Bay Area-Los Angeles Express, Inc.

BAY AREA-LOS ANGELES EXPRESS Bay Area-Los Angeles Express, Inc. and Brother- hood of Teamsters and Auto Truck Drivers, Local No. 85, International ' Brotherhood of Teamsters, Chauffeurs, , Warehousemen and Helpers of America. Case 20-CA-18293 12 July 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS " On 12 October 1984 Administrative Law Judge Jerrold H. Shapiro issued the attached decision. The Respondent filed exceptions and a supporting brief, to which the General Counsel filed an an- swering brief. The General Counsel also filed" ex- ceptions and a brief -in support, td which ' the Re- spondent filed an answering brief. The Board has considered the decision. and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions and to adopt the recommended Order, as modified. ORDER The National Labor Relations Board adopts the recommended Order of. the administrative law judge as modified below and orders that the Re-, spondent, Bay Area-Los Angeles Express, Inc., San Francisco, California, its officers, agents, succes sors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the ,following as paragraphs 2(d) and (e) and reletter the subsequent paragraphs. "(d) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. "(e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the ' We agree with the judge's finding that the Respondent's attempt to repudiate its statement that striking employees could only return to work as nonunion members was not effective In so doing, however, we rely only on the fact that the repudiation letter itself indicated to the employ- ees that the Respondent was continuing to interfere with employees' stat- utory rights by refusing to recognize and bargain with the Union, and thus was not "free from other proscribed illegal conduct" as required by the Board See Passavant Memorial Area Hospital, 237 NLRB 138 (1978) 2 Both the Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear. preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir"1951) We have carefully examined the record and find no basis for reversing the findings 1063 amount of backpay due under the 'terms of this Order." 3. Substitute the attached notice for that- of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively in good faith with Brotherhood of Teamsters and Auto Truck Drivers, Local No. 85, International Brotherhood of,Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive rep- resentative of our employees in the following ap- propriate unit: ' All employees covered by our 1979-1982 con- tract with the above named Union, including truck drivers and dispatchers, but excluding supervisors as defined by the National Labor Relations Act. WE WILL NOT refuse to bargain with the above- named Union by dealing directly with employees concerning matters over which we are obligated to bargain with the Union and by engaging in con- duct which is directed toward undermining the Union as the employees' bargaining representative. WE WILL NOT threaten employees that if they fail to support our contract proposals rather than the Union's that they will lose their jobs. WE WILL NOT threaten employees that if the Union fails to accept our contract proposals that we will close our doors and operate nonunion. WE WILL NOT promise employees that if they work for us without union representation that we will grant them the same or better terms and condi- tions of "employment as they enjoyed with union representation. WE WILL NOT tell striking employees that they cannot return to • work for us if they are union members, but can only return as nonmembers. WE WILL NOT in any like or related mariner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE 'WILL, on application, offer to all our em- ployees engaged • in an unfair labor practice strike, who were not permanently replaced while econom- ic strikers, reinstatement to their former jobs or, if 275 NLRB No. 152 1064 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD those.jobs no longer exist, to substantitally equiva- lent positions, without prejudice to their seniority or other rights and privileges, discharging, if neces- sary, any replacements hired-on or after 16 August 1983, when the economic strike was prolonged and converted into an unfair labor practice strike. WE WILL make-each of these striking employees whole for any loss of earnings they may suffer by reason of. our failure, if any, to reinstate them on application, with. interest thereon. WE WILL, on request, bargain collectively with the above-named union, as the exclusive represent- ative of all the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such. understanding in a signed. agreement. . WE WILL notify each. of them that. we have re- moved from our files any reference to his or her discharge and that the discharges will-not be used against them in any way. BAY AREA-LOS ANGELES EXPRESS, INC. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Admnistrative Law Judge. The hearing in this case, which was held on February 22 through 24, 1984, is based on an unfair labor practice charge filed on August 11, 1983, by Brotherhood -of Teamsters and Auto Truck Drivers, Local No. 85 (the Union) and a complaint issued September -30, 1983, on behalf of the General Counsel of the National Labor Re- lations Board (the Board) by the-Regional Director of the Board, Region 20, alleging that Bay Area-Los Ange- les Express, Inc. (Respondent) has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The complaint was amended February 9, 1984, and on the first day of the hearing. Respondent filed an answer and an amended answer denying the commission of the al- leged unfair labor practices.' On the entire record,2 from my observation of the de- meanor of the • witnesses, and having considered - the posthearing briefs submitted by the General Counsel and Respondent, I make the following - FINDINGS OF FACT I THE QUESTIONS PRESENTED The questions presented by the pleadings are as fol- lows Whether Respondent was responsible for the conduct of its dispatcher Joe Davidor and, if so, whether in viola- tion of Section 8(a)(1) and (5) of the Act Respondent through Davidor about August 9 and 10, 1983, offered a contract proposal directly to employees without offere- ing that proposal to the Union, and whether in violation of Section 8(a)(1) of the Act Davidor acted as follows: On August 9 and 10, 1983, threatened employees Re- spondent would cease operations and employees would lose their jobs if they did not agree to Respondent's con- tract proposals. and reject the Union; about August 9, 1983, through August 11, 1983, solicited employees to resign from the Union and/or revoke the Union's author- ity to bargain on their behalf. Whether Respondent through the conduct of its presi- dent, Ned Hills, violated Section 8(a)(1) of the Act as follows: In June and July 1983 promised employees im- proved benefits and management positions if they agreed to work nonunion; about August 10, 1983, promised never to fire employees if they would reject the Union as their collective-bargaining representative; on January 26, 1984, informed striking employees that it would be futile for them to apply for reinstatement if they desired to retain the Union as their bargaining representative, there- by conditioning employees employment on their resign- ing from the Union. Whether Respondent, through the conduct of its presi- dent Ned Hills, violated Section 8(a)(5) and (1) of the Act by bypassing the Union and dealing directly with its employees represented by the Union, as follows: In June, July, and August 1983 promised the employees increased wages and better-health benefits than those benefits pro- posed by Respondent to the Union, *about August 25, 1983, told employees they were stupid not-to accept Re- spondent's contract offer because it was the best offer they would receive. V Whether Repsondent'•s refusal since August 16, 1983, to recognize and bargain with the Union as its employ- ees' collective-bargaining representative violates Section 8(a)(5) and (1) of the Act Whether the above-described alleged unfair labor prac- tices caused the employees of Respondent who were rep- resented by the Union to cease work concertedly and engage in a strike on August 10, 1983, and/or prolonged this strike. - II. THE ALLEGED UNFAIR LABOR PRACTICES A The Evidence i In its answer Respondent admits that it is an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act and meets the Board's applicable discretionary jurisdictional standard and that the Union is a labor organization within the meaning of Sec 2 (5) of the Act 2 The General Counsel's 'unopposed motion to correct transcript is granted • ' 1. Background Respondent is a trucking company which does busi- ness as a common carrier within the State of California transporting general commodities between northern and southern California. Its office and terminal ' is in San - Francisco, California. Respondent's president is Ned BAY AREA-LOS ANGELES EXPRESS Hills, its executive vice president and general manager is Barry Errington, and its dispatcher is Joe Davidor. Hills, who establishes Respondent's policies, and Errington, who is responsible for Respondent's day-to-day oper- ation, are admittedly, statutory supervisors and agents of the Company, whereas Davidor's supervisory and agency status is disputed Hills owns another trucking company, BJD Trucking Company, located in Los An- geles, California. The employees of BJD Trucking Com- pany, unlike Respondent's, are not represented by a labor organization. During the time material Respondent employed an as- sistant disptacher and 12 truckdrivers beside Davidor. These employees, including Davidor, were represented by the Union, which has represented Respondent's truck- drivers and dispatchers since 1970 when Respondent began doing business The most recent collective-bar- gaining contract between. Respondent and the -Union covering these employees was effective April 1, 1979, through March 31, 1982. This contract which for the sake of convenience is referred to as the 1979-1982 con- tract consists of three separate documents: the National Master Freight Agreement; the Joint Council 7, Pickup and Delivery Agreement, and the Western States Over- the-Road Agreement Pursuant to the terms of the cost-of-living allowance (COLA) provision included in' the 1979-1982 contract, Respondent was obligated effective April 1, 1982, to raise employees' wages 47 cents an hour and to increase its contributions on behalf of the employees to the con- tractual health, welfare, and pension trust funds by 25 cents an hour for each employee. Respondent failed to do this. - In either the spring of 1982 or June 1982 Hills and Er- rington unsuccessfully attempted to meet with a repre- sentative of the Union to negotiate the terms of a succes- sor contract to the 1979-1982 contract, which by its terms terminated March 31, 1982 They gave the Union's business manager, Jim Baker, a copy of Respondent's contract- proposals and requested a contract negotiation meeting Baker stated that he did not have time to nego- tiate with them because the Union was in the process of negotiating with the larger trucking companies, but that he would read and consider their contract proposals. Er- rington asked for-Baker's permission to-give copies of Respondent's contract proposals to Respondent's em- ployees so that they could review them and be in a posi- tion to discuss the proposals intelligently with the Union's representatives. Baker agreed. Thereafter, within 2 to 3 days, Errington met with the employees and gave them copies of the Company's contract proposals. 2. The April 26„ 1983 negotiation meeting On-April 26, 1983, a meeting took place between rep- resentatives of the Union and Respondent for the pur- pose of negotiating a successor contract to the 1979-1982 contract. President Hills and General Manager/Vice President Errington represented Respondent. The Union was represented by Business Representative Pete Rodri- guez and Ray Talavera, the Union's newly elected busi- ness manager. Consistent with the terms of Respondent's written contract proposals previously submitted in 1982 1065 to the Union, Hills proposed-that there be no increase in wages for the term of the new 'contract and that "stag- gered starting times" be permitted 3 Hills also proposed that Respondent be allowed to pay new hires a lower wage rate than the current employees and that due to its poor financial situation that Respondent be excused from paying the 47-cent-an-hour pay raise due under the COLA provisions of the, recently terminated contract. The Union's representatives indicated they were ada- mantly opposed 'to Hills' proposal that new hires be paid a lower wage rate than the current employees and, with respect to Respondent's contract proposals in general, in- dicated that the Union was still negotiating with the larger trucking companies and felt that the smaller com- panies, like Respondent, would have to live with 'the terms agreed to by the larger companies. However,_ the union representatives indicated that they might consider excusing Respondent from complying with the 47-cent- an-hour COLA pay raise if Respondent withdrew its staggered starting time proposal . The union representa- tives stated that they would submit the Company's stag- gered starting time proposal to the employees 3. Hills' conversation with employee Vestnys During April and May 1983 the union representatives met with Respondent's employees whom it represented and discussed Respondent's contract proposals. During these meetings some of the employees supported and others opposed 'Respondent's proposals. One of the em- ployees who spoke out against Respondent's proposals was Michael Vestnys, a truckdriver, who was a union steward. Sometime during the period of April, May, or June 1983, President Hills approached Vestnys on the Company's dock and told him that if he did not stop "rousing up" the drivers that the drivers would "all be out of a job." Vestnys replied by stating that he thought Hills should give the other drivers credit for having their own thoughts and convictions on the subject of the Union's activities in the terminal.4 4. The July 22, 1983 negotiation meeting On July 22, 1983, the parties held their second and final negotiation session . President Hills and Vice Presi- dent Errington were Respondent's negotiators and Union Business Agents Rodriguez and Kelleher and Union Business Manager Talavera negotiated for the Union. Consistent with Respondent's written contract proposals 3 "Staggered starting times," also sometimes referred to as flexible starting times, would permit Respondent to employ employees prior to the normal 8 a in starting time, as early as 5 or 6 a in , without having to pay them overtime as required by the 1979-1982 contract The description of Hills' conversation with Vestnys is based on Vestnys' testimony Hills initially testified "I told -Mike Vestnys to stop rousting our drivers on the other side of [Respondent], which was North- ern,California Magazine, on company time." Then, in response to a lead- ing question , further testified "He [Vestnys] was talking to drivers of a different company but on the same dock on my time " I have cred- ited Vestnys' testimony and rejected Hills' because in terms of his testi- monial demeanor Vestnys impressed me as a sincere and reliable witness when he testified about this conversation, whereas Hills' demeanor when he testified about this conversation was poor and, as described supra, his testimony was not only inconsistent but in significant part was the prod- uct of a leading question - 1066 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD _ previously submitted to the Union in 1982, supra, Re- spondent's negotiators proposed the following That the employees' starting times be staggered rather than requir- ing overtime for hours worked prior to 8 a .m. as re- quired by the 1979- 1982 contract ; that Respondent's con- tributions on behalf of the employees into the various contractual health, welfare and pension trusts remain the same as they were on the expiration date of the 1979- 1982, contract; and that the maximum number of weeks of paid vacation be reduced from.the four required by the 1979- 1982 contract to 3 weeks. Respondent's nego- tiators also proposed a 15-percent across-the -board re- duction in employees' rates of pay and indicated that Re- spondent did not intend -to pay the 47-cent-an-hour pay raise or the 25-cent-an-hour increase in the health, wel- fare and pension trusts required by the COLA provisions of the recently expired 1979-1982 contract. In defense of these proposals and positions Hills and Errington stated that the Company was in financial difficulty due to the recession and deregulation of the trucking industry. In support of this claim of financial difficulties, they gave the Union's negotiators what purported to be. a profit and loss statement for Respondent 's operations for the 5- month period ending May 31, 1983. The above description of Respondent's bargaining po- sition and proposals is not essentially in dispute . In dis- pute is the manner in which the Union's negotiators re- sponded to Respondent's position and proposals and whether Respondent's negotiators in advancing its pro- posals stated that these were Respondent 's final offer. I have not resolved these disputes because, it is not essen- tial to. the disposition of this case "for me to determine whether Respondent's negotiators stated that Respond- ent's proposals constituted a final offer. And with respect' to the Union's negotiators' response to Respondent's pro- posals, regardless of whether Respondent's - or the Union's witnesses' description of the Union's negotiators' response is credited , it is undisputed that the Union's ne- gotiators made it plain to Respondent 's negotiators that the Union's negotiators were unsympathetic to Respond- ent's proposals and for the most part did not intend to grant Respondent the economic relief that it was request- ing. One last matter, however, must be discussed about this negotiation session. The profit-and-loss statement (G.C. Exh. 30) presented to the Union's negotiators by Hills and Errington in support of their claim that Respondent was in financial difficulties is a. one-page document con- taining figures for "Revenue," "Operating Expenses," and "Other (Expenses) Income." It does not include spe-. cific figures for labor costs and other than the caption "Year to Date" and an inked in notation "Jan=May 31, 1983" contains no other identifying heading, such as the name 'of . the company, which suffered the described losses. But, in this respect, the- record reflects that when Errington and Hills presented this document to the Union, supra, and when they presented it to the employ- ees, infra, they did so in.the context of remarks that were calculated to lead the Union and the employees to be- lieve that Respondent needed relief from the obligations of the Union's collective-bargaining agreement , because Respondent was losing money. As a matter of fact Hills testified in effect , that Respondent lost money in both 1982 and 1983 But after being confronted with the finan- cial statement he, had submitted on behalf of Respondent to the California Public Utilities Commission which shows. that Respondent earned a profit in 1982 of over $180,000 Hills admitted that Respondent in 1982 did not lose any money -but made a profit and also admitted that the document that he showed the union negotiators and the employees- dealt with the financial condition of not dust Respondent but of both Respondent and BJD Truck- ing Company , the nonunion company owned by Hills. In connection with his admission that when he spoke to the union negotiators and the employees about Respondent's financial condition he was in fact talking about the finan- cial condition of both Respondent and BJD Trucking, Hills gave the following explanation - "I run those com- panies together" and "we had a loss on the other Com- pany, BJD, which offset [Respondent 's profit]." The fact that Hills falsely testified that Respondent Not money-in 1982 when in fact Respondent earned a profit ,of over $180,000 has persuaded me,'due to the lack of corroborating evidence , to discredit his testimony that Respondent lost money in 1983 .-Nor will I presume that in 1983, during the time material herein , when Respond- ent was dealing with the Union and speaking to its em- ployees about its financial condition, that Respondent was losing money . Quite the opposite, under the circum- stances, absent evidence to the contrary I shall presume that in 1983 during the time material to this case Re- spondent was earning a profit just as it had done in 1982 and that just as had been the case in 1982 that it was BJD Trucking Company, not Respondent, which was the unprofitable enterprise. 5. Hills' and Errington's July 1983 meeting with employees In July 1983 immediately before or after the July 20, 1983 negotiating session between Respondent and the Union, Hills and Errington met in Errington's offie with several of Respondent's truckdrivers. In most cases as drivers left work between 5 and 6 p .m., Hills -or Erring- ton asked, them to_ come into Errington 's office to talk and in some cases employees went into the office when they observed, Errington and Hills talking with other em- ployees. , Present at various points of time during this meeting for various lengths of time were drivers McGi- boney, Gary Morini, Vestnys, Melendy, Ravey, and Cas- tillo. • Employees left when they felt like it. More,_than one discussion took place at a time, with Errington talk- ing with employees while Hills talked with others. The discussion between Hills and Errington with the employ- ees covered a number of different topics, all of which re- lated to Respondent's business operation . And even after Hills or Errington changed topics, it was. not unusual for the same topic to be brought up again during a later con- versation. The subject matter discussed was not always initiated by Hills or Errington, but employees asked questions which they answered. . The theme of the July 1983 meeting , as expressed to the drivers by Hills and Errington, was that Respondent was suffering from serious financial problems and was BAY AREA-LOS ANGELES EXPRESS 1067, losing $10,000 monthly Hills and Errington stated that they were prepared to show Respondent's financial records to the employees so as to corroborate their claim that Respondent was in financial difficulty. They also asked for the drivers' ideas or suggestions on ways Re- spondent could save money In response employees of- fered suggestions. Hills also told the drivers that it was very important for the drivers to talk to their union rep- resentatives and to persuade them to move off "the dime" on Respondent's contract proposals,, particularly Respondent's staggered starting time proposal Errington stated that Respondent could not afford to pay the level of benefits being proposed by the Union. Errington and Hills also discussed with employees how the drivers could-save Respondent money on fuel and maintenance costs. When an employee asked whether BJD Trucking Company, the nonunion company owned by Hills, was losing money and whether it paid for the use of Re- spondent's equipment, Hills stated that BJD was making a profit and that BJD leased its equipment from Re- spondent for a fee Also during the meeting when Gary Morini, one of the union stewards, indicated that he was leaving the office, Hills accompanied him outside where he initiated a short conversation. All of the foregoing is not in dispute. The disputed statements attributed to Er- rington and Hills are set out and evaluated' hereinafter. The General Counsel called as witnesses four of the six employees who attended this meeting- Gary Morini, who left earlier than most of the others; Solon Castillo; Michael Vestnys, and George McGiboney. Barry Erring- ton and Ned Hills testified for Respondent. The testimo- ny concerning the matters of significance which are in dispute follow. McGiboney testified that Errington stated that one of the reasons Respondent was losing $10,000 a month was the expense of the Union's health and welfare program, and further testified that Hills stated that if the employ- ees went nonunion Hills could give them an equal or better health and welfare plan than what the Union was offering them, that Errington suggested that the Union was not using the money Respondent was contributing to the health and welfare plan to the employees' advan- tage. Morini testified that either Hills or Errington stated Respondent could not afford the current health and wel- fare program, that it was hurting Respondent financially and stated that he could get the employees a good plan which would save Respondent money. Castillo testified that Hills stated that one of the reasons that Respondent was losing money was because of the Company's "union obligations," he stated that if Respondent could replace the Union's health plan with another plan it would be cheaper for him and better for the employees. Vestnys testified that Hills stated that the Union was not doing the drivers any good and that Hills could provide the drivers with a better health plan. When asked whether he remembered discussing anything about health and welfare, Hills testified- "I did not bring that up I believe Errington-." He was interrupted at this point-by Re-' spondent's counsel Thereafter Hills testified that neither himself nor Errington stated that the Company could provide a better health plan than the- Union's Errington likewise testified that neither himself nor Hills stated that the Company could providea better health plan than the Union's. He further testified that when someone, whom he did not identify, mentioned the fact that the benefits of the current health plan were being decreased while costs were being increased that Errington responded that he had done some studies in the past of the costs of health plans for the employees and the plan that Erring- ton had purchassed for himself personally contained better benefits at less cost than the Union's plan. McGiboney testified that Hills stated, "if he did not get what he wanted on the contract negotiations that he was going to have to do something drastic and he mentioned closing the doors if it got much worse and stated he was thinking of going nonunion and was going to ask all of the Company's drivers to go nonunion with him " Cas- tillo testified that Hills stated that the Company's union obligation was just too much to bear financially and that if he did not get financial relief relatively soon that "the Company would close." Vestnys testified that Errington stated that the Company was in financial trouble and if there were no solutions made that "they would have to close the doors " Vestnys also testified that Hills asked Gary Morini, the union steward, whether he would work for Hills as a nonunion employee and that Morini replied in the negative. Morini did not corroborate Vestnys" testimony. Both Hills and Errington denied that Hills made the aforesaid comments. Castillo testified that, in the context of stating that the Union was too much of a financial burden on him, Hills remarked that the drivers could buy their own trucks and could haul for him as owner-operators McGiboney testified that Hills at one point stated that if any of the drivers wanted to buy a truck Hills could help them out. Neither Hills nor Errington denied that Hils made the aforesaid remarks McGiboney testified that at one point during the meet- ing Hills said that he intended to keep the drivers' pays-, cale the same and , that at another point' said he would pay the drivers as much as $14 an hour 5 Errington and Hills denied that - Hills stated he intended to change the drivers' rate of pay. Of the six witnesses who testified about the July meet- ing, the testimonial demeanor of McGiboney, Castillo, and Morini. was good, whereas the demeanor, of Hills, Errington, and Vestnys was poor when they testified about this meeting. I therefore credit McGiboney's, Cas- tillo's, and Morini's above-described testimony and reject Hills', Errington's, and Vestnys', except for Vestnys' tes- timony concerning Hills' remarks - about the Union's health plan which was corroborated by McGiboney, Castillo, and Morini. In crediting McGiboney's, Castil- lo's, and Morini's testimony, I have carefully considered all of Respondent's contentions raised in its posthearing brief which contentions either. singularly or in their total- ity, in my" view, warrants the conclusion that despite their impressive testimonial demeanor any one of these witnesses' was an incredible witness. In evaluating the credibility of McGiboney, Castillo, and Morini I have es- 5 The record reveals that $14 an hour would constitute an increase in the drivers' rate of pay 1068 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD pecially considered the fact that there is a variance in the exact words that they attribute to Hills, that there is no corroboration of McGiboney's testimony concerning Hills' statement about the employees' wage rates being increased, and that the corroboration is skimpy with re- spect to Castillo's and McGiboney's testimony concern- ing Hills' remarks about the employees working for Re- spondent as owner-operators However, unlike the-,usual situation where an employer speaks to its employees in a group, where everyone reasonably would be expected to corroborate each other about what was stated to them by the employer, here Hills did not address the employ- ees as a group but spoke to different employees at differ- ent times and employees came and went at different times. Under these circumstances, in view of the poor demeanor of Hills' and Errington's and the impressive demeanor of employees McGiboney, Castillo, and Morini when they testified about this meeting, I do not feel that the variances between the employees' testimony impugns their credibility, or that the lack of corroboration of McGiboney's testimony about Hills' pay raise remarks impugns McGiboney's testimony, or that the skimpy cor- roboration of Hills' remarks about the drivers working as owner-operators impugns the testimony of McGiboney and Castillo on that subject. Based on the foregoing I find that at the above-de- scribed July 1983 meeting President Hills made the fol- lowing statements to various employees- That if the Union did not accept his contract proposals he would be forced -to close the doors of the Company because of its poor financial condition and he asked all of the drivers to work nonunion; that he intended to increase the driv- ers' pay to $14 ar hour; that the drivers could buy their own -trucks and haul for Hills as owner-operators and that Hills would give financial assistance to those drivers who wanted to buy a truck; and that one of the reasons Respondent was losing money was the expense of the union health and welfare plan and if the employees went nonunion Hills would give them an equal or, better- health and welfare plan than what the Union was cur- rently offering them. - 6. The events of August 9, 1983 On August 9, 1983, between 5:30 and 6 p in. seven of Respondent's truckdrivers-Tom Ravey, Robert Me- lendy, Solon Castillo, Gary Morini, Frank Mormi, David Guernsey, and Gregory McGiboney-met with dispatch- er Joe Davidor at Davidor's request in the dispatcher's office. Earlier that, day Davidor told McGiboney that he wanted to meet with McGiboney and the other drivers after work because President Hills had informed Davidor about a decision which had been made and Davidor wanted to communicate this information to Respondent's employees.6 - - 'At the start of the August 9 meeting when Davidor mentioned the contract proposal which Hills was offer- ing to the employees, Frank Morini stated that he was 6 The description of Davidor's request that McGiboney attend the August 9 meeting is based on the undenied testimony of McGiboney who gave the impression of being a credible witness when he testified about this conversation leaving because he felt that the meeting was illegal Da- vidor followed him outside and attempted to persuade him to return. When Mormi .remained firm in his refusal, Davidor asked whether he had another job. Morini re- plied "no." Davidor then stated that "if he doesn't get this, then he is going to close the doors 11 7 Morini re- plied, "Let him close the doors."8 Davidor returned to the dispatch office and resumed talking to the other drivers. He told them that he had a contract proposal to present to them from Hills, that he was presenting it to them instead of Hills because Hills' lawyers had instructed Hills not to speak personally to the employees about this subject. Davidor at this point was holding the.General Counsel's Exhibit 9, a single sheet of note paper . 9 The bottom half of the, note paper listed eight holidays - and the top part read as follows:io 12 07/HR Everything After 8 Time & 1/2 8 Pd Holiday Mutiple .Start Times 3 Wks vac max Health Welfare-Life Ins Dental Vision Sick Leave- 3 days sick leave No Jury Duty No Funeral Leave Straight Time-sat-sun-hol After reading this proposal to the drivers , Davidor told them that if they did not accept it "the doors would be closed by Friday of that week " At this point Davidor held up another piece of paper dated that day which The description of Davidor's conversation with Frank Morini is based on the undenied testimony of Morini who demeanorwise impressed me as a credible witness when testifying about this conversation 8 Although Davidor did not use President Hills' name, but phrased his remarks in terms of "he," it is plain from the context in which Davidor, expressed these remarks, and from the plain meaning of the words used, that the "he" referred to by Davidor was Respondent's president Hills, the only person with the authority to close the Company's doors, and that a reasonable person in Morita's position would have understood that' Davidor was referring to Hills 8 McGiboney testified that the document which Davidor read from on August 9 was G C Exh 9 McGiboney's demeanor was- good when he gave this testimony which Davidor did not deny or otherwise contradict As a matter of fact Davidor in effect admitted that G C Exh 9 was the document from which he read to the employees on August 9 Thus, when asked whether he recognized G C Exh 9 Davidor testified that it was a "summary" which he prepared from Respondent's original propos- al 10 The eight holidays listed on the bottom half of the note paper are in Davidor's handwriting as is that writing on the top half which states, "Everything after 8 Time & 1/2 " The rest of the writing on the note pad is in Vice President/General Manager Errington's handwriting The sole evidence concerning the circumstances surrounding the making of these notations'by Errington, which Davidor read to the.employees at the August 9 meeting,, consists of Errington's testimony that while he knew Davidor came into posession of the note paper, he did not person- ally give the document to Davidor I recognize that Errington also testi- fied that when he spoke to Davidor on the morning of August 10 he wrote down Davidor's account of the wage and benefit proposals which- Davidor stated he had presented on August 9 to the employees It is sig- nificant, however, that Errington did not testify that G C Exh 9 was a copy of what Ernngton wrote during his August 10 conversation with Davidor His failure to so testify is perfectly understandable because, as I have found supra, the record establishes that G C Exh 9 was the docu- ment which Davidor used on August 9 to inform the employees of Hills' contract proposals BAY AREA-LOS ANGELES EXPRESS contained a written statement signed by Davidor -which read. "I do not want Local 85 Teamsters Union or any other union to represent -me for any reasons whatso- ever." Davidor read -this to the drivers and told them that if anyone wanted to resign from the Union that they could sign such a statement Davidor declared: "[Hills] is going nonunion and that's it," whereupon McGiboney, Gary Morini, and Castillo left the office. Thereafter, it is undisputed that Ravey-and Melendy before they left the dispatcher's office-signed a statement identical to the one signed by Davidor which they gave to Davidor. Later that evening driver Carl Jackson, who was not present at'Davidor's meeting with the other employees, received 'a telephone call from Davidor at his home. Da- vidor told Jackson that there had been a meeting at the terminal which Jackson should know about. Davidor in- formed Jackson that a contract offer had been made to the employees and he read the offer to him over the tele- phone. What Davidor read was identical to the offer he had read earlier that day to the other drivers, namely, the language contained in General Counsel's Exhibit 9. Davidor warned Jackson that Hills intended to close the doors of the terminal on Friday if there was no agree- ment on a contract.' i - The description of the August 9 meeting between Da- vidor and the drivers, supra, is based on a composite of the testimony of McGiboney, Castillo, and Gary Morini In significant respects their testimony about these meet- ings was consistent except for that portion of McGibon- ey's testimony wherein he testified that Davidor stated that it was Hills who wanted them to resign from the Union. I am of the view that it is perfectly understand- able that McGiboney, who had previously been informed by Davidor that he was calling the August 9• meeting in order to relay something that Hills had told him, should have mistakenly attributed responsibility-to Hills rather than to Davidor with respect to Davidor's comments to the drivers concerning the resignation statement, particu- larly since at the outset of the meeting Davidor in effect indicated he was merely acting as a messenger for Hills in relaying Hills' contract proposals. - i i The description of Davtdor'% August 9 telephone conversation with Jackson is based on Jackson's testimony Davidor in effect denied phon- ing Jackson on August 9 but testified that his phone call to Jackson took place on August 10 at which time he told Jackson that he had gone to the NLRB about getting out of the Union and that some of the other drivers had signed statements resigning from the Union and asked wheth- er Jackson was interested in signing one for Davidor to take to the NLRB Jackson, on - the other hand, testified that while there was a phone conversation between- himself and Davidor on August 10 it was in addition to Davidor's August 9 telephone call,- described supra, and the August 10 telephone call was initiated by Jackson , not Davidor In this regard Jackson testified that on August 10 he telephoned Davidor from home in response to a statement made earlier that day by President Hills , that if Jackson was interested in working despite the strike he should phone Davidor According to Jackson, during his August 10 conversa- tion with Davidor he told Davidor he wanted to work despite the strike but wanted assurances that he would be paid his accrued vacation pay and that Davidor indicated that he felt the bookkeeper could arrange this and told Jackson to report for work at an address in Union'City, Califor- nta I have credited Jackson's testimony over Davidor's because in terms of his testimonial demeanor Jackson impressed me as being a more reli- able and trustworthy witness than Davidor when testifying about these disputed conversations' ' 1069 In crediting the testimony-of McGiboney, Castillo, and Gary Morini concerning the August 9 meeting I have considered that their description of this meeting was con- tradicted by Davidor whose testimony in this respect was corroborated in its essential parts by Ravey and Guernsey. Davidor testified that he told the drivers that he had made a summary or dotted down some of the highlights of Respondent's contract proposals which Hills and Errington had given to the employees early in' 1982. He further testified that he read to the employees from this summary (G.C. Exh. 9), and that when he fin- ished reading is when McGiboney, Castillo, and Gary Mormt left the dispatcher's office. Davtdor testified that he then told the remaining drivers that he had contacted the NLRB about withdrawing from the Union and had been informed by a Board agent that in order to with- draw an employee should sign a statement indicating he did not want the Union; that Davidor showed them such a statement which he had signed and that after asking questions employees Ravey and Melendy copied Davi- dor's statement which they signed and gave to Davidor, who told them that he would take their signed state- ments to the NLRB. I have rejected the testimony of Davidor, Ravey, and Guernsey about what took place at the August 9 meeting insofar as it conflicts with the testimony of McGiboney, Castillo, and Gary Morini, because the testimonial de- meanor of McGiboney, Castillo, and Morini was good and that of Davidor, Ravey, and Guernsey was poor when they testified about this meeting I also note that ,a significant portion of Davidor's testimony concerning this meeting was demonstrably false. Davidor's essential contention is that he did not indicate to the drivers that he was acting pursuant to Hills' instructions in communi- cating the contract proposals to them,- but that he was only reminding the employees of the, terms of the con- tract proposal which Hills previously in 1982 -had shown the drivers. However, General Counsel's Exhibit 9, the summary prepared by Errington from which Davidor on August 9 read to the drivers, indicates that Davidor's testimony is palpably false A comparison of the summa- ry with the terms of Respondent's contract proposal, Re- spondent's Exhibit 1, on which it was supposedly based, reveals the following significant differences: The summa- ry lists eight paid holidays, whereas the contract propos- al lists nine; the summary lists 3 days of sick leave whereas the contract proposal lists 5 days; the summary lists no jury duty, leave or funeral- leave, whereas the contract proposal lists 3 days of paid funeral leave and 10 days of paid jury duty leave. In crediting the testimony of McGiboney, Castillo, and Gary Morini concerning the August 9,meeting, I have considered all the arguments raised by Respondent in its posthearing brief to,. impugn their credibility. including the following. They are all interested parties; Castillo's testimony that Davidor stated that if Hills' contract pro- posal was not accepted that the doors of the terminal would be closed by that Friday was not corroborated by either McGiboney or Morini; McGiboney' s testimony that Davidor stated that Hills was intent on going non- union was not corroborated by either Castillo or Gary 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morini;, when McGiboney following Hills' meeting in July 1983 with the drivers asked Davidor when the Company was going to go nonunion, Davidor vehement- ly denied that Hills had any intention of going nonunion; McGiboney's testimony and the initial testimony of Gary Morini that Davidor stated that it was Hills who wanted them to sign resignation letters was contrary to what they stated in their posthearing ' affidavits submitted to the NLRB. Nonetheless, based on my observation of the demeanor of the witnesses when they testified about this meeting I am persuaded that McGiboney, Castillo, and Gary Morini were sincere witnesses making a conscien- tious effort to tell the truth about this meeting, whereas Davidor, Ravey, arid Guernsey were not, and that the aforesaid considerations whether viewed singularly or in their totality are not sufficient to impugn their credibil- ity.12 7. The events of August 10, 1983 After they left the dispatcher's office on August 9, 1983, Castillo, McGiboney, and Gary Morini met Frank Morini who had waited in the Company's parking lot and the four of them went to a local bar where they dis- cussed Davidor's meeting with the truckdrivers. Later that evening Frank Morini telephoned Union Business Representative Rodriguez and told him that Davidor had made certain contract proposals to the drivers and told the drivers that if the employees did not accept the pro- posals and go nonunion that Respondent would close its doors on Friday. Rodriguez instructed Morini to tell the employees that the union representatives would meet with them at Respondent's terminal before they started work the next day. - Early in the morning, of August 10 Donald Andrus, one of Respondent's drivers who did not attend Davi- dor's meeting the previous evening, was informed by McGiboney about the meeting. McGiboney told him that Davidor had given the employees certain proposals and had told them that they had until Friday, to decide whether they would work for Respondent on a nonunion basis or "take a hike." Later that morning about 7:30 a.m., Andrus, shortly after Davidor arrived at the termi- nal, questioned him about his meeting with the drivers. This conversation took place in front of the terminal in the presence of several of the employees plus Union Business Representative Rodriguez, who had come to the terminal to meet with the drivers. Andrus asked Da- vidor what had taken place the previous evening at Da- vidor's meeting with the drivers. Davidor replied that Hills had come into Davidor's office with a list of "ulti- 12 I note that Castillo's testimony that Davidor stated that if Hills' con- tract proposal was not accepted the doors of the terminal would be closed by that Fnday and McGiboney's testimony that Davidor stated that Hills was intent on going nonunion is supported by the fact that con- temporaneously with this meeting Davidor told both Frank Monni and Carl Jackson in separate conversations that if Respondent's contract pro- posal was not accepted that Respondent intended to close the doors of the terminal I also note that since Davidor at the outset of the meeting indicated that in communicating the contract proposals to the employees he was asking as Hills' messenger that ' it was not unreasonable for McGi- boney and Gary Morini to have mistakenly believed that it was Hills, who in addition to wanting them to accept his contract proposal, also wanted them to resign from the Union - matums" including a wage offer of $13.07 an hour plus several other items including multiple starting times. Da- vidor stated that he would get Andrus a copy of these proposals as soon as the employees' meeting with the union business agents ended. Union Representative Ro- driguez stated that the proposals Hills had given Davidor to communicate to the employees were not relevant to what they were doing that day and that Andrus should just ignore those proposals. Andrus stated that he would like to see what Respondent was offering to the employ- ees. Davidor repeated that he would get a copy for Andrus when the meeting between the employees and union business representatives ended. Thereafter, follow- ing the conclusion of the meeting between the employees and the union business agents held at approximately. 8 a.m. that morning, infra, Davidor gave to employees Andrus and McGiboney copies of General Counsel's Ex- hibit 9, a written summary from which Davidor had read Respondent's proposals during his August 9 meeting with the drivers. On this same morning between 7:30 and 8 a.m., Union Business Representative Rodriguez with several other union business agents met with 12 of Respondent's em- ployees, including dispatcher Davidor, outside the termi- nal office. Rodriguez informed the employees of the con- tent of the contract proposal made by Respondent's ne- gotiators to the Union's negotiators on July 22, 1983, in- cluding the proposed 15-percent reduction in the em- ployees' current rates of pay and he recommended that they -reject Respondent's proposal. When Rodriguez stated that Respondent's contract offer called for a 15- percent reduction in wages, employee Jackson, referring to Davidor's meeting with the drivers the previous evening, stated that Hills had made a better contract pro- posal to the employees which did not include a reduction in their pay. One of the Union's business agents stated that this proposal could not be considered by the em- ployees because it had not been submitted to the Union The union business representatives then, conducted a secret ballot on Respondent's July 22 contract offer. Ro- driguez, in this respect, told the employees if they voted to reject this proposal that the Union would strike Re- spondent immediately. Davidor stated that he did not intend to support such a strike. The employees then voted 12 to nothing to reject Respondent's July 22 con- tract proposal and immediately thereafter the Union es- tablished a picket line and certain employees ceased work and supported the strike. - It is undisputed that during the morning 'of August 10, 1983, after the start of the strike and picketing, Respond- ent's president Hills spoke to striking employees who were picketing and asked them to return to work. Striker Donald Andrus testified that in response to Hills' request that he return to work the following conversation took place. Andrus expressed concern that if the employees returned to work without union representation Respond- ent would be able to fire them for trivial reasons such as not walking fast enough. Hills replied by stating, "I give you my personal assurance that that will never happen." Andrus reminded Hills that in March 1983 Hills had BAY AREA-LOS ANGELES EXPRESS' 1071 fired Andrus for alleged reckless driving.' 3 Hills assured' Andrus that something like that would not happen be- cause he knew that Andrus was a good driver. Hills' version. of his conversation with Andrus differs He testified that when he solicited Andrus to return to work Andrus answered that he was unable right then to make a decision and Hills responded by telling Andrus to call back later that afternoon to let him know The testi- mony of Carl Jackson, another striker who' was present when Hills solicited the strikers, including Andrus to return to work, does not corroborate Andrus' above-de- scribed testimony. Rather, Jackson's description of Hills' remarks, in pertinent part, substantially . corroborates Hills' description: • . - In view of Jackson's failure to corroborate Andrus' testimony and because when he testified about this con' versation Hills impressed me as a more credible witness than Andrus, I have rejected Andrus'. above-described- testimony. ' Also on the morning of August 10, 1983, while asking strikers to return to work, striker Frank Morini testified that Hills told Frank and his brother Gary Morini, who was also a striker, that if they did not return to-work he would go bankrupt. In this regard Frank Morini testified that Hills came to where the Morini brothers were pick- eting and told them "if you don't work with me, I am . going to go bankrupt." Hills denies stating this. Gary Morini failed to corroborate his brother's . testimony ' Indeed, Gary Morini's testimony concerning Hills'' August 10 picket line remarks differs substantially from his brother's testimony. It is for all these reasons that I reject Frank Morini's aforesaid testimony., The General Counsel also contends that on the morn-' ing of August 10, 1983, when Hills asked the strikers' to, return to work he informed them that if they decided to return to work they should telephone Davidor and that "he [Davidor] will let you know what to do from there."' This contention is based on McGiboney's testimony. However, strikers Andrus and Jackson who were present during the period when Hills on August 10 was soliciting the strikers to return to work do not corroborate McGi- boney's version; rather, Jackson testified that Hills told -him that if he was interested in working to telephone. Davidor later during the day and that Davidor would give him the address 'of the terminal where they would be working. Andrus testified that Hills told him that if he decided to return to work he should phone Davidor later that day and inform Davidor of his decision. Under the circumstances I will not credit McGiboney's testimony that Hills informed,the employees that if they decided to return to work they should contact Davidor • and Davi-', dor would let them know what to,do. During the morning of August 10, -1983,_Davidor gave Respondent's vice president and general manager Erring-': ton the statements previously signed by Davidor, Ravey, ' and Melendy, stating that they did not want the Union or any other union to,represent them. And. later during,. August 10 Davidor successfully solicited two more em- ployees to sign such statements, Aaron Bernstein and Joe' Quinn, who gave their statements to Davidor who in turn gave them to Errington that same day. 8. The-events of August 11, 1983 On August 11, 1983, for that day only, Respondent op- erated under the.name of BJD Trucking Company, Hills' nonunion trucking company, using a facility in the vicini- ty of Hayward-Union City, California. Carl Jackson, who signed a 'statement on August 11 stating that. he did not want the Union or any other union to represent him and gave this statement to Davi- dor, testified that he signed it under these circumstances; that on August 11 shortly after he began working, Davi- dor spoke to him with two or three of the other, drivers and told them that in order to continue to work they had to. sign statements that they did not want the Union or any other union to represent them. .Davidor's version of what occurred differs sharply. He testified that when Assistant- Dispatcher David Guernsey reported for work August 11 he handed Davidor a state- ment which he had signed stating that he did not want the Union or any other union to represent him,' 4 that Davidor' took Guernsey's signed - statement and asked Jackson, who was present, whether he wanted to sign such • a statement . Jackson asked to see what it said. Da- vidor handed him the statement. Jackson read it and stated that he would sign such a statement. Davidor gave Jackson a ' blank sheet of paper onto which Jackson copied the language contained in' Guernsey's statement and signed it and gave it to Davidor. Guernsey testified that on August 11 when he report- ed for work he handed Davidor the statement which he had signed which stated he did not'want the Union or any other union to represent him and that Jackson, who was standing right behind Guernsey, asked what Guern- sey was "going to do." Guernsey responded- by taking his statement back from Davidor and handing it'to Jack- son stating, "This is what I am going to do." Jackson re- sponded by stating, "What' do I do?" whereupon Davi- dor stated, "This is- what everybody else did, but ' you have to' make up your` own-mind" at which point Guern- sey observed Jackson -copy= the language from Guern- sey's statement onto a piece of paper which he signed. I reject Jackson's version of the circumstances sur- rounding his signirig of "the' statement' repudiating the Union.' In' doing so I have'taken into 'account that Jack- son' is a disinterested witness in the sense'that he refused to participate in the strike, that he was apparently a friend of Davidor who on, the evening of August 11 warned" Davidor `that he ' had been'-advised by Gary Morini that ' the ;Union -intended to engage , in violence against Respondent, and. that Davidor's- and Guernsey's testimony concerning- Jackson' s signing of the union re- pudiating ,statement differs in certain details ' Nonetheless I 'have credited Dayidoi•'s, testimony concerning the' 19 In March 1983 Hills, based on a complaint from someone who - stated that he had observed Andrus driving a company truck recklessly, 14 On August 9 when solicited to sign such a statement by Davidor, discharged him but immediately reinstated him and reduced the discipline. Guernsey copied the language of this statement and indicated-that he to the issuance of a warning letter ` . wanted to give the matter further thought- ' 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD events which took place on August 11 immediately lead- ing up to Jackson's signing of his union repudiating state- ment because when testifying about these circumstances Davidor's testimonial demeanor was good and Jackson's was poor. Either late on August 11 or early on August 12• Davi- dor gave Vice President and General Manager Errington the statements which Guernsey and Jackson had signed stating that they did not want the Union or any other union to represent them: 9. The events of August 16, 1983 On August 16, 1983, driver Kenneth Blick who had been on vacation at the time of the strike returned to work at which time he was solicited by Dispatcher Da- vidor to sign a statement saying that he did not want the Union or any other union to represent him. Blick wrote out the statement, signed it, and gave it to Davidor. Later on August 16 Davidor gave Blick's statement tb Errington who on the same day gave it to Hills with the other identical statements signed by Bernstein, Ravey, Melendy, Quinn, Jackson, Guernsey, and Davidor. On receipt of these statements, Hills wrote the -Union's busi- ness manager, Talavera,,as follows: Our company has received objective evidence which requires us to conclude that your Union no longer represents a majority of our employees. In such circumstances our attorneys have in- formed us that it would be illegal for our company to continue to recognize your union as the majority, representative of our employees. Accordingly and by this letter, we hereby withdraw recognition from your union as the representative of our employees for any purposes whatsoever. Respondent and the General Counsel stipulated that on August 16, 1983, the date of Respondent's withdrawal of recognition, the following 12 employees were em-, ployed in the appropriate bargaining unit herein- Andrus, Blick, Castillo, Jackson, McGiboney, Melendy, Frank Mormi, Gary Mormi, Ravey, Sunseri, - Vestnys, and Quinn. In dispute is the status of three employees: Aaron Bernstein, Joe Davidor, and David Guernsey. Respond- ent contends that each of them is a part of the appropri- ate bargaining unit, whereas the General Counsel urges that they were not part of that unit. The evidence con- cerning the status of Davidor and Guernsey is set out in detail and evaluated infra, but Bernstein's status is dis-r cussed in this section. Bernstein, a salesperson, has `only "very limited" con- tacts with the truckdrivers represented by the -Union '(Tr. 639-640). Only rarely does he communicate with them about work-related matters. Unlike the other employees' represented by the Union who, ar6 hourly paid employ- ees, Bernstein is paid a salary and there is no? showing whether this, salary is comparable to the amount earned by the employees represented by the Union. Likewise there is no showing that Bernstein received the same or comparable fringe employment benefits, i.e., vacation, sick leave, health benefits, etc., as those employees repre- sented by the Union. There is no evidence that Bern- stein's terms and conditions of employment were gov- erned by the 1979-1982 contract between Respondent and the Union. Indeed, since he was paid a salary rather than an hourly rate of pay and since the seniority list which Respondent sent the Union in July 1982 failed to include Bernstein 's name, it is a fair inference. that Bern- stein was not covered by the terms of the 1979-1982 contract Lastly it is undisputed that Bernstein only han- dled merchandise for the Company on those rare occa- sions when using his own motor vehicle or the,company pickup truck he delivered a special shipment to a cus- tomer. These circumstances have persuaded me that during the time material herein Bernstein did not have a sufficient community of interest with the other employ- ees represented by the Union so as to be included within the appropriate bargaining unit herein, even -though he voted in the Union's August 10, 1983 strike vote meet- ing. 10. The events of August 25, 1983 On August 25, 1983, Hills and Errington, in Hills' automobile, drove to where striker Andrus was picketing in front of Respondent's terminal. Hills, seated on the passenger's side, rolled down the window and' asked, "13.07 an hour does not seem so bad now, does it?" and without waiting for an answer stated • that the current trucking industry negotiations taking' place in San Diego, California, included an $11-an-hour wage proposal. Hills also stated that Respondent could go bankrupt if it did not get its proposal Andrus replied by stating that he had made his decision and walked away. The automobile followed Andrus and, when it pulled up alongside 'him, Hills, stated that Respondent needed relief especially in the areas of starting time-and overtime wages in order to compete in business against other companies. Andrus in- dicated that wages were not as important to him as the other contractual benefits McGiboney, another striker, who was picketing, joined Andrus at approximately this time. Hills- in the presence of McGiboney asked why Andrus was picketing when he could be working and stated that Andrus was not going to get anything by picketing. Andrus replied by,stating that he was sorry, _ but that he had made his decision and that he intended to continue to picket. McGiboney brought and end to the conversation by indicating that Andrus , and himself should not be talking' to Hills, but should be picketing and they walked away from the automobile. The auto- mobile -continued to move with them, and Hills asked what Andrus and McGiboney were doing picketing and when they were going to return to work for him. Larry Massoni, who was picketing, was on the other side of the automobile talking to Errington. He asked if Errington knew who had complained to the police about the pick- ets. Errington denied contacting the police. Hills got out of the automobile and walked around to the driver's side and told Massoni that he was the one who had tele- phoned the police and challenged Massoni to do some- thing about it. When it appeared that Hills and Massoni were about to have a fight, B J Painter, an organizer for the Union who was in charge of the picket line, who Just arrived at the site of the picket line; hastened over to BAY AREA-LOS ANGELES EXPRESS Hills' automobile, introduced himself to Hills, and with McGiboney's assistance calmed Massoni down. Hills at this time remarked that there were persons working for Respondent earning $13.07 an hour, while the pickets were standing in the hot sun. Hills also stated " that he had unsuccessfully tried to negotiate with the Union. Painter interrupted and stated that what Hills was saying would not do him much good since.he was talking to the rank-and-file workers. Painter asked why Hills did not talk with the Union's officials., Hills stated that he had tried to meet with them without success. Painter asked. whether Hills would agree to meet with Union Business Manager Talavera, if Painter arranged for a negotiation meeting to be held between them the next day. Hills an- swered in the affirmative, whereupon Painter left to ar- range this meeting. Shortly thereafter Painter made the arrangements for this meeting However, Painter was in- formed by Errington that Hills would not attend it. The above description of what occurred on August 25, 1983, is based on a composite of the testimony . of Andrus, McGiboney, Massoni, and Painter, whose testi- mony is not denied. Each impressed me in terms of their demeanor as sincere and conscientious witnesses when they testified about the above events. I recognize that there is some variance in their testimony concerning in- significant matters and that there is some confusion as to exactly when McGiboney and Painter arrived on the scene. This does not in my opinion impugn their testimo- ny. I am persuaded, however, that Ardrus' testimony that McGiboney and Painter were present at Hills' auto- mobile for virtually' the entire time is not correct. Rather, as described above, "the testimony of McGi- boney, Painter, and Massoni indicates that McGiboney and Painter arrived on the scene at different times after Hills had commenced talking to Andrus. 11. Hills' January 26, 1984 statement that the strikers could only return to work as nonmembers of the Union • After Frank Morini went out on strike, he filed for. un- employment compensation with the California Employ- ment Development Department. Respondent challenged Morini's entitlement to unemployment benefits. On Sep- tember 28, 1983, the department issued a ruling that Morini was ineligible for benefits because he had left work because of a trade dispute Morini appealed. On. January 26, 1984, a hearing was held on Morini's, appeal before Department Administrative Law Judge Rosenthal. Frank Morini represented himself. Gary Morini appeared as a witness for his brother. Respondent. was represented by its lawyer, Joseph Schwachter, and, President Hills appeared as a witness on behalf of 'Re- spondent During the hearing 'Frank -Morini in, response to, Attorney Schwachter's question, "Is it the reason that you have stayed out from work, since August.10 because, of this labor dispute with [Respondent],", testified,, "one of the reasons is that we cannot go back as a union member." Previously Frank Morini had testified that Hills, through dispatcher Davidor, had submitted a con- tract proposal to employees with the condition-that em-, ployees agree to go nonunion. Finally near the conclu- 1073 sion of the hearing when Frank Morini was cross-exam- ining President Hills, the following colloquy took place. MORINI: Well let me ask you one question, you got . . . a majority of the drivers are still out, can they come back as union members? HILLS: No. MORINI: In other words, we can come back, but it has to be as non-union members? HILLS: Yes, that's right B. Discussion and Analysis 1. Joe Davidor's supervisory status a. The applicable principles Under Section 2(11) of the Act, the term "supervisor," includes: [A]ny individual having authority, in the interest of the -employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or disci- pline `other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The burden of proving supervisory status rests on the party alleging that such status exists. Tucson Gas & Elec- tric Co., 241 NLRB 181, and cases cited therein. While the possession of'any one of the functions enumerated in Section 2(11) is sufficient to establish supervisory status, Section 2(11) requires, however, that a supervisor must perform these functions with independent judgment as opposed:to in a routine or clerical manner. Walla Walla Union-Bulletin v. NLRB, 631 F 2d 609, 613 (9th Cir. 1980);, NLRB v.' Harmon Industries, 565 F.2d 1047, 1049 (8th Cir. 1977); NLRB v' Security Guard Service, 384 F.2d 143, 147 (5th Cir. 1967). And isolated and infrequent in- cidents of supervision do not elevate a rank-and file em- ployee to supervisory level., NLRB v. Doctors' Hospital of Modesto, 489 F.2d 772, 776 (9th Cir. 1973). Finally, the Board, in interpreting Section 2(11), has been instructed that "[i]t is important for the Board not to construe su- pervisory status too broadly, for a worker who is deemed a supervisor loses, his organizational rights." McDonald Douglas -Corp. v. NLRB, 655 F 2d 932 (9th Cir. 1981); accord:. Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970) ("The Board has a duty to, employees to be alert not to construe supervisory status too, broadly because the employee who is deemed a supervisor is denied employee rights which the Act is intended to protect;');: Warner Co. v. NLRB, 365 F.2d 435,437 (3d Cir. 1966). , b. Background During the time material herein Respondent employed approximately 14 individuals who were represented by the,Union -and.covered by the"terms of the 1979-1982 contract. These persons were all experienced employees 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who were skilled in their profession .as truckdrivers or dispatchers As of August 1983 the least senior of these workers had been in Respondent's employ for approxi- mately 3-1/2 years The seniority of -the, other workers was as follows: four over 4 years; two over 5 years; and seven over 10 years: Due to their length of service and the routine nature of their work Respondent' s small com- plement of workers knew what they had to do each day and did it with only a minimum of supervision. The employee with the most seniority was dispatcher Davidor who had been in Respondent's employ since 1970 Initially Davidor was employed as a truckdriver, but since 1976 had been Respondent's dispatcher. Davi- dor's immediate supervisor was Respondent's vice presi- dent and general manager Errington , who was responsi- ble for the day-to-day operations of Respondent's San Francisco terminal Errington, whose office is five steps away from the terminal dock where the employees- in- volved herein work, spends 'at least 8 hours a day, 5 days a week at the- terminal and is only rarely away from the terminal, not having taken.a vacation in over 2-1/2-years and has only been absent on business for I or 2• days. On these occasion's Errington•` is inconstant telephone con- tact with the terminal. `- : _ - c. Davidor's authority to assignor responsibly direct employees using. independent judgment (I),The,evidence Respondent's' 14 employees represented by the Union during the tine rhaterial -herein consisted' of dispatcher Davidor, assistant -dispatcher . Guernsey, who besides as- sisting Davidor worked as a local utility driver,-tine local utility driver, nine 'local drivers', and two line drivers. The local drivers start work at 8 a.m. at which time they unload the' freight' which earlier that- morning the line dirvers had delivered to the terminal from Los Angeles. The local drivels then load their respective trucks with this freight and 'spend the remainder of the workday-de- liverrng it and making 'local pickups. The workday of the local drivers ends back iii: the terminal where they unload the freight which they have 'picked up locally that day: The two line 'drivers, who do not start work until early evening, deliver-the freight to the Company's Los Angeles terminal - Which-'the local drivers _' have picked up that day-and on their return trip from Los An- geles bring-the' freight which the local drivers will deliv- er the,following day. Respondent 'has divided', the -geographical area,*-m which it makes -pickup and -deliveries" of freight' into four different routes-Peninsula, East- Bay, Sacramento; and San Francisco. The nine local drivers' were assigned to one of 'these 'routes on a regular basis. 15 The only devi- ation from these regular route assignments occurs when a driver is absent or when :the amount of freight -on •one route is too heavy to handle for the regular route' driv- ers. In these situations Davidor assigns one of the utility 11 There is no evidence or contention that dispatcher Davidor_made these route assignments initially However, the question of whether Davi- dor possessed the authority to transfer drivers on a• permanent basis from' one route to another is discussed infra • , drivers to. temporarily work the route. t 6 However, in these situations if a driver on one of the other regular routes has an extraordinarily light workload, •Davidor.in- stead of using a utility driver will use this regular route driver to substitute for the absent driver or to work the other route because of the unusually heavy amount of freight This is a rare occurrence and Davidor makes such a temporary assignment to a„ regular route driver, rather than a utility driver, only if the regular driver is familiar with the new route. Also in making such a tem- porary assignment to one, of the regular route drivers, Davidor excludes from consideration those drivers whose trucks are. equipped with electronic lift gates be- cause it is company policy-that there be one such truck operating on each route. -Vice President-and General Manager Errington, who is responsible for the day-to-day operation of the termi- nal, arrives there each morning at the same time or shortly before the drivers start work. On his arrival- Er- rington.visits the dock area to check that the freight has- arrived from Los Angeles undamaged, that the days' de- livery invoices have , arrived, and that those shipments which have been marked as urgent on the shipping papers-are being loaded. Errington occasionally speaks to the drivers about these urgent shipments. And with re- spect to those shipments from Los Angeles which must be delivered into an area which Respondent, does not regularly make pickups or deliveries, it is Errington who decides whether Respndent should use one .of its own drivers to make these deliveries or to "interline" the shipments through another carrier. r v When Dispatcher Davidor arrives at work he removes the freight -bills and manifests from • the computer and checks these, documents and then separates the freight bills for delivery by route. When the drivers finish un- loading the freight which arrived earlier that morning from Los Angeles, they take the stacks of -freight bills which Davidor ha_s left for them for their particular routes. Then those drivers 'who, work a particular route will-divide their freight bills among themselves. For ex- ample, the drivers assigned to the San Francisco route take the San FranciscoI stack of freight bills left for them by Davidor'and split- them up between themselves so that each will have an equal share of deliveries. Each driver then determines the order in which he will make 16 Normally if urgent pickup or deliveries, referred to as "hot" loads, are required during the day, Davidor will dispatch the two utility driv- ers, Guernsey. and Quinn, to handle them In view of Guernsey's duty as assistant dispatcher, Davidor dispatches Guernsey only as a last resort 17 The above description of Ernngton's duties is based on Errington's testimony Andrus testified that the only persons who gave him instruc- tions were the dispatchers Frank Mormi testified that Ernngton infre- quently told the-drivers to unload-trailers, that usually he received his work, instructions from the, dispatchers and that Errington was not nor- mally present on the dock at the start of the workday and was there only 2 days a week The latter part of Mormi's testimony is inconsistent with the testimony of McGiboney and Vestnys who in effect testified that Er- rington was normally present when they reported for work Errington did not testify that he ever worded his conversations with the drivers in terms of instructions This is not surprising in view of the length of time that the drivers had been working for the Company The record estab- lishes that the drivers, due to the routine nature -of their work' and their long.expenence on the job, knew what had to be done and did it with a minimum of instruction BAY AREA-LOS ANGELES EXPRESS 1075 his deliveries, i 8 and then loads his truck with the freight in the order in which he has determined to deliver it.is Davidor, after sorting out the freight bills and check- ing the manifests, as described supra, spends the rest of his workday answering the telephone and performing various clerical duties.- He occasionally will load and unload trucks and use a forklift to move freight. Throughout the day, customers telephone to inquire about their deliveries or to make arrangements for Re- spondent to' pick up freight. It is Davidor who usually handles these phone calls and who records the requests for pickups on the dispatch sheet. It is Davidor who in- forms the drivers.about these pickups. Daily at 2:30 p.m., pursuant to company policy, each route driver tele- phones Davidor, who assigns the pickups which have been telephoned in to him that day. He makes these as- signments to those drivers who are nearest to the cus- tomers and who have a type of truck large enough to handle the pickup Later that day, • pursuant to company policy, the drivers, after finishing their pickups, tele- phone Davidor in the event that there is another driver who needs help with his pickups, or that there is a cus- tomer who has phoned in with a late pickup. Also the route drivers at the end of their workday will notify Da- vidor that they are still waiting for a customer's pickup which will make them late in returning to the terminal. Usually Davidor instructs them to wait for the pickup, but if the hour is so late that any further delay will delay the truck from leaving for Los Angeles that night, Davi- dor instructs the driver to return immediately to the ter- minal with his freight. The two line drivers telephone Davidor between' 5 and 5.30 p in. to get their trailer numbers and the information they need to deliver their loads. The line drivers will also phone Davidor or Errington at home if they are de- layed on account of the breakdown or bad weather.20 And if any of the local route drivers are delayed due to a breakdown or other reasons Respondent's policy is that they telephone, the dispatcher and notify him of the situa- tion. 18 Vestnys testified that on rare occasions Davidor gave him instruc- tions about the order in which Davidor wanted Vestnys to make his urgent deliveries Vestnys' testimony in this respect is not corroborated Not one of the several other drivers called by the General Counsel to testify about Davidor's supervisory status indicated that Davidor engaged in this type of supervision For this reason and because Vestnys' testimo- nial demeanor was poor when he testified about this matter, I have not credited this testimony 11 Vestnys and Castillo testified that Davidor occasionally told them if he thought that their freight was not properly loaded so as to' be in danger of being damaged and instructed them to reload it Davidor testi- fied that while on the dock if he observed that something breakable had been improperly loaded or that it was in danger of being damaged, he called this to the driver's attention and suggested that the driver reload the merchandise so that it would not be in danger of being damaged Da- vidor further testified that other drivers also made similar suggestions to their fellow drivers Castillo corroborates this aspect of Davidor's testi- mony 20 Line driver Andrus testified that, on one occasion when bad weath- er made it impossible to use the highway that he normally used to get to Los Angeles, he phoned Davidor for advice and Davidor told him to use another route Andrus further testified that one of the reasons that he contacts the dispatcher about truck breakdowns or delays caused by the weather is so that the dispatcher can relay this information to the cus- tomers who are waiting for the freight Under the terms of the 1979-1982 contract all the truckdrivers were obligated to work 1 hour of overtime daily. Normally all of them remain to work overtime. In those instances when the drivers observed there was no need for all of them to work overtime because of a light workload, some of the drivers voluntarily punched out at 5 p.m. In those instances when one or more of the driv- ers were not able to work overtime because of personal reasons, despite the fact that they were needed, Davidor helped unload the trucks and the remaining truckdrivers worked longer in order to finish the work. In other words whether drivers worked overtime was handled in a cooperative and on a voluntary basis.21 (2) Ultimate conclusions I am persuaded that when Davidor assigned employees that he exercised this function in a routine or clerical manner without exercising the type of independent ,judg- ment required under Section 2(11) of the Act. The local route drivers worked in prearranged geographical areas and the drivers themselves established the order of their deliveries. And when the route drivers telephoned Davi- dor for their pickups, Davidor did not exercise any dis- cretion in determining which driver would make the pickup, but assigned it to the driver with a suitable truck' closest to the customer's place of business. Davidor's dis- patching of the local utility drivers, Quinn and Guern- sey, was controlled by the arrival of a customer's order which Davidor simply relayed to the drivers. Since Guernsey was the assistant dispatcher and as such was needed in the terminal to assist him, Quinn was dis- patched first in order when the services of a utility driver was required Regarding the work assignments of the two line drivers, there is no evidence that in issuing them their trailer numbers and other information con- nected with their nightly loads, Davidor was performing anything more than a ministerial function or was other- wise exercising his independent judgment. Also in deal- ing with situations which required a deviation from the terminal's standard operating procedure in making work assignments, there is a lack of evidence that Davidor ex- ercised the type of discretion which can be characterized as independent judgment as that phrase is used in Section 2(11) of the Act. Thus, when a driver is needed for one of the regular routes due to the absence of a regular route driver or an extraordinary heavy workload, Davi- dor routinely assigns one of the two utility drivers to this route for the day and, when the workload on one of the other routes was very light, may assign this work to one of the route drivers on the light route provided that the route driver knows that route and did not drive a truck with an electric lift gate. ' I am also persuaded that Davidor's direction of the drivers consisted of nothing.more than relaying informa- 2i.The above description of the manner in which overtime is worked is based on Davidor's testimony To the extent that the testimony of Vestnys, Castillo, and McGiboney warrants an inference that Davidor re- quired employees to work the hour of daily' overtime required by the contract, even when employees did not want to do so, I have rejected their testimony because Davidor on this 'subject impressed me as a more credible witness - 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion from the customers to the drivers Other than. as noted, infra, there is no evidence that Davidor is in- volved in the manner in which the drivers pick up and/or deliver their merchandise. Although Davidor suggests that drivers reload their trucks if he observed that freight was improperly loaded so that it was in danger of being.damaged, there is no evidence- that the drivers faced disciplinary action if they refused to do this. In fact it is undisputed,that the drivers themselves made similar suggestions to their fellow drivers Also, the fact that on one occasion Davidor instructed a line driver to take a detour when that driver told him that inclement weather had made it impossible to take his usual route to Los Angeles does not establish supervisory status under the Act, -but at most is a common sense re- sponse to an isolated emergency situation. Likewise the fact that Davidor allows Sacramento route driver Jack- son to drive his truck home at the` end of the workday instead of back to the terminal is simply a common sense response to that particular situation 22 Lastly, when a driver telephones Davidor at the end of the workday and reports a delay in a customer's pickup, Davidor's re- sponse is 'routine and automatic. A short delay is auto- matically tolerated. However,' where the time reveals that a delay will hold up the departure of the Company's truck carrying the overnight freight to Los Angeles, Da- vidor automatically' informs the driver to immediately return to the terminal - It is for the foregoing reasons that I find that the Gen- eral Counsel has failed to establish that Davidor exer- cises the authority to assign or direct employees, as those terms are defined in Section 2(11) of the Act. d Davidor's authority to transfer employees or effectively to recommend such action - The General Counsel presented - the testimony of driv- ers Vestnys, Castillo, McGiboney, and Gary •Morini con- cerning their job transfers. Their testimony follows In approximately 1982 Vestnys was transferred from his Mann route to the position of utility driver under these circumstances. Quinn, who lives in Marin County, asked Vestnys if he could have Vestnys' Marin route. Vestnys indicated he had no. objections to switching jobs with Quinn. Shortly after this Davidor told Vestnys that the Marin route would not be given to Quinn if Vestnys wanted to , keep it . Vestnys • stated that it did not make any difference to him and that ! if Quinn wanted the Marin route he. should be -given it . Thereafter Vestnys was transferred from his newly acquired . utility driver position to the San Francisco route when one of the drivers on .that route retired . Vestnys. testified that after filling in for the retired driver for I month Davidor told him that he had been doing a,good job, on that route and that "he. [Davidor] was going to leave me on that route." 22 Jackson's route was situated approxi'mately' 80 miles from the Com- pany's terminal, thus the record reveals, that. when he finished his deliv- eries he would not have arrived back to the terminal until approximately 7 or 7 30 p m Accordingly, the understanding between Davidor and Jackson that Jackson could drive his truck home at the end of the work- day was not a matter involving, independent judgment but simply a matter dictated by common sense In approximately 1979 Castillo was transferred from utility driver to the Peninsula route In response to the General Counsel's, question, "Who transferred you from [utility assignment] to the Peninsula assignment?" Castillo testified, "Joe Davidor." In approximately 1981 McGiboney was transferred from utility driver to the East Bay -route when due to an increase in business on that route Respondent decided that a third driver was needed there. McGiboney testi- fied that it was Davidor who notified him that he would be the third man on the route. In approximately 1978 Gary Morini was transferred from the East Bay to the Peninsula when freight in- creased on that route. When asked who spoke, to him about this transfer, Morini testified that he thought that it was Davidor and that Davidor told him. "I will put .you on this route. You have ran it before and you know a lot of the customers, and it is always a good policy to keep good relations that way." - In summation, the -General Counsel apparently urges that Davidor's authority to transfer employees is estab- lished by the following circumstantial evidence: Vestnys' testimony that in connection with his transfer to the San Francisco route it was Davidor who told him that "he [Davidor] was going to leave me on that route"; Castil- lo's conclusionary testimony that Davidor transferred him to the' Peninsula route; and Gary Mormi's testimony that when he was transferred to the Peninsula route he thinks that it was Davidor who told him, "I will put you on this route." Davidor, on the other hand, testified that the decision to transfer drivers from one route to another was made by Vice President and General Manager Er- rington, not Davidor, and that Errington selected a par- ticular driver for a particular route based on the driver's familiarity with that route. When he gave this testimony Davidor's demeanor was good. The fact that when Davi- dor informed certain drivers of their transfers that he gave them the impression by what he said that it was Davidor. who made that decision to transfer them is not sufficient to impugn his testimony that he was .merely carrying out Errington's orders It is for the foregoing reasons that I find that the Gen- eral Counsel has failed to establish that Davidor exer- cised the authority to transfer employees or effectively to recommend such action. g. Davidor 's authority to adjust employees ' grievances or to effectively recommend such action The evidence pertinent to Davidor's alleged authority to-adjust employees' grievances or to effectively recom- mend such action follows. - Early in 1983 Vestnys complained to Davidor about not being paid overtime when he worked during his lunch- hour. Davidor responded by. referring to an agree- ment- between the employees and President Hills reached in November 1981 wherein the employees agreed to work during their lunch hour without compensation In April 1983 Union Respresentative Rodriguez tele- phoned the terminal and complained to Davidor that Re- spondent that day violated its contract with the Union by hiring a casual driver from the street rather than from BAY AREA-LOS ANGELES EXPRESS the Union's hiring, facility. Davidor responded by stating that the casual in question was a nephew of, one of Re- spondent's regular drivers and that it.would not happen again. Early in, 1983 or late 1982 on two or three occasions Union Steward Vestnys complained to Davidor that non- employees were driving forklifts on 'the dock of the ter- minal and told Davidor that this was a violation of the union contract Davidor responded by stating that "it was isolated incidents and it would not happen again." In 1982 and 1983 Union Steward Gary Morini on ap- proximately 20 different occasions complained to Davi- dor that employees from other companies were using Respondent's forklifts which violated the union contract. In response Davidor some of the time stated, "I will take care of it," and other times told Morini to tell the person to get off the forklift There is no evidence that Davidor participated for Re- spondent in the adjustment of grievances under the 1979-1982 contractual grievance procedure In summation, the record reveals that an employee on one occasion brought his work complaint to Davidor and that the- union business agent on one occasion com- plained to Davidor about a contract violation and that the union stewards on a number of occasions complained to Davidor about alleged contract violations. However, under no stretch of the imagination 'do Davidor's re- sponses to these complaints warrant an inference that he possessed the authority to adjust employees'. grievances as that phrase is used in Section 2(11) of the ct or that he possessed the authority to effectively recommend such action. The record at most indicates that Davidor did not have the power to do anything more than merely attempt to pacify the complaining employees or business agent. f Davidor 's authority to discipline employees or effectively to recommend such action The record establishes , despite the General Counsel's contention to the contrary , that Davidor does not have the authority to discipline employees or effectively. to recommend such action . The agreed-upon procedure for disciplining employees was set forth in the 1979-1982 contract . Under the contract , except in cases of certain egregious misconduct , Respondent was required to have issued at least one warning letter to the employee, with a copy to the Union, within the preceding 9-month period in order to discharge or suspend the employee . A verbal warning or reprimand had no effect on the employee's disciplinary. record . The record reveals that all the warn- ing letters issued to employees by Respondent were signed by Errington who also conducted the investiga- tion which led up to the issuance of the letters. There is no evidence - that Davidor ever issued - a warning letter and the sole evidence that Davidor even verbally repri- manded an employee is that, according to Castillo, 'once in 1981 or 1982 Davidor orally reprimanded .him for fail- ing to call in at 2:30 p.m . to see whether there -were any pickups. Davidor denies that he ever verbally reprimand- ed Castillo for this, but testified that he simply asked Castillo why he had failed to telephone in at 2.30 p.m as^ required . In any event, there is no showing that this oral 1077 reprimand had any impact on Castillo's employment status. Quite the opposite, under the terms of the existing 1979-1982 contract, this verbal reprimand had no impact whatsoever on -Castillo's employment status. Lastly, there is no evidence that Errington in issuing disciplinary letters to employees or in otherwise disciplining employ- ees relied in whole or in part on Davidor's recommenda- tions or that Davidor even made any recommendations to him It is for the foregoing reasons that I reject the General Counsel's contention that Davidor possessed the author- ity to discipline employees or to effectively recommend such action. g. Davidor's authority to hire or effectively to recommend the hiring of employees The General Counsel urges that Davidor effectively recommended 'the hire of drivers Vestnys and Andrus and hired casual employees. The evidence pertinent to these contentions is set forth and evaluated herein. In 1979 Vestnys was hired after having previously worked as a truckdriver for one of Respondent's sub- haulers, Mike Fisher Vestnys testified that he was hired under the following circumstances . Fisher submitted a recommendation on Vestnys' behalf Vestnys spoke to Davidor and told him that he had heard Respondent needed a driver and asked Davidor for a job Davidor responded by stating he would "think about it." On a later date Davidor telephoned Vestnys and told him that he was hired. Davidor testified that when Vestnys asked about a job that Davidor told him there might be a position open for him, but that Davidor would have to speak with Erring- ton _ about the matter. Davidor further testified that when he told Errington that Vestnys had asked about a job, Errington responded by stating that since subhauler Fisher and another person had said that they thought Vestnys was capable of doing a good job for Respond- ent, that •Errington thought Vestnys would be a good man to hire for Respondent's job vacancy and instructed Davidor to hire him. Errington testified that Davidor did not recommend that he hire Vestnys, but that Errington decided to hire him because Respondent's subhauler Fisher had indicated that he thought highly of Vestnys and that Errington himself was personally familiar with Vestnys' work as occasionally Vestnys worked for Respondent as a casual. So when Vestnys indicated he wanted to work for Re- spondent, Errington testified he decided to hire him. In testifying. about - the circumstances surrounding Vestnys' hire, Davidor' and 'Errington impressed me as credible witnesses. I also note that even assuming that Davidor told - Vestnys that "he would think about" Vesinys' employment application, as Vestnys testified; rather than specifically stating that he would have to refer the matter to Errington; as Davidor testified, that Vestnys' testimony is not inconsistent with the testimony of Errington and Davidor that it was Errington who de- cided to hire Vestnys based on Errington's independent evaluation of Vestnys' qualifications and not on Davi- dor's recommendation. - 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In January 1980 Andrus was employed by Respondent as a line driver. Previously he was employed by United Truck Lines, a trucking company located across the street from Respondent's terminal . Late in 1979 Andrus spoke to Davidor and told him that work was slow at United Truck Lines, that as a result he was not working steady and was looking for steady work and. asked whether Respondent had any job 'openings Davidor went to Errington and told him that Andrus was looking for steady work. Errington replied that Respondent could not use him on a full-time basis but that Davidor could use him as a casual driver when regular drivers were either sick or on vacation and instructed Davidor to use him in that capacity. Thereafter Andrus worked intermittently on a casual basis for Respondent. Then in January 1980 when Andrus learned that one of Respond- ent's line drivers was quitting, he applied for this job. Andrus testified that in January 1980 when he learned that one of Respondent's line drivers was quitting he spoke to Davidor and asked about his chances of getting the line driver's job and Davidor responded by stating: "As far as I'm concerned you're hired, but I'll have to talk to Ned Hills." Andrus further testified that later the same day Davidor telephoned him and stated that "they had hired me." Davidor testified that when Andrus spoke to him in January 1980 about the vacant line driver's job that Da- vidor told him that Davidor would have to clear his em- ployment with Errington. Davidor further testified that he then went to Errington and stated that Andrus wanted to replace the line driver who was quitting and asked whether Errington wanted Davidor to hire him. Errington answered in the' affirmative He explained to Davidor that his reason for hiring Andrus was that he thought Andrus had been doing a good job for the Com- pany on those occasions he had worked for it as a casual driver. In testifying about the circumstances surrounding Andrus' employment, Davidor-impressed me as a credi- ble witness. Even assuming that Davidor told Andrus that "as far as I'm- concerned you are hired but I'll have to talk to Ned Hills," as Andrus testified, rather than that he would have to clear Andrus' employment with Er- rington, as Davidor testified, Andrus' testimony is not in- consistent with Davidor's testimony that it was Erring- ton who made the decision-to employ Andrus based on Errington's independent evaluation of Andrus' qualifica- tions and not on Davidor's recommendation Regarding the employment of casual drivers, the record reveals that when Respondent's regular 'drivers are absent from. work on some occasions Davidor will hire temporary drivers, known as casuals , to take their places.. In hiring these casuals Davidor relies on a list of drivers who have worked for Respondent as casual driv- ers and who are all equally qualified. In selecting, a casual Davidor randomly goes through. his list of names and if the first person he telephones is not 'home or oth- erwise unavailable Davidor picks another man at random from the list until he succeeds in employing someone for the casual work. Under the circumstances;, I am of the opinion that in hiring casuals Davidor does not exercise independent judgment within the meaning of Section 2(11) of the Act Based on the foregoing I find that the General Coun- sel has failed to prove that Davidor effectively recom- mended the hire of Vestnys or Andrus or that in hiring casuals Davidor exercises independent judgment within the meaning of Section 2(11) of the Act I further find that the record does not establish that Davidor has the authority to either hire or to effectively recommend the hire of employees. h. Davidor's authority to suspend, layoff recall, promote, discharge, or reward employees or to effectively recommend such actions There is no contention or evidence that Davidor has any of the above-described authority. i. Ultimate conclusion as to whether Davidor possesses any of the statutory authority set forth in Section 2(11) of the Act I am of the opinion for the reasons set forth supra, that the General Counsel, has failed to establish that Davidor possesses any of the indicia of statutory authority enu- merated in Section 2(11) of the Act. - j Secondary indicia of statutory authority 1. Davidor's authority to refuse employees permission to take time off from work Respondent's drivers take their requests for time off to Davidor, whether the requests involve personal time off, i.e., medical appointments, or requests concerning one of the three personal holidays under the terms of the 1979-- 1982 contract Vestnys and Andrus testified that when they have asked Davidor for permission to be absent for personal business on a few of these occasions he has re- fused their requests. Other than this conclusionary testi- mony they offered no specifics about their conversations with Davidor during which he denied their requests. McGiboney testified that once Davidor refused to grant his request to be absent from work for personal business and this occurred in December 1982 when, in response to McGiboney's request, Davidor told him that he could not give him the day off because -Respondent was either too busy or that too many other drivers were going to be off. McGiboney also testified that occasionally Davi- dor refused to allow him to take one of his contractual personal holidays on the date he wanted. Other than this conclusionary testimony McGiboney offered no specifics of his conversations with Davidor during which Davidor refused to allow, him to take a personal holiday on the day .requested :Lastly Castillo testified that occasionally Davidor refused-to allow him to take one of his contrac- tual personal holidays on the date requested. However; when Castillo was asked to give a more specific account of these conversations, he was unable to do so and was vague and evasive., - Davidor testified when the drivers advised him that they intended to be absent on a certain day, either for personal business or to take one of their contractual per- sonal holidays, that Davidor never told any one of them BAY AREA-LOS ANGELES ' EXPRESS ' •1079 that they could not take the requested day off However, if the workload during the time in question was heavy enough so that the employee's absence would adversely affect Respondent's business operations, Davidor testified that he asked whether the employee could postpone his absence to another day when it would be more conven- ient for the Company. If the employee answered in the negative, Davidor testified that he did' not press the matter any further and that if in fact the employee went ahead and took the day off that the employee was not disciplined. Since Davidor impressed me as a more credi- ble witness than either Andrus, Vestnys, Castillo, or McGiboney when they testified concerning the subject matter involved- herein, .1 have credited Davidor' s testi- mony. I therefore find that Davidor did not refuse em- ployees' requests for time off from work. Castillo, who-was eligible for 3 weeks of paid vaca- tion, asked 'Davidor whether he could take an extra week of vacation so that he could leave the country and visit his family. Castillo testified that Davidor replied that he would think about the request and that 1 week later Davidor told him that "it was all lright." Davidor testified that when Castillo made this request Davidor told him that it would depend on what President Hills had to say about the request and Davidor spoke to Hills about the matter and Hills instructed Davidor to let Cas- tillo have the additional week of -vacation if business was slow at the time. Davidor impressed me as a credible witness when he gave his testimony. I therefore find that in agreeing to let Castillo have an additional week of va- cation Davidor was merely following Hills' instruction. (2) Miscellaneous Although Davidor was classified by Respondent as its dispatcher and -Respondent's other employees refer to him by this title, Davidor carried business cards which identified him as Respondent's 'vice president of oper- ations and terminal manager. These cards which were imprinted with the same logo as the Company's other business cards were ordered by Davidor from the same printer which does Respondent' s 'printing and the cards were in fact paid for by Responde'nt.23 Davidor was not the Company's vice president of operations or its termi- nal manager and although some of the drivers during the period from 1979 to 1983 observed these cards and kidded Davidor about them, no one from management knew about the cards until late in August 1983 when Er- rington, upon learning of the cards, confiscated them and verbally reprimanded Davidor for having them' printed. Davidor testified that the reason he had-the cards printed was so he could use them to impress his friends; Respondent is required by law 'to certify that its truck- dnvers possess the skills to operate its trucks (Certifica- tion of Road Test) and -have successfully completed the written examination required by `the - Motor Carrier Safety Regulations (Certification of Written - Examina- tion). Respondent issues drivers.a card entitled "Certifi- cation of Written Examination" stating that they ' have 23 The cards which were ordered by Davidor himself were delivered with a shipment of other printed material and the cosi was included in the same invoice as the other printed materials ' successfully completed the written examination required by the Motor Carrier Safety Regulations. A representa- tive of Respondent is-required to sign the aforesaid certi- fications as well as the cards which Respondent issues to the drivers showing that they have passed the written examination . Between 1977 and 1983 the certifications for at least 10 of the truckdrivers were signed by Davi- dor who also signed the cards issued to the drivers. When Davidor signed these certifications and cards he signed them as Respondent's "vice-president of oper- ations." Virtually all the drivers who received said certi- fications and cards were employed by Respondent during the time material to this case. There is no direct evidence that either Errington or Hills knew that Davi= dor had been signing the certifications or cards as the Respondent's vice president of operations. Nor does the circumstantial evidence warrant such an inference. Davi- dor signed such certifications and cards as vice president of operations pursuant to instructions from Ben Joyce who, in late 1977, was hired by Respondent to bring its certification records up to date after Respondent failed to pass a Department of Transportation audit. Thereafter whenever Davidor signed the certifications and cards, he signed them as Joyce in 1977 instructed him. Although Davidor was represented by the. Union as part of the 1979-1982 contractual bargaining unit and was paid the wages and received all of the other benefits called for -under the terms of that contract and was a member of the Union who attended the union meetings dealing with the Union's, representation of Respondent's employees, Davidor received certain additional benefits of employment from Respondent which the other em- ployees did not receive. Besides being paid the highest contractual hourly rate of pay. and overtime pay as called for by the contract, Davidor was paid a monthly salary, of- $350. When business was slow, usually on Thursday, afternoon, Davidor was permitted to'take part of the- day off without any loss of-pay. Davidor was al-. lowed to use one of 'the Company's pickup, trucks to drive to and from- work daily and -for his own personal use during his nonworking hours and was allowed to op- erate it for, his personal use using gas from the Compa- ny's gas pump. - Davidor, before taking the local- drivers' weekly time- cards and the line drivers' ' trip reports to Errington, checked them for accuracy -and initialed them to indicate to Errington that he had checked them. After reviewing the cards Ernngton then sent 'them- to the bookkeeping department. . . • " ' • , ' . - r - In 1983 Davidor attended' a business convention with Hills because Hills thought that it' would be a good idea for Davidor. to meet face-to-face with some of Respond- ent-'s customers" whom Davidor had been talking to-over the telephone-for the- past- several years: In 1982 Davidor went on, an overnight trip twith Errington to visit one of Respondent's larger- accounts :because it was having pickup and delivery problems and -Errington felt • that it was advisable under the circumstances that Davidor meet personally with the person from that company whom' he dealt with- daily concerning the pickups and deliveries. Also the record reveals that early in 1983 Da- 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vidor spent 3 days at the terminal of BJD Trucking Company, the nonunion trucking company in Los Ange- les owned by Hills, where he worked as a dispatcher in place of the regular dispatcher who was absent. Lastly, Vice President and General Manager Erring- ton, who is responsible for Respondent's daily oper- ations, leaves the terminal before the drivers return to unload their trucks. (3) Ultimate conclusions regarding secondary indicia The General Counsel contends that the above-de- scribed secondary supervisory indicia show that Davidor is a statutory supervisor . However, "secondary indicia of supervisory status . . . are in themselves not control- ling." Memphis Furniture.Mfg. Co., 232 NLRB. 1018, 1020 (1977). Accord: St. Alphonsus Hospital, 261 NLRB 620 (1982). See also NLRB v. Harmon Industries, -565 F.2d 1047, 1049 (8th Cir. 1977) (in order to be held a su- pervisor, independent judgment contemplated by Section 2(11) "must be exercised with respect to one of the enu- merated functions under the statute and not with respect to some other aspect of the individual's work").- Thus, where, as here, there is no showing that Davidor pos- sesses any of the authority set forth in Section 2(11) of the Act the several miscellaneous secondary indicia, supra, pointed to by the General Counsel are insufficient to support a finding of supervisory status. Moreover, a close examination of the alleged secondary indicia relied on by the General Counsel establishes that, under the circumstances of this case , whether viewed separately or together they do not warrant an inference that Davidor was a statutory supervisor . This conclusion is based on the following considerations. Davidor routinely okayed drivers' requests for time off and- was without authority to expressly refuse the re- quests. Thus a driver was not disciplined or otherwise reprimanded if he ignored--Davidor's suggestion that he take another day-off rather than the one the driver re- quested. And in the matter of Castillo's extra week of va- cation, Davidor merely acted as President Hills' conduit. Although Davidor checked the employees' timecards for accuracy, Vice President and General Manager Er- rington conducted an independent check of the cards prior to sending them to the bookkeeping department. The fact that in connection with his duties as dispatch- er. Davidor once attended a business convention with President Hills and on another occasion visited a custom- er's premises with .Vice President and General Manager Errington hardly indicates supervisory status nor does the fact that Davidor was once assigned by Hills to work as a dispatcher for 3 days at another company owned by Hills. The fact that Davidor receives substantially more money than the other employees and receives other em- ployment benefits they do not receive is not inconsistent with employee status. Thus, Davidor was the Company's most senior employee who due to the nature of his job was required to work. substantial amounts of overtime. I also note that the law is settled that the disparity of com- pensation as well as other employment . benefits cannot be "accorded litmus paper significance in the absence of solid evidence or possession of supervisory responsibil- ity." Oil Workers v. NLRB, 445 F.2d 237,242 (D.C. Cir. 1971). The fact that if Davidor, is not a statutory supervisor that the truckdrivers would have no supervision during the part of the workday when they unload their trucks does not warrant an inference that Davidor is a statutory supervisor where, as here, only a limited part of the em- ployees' working time is involved and the work involved is routine work performed by a small number of workers all of whom are veteran employees with several years of experience working for the Company In addition the record reveals that Errington when he is not present at the terminal can be reached by telephone in the case of an emergency. Although Davidor in connection with the truckdriv- ers' certifications represented - himself as Respondent's vice president of operations and on his business cards represented himself as the terminal manager as well as vice president of operations, there is insufficient evidence to establish that Respondent authorized or ratified this conduct . In any event the law is settled that "whether an individual is a supervisor within the Act's. definition cannot be determined simply by referring to a job title." Ross Porta-Plant, 166 NLRB 494, 496 (1967). Lastly I note that the several secondary indicia relied on by the General Counsel to show that Davidor is a statutory supervisor are more than offset by the undis- puted evidence that during all times material to this case Davidor was a• member of the Union who was represent- ed by the Union in the same bargaining unit as Respond- ent's truckdrivers and whose terms and conditions of em- ployment, like the truckdrivers', were governed by the terms of the 1979- 1982 contract and who, like the other employees covered by that contract, attended union meetings where matters concerning the employees' terms and conditions of employment were discussed. It is for all the foregoing reasons that I am of the opin- ion that the various secondary indicia of supervisory status relied on by the General Counsel fails to establish that Davidor is a supervisor within the . meaning of Sec- tion 2(11) of the Act. ' 2. David Guernsey's supervisory status David Guernsey is Respondent 's assistant dispatcher He assists dispatcher Davidor and takes Davidor's place when Davidor is absent . The General Counsel urges that Guernsey is a supervisor within the meaning of Section 2(1,1) of the Act. This argument is based on the further contention that Davidor is a statutory supervisor . Since I have found , supra, that Davidor is not a supervisor but a rank-and-file employee, it follows that the General Coun- sel has failed to establish that Guernsey is a statutory su- pervisor . I therefore find that during the time material herein that Guerney who was represented by the Union and covered by the 1979-1982 contract was a rank-and- file employee. 3 Hills threatens Vestnys As I have found supra, on an unknown date between April and June 1983, President Hills, while on the Com- BAY AREA-LOS ANGELES EXPRESS pany's dock, spoke to Michael Vestnys, a truckdriver who was a union steward , and told him that if he did not stop "rousing up"24 the drivers, that the drivers would "all be out of a job." Vestnys replied by stating that Hills should give the other drivers credit for having their own thoughts and convictions on the subject of the Union's activities at the terminal . Previously Vestnys had spoken out against Respondent's contract proposals at union meetings. , The General Counsel contends that Hills' threat vio- lates Section 8 (a)(1) of the Act because it has a reasona- ble tendency to interfere with the right of Vestnys to speak against Respondent's contract proposals when talk- ing with his fellow employees. Respondent urges that Hills' threat is too vague to constitute a,violation of Sec- tion 8(a)(1). Viewed in the context in, which this threat was made`-Vestnys' public opposition to Respondent's con- tract proposals-I am persuaded that Hills' above-de- scribed statement on its face 'was reasonably calculated to lead Vestnys to believe that it was a threat aimed at dissuading him from continuing to express his opposition- to Respondent's contract proposals . As a matter of fact Vestnys' reply to the threat makes it abundantly clear that he felt that it was directed against his outspoken op- position to 'Respondent's contract 'proposals . It is for these reasons that I find Respondent violated Section 8(a)(1) of the Act when sometime between April and June 1983 President Hills threatened employee Vestnys that Vestnys and the other drivers would lose their, jobs if Vestnys succeeded in persuading the other drivers not to support Respondent's contract proposals. 4. Hills deals directly with employees, threatens them, and promises them benefits In the latter part of July 1983 Hills and Errington held an impromptu meeting in Errington 's office with six of the Company's - drivers-McGiboney, Gary Morini, Vestnys, Melendy, Ravey, and Castillo-who stayed for various lengths of time. More than one discussion oc- curred. Errington talked to some employees while Hills_ talked to others . Hills and Errington told drivers that Repondent was suffering from serious financial problems, was losing $10,000 monthly, and asked them for ideas or suggestions on ways the Company could save money. It was also stated that it was very important for the drivers to talk to their union representatives and persuade them to move off "the dime", on Respondent's contract pro- posals. Errington stated that Respondent could not afford to pay the level of benefits being proposed by the Union. In addition to these undisputed statements made to em- ployees during this meeting, Hills, as I have found supra, in his several conversations with employees also stated to one or more of the employees that if the Union failed to accept Respondent's contract proposals he would be forced to close the doors of the Company because of its poor financial condition and he asked the employees to work for Respondent without union - representation Hills 24 The 1964 college edition of Webster's New World Dictionary defines "rouse" as follows "to stir up, as to anger or action , excite " 1081 also told employees that one of the reasons Respondent was losing money was the expense of the Union's health and welfare plan and stated that if the employees went nonunion Hills would give them an equal or better health and welfare plan than the Union was currently of- fering; that Hills intended to increase the drivers' pay to $14 per hour; and that the drivers could buy their own trucks and haul for Hills as owner -operators and that the drivers who wanted to buy their own trucks would be given financial assistance by Hills in purchasing their trucks It is the position of the General Counsel that these statements violated Section 8(a)(1) and (5) of the Act. I agree. Here Hills did more than urge employees to prevail on the Union to accept Respondent 's bargaining demands. Hills impressed on the employees that if the Union re- fused to accept Respondent 's contract proposals the em- ployees would lose their jobs and Respondent would op- erate nonunion ; he stated that if the employees agreed to work nonunion Respondent 'would grant them a health and welfare plan which ' was as good or better than the plan being currently offered by the Union , increase their rate of pay, and would help those drivers who wanted to work as owner-operators purchase their trucks. Hills' aforesaid threats and promises of 'benefits on the face were intended to exert pressure on the employees to force the Union to accede to Respondent 's bargaining position. In effect, Hills was attempting to wean the em- ployees away from the Union and to deal directly with' them concerning matters on which Respondent was obli- gated 'to bargain with the Union. Or phrased another way, Hills' threats and promises were reasonably calcu- lated to impress on the employees that their ' continued employment would be adversely affected by the Union's contract demands and that they would do better for themselves as employees without the Union representing them. By engaging in such conduct Respondent through its President Hills not only interfered with employees' Section 7 rights in violation of Section 8(a)(1) of the Act, but also undermined the Union and its bargaining posi- tion in violation of Section 8(a)(5) and (1) of the Act. Based on the foregoing I find that in late July 1983 Respondent, through its President Hills, violated Section 8(a)(1) and (5) of the Act by engaging in the following conduct : dealing directly with employees represented by the Union , threatening employees that if the Union did not accept Respondent 's contract proposal Respondent would close its doors and operate nonunion; promising that if -the employees worked without union representa- tion Respondent would increase their wages, grant them a health and welfare plan which was as good or better than their current plan, and assist them financially in buying their own trucks if they wanted to work for Re- spondent as owner-operators.25 25 I realize that the above -described threats while alleged in the com- plaint as having violated Sec 8(a)(l) of the Act were not specifically al- leged to have violated Sec 8(a)(5) Only Hills' promises of benefits were alleged to have violated Sec 8(a)(5) of the Act , as well as Sec 8(a)(1) However, "it is well established that a violation not alleged in the com- plaint may nevertheless be found where, as here, the unlawful activity was related to and intertwined with the allegations of the complaint, and the matter was fully litigated before the Administrative Law Judge " Doral Hotel & Country Club , 240 NLRB 1112 fn 3 (1979) 1082 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD In concluding that Respondent violated the Act when Hills stated that if the Union did not accept Respondent's contract proposals'he would be forced to close the Com- pany's doors and operate nonunion because of the Com- pany's poor financial condition, I have considered 'Re- spondent's argument that this statement was protected by Section 8(c) of the Act because Hills "did nothing more than objectively predict the economic consequences which might reasonably be expected to result from full. implementation of the -Union's excessive demands." I reject this contention for these reasons. In NLRB v. Gissel Packing Co., 395 U.S. 575, 618-619 (1969), the Su- preme Court established the standard by which employer predictions about. the effects of unionization , such as Hills', are to be assessed. Such predictions . .. must be carefully phrased on the basis of objec- tive fact to convey an employer's belief as to de- monstrably probable consequences beyond his con- trol . . . . If there is any implication that an em- ployer may or may not take action solely on his own initiative for reasons unrelated to economic ne- cessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepre- sentation and coercion . . . . Here while Hills and Errington stated to the drivers that Respondent was `suffering from serious. financial prob- lems and was losing $10,000 monthly, Respondent did not substantiate these assertions. Quite the opposite, the record indicates that Respondent, during the period in question, the first 6 months of 1983, was not losing money or,otherwise in financial difficulties. As I have found supra, Hills falsely testified that Respondent, lost money in 1982 when in fact in 1982 Respondent earned a profit of over $180,000 and there was no evidence to es- tablish that in 1983 Respondent was losing money during the time in question or was in financial difficulties during that period Indeed, as I have found supra, there is no reason to believe that in 1983 during the time material to this case that Respondent was not earning a profit just.as it had done in 1982 and that just as was the case in 1982 that it was Hills' nonunion trucking company, BJD Trucking Company, which was the unprofitable enter- prise rather than Respondent. Moreover, Hills' statement that if the Union did not accept Respondent's contract proposal he would be forced to close the Company's doors and operate nonunion was'expressed at the same time as Hills' illegal statement that if the employees agreed to work as nonunion workers Respondent would grant them a health and welfare plan which was as good or better than the Union's plan, increase their rate of pay;' and' would help those drivers who desired to work as owner-operators purchase their trucks., Thus,,, when Hills' -disputed statement is viewed in the light of -his other contemporaneous illegal statements -it- would be' grounds' 'for the employees reasonably to' infer that the intended and understood import of Hills' message was not a prediction but a threat of retaliation. In other words, Hills' other • contemporaneous conduct clearly suggested to the employees that the Company would act "solely on [its] own initiative for reasons unrelated to economic realities." NLRB v. Gissel Packing Co., 395 U.S. 575, -618, 619. It is for all. these reasons that I reject Respondent's argument that Hills' threat to close the ter- minal and operate nonunion was protected by Section 8(c) of the Act. 5. Davidor's alleged illegal conduct - _F As I have described in detail supra, Dispatcher Davi- dor engaged in the following conduct which the General Counsel contends was attributable to Respondent and violates Section 8(a)(1) and (5) of the Act. On August 9, after working hours, several 'of Respond- ent's truckdrivers-Ravey, Melendy, Castillo, Gary and Frank Morini, Guernsey, and McGiboney-met with Davidor at his request in the dispatcher's office. Davidor told them that he had a contract proposal to present to them from Hills, that he was presenting it to them in- stead of Hills because Hills' lawyer had instructed Hills not to speak personally to the employees about this sub- ject. Davidor read-from a sheet of note paper certain proposals dealing with employees' wages, hours, vaca- tions, holidays, health and welfare and insurance, and other terms and conditions of employment. Davidor told the employees' that if they did not accept this contract proposal "the doors would be closed by Friday of that week." Davidor asked the employees to sign statements, like one he had already signed , which stated that 'the em- ployees did not want the'Union or any other union to represent them. Davidor told them that' if they wanted to resign from the Union they could sign such a statement. He also declared:. "[Hills] is- going nonunion and that is it." - During the beginning of the meeting when Frank Morini left the dispatch office, Davidor followed him outside and 'told him that if' Hills did' not get the afore- said contract- 'proposal' Hills intended to "close the doors" and indicated that Morini would be out of a job. Following Davidor's above-described statements, Ravey and Melendy 'before leaving the dispatch office signed statements similar to Davidor stating that they did not want the Union or any other union 'to represent them:' They gave their signed statements to Davidor. Later that evening Davidor 'telephoned employee Jackson and advised him of the identical contract pro- posal as he had 'communicated to the other--employees earlier that evening .and told Jackson that Hills intended to close the doors of the terminal do Friday if there was no agreement reached on`a'contract. ' The next morning, August 10, Davidor successfully so- licited salesman Bernstein and truckdriver Quinn to 'sign statements identical to the ones sighed . by Davidor, Ravey, and Melendy: Quinn gave his signed statement'to Davidor. Thereafter= on August 11 Davidor successfully solicited Jackson to sign' such a'statement'which' Jackson left with Davidor'and at the same time Guernsey,. who had previously been solicited by Davidor on November 9 to sign a statement similar to Davidor's, not gave Da- vidor such a statement Finally on August 16 Davidor, when employee Buick returned from vacation, successful- ly solicited him to sign a statement identical to the ones BAY AREA-LOS ANGELES EXPRESS 1083 Davidor and the other employees had signed. Blick gave his statement to Davidor. If Davidor was acting as an agent of Respondent then, when, as I have found supra, he communicated the con- tract proposal to the employees on August 9, 1983, and threatened that if they-did not accept the proposal Re- spondent intended to close its doors and operate non- union, Respondent violated Section 8(a)(1) and (5) of the Act inasmuch as this conduct was reasonably calculated to undermine the Union as the employees' collective-bar- gaining agent and to discourage the employees from sup- porting-the Union's' bargaining -position. Also, Davidor's further conduct of soliciting employees to sign state- ments repudiating the Union as their collective-bargain- ing representative -violated Section 8(a)(1) of the Act and since this conduct took place in the context of Davidor's direct dealings with the. employees and in derogation of the Union's status as the employees' collective-bargaining representative,, it also violated ' Section 8(a)(5). and (1) of the Act 26 Thus the essential question presented is whether the General Counsel has established that Re- spondent was responsible for Davidor's above-described conduct, even though Davidor, as I have found supra, was a rank-and-file employee represented by the Union and covered by the 1979-1982 collective-bargaining con- tract. I am of the opinion for the reasons set forth herein- after that the General Counsel has failed to establish that Respondent was responsible for Davidor's above-de- scribed conduct. An employer is liable for unfair labor practices com- mitted by an employee who acts as an agent of the em- ployer. See Machinists v. NLRB, 311 U.S. 72, 80-81 (1940). In determining whether an employee is acting as an employer's agent with respect to improper conduct under the Act, the question of whether the specific acts performed were actually authorized or subsequently rati- fied is not controlling, rather the general rules of agency and particularly the rules of apparent authority are appli- cable. NLRB v. Bel-Air Mart, 497 F.2d 322, 324 (4th Cir. 1974), NLRB v. Johnson Sheet Metal, 442 F.2d 1056, 1060 (10th Cir. 1971). "To establish that an agent had apparent authority to bind its principal it must be shown that the principal knowingly- permitted the agent to exercise the authority in question, or in some manner manifested its consent that such authority be exercised." Travelers Insurance Co. v. Morrow, 645 F.2d 41, 44-45 (10th Cir. 1981). See also Restatement 2d, Agency § 8 (1958), quoted with approval in American Society of Mechanical Engineers v. Hydrolevel C o r p . , 456 U S 556, 566 fn. 5- (1982) (apparent authority is "the power to affect the legal relations of another person by transactions, with third persons, professedly as agent for the other, arising from- and in accordance with the other's manifestations to such third persons"). "The principal's manifestations, giving rise to apparent author= ity may consist of direct statements to the third person, 26 Davidor's solicitation of the employees to repudiate the'Union was alleged in the complaint as having violated Sec 8(a)(1) of the Act It was not alleged as an 8(a)(5) violation However, the 8(a)(5) aspect of this conduct was inextricably intertwined with the 8(a)(1) allegation of illegal solicitation and with other 8(a)(1) violations and the matter was fully liti- gated directions to the agent to tell something to the third person, or the granting, of permission to'the agent to per- form acts under circumstances which create in him a reputation of authority in the area in which the agent acts . .. ." NLRB v. Donkin's Inn, 532 F 2d 138, 141 (9th Cir. 1976). Consistent with the above-described principles of agency the Board has long held that where'an employer places an employee in a position where employees could reasonably believe that the employee spoke on behalf of management, the'employer has vested the employee with apparent authority to act as the employer's agent, and the employee's actions are attributable to the employer. E.g., NLRB v. Solboro Knitting Mills, 572 F.2d 936, 940- 941a (2d Cir. 1978); Helena Laboratories Corp. v. NLRB, 557 F.2d 1183, 1187 (5th Cir. 1977) I realize that in cases of this nature in.attributing a rank-and-file employee's conduct to an employer the Board often takes into ac- count the context in which the employee's conduct occurs, i e., the employee's conduct was consistent with other contemporaneous unfair labor practices committed by management; however, I know of no case where the Board has held that an employer was responsible for a rank-and-file employee's conduct, absent evidence of conduct by the employer which placed the employee in a position where other employees could reasonably be- lieve that the employee acted on behalf of management. This conduct of the employer has generally consisted of assigning the employee. to a job with duties which were reasonably calculated to cause the other employees to believe that he was acting on behalf of management; di- recting the employee to serve as a conduit between man- agement and the employees or-as the eyes and ears of management; acquiescing in the employee's conduct which occurred in the presence of admitted supervisors; and by engaging in conduct which was calculated to lead the other employees to believe that the employee was acting as the company's emissary See, e g., Bohe- -mia,' Inc , 266 NLRB 961 (1983), Jules V. Lane, D.D.S., 262 NLRB 118 (1982); -Propellex Corp, 254 NLRB 839 (1981); Com,nunity Cash Stores,-238 NLRB 265 (1978); Schulte's, IGA Foodliner, 241 NLRB 855 (1979); Broyhill Co., 210 NLRB 288 (1974), and Aclang, Inc., 193 NLRB 86 (1971). Here the General Counsel contends that Respondent was responsible for Davidor's above-described conduct because Respondent placed him in a position where the employees-could have reasonably believed that he was speaking on behalf of management In support of this contention the General Counsel apparently relies on the following evidence: On August 9 when he submitted that he was presenting it on behalf of President Hills, the contract proposal was written on a piece of paper in the handwriting of Vice President and General Manager Er- rtngton; Davidor's conduct was consistent with President Hills' contemporaneous threat to the..employees that, if the Union did not accept Respondent's contract de- mands, it would close its doors and operate nonunion. The General Counsel also urges that Respondent ratified Davidor's conduct when on August 10 Davidor told Er- rington that the previous evening he had met with the 1084 - DECISIONS OF NATIONAL. LABOR RELATIONS BOARD other employees and talked to them about dropping out of the Union and also told Errington that he had made a, little summary of Respondent's 1982 contract proposal which lie had, submitted to- the employees and asked whether Errington thought that this proposal would still be acceptable to the Company. Errington, who indicated he was dumbfounded by what Davidor was telling him, remained silent except that, when Davidor asked wheth- er the contract proposal Davidor, had submitted to the employees would still be acceptable to the Company,,Er- rington replied that he would talk it over with President Hills. The General Counsel' s contention that' Erringtton's above-described August 10 conduct ratified Davidor's disputed conduct so that Respondent became responsible for it is too frivolous to warrant discussion . The more in- teresting and difficult question is whether the evidence relied on by the General Counsel warrants a finding that Respondent engaged in' conduct which' placed Davidor in a position so that the employees to whom he spoke about the Union could have reasonably believed that he was speaking on behalf of management. The 'fact that Davidor represented to the employees that he was speak- ing to them on behalf of President Hills was obviously not Respondent's conduct. Nor, as I have indicated supra, does the fact that Davidor' s conduct -occurred in the context of President Hills' similar contemporaneous unfair labor practices warrant a finding that Respondent is responsible for Davidor's conduct , absent evidence that Respondent by its conduct placed Davidor in a posi- tion where employees could reasonably have believed he was acting on behalf of management. In this regard there is no showing that by virtue of his duties as dispatcher or- his other duties Davidor had been placed in a position so that the employees could have reasonably believed that when he-spoke to them about the Union he was speaking on behalf • of management.27 -The Isole evidence from which a respectable argument can be fashioned that Re -spondent placed Davidor in a position, so that his disput- ed conducted herein may be attributable to it, is the un- disputed fact that the writing on the piece of paper used by Davidor to communicate the contract - proposal to the employees was,Errington' s. On questioning by the Gen- eral Counsel Errington testified that'he did not give this document to Davidor and in response to the General Counsel's further question,- "Do you.know if Davidor came into possession'of that document?" testified, "Yes, he did." Other than Errington's aforesaid testimony there is no evidence concerning the circumstances surrounding- Davidor's possession of this document. Under these cir-. cumstances I do.not believe that the state of the'record warrants an inference that Respondent either directly or by implication authorized Davidor to communicate the. context of the document to the other employees. For it is ,lust -as :likely or even more than likely that Respondent allowed' Davidor to have or gave him this document for 27 I also note that while the record , as described supra, reveals that Davidor represented, himself as the Company's vice president of oper- ations and terminal manager there is insufficient evidence that manage- ment either authorized this conduct or ratified it Also, the record reveals that when other employees observed Davidor's business cards bearing these titles they -did not take his titles seriously - his own personal consideration, rather than with instruc- tions that he communicate its contents to the other em- ployees. In this regard I note that if an employer, either in writing or verbally, violates Section 8(a)(1) when communicating with an employee and that subsequently this employee relays the employer' s illegal message to other employees, it does not follow- that this subsequent communication by the employee to the other employees is attributable to the employer, absent evidence that th'e employee was authorized to relay the employer's mes- sage or was acting with apparent authority.28 It is for this, reason that I will not presume -that when Davidor came into possession of Errington's handwritten contract proposals he was given authorization to relay these pro- posals to the other employees. Thus, absent a showing that Davidor was authorized to relay the message con- tained in Errington's handwriting to the other employees or was acting with apparent authority, the fact that the contract proposal made to the employees by Davidor was written in Errington's handwriting is insufficient to establish Respondent's responsibility for Davidor's con- duct. Based on the foregoing I find that the General Coun- sel has failed to establish that on.August 9 and 10, 1983, when Davidor, as described supra, spoke to the employ- ees about the Union he was acting as Respondent's agent. I therefore shall recommend the dismissal of those allegations of the complaint which attribute unfair labor practices to Respondent based on- Davidor's conduct. 6. Hills' alleged illegal conduct committed in August 1983 The General • Counsel contends that on August 10, 1983, Respondent violated Section 8(a)(1) of the Act when President Hills, promised striker Andrus a guaran- tee against discharge if he returned to work and that -later that same day further'violated Section 8(a)(1) when Hills told strikers Fred and Gary Mormi that if they did not return to work Respondent would-'go bankrupt. These contentions are without merit because, as I have found supra, Hills did not engage in this conduct. • The General Counsel contends that Respondent on August 25, 1983, violated Section 8(a)(1) of the Act inas- much as, on that day, Hills in an effort to get striker Andrus to return to work threatened Andrus that Re- spondent would go bankrupt. This contention is not en- compassed by the pleadings nor is it related to the allega- tions in the complaint that on August 25 Hills violated Section 8(a)(5) by bypassing and dealing directly with the employees by telling- them that they were stupid not to accept Respondent's contract offer because it was the best offer they would receive 29 Thus, it is not surprising. 28 1 also note that there is no showing that` 'when Davidor showed the document in question to the other employees they realized that the hand- writing contained in the document was Errington's - 29 The General Counsel's postheanng brief does not urge that the record supports this allegation As a matter of fact, the evidence , supra, fails to support it While Hills on August 25 solicited the strikers to return to work, he made no attempt to deal with them concerning em- ployees' terms and conditions of employment Rather , Hills appears to have been attempting to justify the Respondent's bargaining position which had resulted in the employees' ceasing. work and striking I shall therefore recommend that this allegation be dismissed BAY AREA-LOS ANGELES EXPRESS that Respondent failed to litigate this issue In any event, accepting Andrus' uncontested _ testimony, described supra, it does not appear that when Hills stated that Re- spondent "could go bankrupt" it was said in an effort to -solicit Andrus to return to work. Rather, it was merely, an indication by Hills that he felt that the Union's con- tract proposals-were so unreasonable that they would have driven Respondent into bankruptcy. It is for all of these reasons that.I reject the General Counsel' s conten- tion that Respondent violated Section 8(a)(1) on August 25, 1983, by threatening striker Andrus that Respondent would go bankrupt. - 7. Respondent withdraws recognition from and refuses to bargain with the Union On August 16, 1983, as described supra, Respondent withdrew recognition from the Union as the collective- bargaining representative of the Respondent 's employees covered 'by the 1979- 1982 contract and has since that date refused" to recognize and bargain with the Union for' a successor contract. It is settled that an incumbent union at the termination of its contract - with an employer has a rebuttable pre- sumption that it represents a majority of the employer's unit'-employees. NLRB v. Pioneer Club, 546 F.2d 828, 829 (9th Cir. 1976). The employer, however ; may rebut this presumption of continuing majority status and legally withdraw recognition from the union and refuse to nego- tiate for a new contract by a clear and convincing show- ing of either actual loss of majority status or of objective factors sufficient to support a reasonable good-faith doubt of the union 's majority. NLRB v. Tahoe Nugget, 584 F 2d 293 , 297 (9th Cir . 1978), and cases cited therein. However, it is equally well settled that an employer may not justify a refusal to bargain premised on the basis of a loss of union majority support reasonably attributable to the employer's -own unfair labor practices ; to hold other- wise would be an invitation to violate the law in order to create such a loss of support. CLear Pine Mouldings v. NLRB, 632 F.2d 721, 730 (9th Cir. 1980); NLRB v. Sky Wolf Sales, 470 F.2d 827, 830 (9th Cir. 1972). As I have found supra, -on August 16, 1983, the -date Respondent withdrew recognition from the Union, the collective-bargaining unit involved in this case consisted of 14 employees of whom 7 had signed statements saying they no longer wanted the Union to represent them Re- spondent's August 16 withdrawal of recognition is based on these statements, Normally this would be sufficient to. rebut the presumption of the Union's majority status. The General Counsel , however, argues that Respondent is not privileged to question the Union's majority status based , on -these , employee statements because they were solicited by dispatcher Davidor who was either a statuto- ry supervisor or was acting as Respondent's agent when he solicited the -statements I have found , supra, that Da- vidor was a rank-and-file employee and was not acting as Respondent's agent when he solicited these statements. This does 'not end ,the matter, for the General Counsel also contends that in withdrawing recognition from the Union Respondent could not rely on the employees' statements that they did not want union representation because these 'statements were . tainted . by Respondent's 1085 prior unfair labor practices. Respondent takes the posi- tion that its prior unfair labor practices were not suffi- ciently 'flagrant or egregious so as to have tainted the employees' statements that they did not want union rep- resentation and that, in any event,_ there is no showing that the unfair labor practices affected or influenced the employees who signed the statements. The evidence per- tinent to the question of whether the unfair labor prac- tices committed prior to the employees' union repudiat- ing statements precluded Respondent's use of these state- ments as a basis for its withdrawal of recognition is set forth and discussed below. - As I have found supra, sometime between April and June 1983, Respondent's president Hills violated Section 8(a)(1) of the Act by threatening employee Vestnys that Vestnys and. other employees would lose their jobs if Vestnys succeeded in persuading the other employees not to support Respondent's, contract proposals. This' unfair labor practice, which took place possibly as much as 4 months prior to the employees' signing of the union repudiating statements and which did not involve any of the seven employees who signed such statements, is in- sufficient to taint any one of the seven union repudiating statements relied on by Respondent. The subsequent unfair labor practices committed by President Hills which predate the union repudiating statements are an entirely different matter As I have found supra, approximately 3 weeks prior to the signing of the seven union repudiating statements, President Hills at a meeting attended by 6 of the 14 unit employees- Mormi, McGiboney, Vestnys, Castillo, Ravey, and Me- lendy-violated Section 8(a)(1) and (5) of the Act by dealing directly with the employees, by threatening em- ployees that if the Union did not accept Respondent's contract proposals Respondent intended to close its doors and operate, nonunion, by promising the employees that if the employees worked nonunion that Respondent would increase their wages, grant them a health and wel- fare plan which was as good or better than the current plan, and assist them financially to buy their own trucks if they wanted to work for Respondent as' owner-opera- tors. " I am persuaded that Hills' aforesaid unfair labor prac- tices were sufficiently egregious and flagrant to warrant the inference that the Union's loss of majority status was reasonably attributed to them. Thus, Hills dealt directly with' the employees concerning their terms of employ- ment in derogation' of the Union's representative status, warned employees that. if they supported the Union's' bargaining position they would lose their jobs, and prom- ised employees that if they agreed 'to work for Respond- ent without a union that Respondent would grant them better terms of employment than they presently enjoyed. On its fact Hills' illegal conduct was designed to cause employee disaffection with the Union, with the erosion of majority status the probable result, and I find that this was Hills' intent. Moreover,, the misconduct occurred during a meeting attended by 6 of the 14 unit employees, 2 of whom later signed union repudiating statements, and was engaged in by Respondent's highest ranking official, not long before the employees signed their statements re- 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pudiating the Union The foregoing circumstances per- suade me that the General Counsel had proven that Hills' above-described unfair labor practices were the proximate cause of at least one of the employee union re- pudiating statements relied on by Hills as the basis for Respondent's withdrawal of recognition.- and refusal to bargain.30 In concluding that Hills' misconduct was the proxi- mate cause of at least one of the employee union repudi-' -ating statements relied on by Respondent, I have careful- ly considered Respondent's argument that Hills' illegal conduct could not have caused the employees to repudi- ate the Union because there is no evidence that they knew about these unfair labor practices. Two of the statement signers, Ravey and Melendy, attended the meeting where Hills engaged in his illegal conduct. I rec- ognize that, since employees came and went at various times and that since Hills spoke to different employees at different times during the meeting, it is possible that either Ravey or Melendy heard only some or none of Hills' illegal statements, but in view of the small size of the bargaining unit and the fact that a substantial per- centage of the unit employees were present during this meeting, I think that it is a fair inference that if Ravey. and Melendy did not personally hear Hills' illegal state- ments in whole or in part during the meeting they were informed of his statements thereafter by other employees. Indeed, it is a fair inference that, of the other employees .who did not attend Hills' July meeting and who signed union repudiating statements, some or all of them learned of his illegal statements from their fellow workers. For according to employee Castillo, who impressed me as a credible witness demeanorwise when he gave his testi- mony, the day following Hills' July meeting "the compa- ny was abuzz about" the meeting as the employees dis- cussed among themselves what had taken place there. This is not suprising for. as the Board has noted: "We cannot discount the teaching of experience and common- sense that employees who . . . have constant contact with each other at their place of work are not likely to refrain from discussing their employer's demonstrations of hostility to a union."3 i Warehouse Market, 216 NLRB 216, 217 (1975). It is for these reasons that I am persuad- ed that the evidence warrants an inference that at least one of the employees who signed the union repudiating statements relied on by Respondent learned about Hills' illegal statements by.being present when they were made or by being informed by other employees about the statements. In concluding that the unfair labor practices commit- ted by President Hills tainted at least one of the seven employee - statements repudiating the Union, I have in- ferred that a proximate cause of at least one of the em- ployees signing his statement was Hills' misconduct. I 30 Since 7 of the 14 unit employees signed union repudiating state- ments, if only I employee was improperly coerced into signing his state- ment, Respondent's withdrawal of recognition would have been based on statements of less than an uncoerced majority Si Although Respondent's two linedrivers have very little contact with Respondent's other drivers, the record reveals that Respondent's other drivers spend between 2 and 3 hours daily working together at the termi- nal unloading and loading their trucks - recognize that there are situations where such an infer- ence of causation would be improper, but considering the serious nature of Hills' unfair labor practices and the short period of time between the commission of the unfair labor practices and the employees' signing their union repudiating statements, I am persuaded that it is proper in this case to draw such an inference absent evi- dence indicating that the employees in signing their state- ments were not influenced by Hills' misconduct' In other words where, as here, an employer engaged in the type of misconduct which is reasonably calculated to cause employees to repudiate the union and shortly thereafter the majority of the employees, after learning of the em- ployer's misconduct, in fact repudiated the union, it is the respondent, the tortfeasor who created this situation, that must show that the intended effect of its misconduct was not the proximate cause of the employees' decision to repudiate the union. Here evidence was presented about the state of mind of one of the employees who signed a union repudiating statement Employee Ravey testified that the reason he signed his statement. was that he did not feel that the Union was doing a proper job representing the employees.32 However, the United States Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 608 (1969), and the Board in Anvil Prod- ucts, 216 NLRB 158 (1975), have rejected evidence of this nature because it "requires a probe of an employee's subjective motivations" which "involv[es] an endless and unreliable inquiry." Gissel Packing, 395 U.S at 608. In any event, assuming Ravey's testimony is reliable it is in- sufficent to establish that the signing of any of the other union repudiating statements relied on by Respodnent was similarly. motivated. Nor does the record contain ob- jective evidence which indicates that in signing their union repudiating statements the employees were not in- fluenced by Hills' misconduct.33 Quite the opposite, the objective conduct of one of the employees, dispatcher Davidor, indicates that Davidor in signing his union re- pudiating statement was influenced by Hills' misconduct. Thus, as I have found -supra, simultaneous with signing his statement Davidor showed it to a group of employees and in the course of soliciting them to sign, identical statements repeated in large part what Hills had person- ally told the employees late in July 1983, namely, that Hills would close the terminal and operate nonunion if 32 Ravey, Respondent's witness, who was present during the July 1983 meeting between President Hills and the other employees, was not asked whether he was present when Hills committed his unfair labor practices or whether he otherwise learned of them from other employees 33 I recognize that, despite Hills' threat to close the terminal and oper- ate nonunion if the employees did not accept Respondent's contract pro- posals, the unit employees on August 10, 1983, -voted 12 to 0 to reject Respondent's contract proposals However, the record reveals that in voting against Respondent's proposals the employees were voting against a 15-percent reduction in their current pay, whereas Hills had-indicated to them that if they agreed to work- without union representation they would receive a pay raise Also, only the day before dispatcher Davidor had presented a contract proposal to the employees which he said had originated with the Employer which did not call for a reduction in the employees' pay Under these circumstances the fact that the employees rejected Respondent 's contract proposals does not warrant an inference that Hills' unfair labor practices did not have an impact on their decisions to sign the union repudiating statements Also I note that two of the em- ployees who signed such statements-Quinn and Blick-did not vote BAY AREA-LOS ANGELES EXPRESS they did not accept Respondent's contract proposals. It is for all of the foregoing reasons that I am of the opin- ion that there is insufficient evidence to rebut the Gener- al- Counsel's showing that the proximate cause of at least one of the union repudiating statements relied on by Re- spondent was Hills' illegal conduct. - For all the foregoing reasons, I am of the opinion that Respondent's withdrawal of representation from the i Union.on,August.l6, 1983, and its refusal to bargain with the Union, violated Section 8(a)(5) and (1) of the Act as the nature of Respondent's July 1983 unfair labor prac- tices found herein precluded Respondent from exercising a reasonably, based doubt of the. Union's majority status.- 8. The nature of the employees' strike The General Counsel contends that the strike by Re- spondent's employees which began August 10, 1983, was an unfair_labor practice strike from its inception. I do not agree. Although, as I have found-supra, Respondent vio- lated Section 8(a)(l)-and (5) prior to the strike by virtue of certain conduct engaged in by its President Hills, the record does not establish that these unfair labor practices were a contributing -cause of the strike.34 Thus, the unfair labor practices found herein were not included as a reason for the August 10 strike vote, nor was there any discussion of the unfair labor practices at the strike vote meeting nor does the record reveal other employee con- duct which occurred before or after the strike which in- dicates that a contributing cause of the strike was Re- spondent's illegal conduct engaged in prior to the strike. Rather, the sole evidence pertaining to the reason for the strike is'that the union representatives met with the em- ployees August 10 so that the employees could vote on the most recent contract proposal Respondent had made to the Union.- And during the course of 'this meeting Union Representative Rodriguez told the employees that a vote , to reject the Respondent's contract piojiosal would also be a vote to cease work and engage in a strike. Under the circumstances, 'I am of the view that the strike which began August 10 was motivated by the desire of the Union and the employees it represented to place economic pressure on-Respondent to secure what the Union and the- employees considered an acceptable contract. As such it was an economic strike. I agree with the General Counsel's further contention that the strike was converted into an unfair labor prac- tice strike on August 16, 1983, when, as I have found supra,. Respondent. violated Section 8(a)(5) and (1) of the Act by withdrawing -recognition from, and refusing to bargain with, the Union. In this regard the law is settled that, by committing an unfair--labor practice. that pro- longs an economic strike, an - employer converts the strike into an unfair labor practice strike. NLRB v. Pacif- 34 A stnke is •an unfair labor practice strike if the record as a whole shows that the employer's unfair labor practices were.a contributing cause of the strike E g, Colonial Haven Nursing Home, 218 NLRB 1007, 1009 (1975) I recognize that the `Board in Tarlas Meat Co, 239 NLRB 1400 (1979), has stated that under certain circumstances it will "infer that the unfair labor practices contributed to the decision to strike and it is not necessary to adduce specific proof of, the casual connection between the Respondent's actions and the strike "However, the circumstances in the instant case do not warrant such an inference 1087 is Grinding Wheel Co., 572 F.2d 1343, 1349' (9th Cir. 1978). Here, on August 16, 1983, when Respondent in violation of Section 8(a)(5) and (1) of-the Act terminated its collective-bargaining relationship with the Union, the Respondent put an end to any possibility of a negotiated resolution of the dispute. Accordingly, by illegally with- drawing recognition from, and refusing to bargain with, the Union, Respondent converted the strike into 'an unfair labor practice strike August 16, 1983. NLRB v. Giustina Bros. Lumber Co, 253 F.2d 371, 373-374 (9th Cir 1958) (employer's "unjustified" refusal to'. bargain with the union, "on the ground that its [majority] status had been put in doubt by a ,petition for decertification .. . converted an economic strike into an unfair labor practice strike"). NLRB v. Reliance Clay Products Co., 245 F.2d 599 (5th Cir. 1957) (employer's withdrawal of recognition from the union prolonged the strike and con- verted' it into an unfair labor practice strike for "[w]hile it is conjectural whether additional meetings . . . would have resulted in a resolution of the differences between the parties in a termaination of the strike, it is certain that there can be no resolution of those differences so long as the [employer] deliberately remains unavailable for discussion"). See also Vulcan Hart Corp. (St. Louis Division) v. NLRB, 718 F.2d 269, 276 (8th Cir. 1983) ("[employer's unlawful] withdrawal of recognition clear- ly prolonged the strike, because it put an end to contract negotiations"). 9. Hills' statement that strikers can return to work only as nonmembers of the Union As I have described in detail supra, on January 26, 1984, at a hearing before an administrative law judge of the State of California concerning the appeal of striker Frank Morini from the State's denial of his claim for un- employment compensation, President Hills, in response to questions posed by Frank Morini, in the presence of striker Gary Morini, stated that the striking employees could not return to work for Respondent as union mem- bers but could return to work only as nonunion mem- bers. This statement had a reasonable tendency to coerce Frank and Gary Morini from exercising their statutory rights of maintianing their membership in and support of the Union. Hills' testimony, that he really did not intend to say this but "what I meant to say was they could come back as union members but without the union con- tract," does not make Hills' statement any less 'coer- cive.35 For, "It is too well settled to brook dispute that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not depend on an em- ployer's motive . . . . [r]ather, the illegality of an em- ployer's conduct is determined by whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act." El Rancho Market, 235 NLRB 468, 471 (1979), and the cases cited therein. I therefore find that Respondent vio- lated Section 8(a)(1) of the Act when on January 26, as I also reject as frivolous Respondent's contention that Hills' above- described statements were not coercive because they were made by him in response to Frank Morini's questions 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1984, President Hills stated that striking employees could not return to work for Respondent as members of the Union, but could only return to work as nonmembers.36 As I have found supra, Hills on January-26, 1984, stated to the Morini brothers that the strikers could not return to work for Respondent as union members but only as nonmembers. Thereafter on February 23, 1984, the second day of the hearing in this case, Hills mailed identical letters to the Morini brothers and to employees Andrus, Vestnys, Castillo, and McGiboney who were apparently the only employees of Respondent still on strike. These letters read as follows: The other day I learned that certain remarks have been attributed to me as a result of my giving testimony at one of our employee's unemployment compensation hearings. For the record, I want all to- be clear that it is true now and has always been true that all of you may work here, regardless of your union membership. As you know, the Union's contract is not- now in effect and we do not present- ly recognize any union-as the representative of-our -employees. In such circumstances, my remarks at the hearing were intended to indicate that union membership was not an employment requirement and that union contract provisions would not apply. To the extent that remarks not reflecting the above have been attributed to me, they are hereby with- drawn, repudiated and revoked. Respondent argues that Hills' February 23, 1984 letters effectively repudiated Hills'. January 26, 1984 coercive statement. The standards for effective repudiation were set forth in Passavant Memorial Area Hospital, 237 NLRB 138 (1978), as follows: To be effective . . . such repudiation must be "timely," "unambiguous," "specific in nature to the coercive conduct," and "free from other proscribed illegal conduct." Douglas Division, The Scott & Fetzer Company, 228 NLRB 1016 (1977), and cases cited therein at 1024. Furthermore, there must be adequate publication of the repudiation to the em- ployees involved and there must be no proscribed conduct on the employer's part after the publica- tion. Pope Maintenance Corporation, 228 NLRB 326, 86 This allegation was included in the complaint by virtue of an amendment of the first day of the hearing The complaint as amended al- leges that Hills' above-described January 26, 1984 conduct interfered with, restrained, and coerced employees in the exercise of their Sec 7 rights, thus violating Sec 8 (a)(i) of the Act There was no allegation or indication by the General Counsel that the General Counsel was contend- ing that by engaging in this conduct Respondent had discriminated against strikers with respect to their employment in violation of Sec 8(a)(3) of the Act However, at the conclusion of the hearing, after all parties had rested, the General Counsel mentioned that "we will also be seeking a backpay remedy as a result of the statements Hills made at the unemployment hearing " And in his posthearing brief the General Coun- sel urges that Hills' above-described January 26, 1984 conduct violated Sec 8(a)(3) as well as Sec 8(a)(1) of the Act and that in conjunction with the violation of Sec 8(a)(3) I recommend a remedial backpay order The General Counsel's request that I find Hills' conduct violated Sec 8(a)(3) of the Act and recommend an appropriate backpay remedy for this violation is rejected because this issue was not encompassed by the pleadings and Respondent was otherwise not afforded an opportunity to fairly litigate it 340 (1977) And, finally, the Board has pointed.out that such repudiation or disavowal of coercive con- duct should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights. See Fashion Fair, Inc., et al., 159 NLRB 1435, 1444 (1966); Harrah's Club, 150 NLRB 1702, 1717 (1965). Applying these criteria to Hills'. February 23, 1984 letter I am of the opinion that the purported disavowal of Hills' statement, that striking employees could not return to work as members of the Union but only as non- members, was ineffective to relieve Respondent of liabil- ity and to obviate the need for further remedial action. First, the attempted retraction was untimely. As noted supra, although Hills' illegal conduct occurred January 26, 1984, his alleged retraction was not offered until. 4 weeks later, after the start of the hearing in this case. Second, at the time of Hills' February 23 letter 'Respond- ent, as I have found supra, was continuing to interfere with employees' statutory rights by refusing to recognize and bargain with the Union as the employees' collective- bargaining agent in violation of Section 8(a)(5) and (1) of the Act. As a matter of fact the letter itself emphasizes to the recipients that Respondent no longer recognized the Union as the employees' collective-bargaining agent. Third, Hills' letter was neither sufficiently clear nor spe- cific. It did not specifically state that Respondent would refrain from saying that the strikers could return to work only as nonunion members. Rather, the letter merely in- formed the strikers that "certain remarks have been at- tributed to [Hills]" and explained what Hills had really intended these remarks to mean. Finally, the letter did not assure the employees that in the future Respondent would not interfere with the exercise of their Section 7 rights by such coercive conduct. It is for all these rea- sons that I find Hills' letter of February 23, 1984, did not dispel the coercive impact of his statement that the strik- ers could not return to work- as members of the Union, but only as nonmembers. 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 mean- ing of Section 2(5) of the Act. 3. All employees employed by Respondent covered by the Respondent's 1979-1982 contract with the Union, in- cluding truckdrivers and dispatchers, but- excluding su- pervisors as defined in the Act, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9(b) of: the Act. ' 4. At all times material the Union has-been and is the exclusive collective-bargaining representative of all- the employees in the aforesaid bargaining unit for the pur- pose of collective bargaining within'-the meaning of Sec- tion 9(a) of the Act. 5. By threatening an employee that if the employees represented by the Union did not support Respondent's contract proposals that the employees would lose their BAY AREA-LOS ANGELES EXPRESS jobs, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By dealing directly with employees represented by the Union, by threatening the employees that if the Union did not accept Respondent's contract proposals Respondent would close its doors and operate nonunion, by promising employees that if they worked for Re- spondent without- union representation Respondent would increase their wages, grant them a health and wel- fare plan which was as'good or` better than their current plan, and assist them financially in buying their own trucks if they desired to work for Respondent'as owner- operators, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) of the Act. 7. By telling striking employees that they could not return to work if they were union members, but could only return as nonmembers, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. By withdrawing recognition from, and refusing to bargain with, the Union as the representative of the em- ployees in the aforesaid unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 9. Respondent's conduct in paragraph 8 above pro- longed the strike of the unit employees and converted the strike into an unfair labor practice strike on August 16, 1983. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. - 11. Respondent has not otherwise violated the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent be or- dered to cease and desist therefrom and from in any like or related manner infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully withdrew recognition from, and refused to bargain with, the Union, I shall therefore recommend that it be ordered to bargain collectively with the,Union, on request, concern- ing rates of pay, wages, hours, and other terms and con- ditions of employment, and embody in a signed agree- ment any understanding reached. Having found that an economic strike was prolonged and converted into an unfair labor practice strike on August 16, 1983, by Respondent's conduct in violation of the Act, I shall therefore recommend that Respondent be ordered to offer, on application, to all the striking em- ployees who were not permanently replaced while eco- nomic strikers, reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any re- placements hired on or after August 16, 1983, when the economic strike was prolonged and converted into an unfair labor practice strike, and to make each of these 1089 striking employees whole for any loss of earnings they may suffer as a result of Respondent's refusal, if any, to reinstate them, by payment to each of them a sum of money equal to that which each would have earned as wages during the period commencing 5 days after the date of which each one unconditionally offers to return to work to the date of Respondent's offer of reinstate- ment, less any net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On 'these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed37 - ORDER The Respondent, Bay Area-Los Angeles Express, Inc., San Francisco, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively in good faith with Brotherhood of Teamsters and Auto Truck Drivers, Local No. 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of its employees in the fol- lowing appropriate unit: All employees employed by the Respondent cov- ered by the Respondent's 1979-1982 contract with the above described Union, including truck drivers and dispatchers, but excluding supervisors as de- fined by the Act. (b) Refusing to bargain with the Union by dealing di- rectly with employees concerning matters over which it is obligated to bargain with the Union and by engaging in activities with respect to its employees which are di- rected toward undermining the Union as the employees' bargaining representative. (c) Threatening employees that if the employees fail to support Respondent's contract proposals they will lose their jobs. (d) Threatening employees that if the Union failed to accept Respondent's contract proposals it would close its doors and operate nonunion. (e) Promising employees that if they worked for Re- spondent without union representation Respondent would grant them the same or better terms and condi- tions of employment than they had enjoyed with union representation. (f) Telling striking employees that they could not return to work if they were union members, but could return only as nonmembers. 39 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) On request, bargain collectively with the above- named Union, as the exclusive representative of all,the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours'of employment, and other terms and conditions of employment and, if an agreement is reached, embody'such understandindin a signed agree- ment. (b)' Upon application, offer to all employees engaged in an unfair labor practice strike, who were not permanent- ly replaced while economic strikers,' reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights and privileges, discharging, if necessary, any replacements hired on or after August 16, 1983, .when the economic strike was prolonged and converted into an unfair labor practice strike. - (c) Make each of these striking employees whole for any loss of earnings they may have suffered by reason of Respondent's failure, if any, to reinstate them, on appli- cation, in the manner set forth in the section of this deci- sion entitled "The Remedy." (d) Post at its premises in San Francisco, California, copies of the attached notice marked "Appendix."38 Copies of the notice, on forms provided by the-Regional Director for Region 20, after being signed by, the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to-employees' are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material.. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges that the Respondent violated the Act other than as found herein. 38 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "