Roadway Package System, Inc

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