was the more
desirable shift. Cozzette went to Graybill and spoke to him
about this complaint; he asked why Mendez was being called
into work on the late shift so often, as it meant he would
be stuck in all of the commuter traffic while making pickups
and deliveries. Graybill did not answer the inquiry, but in-
stead he referred to Mendez’ previous complaint about not
being assigned casual work; he remarked, ‘‘we’re not going
around him, we’re working him.’’
Also in February 1992, Mendez complained to Union
Shop Steward Cozzette that, although Respondent was asking
the Union to refer him for work as a heavy-duty driver, Re-
spondent in fact was employing him as a bobtail truckdriver,
which is a more onerous job than driving a heavy-duty truck.
Cozzette went to Graybill and asked why Respondent was
having the Union refer Mendez as a heavy-duty truckdriver
and then was dispatching him for work as a bobtail driver.
Graybill’s response was that it made no difference because
Mendez was being paid the same rate of pay regardless of
the type of truck he drove. Cozzette pointed out that, al-
though the compensation might be the same, there was a big
difference in the work involved. Graybill ended the conversa-
tion by stating that as far as the Company was concerned,
because Mendez was paid the same for driving a bobtail as
he was for driving a heavy-duty truck, it did not make any
difference which work he was assigned.
The findings of fact immediately above, concerning
Mendez’ complaints, which Union Shop Steward Cozzette
spoke about to Operations Manager Graybill, are based on
Cozzette’s testimony. Graybill was not questioned about any
of the above-described conversations he had with Cozzette
about Mendez’ complaints, nor did Graybill specifically deny
Cozzette spoke to him, on Mendez’ behalf, as described
above. However, after having testified to the effect that he
knew Mendez had expressed the above-described complaints,
Graybill was asked whether Mendez personally expressed
those complaints to Graybill or whether someone else had
brought them to Graybill’s attention? Graybill answered the
question by testifying, ‘‘I heard about them from the dis-
patcher, Matt Hilton.’’ If by this Graybill meant to deny
Cozzette also spoke to him about Mendez’ complaints, I do
not credit it because when Cozzette testified about his con-
versations with Graybill, his testimonial demeanor was good,
whereas when Graybill testified about matters involving Re-
spondent’s alleged unlawful refusal to hire Mendez his testi-
monial demeanor was poor.
In February 1992, subsequent to February 12, Operations
Supervisor Hilton informed Terminal Manager Bloss he felt
Mendez had developed ‘‘an attitude problem.’’ Hilton ex-
plained to Bloss he had reached this conclusion based on a
conversation overheard between Mendez and Union Shop
Steward Cozzette, which had led Hilton to believe that based
upon information concerning the collective-bargaining agree-
ment which Cozzette was giving to Mendez, that Mendez
was asking Respondent for certain things which Respondent
could not give him (Tr. 577–578). It is also undisputed, ac-
cording to Bloss’ testimony, that at the same time as Hilton
made the aforesaid remarks to Bloss, that ‘‘[Bloss] asked
[Hilton] a few questions because [Hilton] had heard some
things just in passing’’ concerning ‘‘a bobtail and an over-
time issue, and [Hilton] gave [Bloss] some brief comments’’
about what Mendez was asking for in connection with those
issues and told Bloss that Mendez was making those de-
mands of the Company because of the advice he was receiv-
ing from Union Shop Steward Cozzette (Tr. 579).
Cozzette, in his capacity as the union shop steward, filed
a lot of grievances on behalf of the unit employees and zeal-
ously policed the Respondent’s compliance with the terms of
the governing collective-bargaining agreements, and when he
believed Respondent had violated the terms of those agree-
ments would promptly file grievances. It is also undisputed
that Bloss was unhappy when he learned from Hilton that
Mendez, based on information received from Cozzette, had
been complaining about certain working conditions. Bloss
was unhappy about this state of affairs because, in his opin-
ion, Cozzette abuses his position as union shop steward by
giving misinformation to employees.
Bloss also testified he views Cozzette as a ‘‘trouble-
maker’’ and has publicly called him a ‘‘troublemaker.’’
Bloss testified that his opinion of Cozzette as a ‘‘trouble-
maker’’ stems from the way Cozzette conducts himself as the
Union’s shop steward; whenever Cozzette learns of an al-
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leged violation of the collective-bargaining agreements, Bloss
feels that he should first come to Bloss and attempt to settle
the matter informally, whereas, according to Bloss,
Cozzette’s practice is to immediately file a written contrac-
tual grievance before discussing the matter with Bloss, and
it is because of this conduct that Cozzette is viewed by Bloss
as a ‘‘troublemaker.’’
As found, supra, on November 4, 1991, the Union filed a
contractual grievance against Respondent alleging, in sub-
stance, that during a relevant 6-month period Respondent had
employed casuals to work a total of 425 vacation replace-
ment days and because of this it was obligated under the
terms of the collective-bargaining contract to add six casuals
to its seniority roster of regular employees. Subsequently, on
February 12, 1992, the representatives of the Union and Re-
spondent agreed to settle this grievance. Under the terms of
the February 12, 1992 settlement, the Respondent agreed to
add one regular employee to its seniority roster by April 1,
1992.
Following the aforesaid described February 12, 1992 set-
tlement of the Union’s grievance, Graybill informed Mendez
about the job opening, but advised him that since some other
people had exhibited a desire for the job, that Mendez would
have to be interviewed for the position. Thereafter, on March
5, 1992, Graybill asked Mendez to come to the terminal on
March 6 to be interviewed by Bloss.
On March 5, the day before the interview, according to
Bloss’ testimony, Operations Supervisor Hilton told Bloss
that he wondered whether Mendez would show up for the
interview because Union Shop Steward Cozzette had advised
Mendez it was not necessary for him to be interviewed, and
Mendez had indicated he would listen to Cozzette’s advice.
Bloss also testified, ‘‘[s]o I had heard that [referring to Hil-
ton’s aforesaid March 5 comment], and I had heard all these
other things on overtime, bobtail, various things,’’ that Hilton
had prior to March 5 told him that he had overheard Mendez
and Cozzette speaking about (Tr. 586–587).
On March 6, 1992, Bloss interviewed Mendez in his of-
fice, just the two of them. The interview lasted for approxi-
mately 30 to 40 minutes.
Bloss covered the following topics: he questioned Mendez
about the contents of the application Mendez had submitted
to Respondent; he questioned Mendez about how he liked
working for Respondent; he questioned Mendez about his re-
ligion inasmuch as Mendez was wearing a T-shirt with a reli-
gious message; he described the type of atmosphere he want-
ed on the job; and the interview ended with Bloss stating he
would know within a week, who was going to be added to
the seniority roster and would notify Mendez of the Compa-
ny’s decision.
Besides covering the above-described topics, Bloss also
asked Mendez ‘‘what had [he] thought about the Union?’’
Mendez answered that the reason he was a union member
was he could not get the job he was being interviewed for
without being a member of the Union. Bloss then brought up
the subject of the Respondent’s collective-bargaining agree-
ment with the Union. Bloss told Mendez he was tired of how
the Union interpreted the contract. He stated he interpreted
it different than the Union and stated Mendez should be care-
ful who he was seen talking to and warned him that if he
was observed talking to or hanging around with the ‘‘wrong
people,’’ he would never be hired to work at the Respond-
ent’s South San Francisco terminal.
Also, Bloss mentioned he had heard Mendez had a prob-
lem with Operations Supervisor Johnston concerning over-
time work. Mendez explained to Bloss what had occurred be-
tween him and Johnston. Bloss stated that Mendez was fall-
ing out of favor with Respondent’s supervisors because he
was filing grievances charging supervisors with bypassing
him for work. Mendez replied he had not filed any griev-
ances, that if Bloss checked with the Union he would dis-
cover Mendez had not filed any grievances against Respond-
ent. Mendez told Bloss that he was just trying to keep his
nose clean and get the job. Bloss remarked that he intended
to hire who he wanted to hire and not the person the Union
was going to make him hire.
The aforesaid description of the March 6 interview is
based on Mendez’ testimony. Bloss’ testimony differs sharp-
ly from Mendez’ in all significant respects, as set forth
below.
Bloss testified that he and Mendez discussed the follow-
ing: the information contained in Mendez’ employment ap-
plication; the fact that as indicated on his T-shirt Mendez
was a born again Christian; Mendez’ ability to get along with
Respondent’s customers; Bloss asked Mendez how he felt
about Respondent’s other employees and management staff
and also asked him ‘‘how do you feel about the people at
Local 85’’ and that Mendez responded to this last question
by stating, ‘‘they’re a pretty good group of guys. I get along
with them pretty well’’; and the interview ended with Bloss
stating that in making his decision on whether or not to hire
Mendez he would take into account, besides the interview
Mendez’ performance while employed by Respondent during
the month of February, and also stated he had at least one
more applicant to interview and would notify Mendez of the
Company’s decision.
Bloss also testified that he began the interview by telling
Mendez that he wanted Mendez to know Bloss had been
hearing ‘‘a lot of things’’ about Mendez which Respondent’s
supervisors did not understand, that it was Bloss’ understand-
ing Mendez was ‘‘upset about some issues,’’ that Respond-
ent’s supervisors did not understand Mendez’ problems, and
declared ‘‘let’s talk about those issues.’’ Mendez, according
to Bloss, asked what Bloss meant? Bloss explained that Op-
erations Supervisor Hilton had heard Mendez telling Union
Shop Steward Cozzette that he was a preferred casual and
was upset because Respondent was ‘‘abusing [him] and not
using [him] when they should,’’ and that Hilton had over-
heard Mendez say that he intended to file a grievance about
the matter. Bloss further testified that he advised Mendez it
was Mendez’ right to file a grievance, but that before he did
he should check with somebody else or the contract, and ex-
plained to Mendez that under the terms of the contract he
was not even close to being a preferred casual because he
had worked only 40-odd days during the relevant period of
time and did not know why Cozzette was advising him that
he was a preferred casual, and further advised Mendez to
talk to someone other than Cozzette or read the collective-
bargaining contract himself. Bloss went on to tell Mendez,
according to Bloss’ testimony, that in the past Cozzette had
given misinformation to other employees about the terms of
the contract, and that Mendez should first get the Respond-
ent’s side of an issue before becoming upset.
317YELLOW FREIGHT SYSTEMS
Bloss denied saying anything about Mendez associating
with the wrong people or that doing so would adversely af-
fect his employment, or words to that effect, and also denied
commenting to the effect that Respondent would decide who
it was going to hire or that the Union was not going to dic-
tate who was going to be hired.
As set forth above, Mendez’ and Bloss’ testimony about
the March 6 interview differs substantially. I have credited
Mendez’ above-described testimony because his testimonial
demeanor was good, whereas Bloss’ was poor when they tes-
tified about the interview.
Shortly after his March 6 interview, Mendez spoke to
Lawrence Holland, a regular truckdriver employed at the ter-
minal, who had taken McLin’s place as the Union’s head
shop steward. Mendez told Holland that Bloss had informed
him that he would not be hired because he had been ob-
served ‘‘talking to the troublemakers and had an attitude.’’
Mendez also informed Holland that it was his understanding
that Respondent had to add another regular employee to its
seniority roster and that since he had worked 42 shifts for
Respondent, Mendez wanted to know where he stood with
respect to being hired for that position. Holland, who, mis-
takenly thought that having worked 42 shifts Mendez was
entitled to preferential hire, told Mendez he would speak to
Bloss about the matter.
Almost immediately thereafter, Holland spoke to Bloss and
told him he understood Respondent had lost a grievance and
because of this had to hire another person. Bloss denied hav-
ing lost a grievance, but conceded Respondent had agreed to
hire another person. Holland then told Bloss it had been
brought to his attention that Mendez had worked 42 shifts
and that in view of this Holland thought Mendez should be
considered for preferential hire. Bloss replied Mendez had no
seniority with the Company and Bloss was not, as Holland
suggested, obligated to hire him as a preferential casual.
Bloss then declared that Mendez had been seen talking to
‘‘some of the negative people and that he was not about to
hire him,’’ and explained to Holland it was his intent to ‘‘go
through the motions’’ of interviewing Mendez along with
other applicants, but would not hire Mendez ‘‘because he
was seen talking to the negative people, the troublemakers,
the shit disturbers.’’ Holland responded by repeating that
Mendez had worked 42 shifts and in view of this would be
considered a preferential casual. Bloss repeated all of his
above-described comments and, in addition, stated it had
been brought to his attention that Mendez was overheard say-
ing that if he was not hired, he intended to file a grievance.
The conversation ended at this point with Holland stating,
‘‘you gotta do what you gotta do and Mendez has got to do
what Mendez got to do.’’
The above-description of Holland’s conversation with
Bloss is based on Holland’s testimony. Bloss gave a com-
pletely different account of the conversation. He testified
Holland came to him shortly before Mendez’ March 6 inter-
view and they ‘‘talked about the hire and that [Respondent]
was running behind,’’ and that Bloss told Holland that
‘‘we’re going to push it through. We’re going to get it done
right now,’’ and stated he had scheduled an interview with
Mendez, whereupon, according to Bloss, ‘‘[Holland] told me
that Mendez had gotten caught up with the Ray Cozzette
ring, it was affecting his attitude and his work [and] that he
was a problem employee and it would be a big mistake if
Yellow Freight hired this man.’’ I rejected Bloss’ testimony
and credited Holland’s because Holland’s testimonial de-
meanor was good, whereas Bloss’ was poor when he gave
this testimony.
On March 8, 1992, Bloss testified he interviewed John
Giorlando for the open position of regular employee on Re-
spondent’s seniority roster. Giorlando was a casual truck-
driver, who, like Mendez, had been working as a casual
truckdriver for Respondent.
Bloss testified he decided to hire Giorlando, instead of
Mendez, to fill the open position on the seniority roster. He
testified he made that decision within a week of Giorlando’s
March 8 interview. The record reveals that Giorlando was in
fact added as a regular employee to Respondent’s seniority
roster on April 1, 1992, and that he filled out and was given
all of the required preemployment forms and pamphlets on
or about March 13, 1992, and took his physical exam on
March 16, 1992, and his background investigation was com-
pleted on March 17, 1992.
2. Discussion and conclusions
(a) Bloss threatens not to hire Mendez
The complaint, as amended at the hearing, alleges that
Terminal Manager Bloss, during the March 6, 1992 employ-
ment interview of Mendez, threatened not to hire employees
who engaged in union or other protected concerted activities.
As I have found, supra, in support of this allegation, Mendez
credibly testified that during the March 6 employment inter-
view, Bloss stated Mendez should be careful who he was
seen talking to and warned him that if he was seen talking
to the ‘‘wrong people,’’ he would never be hired to work at
Respondent’s South San Francisco terminal.
Previously, during the interview, Bloss asked Mendez
what he thought about the Union and stated he was tired of
the way the Union interpreted the parties’ collective-bargain-
ing contract. Then, later during the interview, Bloss remarked
that Mendez was falling out of favor with Respondent’s su-
pervisors because of his grievances charging the supervisors
with bypassing him for casual work. Also, as described in
detail supra, early in 1992, prior to the March 6 interview,
Mendez spoke to Union Shop Steward Cozzette on several
different occasions about his employment-related grievances,
including his complaint that Respondent’s supervisors were
bypassing him for casual work. It is also undisputed that
Cozzette, whom Bloss regarded as a ‘‘troublemaker’’ be-
cause of the way he performed his duties as union shop
steward, spoke to Respondent’s supervisors about Mendez’
grievances, on Mendez’ behalf, including the one concerning
Mendez’ complaint that he was being bypassed for casual
work.
It is clear, when viewed in the context of the above-de-
scribed circumstances, that Bloss’ above-described warning
to Mendez constituted a none-too-subtle threat that if
Mendez continued to talk with Union Shop Steward Cozzette
about his employment-related grievances, Mendez would not
be hired by Bloss as a regular employee. It is also clear,
when viewed in the context of the above-described cir-
cumstances, that the warning was reasonably calculated to be
so understood by Mendez. I, therefore, find that on March
6, 1992, in violation of Section 8(a)(1) of the Act, Respond-
ent threatened Mendez that he would never be hired as a reg-
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I note the record establishes that not only did Bloss believe
Cozzette was a ‘‘troublemaker’’ because of the way in which he
conducted himself as union shop steward, but it also establishes that
Bloss publicly called Cozzette a ‘‘troublemaker’’ for this reason and
Holland was one of the employees who Bloss had previously pub-
licly expressed this opinion to.
ular employee if he was seen talking with his union shop
steward.
(b) Bloss questions Mendez about his union sentiments
The complaint alleges that during Terminal Manager
Bloss’ March 6, 1992 employment interview of Mendez,
Bloss interrogated Mendez about his union and/or protected
concerted activities. As I have found, supra, in support of
this allegation, Mendez credibly testified that during the
March 6 employment interview, Bloss asked Mendez what
he thought about the Union and Mendez, who was a member
of the Union, answered he was a union member and his rea-
son for being a member was that he could not get the job
he was applying for without being a member. I am of the
opinion that the factors set forth hereinafter warrant a finding
that when Bloss asked Mendez what he thought of the
Union, his conduct violated Section 8(a)(1) of the Act.
Initially, I note that the interrogation occurred during
Mendez’ employment interview. ‘‘The Board has long recog-
nized that, under the totality of the circumstances test, an ap-
plicant may understandably fear that any answer he might
give to questions about union sentiments posed in a job inter-
view may well affect his job prospects.’’ Active Transpor-
tation, 296 NLRB 431 fn. 3 (1989).
Second, Mendez was interrogated by the Respondent’s
highest ranking official employed at the South San Francisco
terminal and was interrogated in that official’s private office.
Third, at the same time he asked Mendez what he thought
of the Union, Bloss told Mendez that he was tired of the way
in which the Union was interpreting the parties’ collective-
bargaining contract and, as I have also found, supra, violated
Section 8(a)(1) of the Act, by threatening that Mendez would
never be hired by Bloss as a regular employee if he was seen
talking with his union shop steward.
Considering all of the circumstances, I find that Respond-
ent’s March 6, 1992 interrogation of Mendez about his union
sentiments had a reasonable tendency to interfere with, re-
strain, and coerce him in the exercise of his rights guaranteed
by Section 7 of the Act. It is for this reason that I find that
the interrogation violated Section 8(a)(1) of the Act.
(c) Bloss admits he did not intend to hire Mendez
The complaint, as amended at the hearing, alleges that
early in March 1992 Bloss told employees that an employee
would not be hired because he engaged in union or other
protected concerted activities. As I have found, supra, in sup-
port of this allegation, employee Lawrence Holland testified
that early in March 1992, when Holland, as the union’s chief
shop steward, questioned Bloss on Mendez’ behalf about
Mendez’ employment as a regular employee, Bloss re-
sponded by stating he intended to just go through the mo-
tions of interviewing Mendez and not hire him, and ex-
plained to Holland he did not intend to hire Mendez, ‘‘be-
cause he was seen talking to the negative people, the trouble-
makers, the shit disturbers,’’ and further stated that Mendez
had also been overheard saying that if he was not hired, he
intended to file a grievance.
When viewed in context, as set forth in the previous sec-
tion of this decision dealing with Bloss’ March 6 threat not
to hire Mendez if he was seen talking to his union shop
steward, it is clear that in using the terms ‘‘negative people,’’
‘‘troublemakers,’’ and ‘‘shit disturbers,’’ when explaining to
Holland why he did not intend to hire Mendez, that Bloss
was referring to Union Shop Steward Cozzette and the fact
that Mendez had sought Cozzette’s advice and assistance in
connection with his employment-related grievances. Under
the circumstances, Bloss’ statement to Holland that he did
not intend to hire Mendez because he was observed talking
to ‘‘negative people,’’ ‘‘troublemakers,’’ and ‘‘shit disturb-
ers,’’ constitutes an admission by Bloss that he did not in-
tend to hire Mendez because he had sought the advice and
assistance of Union Shop Steward Cozzette. I further find
that Bloss’ statement tended to interfere with Holland’s statu-
tory rights because even though the statement did not refer
to Cozzette by name or position, it was phrased in such a
manner as to lead Holland to reasonably believe that Bloss
was speaking about Union Shop Steward Cozzette.6 I there-
fore find that Respondent violated Section 8(a)(1) of the Act
when, early in March 1992, it implicitly told employee Hol-
land that it did not intend to hire Mendez because he was
observed speaking to the union shop steward.
(d) Bloss hires Giorlando instead of Mendez
On April 1, 1992, Respondent’s South San Francisco ter-
minal added one more regular employee to its seniority ros-
ter. The employee whose name was added to the list was
John Giorlando, who, like Charging Party Mendez, had been
previously employed on an intermittent basis at the terminal
as a casual employee. It was Terminal Manager Bloss who
selected Giorlando, rather than Mendez, to be the one added
to the seniority roster of regular employees.
The complaint alleges that Respondent refused to hire
Mendez on April 1, 1992, because of his union or protected
activities, in violation of Section 8(a)(1) and (3) of the Act.
I find, for the reasons set forth hereinafter, that the record
as a whole establishes that a motivating factor for Bloss’ de-
cision to hire Giorlando, rather than Mendez, was Respond-
ent’s animosity toward Mendez because he had sought the
advice and assistance of his union shop steward concerning
his employment-related grievances. I also find, for the rea-
sons set forth hereinafter, that Respondent failed to establish
it would have hired Giorlando, instead of Mendez, on April
1, 1992, even if Mendez had not sought the advice and as-
sistance of his union shop steward. It is for these reasons that
I further find that Respondent, as alleged in the complaint,
violated Section 8(a)(1) and (3) of the Act when, on April
1, 1992, it failed and refused to hire Mendez as a regular
employee.
As I have found supra, in the fall of 1991, Respondent re-
sponded to the Union’s demand that it add several more em-
ployees to its seniority roster of regular employees, by agree-
ing to add two more employees. The two casuals whom Re-
spondent agreed to add to the seniority roster were Cromartie
and Mendez: Cromartie, because under the terms of the col-
lective-bargaining agreement it was required to add
Cromartie, if it added anyone to the list, because he had
319YELLOW FREIGHT SYSTEMS
worked a sufficient number of hours to be classified as a pre-
ferred casual; and Mendez, instead of Giorlando, because Re-
spondent in evaluating them had concluded Mendez was the
better or superior employee (see Tr. 496). Respondent se-
lected Mendez over Giorlando even though Mendez had only
commenced work at the Respondent’s South San Francisco
terminal on August 9, 1991, after a lapse of almost 3 years,
whereas Giorlando had been working intermittently there as
a casual since mid-September 1989. Nevertheless, it was
Mendez, rather than Giorlando, whom Respondent in the fall
of 1991 selected to add to its seniority roster of regular em-
ployees and, consistent with that decision, Respondent in the
last week of October 1991 and the first week of November
1991 took all of the necessary steps preliminary to hiring
Mendez as a regular employee; it had him read and/or fill
out all of the documents necessary for his employment as a
regular employee; it had him take a physical examination and
a drug/alcohol test; and it completed an investigation of his
background. However, on November 4, 1991, the union offi-
cially placed Respondent on notice that it did not agree that
Respondent’s contractual obligation would be satisfied by the
addition of only Cromartie and Mendez to its seniority roster.
Rather, in the grievance it filed on that date, the union al-
leged Respondent was contractual obligated to add six more
names to its seniority roster of regular employees. Respond-
ent responded by taking the position that it was only contrac-
tually obligated to add one more name to the list,
Cromartie’s name. Respondent also at this time postponed
adding Mendez’ name to the list and, through Operations
Manager Graybill, advised Mendez of this decision. Graybill,
in early November 1991, advised Mendez that his hire as a
regular employee was being postponed, but that in the in-
terim Graybill would treat him as if he were a preferred cas-
ual and ask the Union’s hiring hall to refer him for casual
work ahead of the other casuals. Thereafter, in mid-February
1992 representatives of the Respondent and Union settled the
Union’s grievance by agreeing that Respondent would add
one employee to its seniority roster of regular employees by
April 1, 1992. The casual added to this list on April 1, 1992,
was Giorlando, not Mendez.
In summation, only 5 months prior to its April 1, 1992,
hire of Giorlando, instead of Mendez, Respondent, after eval-
uating their relative performances, had decided Mendez was
the superior employee and because of this decided he would
be the one added to its seniority roster of regular employees.
Thus, the question for decision is what occurred in the in-
terim that caused Respondent to change its mind and hire
Giorlando instead of Mendez. In this regard, as described in
detail, supra, and briefly summarized infra, the record estab-
lishes that Mendez on several different occasions, during the
interim, sought the advice and assistance of Union Shop
Steward Cozzette about employment-related-complaints, and
that Cozzette, on behalf of Mendez, spoke to Respondent’s
officials about Mendez’ complaints, and that Respondent’s
officials were hostile toward him for seeking the advice and
assistance of Union Shop Steward Cozzette.
As described in more detail, supra, Union Shop Steward
Cozzette spoke to Respondent’s representatives on Mendez’
behalf, as follows: Mendez complained to Operations Man-
ager Graybill and Operations Supervisor Hilton in late De-
cember 1991 or January 1992 that Respondent was not call-
ing him for the available casual work, despite Graybill’s
promise to treat him as if he was a preferred casual; Mendez
brought this complaint to the attention of Cozzette on more
than one occasion, and Cozzette, in approximately February
1992, spoke to Graybill and asked him why Respondent was
working around Mendez and using other casuals; Mendez
complained to Cozzette in February 1992 that in requesting
the Union to refer him for casual work, Respondent was
specifying he be referred to the 9 a.m. work shift, rather than
for the earlier and more desirable 8 a.m. work shift; Cozzette
went to Operations Manager Graybill and asked why Mendez
was being called to work on the late shift so often, as he told
Graybill it meant Mendez would be stuck in the heavy com-
muter traffic while making deliveries; Mendez in February
1992 complained to Cozzette that Respondent, while asking
the Union to refer him as a heavy-duty truckdriver was in
fact employing him as a bobtail truckdriver, which is a more
onerous job than driving a heavy-duty truck; and Cozzette
spoke to Graybill and asked him why Respondent was doing
this to Mendez.
Also late in 1991 or early in 1992, Mendez, after com-
plaining about the matter to Operations Supervisor Johnston,
complained to Union Shop Steward Cozzette that Johnston
had bypassed him on one occasion for overtime work and
had told him it was perfectly within the Company’s right to
do this because the Company could assign overtime to cas-
uals on a first-come-first-serve basis. Cozzette told Mendez
he would investigate the matter and if he discovered that Re-
spondent was not following the collective-bargaining contract
he would file a grievance. It is undisputed that Operations
Supervisor Hilton overheard this conversation.
It is also undisputed that on the day before Mendez’
March 6 employment interview by Terminal Manager Bloss,
Operations Manager Hilton informed Bloss that Cozzette had
advised Mendez it was not necessary for Mendez to be inter-
viewed by Bloss in order to be added to the Respondent’s
seniority roster. Hilton also told Bloss that he had overheard
that Mendez had indicated he intended to listen to Cozzette’s
advice.
The evidence of Respondent’s hostility toward Mendez be-
cause he sought Union Shop Steward Cozzette’s advice and
assistance has been set forth in detail, supra, and may be
briefly summarized as follows: in February 1992, Operations
Supervisor Hilton informed Terminal Manager Bloss that
Mendez had developed ‘‘an attitude problem’’ and explained
to Bloss that the reason for Mendez’ ‘‘attitude problem’’ was
that Mendez had been receiving misinformation from Union
Shop Steward Cozzette concerning the collective-bargaining
contract and, in this respect, specifically told Bloss that
Mendez had received misinformation from Cozzette about
Mendez’ above-described overtime complaint and about his
above-described complaint of being assigned to drive a bob-
tail truck rather than a heavy-duty truck; Bloss was unhappy
to learn from Supervisor Hilton that Mendez, based on infor-
mation received from Cozzette, had been complaining about
his terms and conditions of employment; Bloss’ unhappiness
stemmed from Bloss’ belief that Cozzette abuses his position
as a union shop steward by giving misinformation to em-
ployees; Bloss also believes that Cozzette is a ‘‘trouble-
maker’’ and has publicly called him this name because Bloss
feels that Cozzette is over zealous and unreasonable in the
manner in which he exercises his duties as a union shop
steward; during Mendez’ March 6, 1992 employment inter-
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
view, Bloss mentioned to Mendez that he had heard Mendez
had a problem involving overtime work with Operations Su-
pervisor Johnston and stated Mendez was falling out of favor
with Respondent’s operations supervisors because he was fil-
ing grievances charging the supervisors with bypassing him
for work; during the March 6, 1992 employment interview,
as I have found, supra, Respondent violated Section 8(a)(1)
of the Act when Bloss implicitly stated that Mendez would
never be hired as a regular employee if he was seen talking
with his union shop steward; early in March 1992, as I have
found, supra, Bloss admitted to the Union’s chief shop stew-
ard, Holland, that because Mendez had sought the advice and
assistance of his union shop steward, that Bloss did not in-
tend to hire him as a regular employee, but intended just to
go through the motions of interviewing him; and, during the
same conversation, as I have found, supra, Respondent vio-
lated Section 8(a)(1) of the Act when Bloss implicitly stated
that he did not intend to hire Mendez because he was ob-
served speaking to the union shop steward.
In summation: in November 1991 only 4-1/2 months be-
fore Respondent’s March 1992 decision to hire Giorlando as
a regular employee, Respondent had been ready to hire
Mendez, instead of Giorlando, as a regular employee, be-
cause it considered Mendez to be the superior applicant for
the position; in the interim, between November 1991 and Re-
spondent’s March 1992 decision, Mendez sought the assist-
ance and advice of Union Shop Steward Cozzette about sev-
eral complaints relating to Mendez’ terms and conditions of
employment, and Cozzette, on Mendez’ behalf, spoke to Re-
spondent’s management about his complaints; Bloss, the
manager of the Respondent’s South San Francisco terminal,
who made the March 1992 decision to hire Giorlando, in-
stead of Mendez, was unhappy that Mendez had sought
Cozzette’s assistance and advice about his complaints, be-
cause Bloss believes that Cozzette, whom he considers to be
a ‘‘troublemaker,’’ performs his duty as a union shop stew-
ard in an over zealous and unreasonable manner; during
Mendez’ March 6, 1992 employment interview, Bloss mani-
fested his animus toward Mendez for having sought
Cozzette’s advice and assistance, by implicitly warning
Mendez, in violation of Section 8(a)(1) of the Act, that
Mendez would never be hired as a regular employee if he
was seen talking with his union shop steward, and by stating
to Mendez that he had fallen out of favor with the Compa-
ny’s supervisors because he was filing grievances charging
that the supervisors were bypassing him for work; and, short-
ly thereafter, in violation of Section 8(a)(1) of the Act, Bloss
implicitly admitted to Union Chief Shop Steward Holland
that because Mendez had sought the advice and assistance of
his shop steward that Bloss did not intend to hire him as a
regular employee and was just going through the motions in
interviewing Mendez for that position. The foregoing factors,
considered in their totality, establish that a motivating factor
in Bloss’ March 1992 decision to hire Giorlando, instead of
Mendez, to fill the April 1, 1992 job vacancy was Bloss’ ani-
mosity toward Mendez for having sought the advice and as-
sistance of Union Shop Steward Cozzette in connection with
several of Mendez’ complaints concerning his terms and con-
ditions of employment.
Having concluded that Manager Bloss’ animosity toward
Mendez because he sought the advice and assistance of
Union Shop Steward Cozzette about his terms and conditions
of employment was a motivating factor in Bloss’ decision to
hire Giorlando, rather than Mendez, to fill the April 1, 1992
job vacancy, and because Mendez was engaged in the type
of conduct protected by Section 7 of the Act when he asked
for Cozzette’s advice and assistance, the remaining question
is whether Respondent has established that even if Mendez
had not sought the advice and assistance of Union Shop
Steward Cozzette, Bloss would still have selected Giorlando,
rather than Mendez, to fill the April 1 job vacancy, or wheth-
er, in any event, even if Bloss had selected Mendez to fill
that position, the Respondent’s human relations department
(HRD) would have vetoed Bloss’ selection because of
Mendez’ record of traffic violations. The evidence pertinent
to Respondent’s aforesaid defenses is set forth and evaluated
hereinafter.
Bloss would have selected Giorlando, instead of
Mendez, even if Mendez had not sought the advice and
assistance of his union shop steward
Bloss testified that while he made the decision in mid-
March 1992 to hire Giorlando to fill the April 1, 1992 job
opening, that he received ‘‘general input’’ from Operations
Manager Graybill and Operations Supervisors Johnston and
Hilton, which helped him reach his decision. The reason he
asked these supervisors for their recommendations, Bloss tes-
tified, was that he was not familiar with the employees’ work
performance, that as a matter of fact he had never even pre-
viously spoken to Mendez or Giorlando because the super-
vision of the terminal’s employees is left to Operations Man-
ager Graybill and the operations supervisors.
Besides relying on the recommendations of Operations
Manager Graybill and Supervisors Johnston and Hilton in
reaching his decision to hire Giorlando, instead of Mendez,
Bloss testified he also relied on the fact that the production
or performance records maintained by Respondent showed
that for the 4-month period prior to March 1992 Giorlando’s
productivity or work performance, as measured by Respond-
ent’s standards, had been better than Mendez’.
Bloss further testified his decision to hire Giorlando was
also influenced by the good impression Giorlando made on
Bloss during his March 8, 1992 employment interview. In
this regard, Bloss testified he was favorably impressed by the
following information he received from Giorlando during the
interview: Giorlando, in order to work for Respondent at its
South San Francisco terminal, drove all the way from Sac-
ramento, where his home was located, a drive of approxi-
mately 1-1/2 hours each way; Giorlando has a family of five
children, including an infant; Giorlando was 60 years old,
with many years of experience in the trucking industry; and
Giorlando told him that he wanted the job with Respondent
in the worst possible way.
As I have indicated previously in this decision, Bloss’ tes-
timonial demeanor was generally poor when he testified in
connection with the allegations charging Respondent with
unlawfully failing and refusing to hire Giorlando. This was
true when he gave his above-described testimony justifying
his hire of Giorlando, instead of Mendez. In view of Bloss’
poor testimonial demeanor, when he gave this testimony, it
was essential that Respondent corroborate Bloss’ above-de-
scribed testimony, in at least some respects. However, as set
forth in detail, infra, his above-described testimony is com-
321YELLOW FREIGHT SYSTEMS
7 I note, however, there are indications in the record that by mid-
February 1992 Graybill had reached the conclusion that Giorlando
was the better candidate for the April 1 job opening because
Giorlando never complained to supervisors about his terms and con-
ditions of employment, whereas Mendez not only had been making
such complaints, but had gone to his union shop steward with his
complaints. This inference is warranted by Graybill’s testimony that
by March 1992, he had decided Giorlando was a better applicant
than Mendez to fill the April 1 job opening, because Giorlando just
did his work without complaining to supervision about his terms and
conditions of employment, whereas Mendez had recently began to
complain to supervisors about being assigned to work on the 9 a.m.
rather than the 8 a.m. work shift and about being assigned to drive
a bobtail truck rather than a heavy-duty truck, and by the fact, as
described, supra, Union Shop Steward Cozzette, on Mendez’ behalf,
had brought those complaints to Graybill’s attention and asked
Graybill to remedy them.
8 The record establishes that Graybill, Hilton, and Johnston, who
were employed by Respondent at the time of the hearing herein, are
supervisors within the meaning of Sec. 2(11) of the Act and agents
of Respondent.
pletely without corroboration, even though it was susceptible
of corroboration in virtually all respects.
Giorlando was not called to corroborate Bloss’ testimony
about his interview of Giorlando. But of more significance
is Respondent’s failure to corroborate Bloss’ testimony by:
producing the company records, which Bloss testified he re-
lied on to conclude that Giorlando’s production or work per-
formance record was better than Mendez’; by failing to call
as witnesses Operations Supervisors Hilton and Johnston,
whose recommendations Bloss testified influenced his deci-
sion to hire Giorlando, instead of Mendez; and by the failure
of Operations Manager Graybill to corroborate Bloss’ testi-
mony. In this last regard, the testimony of Graybill contra-
dicted Bloss’ testimony that Graybill indicated he was op-
posed to Respondent’s hiring Mendez to fill the April 1 job
opening. Bloss testified that when he asked Graybill who he
thought should be hired to fill that position, Graybill told
Bloss he was ‘‘having some doubts on Mendez,’’ whereas
Graybill testified that when Bloss asked him who he would
recommend to fill that job opening, Graybill simply replied,
‘‘Mendez and Giorlando.’’ Graybill further testified that he
had no recollection of giving Bloss any recommendation as
to which of the two Bloss should hire.7
Respondent offered no explanation for its failure to place
into evidence the production or performance records sup-
posedly relied on by Bloss or for the failure of Graybill, Hil-
ton, and Johnston to corroborate Bloss’ testimony that they
in effect indicated to Bloss that he should fill the April 1 job
opening with Giorlando, rather than Mendez.8 These cir-
cumstances warrant the inference that the testimony of
Graybill, Johnston, and Hilton would not have corroborated
Bloss’ and would have been adverse to the Respondent.
Likewise, the same inference is warranted by Respondent’s
failure to place into evidence the records supposedly relied
on by Bloss in evaluating Mendez’ and Giorlando’s work
performance.
I also am of the opinion that there are certain portions of
Bloss’ testimony which tend to reinforce the General Coun-
sel’s case. As I have indicated previously, Bloss testified that
when Operations Supervisor Hilton recommended that Bloss
hire Giorlando, rather than Mendez, Hilton explained to
Bloss that a significant reason for his recommendation was
that Mendez had developed ‘‘an attitude problem.’’ In this
regard, according to Bloss’ testimony, Hilton told Bloss that
as the result of information Mendez had gotten from Union
Shop Steward Cozzette, Mendez had been complaining to su-
pervision about his failure to receive overtime work and
being assigned to drive bobtail, rather than heavy-duty
trucks. Similarly, according to Bloss’ testimony, when John-
ston recommended that Giorlando be hired, instead of
Mendez, the only reason Johnston gave to Bloss for his rec-
ommendation was that he did not understand why Mendez
had recently complained to him about not receiving the over-
time work which Johnston had assigned to another driver. As
described in detail supra, Mendez spoke to Union Shop
Steward Cozzette about this complaint and Cozzette in-
formed Mendez that he would file a contractual grievance on
Mendez’ behalf, if Cozzette discovered that Johnston had
acted improperly. This conversation between Mendez and
Cozzette was overheard by Operations Supervisor Hilton,
who apparently informed Bloss about it.
Also significant in evaluating Bloss’ testimony that based
on what Mendez and Giorlando said to him during their
March 1992 interviews, he was more favorably impressed by
Giorlando, is the fact that virtually all of the information
which Giorlando allegedly communicated to Bloss during the
interview, which supposedly favorably impressed Bloss,
should have been readily available to Bloss 4-1/2 months
earlier, when Respondent decided to hire Mendez rather than
Giorlando. In other words, what supposedly impressed Bloss
about Giorlando in early March 1992, obviously did not im-
press him as much 4-1/2 months earlier. In fact the record
establishes that when, in 1991, Respondent decided Mendez
was better qualified for a job as a regular employee than
Giorlando, Mendez was not interviewed by Bloss before Re-
spondent reached its decision. Nor is there evidence that
Bloss interviewed Giorlando at that time in order to deter-
mine whether or not he was the most qualified applicant.
Bloss did not explain why in March 1992 he felt it necessary
to interview applicants Mendez and Giorlando for the April
1 job opening, whereas 4-1/2 months earlier interviews had
not been necessary.
Considering that a large part of Bloss’ interview with
Mendez consisted of Bloss’ criticism of Mendez for having
sought the assistance and advice of his union shop steward,
and considering Bloss’ admission to Holland that Bloss did
not intend to hire Mendez as a regular employee, but just in-
tended to give the appearance of considering him for the po-
sition by interviewing him; I am of the view that the unex-
plained failure of Bloss to interview Mendez and Giorlando
4-1/2 months earlier, when Respondent decided that Mendez
was the better qualified applicant, makes highly suspect
Bloss’ testimony about his interview with Giorlando and
tends to buttress the General Counsel’s case.
In summation, Bloss’ poor testimonial demeanor when he
testified about his reasons for selecting Giorlando, instead of
Mendez, to fill the April 1, 1992 job opening, and the lack
of corroboration for even one portion of that testimony, even
though corroboration should have been easy to accomplish,
has led me to reject his testimony on this subject in its en-
tirety.
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The state motor vehicle regulations provide that traffic violations
are automatically removed from a driver’s traffic record after 3
years, therefore, during the period from mid-February through April
1, 1992, Mendez would have had only two moving traffic violations
on his record.
10 I note that other than Kilpatrick’s above-described conclusionary
testimony, Respondent presented no evidence, documentary or other-
wise, that Respondent has ever applied the driver requirements set
forth in the April 24, 1990 memo, in the way it claims they would
have been applied in this case if Bloss had selected Mendez to fill
the April 1, 1992 vacancy.
Even if Bloss had selected Mendez to fill the April 1
job opening, he would not have been permitted by the
Respondent’s human resources department to hire
Mendez because of Mendez’ record of moving
traffic violations
As I have found, supra, in the fall of 1991, in response
to the Union’s claim that Respondent was contractually obli-
gated to add several more regular employees to its seniority
roster, the Respondent agreed to add two names to its senior-
ity roster and selected casuals Cromartie and Mendez. In
connection with its decision to add Cromartie’s and Mendez’
names to its seniority roster, Respondent transmitted the nec-
essary paperwork to the office of the Respondent’s regional
human resources department (HRD), located in Tracy, Cali-
fornia, for that office’s approval. The Tracy HRD is respon-
sible, among other things, for processing the paperwork asso-
ciated with the hire of employees by Respondent’s facilities
located throughout the northwestern part of the United States.
As previously described, one of the documents Mendez
was required to fill out and submit to the Respondent in the
fall of 1991, in connection with his application for employ-
ment as a regular employee, was a ‘‘Motor Vehicle Driver’s
Certification,’’ which asked him to list each traffic violation
for which he had been convicted during the last 5 years.
Mendez wrote he had been convicted of four moving traffic
violations during the 5-year period, on the following dates:
January 5, 1989; February 6, 1989; May 27, 1990; and Au-
gust 21, 1990.9 On October 25, 1991, Mendez submitted the
certification to Respondent’s operations supervisor, Graybill,
who submitted it to the Tracy HRD, with the other paper-
work connected with Mendez’ application for employment as
a regular employee.
It is Respondent’s position that in view of Mendez’ above-
described record of moving traffic violations, Respondent,
pursuant to a company policy which had been in existence
since April 24, 1990, was required to reject his application
for employment and that it did so in November 1991, and
would have done so again in March 1992, even if Bloss had
selected Mendez, instead of Giorlando, to fill the April 1,
1992 job opening. The sole evidence presented by Respond-
ent in support of this contention is the testimony of Mark
Kilpatrick, who, since 1989, has been the manager of Re-
spondent’s Tracy region HRD. Kilpatrick’s testimony is set
forth and evaluated hereinafter.
Kilpatrick testified he would not have permitted Bloss to
hire Mendez to fill the April 1 vacancy because the two re-
maining moving traffic violations on Mendez’ record would
have required Kilpatrick to reject his application pursuant to
the policy set forth in the memo dated April 24, 1990 ad-
dressed to all of Respondent’s ‘‘Regional,’’ ‘‘Breakbulk’’
and ‘‘Branch’’ managers, from Respondent’s vice president
of human resources, Philip Parkey, on the subject of ‘‘Driver
Requirements.’’ The April 24, 1990 memo reads as follows:
Effective immediately, three key requirements for road
drivers, city drivers, and combination men have been
changed. Use these requirements when you screen ap-
plicants for driver positions:
Age: At least 23 years old for road drivers. At least
21 years old for city drivers and combination men.
Experience: A minimum of one year’s driving expe-
rience with the same type of equipment as YFS’s or
graduation from YFS’s Driver Training Program or
from another YFS-approved program.
Driving Record: Record of safe and competent driv-
ing (personal and commercial), as shown on the state
Motor Vehicle Record supplied by the applicant and as
verified by former employers.
Reject an applicant with any one of these records:
– A chargeable accidence or driving under the influ-
ence (DUI) of alcohol or drugs in the last 36 months.
– A moving violation in the last 12 months.
– More than one moving violations in the last 13–
24 months.
– More than two moving violations in the last 25–
36 months.
Also reject an applicant for either of these reasons
(DOT Commercial Driver’s Standards, 49 CFR 383.51):
– Two or more of these offenses while driving a
commercial vehicle: DUI (alcohol or drugs), leaving
an accident scene, or a non-drug felony.
– One drug-related felony while driving a commer-
cial vehicle.
Applicants must meet these revised requirements, as
well as the other current requirements you’re familiar
with—license, driving ability, and physical condition. If
you have any questions about the driver requirements,
please check with your Human Resource office or with
KCGO Corporate Employment.
Kilpatrick testified that copies of this memo were sent to
all of the Company’s terminal managers on the date of the
memo’s issuance. He further testified that the driving record
policy set forth in the memo has been applied by him to
every applicant seeking a regular driving position with any
of the terminals located within the region administered by the
Tracy HRD and that he has rejected every applicant who has
applied for a position as a regular employee whose driving
record did not meet the criteria set forth in the April 24,
1990 memo.10 Kilpatrick also testified that because Mendez
had more than one moving traffic violation in the last 13–
24 months, that Kilpatrick, pursuant to the company policies
set forth in the April 24, 1990 memo, would have prevented
Bloss from hiring Mendez to fill the April 1, 1992 vacancy,
even if Bloss had selected Mendez to fill that position.
The actions of Terminal Manager Bloss contradict
Kilpatrick’s testimony that Mendez’ driving record would
have precluded Bloss from hiring Mendez to fill the April 1,
1992 vacancy. As early as October 25, 1991, when, as de-
scribed above, Mendez submitted his motor vehicle driver’s
323YELLOW FREIGHT SYSTEMS
11 I reject Respondent’s suggestion that since Bloss did not be-
come the manager of the South San Francisco terminal until Feb-
ruary 1991, he perhaps was not aware of the contents of the April
24, 1990 memo. I will not make the preposterous assumption that
Respondent’s terminal managers are only expected to be familiar
with the Company’s employment policies which are instituted after
they become terminal managers.
certification to Respondent’s South San Francisco terminal,
Bloss must have known that Mendez had more than one
moving violation in the last 13–24 months. Yet, despite this
knowledge, it is undisputed that Bloss went ahead and con-
sidered Mendez as one of the two eligible candidates to fill
the April 1, 1992 job opening and on March 6, 1992, inter-
viewed him for that position and subsequently, in selecting
Giorlando, instead of Mendez, did not rely on Mendez’
record of traffic violations in reaching that decision.
Respondent in its posthearing brief argues that the reason
for Bloss’ above-described conduct was that he was either ig-
norant of the April 24, 1990 memo or misinterpreted it.
However, I will not consider this post hoc rationalization for
Bloss’ conduct. Bloss, a witness for Respondent, did not ex-
plain why at all times material to this case he completely dis-
regarded Mendez’ two moving traffic violations, when con-
sidering whether or not to hire Mendez to fill the April 1 job
vacancy.11
The actions of Operations Manager Graybill also con-
tradict Kilpatrick’s testimony that Mendez’ driving record
would have precluded him from being hired to fill the April
1, 1992 vacancy. It is undisputed, as described supra, that in
November 1991 Graybill told Mendez that due to Mendez’
‘‘driving record’’ his hire by Respondent would have to be
postponed until sometime after January 1992, when two of
his four traffic citations would have been removed from his
driving record. It is also undisputed, as described supra,
when Union Shop Steward McLin asked Graybill in January
1992 why Mendez’ name had not been added to the seniority
roster, Graybill responded by stating that Mendez had one or
two traffic citations that were supposed to be removed from
his record in the immediate future and that when that oc-
curred Respondent would consider adding his name to the se-
niority roster. Also, as I have found supra, during the period
from late January 1992 through mid-February 1992, on more
than one occasion, when Union Shop Steward Cozzette asked
Graybill why Mendez had not been hired, Graybill replied
that the reason for this was that Mendez’ paperwork had not
come back from Respondent’s general office and, in the last
one of these conversations, Graybill told Cozzette that the
reason Mendez had not been hired was because he had failed
to pass his drug test.
If, as Kilpatrick testified, Respondent interpreted the con-
tents of the April 24, 1990 memo to preclude Mendez’ hire
as a regular employee until May 28, 1992, I am convinced
that Graybill, when asked by Mendez, McLin, and Cozzette
why Mendez had not been hired as a regular employee,
would have explained this to them. Graybill, who testified
for Respondent, did not explain why, if Respondent inter-
prets the memo in the manner in which Kilpatrick testified,
Graybill failed to explain this to the persons who questioned
him about Respondent’s failure to hire Mendez. I recognize
that Graybill did indicate to Mendez and McLin that
Mendez’ driving record was the reason Respondent had post-
poned hiring him, but rather than state that pursuant to com-
pany policy Respondent’s consideration of his hire as a regu-
lar employee would have to be postponed until after May 28,
1992, because of his driving record, Graybill indicated to
them it would be postponed only until two of his four traffic
violations had been removed from his record, which under
the company policy set forth in the April 24, 1990 memo,
as interpreted by Graybill, would have meant that Mendez
would have been eligible for hire as early as February 7,
1992.
In evaluating Kilpatrick’s testimony that if Mendez had
been selected by Bloss to fill the April 1, 1992 job opening,
Kilpatrick would have vetoed the selection because of
Mendez’ traffic citations, I considered his further testimony
that in November 1991, after his office reviewed the paper-
work submitted by Terminal Manager Bloss seeking the
HRD’s approval of Bloss’ decision to hire Mendez, that the
HRD office rejected Mendez’ application because of his traf-
fic citations and notified Operations Supervisor Graybill of
its decision. More specifically, Kilpatrick testified that his as-
sistant, Mary Yelton, notified Graybill that the HRD had dis-
approved Mendez’ application because of his traffic viola-
tions. Initially, Kilpatrick testified that in November 1991,
Yelton told him she had notified Graybill that Mendez did
not comply with Respondent’s requirement for drivers be-
cause of his traffic violations. Later, however, at another
point in his testimony, Kilpatrick now testified that his
knowledge of what Yelton said to Graybill on this subject
was not based on what Yelton told Kilpatrick, but it was
based on a note in Yelton’s handwriting which appears on
the paperwork submitted to the HRD in the first week of No-
vember 1991, concerning Mendez’ employment. This nota-
tion does not, however, state Yelton had notified Graybill
that Mendez did not comply with Respondent’s requirements
for drivers because of his traffic violations, rather it states:
‘‘11/14 need to talk to Mark Graybill on MVR I have con-
cern.’’ Subsequently, at another point in his testimony, Kil-
patrick testified that it is the above-described notation, in
Yelton’s handwriting, which leads him to believe that Yelton
‘‘may have called Graybill’’ and spoken to him about
Mendez’ driving record. Yelton, Kilpatrick’s assistant, was
not called by Respondent to corroborate Kilpatrick’s testi-
mony and Graybill flatly contradicted his testimony. Graybill
testified that in November 1991 Mendez’ hire as a regular
employee was contingent on the HRD’s approval, but when
asked, ‘‘Did you ever get a decision from the [HRD],’’ testi-
fied, ‘‘No.’’ As to any conversation he might have had with
Yelton on that subject, Graybill testified his only conversa-
tion with her was when, in early November, he telephoned
Yelton and told her to stop processing Mendez’ application
because the terminal did not intend to hire anyone, and
Yelton’s only response was to say, ‘‘Okay, that’s fine,’’ and
this ended the conversation.
Considering Kilpatrick’s poor testimonial demeanor; con-
sidering his above-described contradictory testimony; consid-
ering the failure of Respondent to call Kilpatrick’s assistant,
Mary Yelton, to corroborate his above testimony; and consid-
ering that his testimony was contradicted by Graybill, I find
that Respondent has failed to establish that the HRD ever re-
jected Mendez’ employment application because he had an
excessive number of moving traffic violations. I recognize
that in November 1991 Graybill notified Mendez that due to
Mendez’ driving record his employment by Respondent as a
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
regular employee would have to be postponed until sometime
after January 1992, when, as Graybill explained to Mendez,
two of Mendez’ four traffic citations would have been re-
moved from his driving record. Graybill, when he testified
for Respondent during the hearing in this case, failed to ex-
plain the basis for the aforesaid remarks he made to Mendez,
which he did not deny making. This warrants the inference
that Graybill believed that pursuant to Respondent’s drivers’
requirement policy, Mendez was eligible for employment on
or about February 6, 1992, after two of his four traffic viola-
tions had been removed from his record.
Also relevant in evaluating Kilpatrick’s testimony that he
or his office would have rejected Mendez’ employment ap-
plication, even if Bloss had selected Mendez to fill the April
1, 1992 job opening, is the complete lack of corroboration
for his testimony, as described below. Since Kilpatrick’s tes-
timonial demeanor—the tone of his voice, the way he spoke,
looked, and acted when he testified—was poor, this lack of
corroboration becomes even more meaningful in evaluating
his testimony.
As I have noted previously, other than Kilpatrick’s
conclusionary testimony, which was devoid or any kind of
specificity, Respondent presented no evidence, documentary,
or otherwise, to establish that it has applied the driver re-
quirements set forth in the April 24, 1990 memo in the way
Kilpatrick claims they would have been applied, if Bloss had
selected Mendez to fill the April 1, 1992 job vacancy. Like-
wise, Respondent failed to produce Kilpatrick’s assistant,
Mary Yelton, to corroborate his testimony, either in this re-
spect or in other respects significant to this case. Nor were
the only management officials who were called by Respond-
ent to testify in this case—Bloss and Graybill—asked by Re-
spondent to corroborate Kilpatrick’s testimony that pursuant
to the policy set forth in the April 24, 1990 memo, Bloss
could not have hired Mendez to fill the April 1, 1992 job
vacancy, even if Bloss had wanted to hire him for that va-
cancy. Quite the opposite, as described in detail, supra,
Bloss’ actions indicate that, so far as he was concerned,
Mendez’ traffic record was not an obstacle to his being hired
to fill the April 1 vacancy. I am of the view that Respond-
ent’s unexplained failure to provide any of the above-de-
scribed corroboration for Kilpatrick’s testimony warrants the
inference that if such evidence had been produced (documen-
tary and/or testimonial) it would have contradicted
Kilpatrick’s testimony and been adverse to the Respondent’s
case.
To sum up, I find Respondent has failed to establish that
even if Bloss had selected Mendez to fill the April 1, 1992
job vacancy, Mendez would not have been hired to fill the
vacancy because Respondent’s HRD would have rejected his
application. This defense, as described supra, was based en-
tirely on the testimony of Kilpatrick, which I have rejected
because: his testimonial demeanor was poor; his testimony
was completely without corroboration, even though corrobo-
ration should have been conveniently available; the failure of
Respondent to produce corroborating evidence warrants the
inference that such evidence (testimonial and/or documen-
tary) would have contradicted Kilpatrick’s testimony and
been adverse to Respondent; and, the conduct of Terminal
Manager Bloss and Terminal Operations Manager Graybill
contradicted Kilpatrick’s testimony.
Even assuming that the record as a whole warrants the
finding that there is no certainty that if Bloss had selected
Mendez to fill the April 1, 1992 vacancy, Respondent’s HRD
would have approved his application for the vacancy, in view
of his two traffic violations, I find that this uncertainty must
be resolved against Respondent as the wrongdoer who is re-
sponsible for the uncertainty. See NLRB v. Remington Rand,
94 F.2d 862, 872 (2d Cir. 1938); Bigelow v. RKO Pictures,
327 U.S. 251, 256 (1946) (‘‘[t]he most elementary concep-
tions of justice and public policy require that the wrongdoer
shall bear the risk of the uncertainty which his own wrong
has created’’). For, here, as I have found supra, the record
establishes that Bloss’ failure to select Mendez to fill the
April 1, 1992 vacancy was unlawfully motivated. Accord-
ingly, it was Respondent’s unlawful conduct which created
the uncertainty herein.
Having found that Respondent’s animosity toward
Mendez, because Mendez sought the advice and assistance of
Union Shop Steward Cozzette about his terms and conditions
of employment, was a motivating factor in Respondent’s fail-
ure and refusal to hire Mendez on April 1, 1992, and having
further found Respondent failed to establish it would still not
have hired Mendez on April 1, 1992, even if Mendez had
not sought the advice and assistance of the union shop stew-
ard, I find Respondent violated Section 8(a)(1) and (3) of the
Act when it failed to hire Mendez on April 1, 1992.
C. Respondent’s May 28, 1991 Refusal to Permit Union
Representative Hart to Have Access to its Facility to
Investigate Grievances (Case 20–CA–24053)
1. The evidence
The Union has represented the truckdrivers and dock-
workers employed at the Respondent’s South San Francisco
terminal since approximately 1977 and since then those em-
ployees’ terms and conditions of employment have been gov-
erned by collective-bargaining agreements between Respond-
ent and the Union. As described supra, during the time mate-
rial, the terminal’s employees were covered by the terms of
the 1991–1994 National and Local Agreements.
The part of article 24 of the National Agreement entitled
‘‘Inspection Privileges’’ reads:
Authorized agents of the Union shall have access to the
Employer’s establishment during working hours for the
purpose of adjusting disputes, investigating working
conditions, collection of dues, and ascertaining that the
Agreement is being adhered to; provided, however,
there is no interruption of the firm’s working schedule.
[Emphasis added.]
Section 9 of article 49 of the Local Agreement, entitled
‘‘Inspection Privileges,’’ contains the same language set forth
above, except for the italicize proviso. However, the Local
and National Agreements each provide, in substance, that
wherever there is a difference in the language contained in
the two agreements, the terms of the National Agreement
shall prevail over the Local Agreement. Accordingly, I find
that the Union’s contractual right to access to the South San
Francisco terminal is governed by the National, not the Local
Agreement.
325YELLOW FREIGHT SYSTEMS
Article 8 of the National Agreement is entitled ‘‘National
Grievance Procedure’’ and section 1 of that article provides
that ‘‘all grievances or questions of interpretation arising
under this [National Agreement] . . . shall be processed as
set forth below [referring to the contractual grievance-arbitra-
tion procedure ending in binding arbitration].’’
Section 3 of article 8 of the National Agreement is entitled
‘‘Work Stoppages’’ and provides:
(a) The parties agree that all grievances and ques-
tions of interpretation arising from the provisions of
this Agreement shall be submitted to the grievance pro-
cedure for determination. Accordingly, except as spe-
cifically provided in other Articles of the National Mas-
ter Freight Agreement, no work stoppage, slowdown,
walk out or lockout shall be deemed to be permitted or
authorized by this Agreement except . . . .
The National Agreement at this point in section 3 of arti-
cle 8 goes on to enumerate the several exceptions to the
above general prohibition against work stoppages, slow-
downs, walkouts, or lockouts, none of which exceptions are
applicable to this case, and then states the following:
In the event of such unauthorized work stoppage
. . . in violation of this Agreement, the Local Union
shall immediately make every effort to persuade the
employees to commence the full performance of their
duties and shall immediately inform the employees that
the work stoppage . . . is unauthorized in violation of
this Agreement. The question of whether employees
who refuse to work during such unauthorized work
stoppages, in violation of this Agreement . . . shall be
considered as participating in an unauthorized work
stoppage in violation of this Agreement may be submit-
ted to the grievance procedure, but not the amount of
the suspension herein referred to.
It is specifically understood and agreed that the Em-
ployer during the first 24 hour period of such unauthor-
ized work stoppage in violation of this Agreement, shall
have the sole and complete right of reasonable dis-
cipline, including suspension from employment, up to
and including 30 days, but short of discharge, and such
employees shall not be entitled to or have any recourse
to the grievance procedure. In addition, it is agreed be-
tween the parties that if any employee repeats any such
unauthorized strike, etc., in violation of this Agreement,
during the term of this Agreement, the Employer shall
have the right to further discipline or discharge such
employee without recourse for such repetition. After the
first 24 hour period of an unauthorized stoppage in vio-
lation of this Agreement, and if such stoppage contin-
ues, the Employer shall have the sole and complete
right to immediately further discipline or discharge any
employee participating in any unauthorized strike, slow-
down, walkout, or any other cessation of work in viola-
tion of this Agreement, and such employee shall not be
entitled to or have any recourse to the grievance proce-
dure.
Terry Hart, currently the Union’s secretary-treasurer, was
employed by the Union during the time material as a busi-
ness agent and in that capacity, from approximately January
3, 1986, until April 2, 1992, was assigned to represent the
dockworkers and truckdrivers employed at the Respondent’s
South San Francisco terminal. From January 3, 1986, to May
28, 1991, Hart visited the terminal approximately 40 times;
8 of these occasions occurred between the time Bloss became
terminal manager in February 1991 and May 28, 1991. Thir-
ty of the 40 visits were for the purpose of meeting with man-
agement representatives, as previously scheduled, and the re-
maining 10 visits were made for the express purpose of de-
termining whether Respondent was complying with the col-
lective-bargaining agreements and whether employees had
grievances or to investigate employees’ grievances. Also on
those 30 occasions, when Hart went to the terminal for meet-
ings with management, he usually arrived early for the meet-
ings, so he could spend the time prior to the meetings ob-
serving whether Respondent was complying with the collec-
tive-bargaining agreements and to determine if employees
had grievances and to investigate employees’ grievances.
Hart engaged in the aforesaid conduct—determining
whether Respondent was complying with the collective-bar-
gaining agreements and whether employees had grievances,
and to investigate employees’ grievances—by walking
through the terminal, including its dock, and observing what
was going on and speaking to employees, individually and
collectively. The employees whom he spoke to were at work
and had to stop work to speak with him. He engaged in this
conduct without interruption by supervision or management,
except on three occasions, described in detail infra, one of
which took place on May 28, 1991. Subsequent to manage-
ment’s May 28, 1991 interruption, Hart continued to visit the
terminal during working hours for the purpose of speaking
to Respondent’s employees in order to police Respondent’s
compliance with the collective-bargaining agreements and to
determine if employees had grievances and to investigate
employees’ grievances. He engaged in this post-May 28,
1991 conduct without interference by supervision or manage-
ment.
In January 1986, on Hart’s first visit as a business agent
to the South San Francisco terminal, the following occurred.
Hart and David Larsen, the terminal manager, had arranged
an 8 a.m. meeting at the terminal. However, Hart came to
the terminal at approximately 7:15 a.m., at which time he
met on the terminal dock with some of the employees, who
at the time were at work. When Larsen observed this, he ob-
jected and Hart responded by stating he thought he had every
right to hold a meeting with the employees. Larsen answered
by stating the terminal was busy that morning and Hart was
‘‘disrupting’’ the terminal’s operation and asked Hart to
leave the dock, and told Hart he would meet with him at 8
a.m., as scheduled. Hart stated he had a right to be there and
refused to leave. Larsen acknowledged Hart had a right to
be there, but demanded that Hart abide by his scheduled 8
a.m. appointment and asked him to sit in the terminal’s
lunchroom or go to another part of the dock where he would
not be disrupting Respondent’s business operations. Hart re-
fused to leave the dock, even after Larsen threatened to call
the police to have him removed from the premises, if he did
not leave the dock as requested. Larsen then telephoned the
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The description of the above episode is based on Larsen’s testi-
mony. Hart gave a completely different account of what occurred.
I credited Larsen’s testimony and discredited Hart’s because
Larsen’s testimonial demeanor, which was good, was better than
Hart’s, which was poor.
police, but Hart left the premises before the police arrived
and did not show up for his 8 a.m. meeting with Larsen.12
Charles McLin, who is currently employed at the South
San Francisco terminal as a truckdriver, was the Union’s
chief shop steward at that terminal from approximately Janu-
ary 1990 to approximately January 1992. He testified in this
proceeding as a witness for the General Counsel and during
cross-examination testified he personally observed manage-
ment ask Hart not to talk to an employee or to wait a short
period of time until the employee was off shift to speak to
him, and that he observed Hart comply with this instruction.
On his redirect examination, when asked by the General
Counsel for the number of occasions he observed the above,
McLin answered it occurred once. More specifically, he testi-
fied the incident occurred in 1990 or early 1991, during the
early morning hours, in a working area, when Hart was ques-
tioning one or two employees in connection with grievances.
McLin further testified that Bill Hughs, who was the terminal
manager at the time, asked Hart not to tie up the whole
working crew while he was talking to somebody and that
Hart responded by stating ‘‘fine,’’ and by telling the em-
ployee he had been speaking to that he would speak to him
when he got off from work, and that Hart then left the work
area and went outside.
Hart during his direct examination by the General Counsel
testified, in effect, that other than his above initial encounter
with Terminal Manager Larsen in January 1986, supra, and
the episode which occurred on May 28, 1991, infra, that
management never interrupted him when he was speaking to
employees on the Company’s premises, However, after
McLin’s above-described testimony, Hart, who had testified
prior to McLin, was recalled by the General Counsel and tes-
tified he recalled the above-described incident described by
McLin and gave a different account of what occurred on that
occasion. He testified, in substance, that Terminal Manager
Hughs told him that Hughs needed one of the employee-
grievants, who was speaking with Hart, to drive a truck, and
that Hart informed Hughs that it posed no problem because
Hart could talk to the employee later. Hart further testified
that at this point in time he did not leave the premises but
remained where he was and continued his conversation with
the other employee-grievant and with the union shop steward
for another 3 or 4 minutes before leaving the terminal and
that during this conversation told the union shop steward to
get the other information from the other employee-grievant
when he returned to the terminal from his driving assign-
ment. McLin, the union shop steward, did not corroborate
Hart’s testimony. I reject Hart’s testimony and credit
McLin’s above-described testimony because McLin’s testi-
monial demeanor was good, whereas Hart’s was poor.
On Friday, May 24, 1991, McLin, the Union’s chief shop
steward at the terminal, notified Hart that several employees
had filed grievances complaining about harassment by Ter-
minal Manager Bloss and Graveyard Supervisor Gary
Margolis. They met that evening and discussed the employ-
ees’ grievances referred to by McLin, most of which dealt
with alleged harassment by Bloss and Margolis. As a result
of the unusually large number of grievances, the seriousness
of the issues, and McLin’s expressed concerns, Hart agreed
to visit the terminal the following week, even though he was
scheduled to be off from work on his vacation.
On Tuesday, May 28, 1991, at approximately 7:30 a.m.
Hart arrived at the South San Francisco terminal for the pur-
pose of investigating the above-described employee griev-
ances. This was toward the end of Respondent’s graveyard
shift, which ends at 8 a.m. The majority of Respondent’s
day-shift workers begin work at 8 a.m. On this date Re-
spondent employed no truckdrivers and between 8 and 10
dockworkers on the graveyard shift. Three day-shift workers
begin work at 7 a.m. and between 12 and 13 day-shift work-
ers begin work at 8 a.m., and 2 or 3 begin work at 9 a.m.
All of the day-shift workers were truckdrivers, except for one
dockworker.
It is undisputed that the final hour of the graveyard shift,
7 to 8 a.m., is a particularly hectic time period at the termi-
nal and is the busiest time of the workday there. It is during
this period that Respondent’s trucks are in the final stages of
being loaded and readied for delivery by the dockworkers,
whose shift ends at 8 a.m. Since Respondent’s dockworkers
leave work at 8 a.m. and since Respondent’s customers ex-
pect their merchandise to be delivered as early in the day as
possible, the object of Respondent is to have all of the
freight scheduled for delivery that day loaded on its trucks
and ready for delivery by 8 a.m. In order to accomplish this
objective, not only must the freight be physically on board
the trucks by 8 a.m., but the accompanying paperwork must
have been processed to completion, which is not possible
until all of the freight has been loaded onto a truck. The goal
of the 8 to 10 dockworkers employed on the graveyard shift
is to complete the loading of the trucks and the processing
of the accompanying paperwork by the end of their shift at
8 a.m., so when Respondent’s truckdrivers begin work at 8
a.m., the Respondent’s dispatchers are in a position to have
the drivers leave the terminal with their deliveries without
delay.
On May 28, 1991, at approximately 7:30 a.m., Mark
Graybill, the operations manager of the terminal, observed
Union Business Agent Hart on the terminal dock speaking to
a group of approximately five or six of the dockworkers em-
ployed on the graveyard shift. Graybill promptly informed
Terminal Manager Bloss.
Bloss observed that the only dockworkers at work on the
dock were a couple of the workers at the end of the dock
where Bloss was standing, but at the other end of the dock,
Hart was talking to a group of dockworkers. The terminal’s
dock is 250 to 300 feet long and approximately 50 feet wide.
Bloss walked to where Hart was talking to the employees.
He told Hart it was near the end of the graveyard shift and
there was a lot of work left for the employees to do ‘‘to get
wrapped up here,’’ and stated he would appreciate it if Hart
‘‘could break up this group meeting now.’’ Hart ignored
Bloss’ remark and said a few more things to the employees,
and then walked over to Bloss, who had remained approxi-
mately 12 feet away from Hart and the employees he was
talking to. As Hart walked toward Bloss, the employees dis-
persed and went back to work. Hart then told Bloss he would
talk to anyone he wanted for as long as he wanted, and also
stated, ‘‘You’re nothing but a fucking waste of a manager,’’
327YELLOW FREIGHT SYSTEMS
‘‘this is my barn, and these are my people and I’m going to
represent them.’’ Hart also stated that even though he was
on his vacation, he was there for the purpose of investigating
grievances concerning Graveyard Supervisor Gary Margolis.
Bloss replied he did not have any problem with that, and
stated if Hart wanted to talk to someone or if he wanted to
talk to one or two employees, that Bloss would be more than
happy to accommodate him, but asked that Hart not speak
to a group of employees, especially during that part of the
work shift. Hart responded by stating he intended to talk to
whoever and as many of the employees as he wanted, be-
cause it was ‘‘his barn’’ and ‘‘his’’ employees. Bloss stated
the employees were Respondent’s employees and if Hart in-
tended to continue to disrupt the work flow and continued
to speak to Bloss in that manner, Bloss would be forced to
ask him to leave. Hart answered he had grievances to discuss
and intended to talk to some of the employees. Bloss ended
the conversation by replying, ‘‘Okay . . . but don’t disrupt
the work force’’ and went back to his office.
When Bloss got back to his office, he looked out of his
office window, which overlooks the terminal’s dock, and ob-
served Hart standing at the far end of the dock, approxi-
mately 100 feet away, talking to a group of four employees.
Bloss immediately returned to the dock and rapidly walked
to where Hart was standing talking to the employees. He
made eye contact with Hart and waited for a minute until
Hart finished talking to the group of employees, at which
time three of the employees walked away, leaving Hart
speaking to one employee. Bloss overheard the employee
complain that Graveyard Supervisor Margolis had lied to him
about something and overheard Hart respond by stating it
was typical of management to always lie, at which point the
employee walked away and Bloss, who was standing a short
distance away, now walked up to Hart and told him ‘‘we
don’t really need that type of sarcasm here and we don’t
need what’s going on here this morning. I told you if this
type of thing did not stop, you were going to have to leave.
I’m asking you to leave.’’ Hart laughed and stated he was
not going anywhere, that he intended to talk about the griev-
ances with ‘‘his people’’ and with Bloss. Bloss stated Hart
had not scheduled a meeting with him to discuss the griev-
ances and that in the light of what had already gone on that
morning, Hart should return on another day at which time
they would discuss the grievances. Hart laughed and stated
he was not going anywhere, and when Bloss again asked him
to leave, Bloss stated, ‘‘I’m not leaving here. You do what-
ever you’re big enough to do.’’ Bloss ended the conversation
by stating, ‘‘All right. I will,’’ and went back to his office.
When Bloss returned to his office, he instructed Oper-
ations Manager Graybill to telephone the police and waited
for the police in his office, while at the same time trying to
calm down. Two police officers arrived at approximately
7:55 a.m. Bloss told them Hart was disruptive and was inter-
fering with the work force and stated that ‘‘contractually he
was not allowed to do that’’ and stated he did not want any-
more problems that day and felt Hart needed to calm down
and leave the premises.
Bloss then went with the police officers to the employees’
breakroom, where Hart was speaking to employees. The
breakroom is 14 feet by 20 feet. In order to avoid creating
a confrontation between Hart and the police in front of the
employees, Bloss entered the breakroom by himself and the
police officers waited at the breakroom’s doorway. Bloss’ in-
tent was to persuade Hart to come out of the breakroom, so
the police could speak to him outside of the employees’ pres-
ence. The time was approximately 8:02 a.m.
Present in the breakroom at this time were 15 truckdrivers
employed on the first shift and the 8 to 10 dockworkers em-
ployed on the graveyard shift. The first-shift employees had
clocked in for work, inasmuch as their work shift had begun
at 8 a.m., and the graveyard shift employees had clocked out
from work, inasmuch as their shift had ended at 8 a.m.
Bloss told Hart he would like to talk to him outside. Hart
stated he still had to talk to employees and asked Bloss to
make up his mind, reminding Bloss that Bloss previously had
refused to meet with Hart. Bloss told him that what he had
refused to do was to meet with Hart to talk about the griev-
ances that day. Bloss also told Hart that if Hart wanted to
speak to a particular employee about a grievance, for him to
do it in the office and not talk to ‘‘all of these people.’’ Hart
answered it was his intention to talk about the grievance with
‘‘these people.’’ When Hart indicated he did not intend to
leave the breakroom, as Bloss was asking, Bloss stated that
based on the obscenities that Hart had ‘‘yelled’’ while on the
dock and the disruption of the work force that morning, that
he was asking Hart to leave. Hart replied that Bloss was a
liar, that Hart had not, as Bloss alleged, yelled at Bloss.
Then, at the top of his voice, Hart screamed: ‘‘I didn’t yell
at you. This is yelling. When I yell you’ll know.’’ One of
the police officers at this point entered the breakroom and
approached Hart and instructed him to come outside, which
Hart did.
When the police officer accompanied Hart from the
breakroom, Hart identified himself to the officer and stated
he was the union business agent and had every right to be
there and was going to conduct business with the employees.
The police officer stated it was obviously a very agitated sit-
uation and he feared there would be a physical altercation.
Hart stated there would not be any kind of a physical alterca-
tion because Bloss was ‘‘not man enough.’’ The police offi-
cer told Hart ‘‘we don’t need that’’ and asked if Bloss, as
manager of the property, wanted Hart to leave. Bloss replied
by stating he wanted Hart to leave that day and to come back
the next day or on any other day, but that today he felt Hart
needed to leave. Hart’s response was to state, ‘‘If you want
me to leave, I’m taking my men with me,’’ and asked if
Bloss still wanted him to leave, and when Bloss answered
in the affirmative, Hart walked back into the breakroom and,
speaking to the employees present in the room, stated,
‘‘Come on men.’’ In response two or three employees started
to walk towards the door and at this point Respondent’s op-
erations supervisor/dispatcher, Mike Vega, who had entered
the breakroom, stated to the employees in the room:
We would advise you otherwise . . . you’re on the
clock, if you walk out the door with this man while you
are on the clock, you’re abandoning the job. It will be
treated as a voluntary quit, and you won’t be back.
Hart again stated to the employees, ‘‘come on men.’’ Bloss,
as well as Vega, responded by stating that if the employees
left with Hart it would constitute an illegal walkout and stat-
ed in effect that those employees who left with Hart would
be terminated. Hart, at this point stated he would call an at-
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Police Officer Philip Schonig, who instructed Hart to leave the
terminal, testified when he instructed Hart to leave, ‘‘I felt he was
agitated and hostile and posed a safety threat to myself and other
people’’ and further testified, ‘‘I feared for my safety . . . I don’t
feel he was rational at that point in my professional opinion.’’ As
requested by the General Counsel, I have scrutinized Schonig’s testi-
mony with ‘‘great care.’’ Schonig was a completely disinterested
witness, with absolutely no reason to tailor his testimony to suit ei-
ther the Respondent’s or the General Counsel’s case, and when he
testified about the events of May 28 he impressed me demeanorwise
as a credible witness. I also note that his above testimony was cor-
roborated, in part, by the testimony of General Counsel’s witness
Tobin, one of the graveyard-shift employees present on May 28,
who, when asked by the General Counsel if Police Officer Schonig
looked nervous, testified, ‘‘everybody . . . was pretty on edge . . .
because it was a nervous type happening.’’
torney and left the room. When Hart, Vega, and Bloss made
their above-described statements, all of the first-shift and
graveyard-shift employees, who had been in the breakroom
initially at approximately 8:02 a.m., were either still in the
breakroom or in the vicinity of the breakroom’s door listen-
ing to what was being said.
Shortly thereafter, Hart returned to the breakroom and told
the employees to remain and work that day and stated that
‘‘they’’ would ‘‘take care of [Bloss] in another way,’’ le-
gally. Hart then left the breakroom and, as he exited, ex-
changed a few words with Bloss about whether or not what
Bloss had done was permissible under the parties’ collective-
bargaining agreements. Hart, on this subject, declared that
Bloss was ignorant because Bloss had only recently come to
the South San Francisco, California terminal from one of the
Company’s facilities in the State of Arizona, and while Bloss
thought he was knowledgeable that he did not know ‘‘shit.’’
Bloss replied, ‘‘That may be so, I may be wrong, but I don’t
need this from you and you need to leave.’’ The police offi-
cer at this point instructed Hart to leave the premises which
he did.13
The above-description of what occurred when Hart visited
the terminal on May 28, prior to the time of his first encoun-
ter with Bloss that morning, is based on Graybill’s and
Bloss’ testimony. The above description of the rest of the
day’s events is based on Bloss’ testimony. I realize that I
have generally discredited Graybill’s and Bloss’ testimony
given in connection with the allegation that Respondent vio-
lated the Act, when it refused to hire Mendez, in view of
their poor testimonial demeanor when they testified in con-
nection with that allegation. However, when they testified
about the events which occurred on May 28, Graybill and
Bloss impressed me as sincere and conscientious witnesses.
Their testimonial demeanor when they gave this testimony—
the way they spoke, the tone of their voices, and the way
they looked and acted while testifying—led me to conclude
they were sincere and conscientious witnesses when they tes-
tified about that occurrence, whereas Hart’s testimonial de-
meanor was poor when he testified about the events of May
28. I also note that in certain significant respects the testi-
mony of General Counsel’s witnesses Tobin and McLin cor-
roborate Bloss’ and contradict Hart’s testimony.
Hart denied Bloss indicated he thought Hart was interfer-
ing with the Company’s work schedule, rather Hart testified,
in effect, Bloss’ sole criticism of him that day was directed
toward Hart’s speaking to more than one person at a time
and to Hart’s alleged yelling and swearing. However, Tobin
testified he overheard Bloss on May 28 tell Hart, ‘‘he was
interfering with the work schedule, he would have to conduct
his business after the shift because there was still 10 or 15
minutes left that we [referring to the graveyard-shift employ-
ees whom Hart had been speaking to] could be doing some-
thing.’’
Hart testified that when Bloss told the police officer that
he wanted Hart off the premises, Hart responded by telling
Bloss that he still needed to talk to two or three more em-
ployees and told Bloss, ‘‘If you force me off the property,
they have to come with me and finish giving me their state-
ment.’’ However, in corroboration of Bloss’ version of what
occurred, Tobin testified that Hart warned Bloss if he was
ejected from the premises that he would ‘‘tell us guys to get
off the dock,’’ and the Union’s chief shop steward, McLin,
testified that when Bloss told the police he wanted Hart
evicted from the premises, Hart’s response was to state: ‘‘If
I go, if I walk, everybody walks.’’
On May 28, as he exited the terminal, after having been
instructed by the police officer to leave, Hart told the em-
ployees he intended to go to Respondent’s parking lot, which
is adjacent to the terminal’s dock. As a matter of fact, Hart
moved his car which was parked against the dock to Re-
spondent’s parking lot. While there he spoke to the Union’s
chief steward, McLin, and then remained there for approxi-
mately 25 minutes speaking to graveyard-shift workers, in-
cluding those whom he had not been able to speak to earlier
that morning due to his eviction from the terminal. He spoke
to them in connection with his grievance investigation. No
one objected to his using Respondent’s property, the parking
lot, for this purpose.
Later the same day, at 5:45 p.m., Hart returned to terminal
and went to the employees’ breakroom where he spoke brief-
ly to Graveyard Supervisor Margolis and then to the dock
where he conducted a safety inspection and then spoke to
five or six of the employees, who were working on the dock;
he asked them how Margolis treated them when they worked
on the swing shift under his supervision. He spoke to them
in connection with the grievances he was investigating. No
one objected to his presence or made an effort to evict him
from the terminal.
Subsequent to May 28, Hart in the next 10 months visited
Respondent’s terminal on several occasions, without objec-
tion, for the purpose of investigating grievances and to ad-
minister the collective-bargaining agreements.
Bloss admitted that before and after May 28 he had ob-
served Hart in Respondent’s terminal speaking to employees,
as he had done on May 28, but that May 28 was the first
time he had ever observed Hart engage in this conduct dur-
ing the period between 7 and 8 a.m. As I have found, supra,
the last hour of the graveyard shift (7 to 8 a.m.) is the busi-
est and most hectic work period at the terminal. Bloss further
testified that if he had observed Hart on the terminal dock
speaking to employees, the way he did on May 28, at any
times other than between 7 and 8 a.m., Bloss would not have
objected to Hart’s conduct, but objected on May 28 because
of his concern about the production problems that occur be-
tween 7 and 8 a.m.
329YELLOW FREIGHT SYSTEMS
14 As I have found supra, Bloss credibly testified that if he ob-
served Hart on the terminal’s dock speaking to a group of employ-
ees, as was the case on May 28, at any time other than between 7
and 8 a.m., the busiest time of the day, Bloss would not have ob-
jected to Hart’s conduct, but objected on May 28 because of his con-
cern about the production problems that occur between 7 and 8 a.m.
Bloss’ testimony was corroborated by the fact that, as described
supra, it is undisputed that after being evicted from the Company’s
terminal on May 28, Hart did not leave Respondent’s premises but,
without objection from Respondent, remained in Respondent’s park-
ing lot speaking to graveyard-shift employees about the grievances
he was investigating, and later that same day returned to Respond-
ent’s terminal and, with no objection from Respondent, spoke to sev-
eral employees, while they were at work on Respondent’s dock,
about the grievances he was investigating.
2. Discussion and conclusions
The alleged unlawful denial of access
It is settled that a union’s access to represented employees
on an employer’s premises is a mandatory subject of bargain-
ing and that an employer’s unilateral modification of contrac-
tual access provisions violates Section 8(a)(5) and (1) of the
Act. American Commercial Lines, 291 NLRB 1066 (1988);
West Lawrence Care Center, 308 NLRB 1011 (1992). How-
ever, this is not the issue involved in this case. Here the al-
leged unfair labor practice does not derive from an unlawful
refusal to bargain. The complaint does not allege a refusal
to bargain in violation of Section 8(a)(5) of the Act. It al-
leges Respondent independently violated Section 8(a)(1) of
the Act, when, on May 28, 1991, it interfered with, re-
strained, or coerced its employees in the exercise of their
Section 7 rights by, in the presence of its employees, engag-
ing in the following conduct: denying Union Representative
Hart access to its employees for the purpose of investigating
and processing grievances; and interfering with Hart’s inves-
tigation and processing of grievances by calling the police
and threatening to have Hart arrested.
In Gilliam Candy Co., 282 NLRB 624 (1987), a Board
majority concluded that an employer’s conduct independently
violated Section 8(a)(1) of the Act, when the employer de-
nied its employees’ collective-bargaining representative,
Union Business Agent Simmons, access to its plant on three
different occasions. In Gilliam Candy, the collective-bargain-
ing agreement provided that ‘‘[t]he business representative of
the union will be permitted to enter the plant on business at
any time during working hours upon first presenting himself
to the person in charge.’’ The Board’s rationale for conclud-
ing that the employer’s refusal to allow Simmons into the
plant violated Section 8(a)(1) was as follows (282 NLRB at
626):
Thus, it is clear that on all three occasions, Simmons
sought entry to the plant for reasons within the scope
of the ‘‘on business’’ standard for such entry set forth
in the collective bargaining agreement, and on all three
occasions Simmons was denied such entry for invalid
reasons. Accordingly, we agree with the judge that the
Respondent has violated the Act as alleged by refusing
to grant the employees’ collective bargaining represent-
ative access to the plant in accordance with the applica-
ble provisions of the parties’ collective bargaining
agreement.
I am of the opinion that the complaint’s allegations, which
relate to Respondent’s May 28 denial of access to Hart, lack
merit for two different reasons: Respondent was privileged
by the terms of the applicable provision of the collective-bar-
gaining agreement to restrict Hart’s access, as it did on May
28; and, in any event, since the dispute between the Union
and Respondent over the extent of Hart’s right to speak to
employees on Respondent’s premises during their working
time is essentially a dispute over the meaning of the parties’
contract, under the special circumstances of this case it
would be inappropriate for the Board to determine which of
the two contract interpretations is correct. My reasons for
these conclusions are set forth hereinafter.
I.
The applicable contract provision, as set forth in detail,
supra, gave Union Business Representative Hart the right to
enter the Respondent’s terminal on May 28, 1991, for the
purpose of investigating and processing employees’ griev-
ances provided, ‘‘there is no interruption of the firm’s work-
ing schedule.’’ Respondent has established that on May 28
Hart was interfering with the Respondent’s working schedule
and that this was the reason which motivated Terminal Man-
ager Bloss to evict him from the terminal, after Hart had re-
fused Bloss’ request to limit his conversations with one or
two employees at a time.
On May 28 Hart entered the Respondent’s terminal during
the final half hour of the graveyard shift, 7:30 to 8 a.m., the
most hectic and busiest time of the day at the terminal. It
is then that Respondent’s dockworkers, who are employed on
the graveyard shift and leave at 8 a.m., are in the final stage
of loading the freight onto trucks and finalizing the paper-
work, so that when Respondent’s truckdrivers arrive for work
at 8 a.m., they can leave the terminal with their deliveries
without delay. When Hart at approximately 7:30 a.m. on
May 28 spoke to dockworkers on the dock about the griev-
ances he was investigating, a group of five or six dock-
workers congregated around him on the dock and he spoke
to them. Since Respondent employed 8 to 10 dockworkers,
the group congregated around Hart constituted at least 50
percent of Respondent’s dockworkers. When Terminal Man-
ager Bloss observed that the majority of his dockworkers
were not at work, but were gathered around Hart on the
dock, Bloss went to where Hart was standing with the em-
ployees and told Hart he would appreciate it if Hart ended
the group meeting because, as he explained to Hart, it was
near the end of the graveyard shift and there was still a lot
of work remaining for the dockworkers to do. Bloss also in-
dicated he had no problem with Hart speaking to one or two
employees at a time on the Company’s premises in connec-
tion with his investigation of employees’ grievances, but stat-
ed he had a problem with Hart speaking to a group of em-
ployees and asked Hart not to speak to a group of employees
during this part of the work shift.14 When Hart responded by
stating he intended to speak with as many of the employees
as he wanted because it was ‘‘his barn’’ and ‘‘his’’ employ-
ees, Bloss warned Hart that if he continued to disrupt the
work flow Bloss would have to ask him to leave the prem-
ises. Hart ignored Bloss’ warning, for almost immediately
thereafter, Bloss observed that Hart was speaking to a group
of four dockworkers on the dock. Bloss immediately went to
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Bloss credibly testified that during the 3 months prior to May
28, 1991, he had been terminal manager, May 28 was the only time,
to his knowledge, that Hart ever visited the terminal to speak to em-
ployees during the busiest and most hectic time of the day (7 to 8
a.m.).
16 The sole evidence of what did occur when Hart, prior to May
28, 1991, visited Respondent’s terminal between 7 and 8 a.m. and
spoke to a group of dockworkers is former Terminal Manager David
Larsen’s testimony, set forth in detail supra, that when Hart in Janu-
ary 1986 first visited the terminal, he arrived at approximately 7:15
a.m. and at that time met with a group of the dockworkers on the
terminal dock, that Larsen objected to Hart meeting with the dock-
workers at that time of the day, told Hart he was disrupting the ter-
minal’s operations, and when Hart refused to obey Larsen’s request
that he leave the dock, Larsen telephoned the police for the purpose
of having him evicted.
where Hart was standing on the dock with the employees and
asked him to leave the premises. When Hart refused, Bloss
telephoned the police and, when the police arrived, Hart left
the premises after being instructed to leave by the police.
The aforesaid facts establish that when Bloss on May 28
asked Hart to speak to only one or two of the dockworkers
at a time, while speaking to them on Respondent’s premises
during the busiest hour of the workday, or to leave the Re-
spondent’s premises, that Hart was interrupting Respondent’s
working schedule and this was the reason why Bloss asked
him to leave the premises. In so concluding, I considered the
General Counsel’s following contentions: (1) the past prac-
tice of the parties establishes that Respondent has interpreted
the applicable contractual access provision, so as to permit
the Union’s authorized agents to speak to groups of employ-
ees during the last hour of the graveyard shift; (2) the evi-
dence is insufficient to establish that Hart’s May 28 conduct
of speaking to groups of employees was interrupting the Re-
spondent’s working schedule; (3) the evidence establishes
that Bloss did not call the police or ask Hart to leave the
premises on May 28 because Hart was interrupting the Re-
spondent’s work schedule, but establishes Bloss engaged in
this conduct for other invalid reasons; and (4) to the extent
Hart was evicted from the premises because he was speaking
to the graveyard-shift employees in the breakroom, Hart
could not have been interrupting the Respondent’s work
schedule. I reject these contentions for the reasons herein-
after.
The contention that Hart’s May 28, 1991 conduct which
Bloss objected to—Hart speaking to groups of dockworkers
during the busiest part of the workday—was consistent with
Hart’s past practice which Respondent had permitted, is
based entirely upon Hart’s testimony given during cross-ex-
amination. In this regard, he was asked by Respondent’s
counsel, ‘‘You didn’t realize that by being on that dock be-
tween 7:30 a.m. and 8 a.m. on a weekday, that you could
reek substantial havoc on the ability to get those loads ready
for the drivers coming on at 8 a.m.?’’ He answered, ‘‘No,’’
and then was asked, if, on May 28, anyone from Respondent
told him he was disrupting Respondent’s business because it
was very busy at that time of the day and Respondent would
prefer he return the next day, or say to him words to that
effect? Hart answered, ‘‘No,’’ and then volunteered, ‘‘it was
common practice for me to be there at that time.’’ As I have
found supra, Bloss on May 28 did give Hart such an expla-
nation. I am convinced that just as Hart was not truthful
when he denied that Bloss on May 28 gave him such an ex-
planation, he was also not truthful when he volunteered that
it was his ‘‘common practice’’ to be at the terminal between
7:30 and 8 a.m.15 As was the case with his testimony con-
cerning the events of May 28, his testimonial demeanor was
not good when he gave this testimony. Also the testimony
was completely lacking in specificity; Hart did not give one
example of another occasion when he visited the terminal,
without objection, between 7 and 8 a.m. or between 7:30 and
8 a.m., to speak with employees, nor did he explain why it
was his common practice to visit there at that time, nor did
he testify that when he commonly, as a matter of practice,
visited the terminal during that time period, that he spoke to
groups of dockworkers, even though it was the busiest part
of their workday.16 It is for the foregoing reasons that I re-
ject Hart’s testimony and find there is a lack of evidence to
support the General Counsel’s contention that Hart’s May 28
conduct was consistent with his past practice and had been
permitted by Respondent.
The General Counsel’s further contention that there is a
lack of evidence that Hart’s May 28 conduct interrupted Re-
spondent’s working schedule, lacks merit because of the fol-
lowing evidence: the final hour of Respondent’s graveyard
shift, 7 to 8 a.m., is a particularly hectic time period at the
terminal and is the busiest time of the workday there, be-
cause it is during this time that Respondent’s dockworkers,
whose shift ends at 8 a.m., are in the final stage of loading
Respondent’s trucks and submitting the accompanying paper-
work to the office personnel, so that Respondent’s truck-
drivers, who start work at 8 a.m., can leave with their deliv-
eries as soon as possible after 8 a.m.; it was during this time
period on May 28 that Hart visited Respondent’s terminal to
speak to the dockworkers in connection with his investiga-
tion and processing of the employees’ grievance; at approxi-
mately 7:30 a.m. Bloss observed that only two of Respond-
ent’s 8 to 10 dockworkers were at work on the dock and that
between 50 and 60 percent of the dockworkers were grouped
around Hart on the dock and he was speaking to them; Bloss
immediately told Hart he would appreciate it if Hart could
break up the group meeting because it was near the end of
the graveyard shift and there was a lot of work left for the
dockworkers to do in order ‘‘to get wrapped up here’’; and,
shortly thereafter, Bloss observed that Hart had ignored his
request and was talking to a group of four of the dock-
workers, which meant that between 40 and 50 percent of the
dockworkers were not working on account of Hart. I am of
the opinion that based upon the aforesaid evidence Respond-
ent made a prima facie showing that Hart’s May 28 conduct,
which Bloss found objectionable, had interrupted Respond-
ent’s working schedule. I also find the General Counsel
failed to present sufficient evidence to rebut this inference.
In contending that Bloss evicted Hart from the terminal for
invalid reasons, rather than because Bloss thought Hart was
interrupting Respondent’s work schedule, the General Coun-
sel argues that ‘‘what set off Bloss [referring to his decision
to evict Hart] was Hart’s attitude, actions, and conduct when
Hart insisted on continuing to investigate grievances, told an
employee that managers lie and did not treat Bloss with suf-
ficient respect.’’ I disagree. Rather, I am of the view that the
events of May 28, set forth in detail, supra, establish that
‘‘what set off Bloss was Hart’s attitude, actions and conduct
331YELLOW FREIGHT SYSTEMS
when Hart insisted on continuing to investigate grievances,’’
by speaking to groups of dockworkers, even after Bloss had
asked Hart to stop speaking to groups of dockworkers be-
cause, as he explained to Hart, it was interrupting Respond-
ent’s production schedule. Thus, as described in detail, supra,
what triggered Bloss’ May 28 decision to evict Hart was
Hart’s refusal to obey Bloss’ request that to minimize the
interruption of production, Hart speak to only one or two
dockworkers at the same time, rather than to groups of more
than one or two, as he had been doing. It was in the context
of Hart’s refusal to do this that Hart acted disrespectful to-
ward Bloss and that Bloss overheard Hart state it was typical
of management to lie to employees. In other words, all of
the conduct which the General Counsel contends motivated
Bloss to evict Hart was part of the res gestae of Hart’s re-
fusal to comply with Bloss’ request that Hart, in order to
minimize the interruption of production, not speak to groups
of dockworkers, but limit his conversations with one or two
at a time.
As previously indicated, the General Counsel’s final con-
tention is that since the dockworkers’ shift ended at 8 a.m.,
Hart could not have been interrupting Respondent’s produc-
tion schedule when he spoke to them in the breakroom after
8 a.m., thus Respondent, the General Counsel argues, acted
improperly under the terms of the contractual access provi-
sion, when it had the police evict Hart from the breakroom
at that time. This argument lacks merit because, as set forth
in detail, supra, the record establishes that when Hart was
evicted by the police from the terminal, he just happened to
have been in the employees’ breakroom. He was not evicted
by the police at that time, pursuant to Bloss’ instruction, be-
cause he was speaking to the dockworkers, who were gath-
ered in the breakroom. Rather he was evicted from the termi-
nal because of his earlier refusal to obey Bloss’ request that,
to minimize the interruption of Respondent’s production
schedule, he not speak to groups of dockworkers, but limit
his conversations with one or two of them at a time, when
investigating the employees’ grievances during the busiest
hour of the workday. That Hart was not evicted by the po-
lice, pursuant to Bloss’ request, because he was speaking to
the dockworkers in the breakroom, is acknowledged by the
General Counsel in that part of her posthearing brief which
states:
It should be noted that Bloss ordered Hart off the prem-
ises and called the police, before Hart returned to the
breakroom, so any claim that he was ordered to leave
and the police were called because of an alleged group
meeting in the breakroom should be rejected.
II.
Even if I have erred and Respondent has not established
it was privileged under the terms of the applicable contract
provision to limit Union Business Agent Hart’s access to the
unit employees, as it did on May 28, 1991, I am of the opin-
ion, for the reasons set forth hereinafter, it would be inappro-
priate for the Board, under the special circumstances of this
case, to determine whose interpretation of the contract is cor-
rect, Respondent’s or the Union’s and, for that additional rea-
son, I find there is no merit to the complaint’s allegations
charging Respondent with violating the Act by denying ac-
cess to Hart on May 28, 1991, and by having the police evict
him from its premises on that day in connection with the de-
nial of access.
In cases where, as here, an employer is charged with vio-
lating the Act because it engaged in conduct in derogation
of the terms of its collective-bargaining agreement with a
labor organization, the Board will not find a violation where
the employer has ‘‘a sound arguable basis for ascribing a
particular meaning to his contract,’’ where his action ‘‘is in
accordance with the terms of the contract as he construes it,’’
and where ‘‘there is ‘no showing that the employer in inter-
preting the contract as he did, was motivated by union ani-
mus or was acting in bad faith.’’’ Vickers, Inc., 153 NLRB
561, 659–570 (1965), quoting from United Telephone Co. of
the West, 112 NLRB 779, 781 (1955). Accord: Crest Litho,
308 NLRB 108 (1992); Thermo Electron, 287 NLRB 820–
820 (1987); Atwood & Merril Co., 289 NLRB 794, 794–795
(1988); Plasterers Local 627 (Jack Hart Concrete), 274
NLRB 1286, 1287–1288 (1985); NCR Corp., 271 NLRB
1212, 1213 (1984).
As described in detail, supra, Union Business Agent Hart
was privileged by the terms of the applicable provision of the
collective-bargaining agreement between the Union and Re-
spondent to enter Respondent’s terminal on May 28, 1991,
and speak to Respondent’s employees in connection with his
investigation and processing of employees’ grievances, pro-
vided, as set forth in the applicable contract provision, ‘‘there
is no interruption of the firm’s working schedule.’’ Whether,
as alleged in the complaint, Respondent violated the Act on
May 28 when it limited Hart’s access to dockworkers and
evicted him from the premises when he refused to comply
with that limitation, depends solely on the application of that
contract provision to the facts of this case.
Respondent had a sound arguable basis for contending that
the restriction it imposed on Hart’s access—it refused to
allow him to speak to groups of dockworkers during the
busiest hour of the workday, but only to one or two at a
time—comported with the contractual requirement that union
access to its facility was conditioned on there being no inter-
ruption with the Respondent’s working schedule. There is
also no evidence that Respondent’s action involved animus,
bad faith, or an attempt to undermine the Union’s representa-
tive status or to obstruct the overall grievance procedure.
Quite the opposite, the isolated and extremely limited nature
of the restriction imposed on Hart’s access to the employees
on May 28, 1991, would make frivolous any contention that
the restriction imposed upon Hart on that day was motivated
by union animus or as part of an effort by Respondent to un-
dermine the basic bargaining relationship or to obstruct the
overall grievance procedure.
Moreover, in view of the extremely limited nature of the
restriction imposed on Hart’s ability to speak to the employ-
ees on Respondent’s premises, it is clear that the restriction
did not significantly reduce employee access to Hart, since
the net effect was to merely deny Hart the right to speak to
more than one or two employees at a time during the busiest
hour of the workday. See Peerless Food Products, 236
NLRB 161 (1978). Thus, as described in detail, supra, on
May 28, Respondent notified Hart that he could speak to one
or two of its dockworkers at a time during their working
time, in order to investigate the employees’ grievances. It
only refused to allow him to speak to groups of more than
one or two dockworkers, during that 1-hour period from 7
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to 8 a.m., which is the busiest and most hectic part of the
workday. In addition, Respondent made it clear to Hart that
he was welcome to return to the terminal to complete his
grievance investigation the next day or at any other time
which suited his convenience. In fact, on the morning of
May 28 after being evicted by the police from the Respond-
ent’s premises, Hart did not leave Respondent’s property, but
instead went to Respondent’s parking lot where, without ob-
jection from Respondent, he spoke with several of the off
duty dockworkers about the employees’ grievances, and later
that same day, returned to the terminal and, again without
objection by Respondent, spoke to several of the Respond-
ent’s employees on the terminal dock during working time,
about the employees’ grievances he was investigating. In ad-
dition, during the approximately 5 years prior to May 28,
1991, that Hart represented the Respondent’s employees, and
during the several months subsequent to May 28, 1991, prior
to his ceasing to be the employees’ representative, Hart vis-
ited the terminal on numerous occasions to speak to employ-
ees during their working hours and except for what occurred
on May 28, 1991, and on two other isolated occasions, dis-
cussed, supra, when he was interrupting the Respondent’s
working schedule, Hart did whatever he had to do on Re-
spondent’s premises, without objection by Respondent’s offi-
cials.
Considering all of the above circumstances, it would be in-
appropriate for the Board to determine whose interpretation
of the applicable contract provision is correct, and for that
additional reason I shall recommend the dismissal of the
complaint’s allegations charging Respondent with violating
Section 8(a)(1) of the Act by denying Hart access to the em-
ployees on May 28, 1991, and by having the police evict him
from its premises on that day. Harrah’s Club, 143 NLRB
1356, 1369–1371 (1963).
The Alleged Unlawful Threat to Terminate Employees
The facts pertinent to the complaint’s allegation that Re-
spondent violated Section 8(a)(1) of the Act on May 28,
1991, when it threatened to terminate employees if they en-
gaged in Union or other protected concerted activities, have
been set forth in detail, supra, and may be briefly summa-
rized as follows.
On May 28 the police, pursuant to Terminal Manager
Bloss’ request, evicted Union Representative Hart from the
terminal after Hart, as I have found, supra, refused to comply
with Respondent’s lawful restriction on his access to the ter-
minal that day. On being informed he was being evicted
from the terminal, Hart told Bloss that ‘‘if you want to me
leave, I’m taking my men with me’’ and went back into the
terminal’s employee breakroom, where the following em-
ployees were present: the 15 truckdrivers, who had just
punched in for work and were in the process of being as-
signed their deliveries by the Respondent’s operations
supervisor/dispatcher; and the 8 to 10 dockworkers whose
work shift had just ended and who had already clocked out
from work and were in the process of going home.
Bloss, when he entered the breakroom, stated to the em-
ployees ‘‘come on men,’’ indicating he wanted them to leave
with him. Respondent’s operations supervisor/dispatcher,
Vega, responded by informing the employees: ‘‘We would
advise you otherwise . . . you’re on the clock, if you’re
walk out the door with this man while you are on the clock,
you’re abandoning your job. It will be treated as a voluntary
quit, and you won’t be back.’’ When Hart again stated,
‘‘come on men,’’ indicating he wanted them to leave the
premises with him, both Vega and Bloss stated, in effect,
that those employees who left with Hart would be terminated
for engaging in an illegal walkout.
As described in detail, supra, what led to Hart’s call for
a walkout and to Respondent’s threat to terminate those em-
ployees who walked out, was the dispute between Hart and
Bloss over the application of the provision in the parties’
contract dealing with the right of Hart to have access to Re-
spondent’s terminal for the purpose of performing his duties
as union representative. It is also undisputed, as described in
detail, supra, that the collective-bargaining agreement pro-
vided that this dispute was covered by the contract’s griev-
ance-arbitration provisions and specifically prohibited the
employees from engaging in a work stoppage or a walkout
in connection with the dispute. However, the applicable pro-
vision in the collective-bargaining agreement also stated that
in the event such an unauthorized work stoppage did occur,
that
the Employer during the first 24 hour period of such
unauthorized work stoppage in violation of this Agree-
ment, shall have the sole and complete right of reason-
able discipline, including suspension from employment,
up to and including 30 days, but short of discharge, and
such employee shall not be entitled to or have any re-
course to the grievance procedure. . . . After the first
24 hour period of an unauthorized stoppage in violation
of this Agreement, and if such stoppage continues, the
Employer shall have the sole and complete right to im-
mediately further discipline or discharge any employee
participating in any unauthorized strike, slowdown,
walkout, or any other cessation of work in violation of
this Agreement, and such employee shall not be entitled
to or have any recourse to the grievance procedure.
The General Counsel contends that Respondent’s threat to
terminate the employees if they followed Hart’s advice on
May 28 and walked out violated Section 8(a)(1) of the Act
because the walkout constituted the type of concerted or
union activity protected by Section 7 of the Act. Respondent
argues that by virtue of the above-described no-strike clause
in the parties’ collective-bargaining agreement the Union
waived the Section 7 right of the employees to walk out and
because of this the walkout would not have been protected
by Section 7 of the Act. The General Counsel takes the posi-
tion that the contractual no-strike clause’s prohibition against
discharge during the first 24 hours of an unauthorized strike
implies that work stoppages lasting less than 24 hours are
permitted. Respondent argues that the intent of this clause
was not to forbid discharges during the first 24 hours of an
unauthorized strike, but to create an exception for workers
discharged during that period from the provision that workers
disciplined for participation in unauthorized walkouts are not
entitled to have recourse to the grievance procedure of the
agreement. Lastly, the General Counsel contends that even if
Respondent’s interpretation is correct, its threat to discharge
was unlawful because it was directed to all of the employees
in the breakroom, those whose work shift had already ended
as well as those whose work shift had just started.
333YELLOW FREIGHT SYSTEMS
17 Wagoner Transportation Co., 177 NLRB 452 (1969), enfd. 424
F.2d 628 (6th Cir. 1970) (per curiam); Food Fair Stores, 202 NLRB
347 (1973), enf. denied 491 F.2d 388 (3d Cir. 1974).
I agree with the General Counsel’s contention that those
employees in the breakroom whose work shift had ended (the
8 to 10 dockworkers) would not have been engaged in an un-
authorized work stoppage, if they had joined Hart and left
the Respondent’s premises shortly after 8 a.m. on May 28.
Accordingly, if Respondent’s threat to discharge was reason-
ably calculated to coerce any of the dockworkers from leav-
ing the premises with Hart, it violated Section 8(a)(1) of the
Act. I am of the view, however, that it did not reasonably
tend to do this. Initially, I note that the dockworkers, whose
work shift had just ended, were in the process of leaving Re-
spondent’s facility to go home and would have done so even
absent Hart’s call that they leave with him. Under the cir-
cumstances, because they were off duty and were not obli-
gated to remain at work, it would be unrealistic for me to
infer that when they heard the threat of termination that they
would have reasonably believed that Respondent’s intent in
making it was to require them to remain in the breakroom,
even though their shift had ended and they had punched out
and were on their way home. Rather, the more reasonable in-
terpretation of such a threat would have been to alert them
that if at the start of their next shift, they obeyed Hart’s re-
quest that they not go to work, they would be placing their
jobs in jeopardy. In any event, any ambiguity was removed
by Operations Supervisor Vega’s explanation, made to the
employees in the breakroom: ‘‘You’re on the clock, if you
walk out the door with this man while you are on the clock,
you’re abandoning your job.’’ Plainly this explanation was
reasonably calculated to alert the graveyard-shift employees
that the threat of discharge was directed only to those em-
ployees whose work shift had just started and not to those
whose shift had just ended and were no longer ‘‘on the
clock.’’
The final issue framed by this allegation of the complaint
is whether by virtue of the contractual no-strike clause the
Union waived the employees’ statutory right to engage in a
strike of less than 24 hours in support of Union Representa-
tive Hart’s interpretation of the contractual access provision.
Since, as I have found, supra, such a strike would be an un-
authorized strike under the terms of the contractual no-strike
clause, it would seem to follow that employees who engaged
in such a strike would not be engaged in protected activity
within the meaning of Section 7 of the Act and, because of
this, the Respondent would not violate the Act by threatening
to immediately discharge the employees if they engaged in
such a strike. However, in Wagoner Transportation and
Food Fair Stores,17 not cited by either the General Counsel
or respondent, the Board ruled to the contrary.
In Wagoner Transportation and Food Fair Stores, the re-
spondent employer’s employees engaged in an unauthorized
walkout which lasted less than 24 hours, in the context of
a no-strike clause which was virtually the same as the one
in the instant case. As in this case, the no-strike clause in
those cases provided that employees participating in an unau-
thorized walkout lasting less than 24 hours were subject to
‘‘reasonable discipline short of discharge,’’ but after 24
hours they could be discharged ‘‘immediately’’ without re-
course to the contractual grievance procedure. In Wagoner
Transportation, supra, and Food Fair Stores, supra, the
Board affirmed the findings and conclusions of the trial ex-
aminer that the employees’ walkout, which was not author-
ized by the contractual no-strike clause, constituted concerted
activity protected by Section 7 of the Act and that the em-
ployees’ statutory right to engage in the unauthorized walk-
out had not been waived by the contractual no-strike clause,
therefore the Board held that the respondent employers vio-
lated the Act by discharging those employees who partici-
pated in the unauthorized strike, and in Wagoner Transpor-
tation also found that the respondent employer further vio-
lated the Act by threatening to immediately discharge em-
ployees who engaged in an unauthorized strike of 24 hours
or less.
In Food Fair Stores , the Board relied on its decision in
Wagoner Transportation, and in Wagoner Transportation the
Board adopted the decision of the trial examiner, who, in
finding that the employees’ unauthorized walkout constituted
protected concerted activity, reasoned as follows:
[I]t is clear from the Agreement itself that the parties
agreed that the extreme penalty of discharge would not
be applicable to employees who participated in unau-
thorized strikes of less than 24 hours duration, as the
Agreement gives the Respondent as an Employer only
the right to impose ‘‘reasonable discipline short of dis-
charge’’ upon such employees. It is accordingly held
that to the extent that the Agreement prohibited the Re-
spondent from exacting the extreme penalty of dis-
charge on employee-participants in wildcat strikes of
less than 24 hours duration, such strikes are protected
activities under the provisions of Section 7 of the Act.
[177 NLRB at 457.]
. . . .
If the Agreement had given Respondent the unqualified
right to fire immediately any employee who engaged in
unauthorized strike, the threats, . . . would have had
protected status. . . . But that was not the situation in
the instant case. The Master Agreement did not give the
Employer the right to discharge an employee who en-
gaged in an unauthorized strike of 24 hours or less; on
the contrary, as seen, the Agreement gave Respondent
only the right of reasonable discipline short of dis-
charge for such infractions of the Agreement, and the
absolute right of discharge only if the engagement was
in a work stoppage of 24 hours or more. Since strikes
have protected status under the Act and since Respond-
ent under the Agreement did not have the right to fire
employees who engage in wildcat strikes of 24 hours
duration or less, it follows that Respondent did not have
the right to threaten discharge to employees who en-
gage in such brief strikes although unauthorized. [177
NLRB at 462.]
I have considered that the Third Circuit Court of Appeals
in Food Fair Stores, supra, refused to enforce the Board’s
decision, holding that because the employees walkout
breached the contractual no-strike clause, it was not the type
of conduct which was protected concerted activity within the
meaning of Section 7 of the Act. The court found that the
24-hour clause regulated permissible discipline but did not
create an exception to the agreement’s ban on strikes. The
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
court found ‘‘unpersuasive’’ the Board’s interpretation of the
24-hour clause as preserving the employees’ statutory right
to strike free from discharge during the first 24 hours of the
walkout. In this regard, the court reasoned:
Even assuming that the 24-hour clause prohibits the
discharge of employees who participate in an unauthor-
ized walkout lasting less than 24 hours, it does not fol-
low, as a matter of sound construction or of logic, that
such a walkout is thereby excepted from the no-strike
provision of the Agreement and is, therefore, protected
by the Act. . . . there is nothing in the language of [the
no strike provision] that specifically permits an unau-
thorized walkout of less than 24 hours duration. Fur-
thermore, no intent to do so can be inferred from a pro-
hibition of discharge during a walkout. The purpose of
that prohibition would seem to be to give the employ-
ees who participate in an unauthorized work stoppage
a day to reconsider their action before being subject to
the extreme penalty of discharge. However, there is no
question that under the terms of [the no strike provi-
sion] the Company retains the power to impose reason-
able discipline short of discharge upon employees who
participate in an unauthorized work stoppage lasting
less than 24 hours. That provision is consistent with the
other terms of the agreement only on the assumption
that such a strike is still illegal under the agreement.
While it is true that the source of that illegality may be
the unauthorized nature of the strike, rather than the
work stoppage itself, the policy behind the language of
[the no strike provision] can hardly be said to permit
strikes of less than 24 hours’ duration. Thus, the strike
in this case was in violation of the no-strike clause of
the collective bargaining agreement and hence was not
protected by the Act. [491 F.2d at 396.]
I find the court’s reasoning persuasive, but as an adminis-
trative law judge of the Board, I must abide by the Board’s
decisions in Wagoner Transportation, supra, and Food Fair
Stores, supra. Accordingly, based on those decisions, I find
that on May 28, 1991, Respondent violated Section 8(a)(1)
of the Act by reason of its threats of immediate discharge
of employees who engaged in a work stoppage unauthorized
by the no-strike provisions of the Union’s collective-bargain-
ing agreement with the Respondent.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing to hire John Mendez on April 1, 1992, be-
cause he sought the advice and assistance of his union rep-
resentative about his terms and conditions of employment,
Respondent violated Section 8(a)(1) and (3) of the Act.
4. By asking Mendez on March 6, 1992, what he thought
of the Union and by warning him that he would never be
hired by Respondent as a regular employee if he was seen
talking to his union shop steward, Respondent violated Sec-
tion 8(a)(1) of the Act.
5. By informing employee Lawrence Holland early in
March 1992, that Respondent did not intend to hire Mendez
because he was seen speaking to the union shop steward, Re-
spondent violated Section 8(a)(1) of the Act.
6. By threatening employees on May 28, 1991, with im-
mediate discharge if they engaged in an unauthorized work
stoppage, where the collective-bargaining agreement between
the Union and the Respondent grants the employees immu-
nity from discharge for the first 24 hours of participation in
such unauthorized activities, Respondent violated Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated the Act by refusing
to hire John Mendez on April 1, 1992, I shall recommend
that Respondent offer to place Mendez on the seniority list
it maintains for its regular employees at its South San Fran-
cisco terminal, and date his terminal seniority as of April 1,
1992, or, if that position no longer exists, offer Mendez a
substantially equivalent position, without prejudice to his se-
niority or any other rights and privileges. I shall also rec-
ommend that the Respondent make whole Mendez for any
loss of earnings and other benefits he may have suffered as
a result of Respondent’s unlawful refusal to hire him on
April 1, 1992, with backpay to be computed in the manner
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and
with interest to be computed in the manner set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987). I shall
also recommend that the Respondent remove from its records
any reference to the unlawful refusal to hire, provide Mendez
with written notice of the removal, and inform him that the
unlawful refusal to hire will not be used as a basis for future
personnel action concerning him. See Sterling Sugars, 261
NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Yellow Freight Systems, Inc., South San
Francisco, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to hire or to otherwise discriminate against its
employees or applicants for regular employment, because
they have sought the assistance or advice of a union shop
steward or representative.
(b) Questioning employees or applicants for regular em-
ployment about their union sympathies or activities.
(c) Threatening applicants for regular employment that
they will not be hired if they are observed speaking to or
seeking the assistance or advice of a union shop steward or
representative.
(d) Telling employees that it will not hire an applicant for
regular employment because he/she was seen speaking to or
335YELLOW FREIGHT SYSTEMS
19 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
seeking the assistance and advice of a union shop steward or
representative.
(e) Threatening employees with immediate discharge if
they engage in an unauthorized work stoppage, where the
collective-bargaining agreement between the Union and Re-
spondent grants the employees immunity from discharge for
the first 24 hours of participation in such unauthorized activi-
ties.
(f) In any like or related manner interfering with, restrain-
ing, or coercing its employees or applicants for regular em-
ployment in the exercise of their rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to place John Mendez on the seniority list it
maintains for its regular employees and to date his terminal
seniority as of April 1, 1992, or, if that position no longer
exists, offer Mendez a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges, and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of the decision.
(b) Remove from its files any reference to the unlawful re-
fusal to hire John Mendez and notify him in writing that this
has been done and that this refusal to hire will not be used
against him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in South San Francisco, California,
copies of the attached notice marked ‘‘Appendix.’’19 Copies
of the notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the complaint in Case
20–CA–24053 be, and it is, dismissed insofar as it alleges
that Respondent violated the Act otherwise than as found
herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to hire or to otherwise discriminate
against our employees or applicants for regular employment,
because they have sought the assistance or advice of a Team-
sters Local 85 shop steward or representative.
WE WILL NOT question employees or applicants for regular
employment about their union sympathies or activities.
WE WILL NOT threaten applicants for regular employment
that they will not be hired if they are observed speaking to
or seeking the assistance and advice of a Teamsters Local 85
shop steward or a representative of that Union.
WE WILL NOT tell our employees that we will not hire an
applicant for regular employment because he/she was seen
speaking to or seeking the assistance and advice of a Team-
sters Local 85 shop steward or of a representative of that
Union.
WE WILL NOT threaten our employees with immediate dis-
charge if they engage in an unauthorized work stoppage,
where our collective-bargaining agreement with Teamsters
Local 85 grants the employees immunity from discharge for
the first 24 hours of participation in such unauthorized activi-
ties.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees or applicants for regular
employment in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer to place John Mendez on our seniority list
for regular employees and to date his terminal seniority as
of April 1, 1992, or, if that position no longer exists, offer
him a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges, and make him
whole for any loss of earnings and other benefits suffered as
a result of our discrimination against him, less any net in-
terim earnings, plus interest.
WE WILL remove from our files any reference to our un-
lawful refusal to hire John Mendez and notify him in writing
that this has been done and that this refusal to hire will not
be used against him in any way.
YELLOW FREIGHT SYSTEMS, INC.