Con-way Freight Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2018

366 NLRB No. 183 (N.L.R.B. 2018)

366 NLRB No. 183
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Con-Way Freight, Inc. and Jaime Romero.
Con-Way Freight, Inc. and Juan Placencia.
Con-Way Freight, Inc. and International Brother-
hood of Teamsters, Local 63. Cases 21–CA–
135683, 21–CA–140545, 21–RC–136546
August 27, 2018
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN RING AND MEMBERS PEARCE, AND
MCFERRAN
On November 5, 2015, Administrative Law Judge El-
eanor Laws issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Union each filed an answering brief, and
the Respondent filed reply briefs. The General Counsel
also filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
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,2 findings,3 and conclusions as
modified below and to adopt the recommended Order as

1 Member Emanuel is recused and took no part in the consideration
of this case.
2 On July 22, 2016, the Board granted the parties’ Joint Motion to
Sever Allegations and Partially Remand to the Regional Director for
Approval of Partial Withdrawal Request. Pursuant to the parties’ mo-
tion, the Board severed from the consolidated complaint paragraph 11,
which alleged that the Respondent unlawfully suspended and dis-
charged Charging Party Juan Placencia, and unlawfully filed criminal
charges against Placencia, resulting in his arrest. Accordingly, we need
not pass on the Respondent’s exceptions to the judge’s findings of
those violations, and we have amended the conclusions of law to reflect
the severance of the allegations.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s findings, discussed below, that the Respond-
ent violated Sec. 8(a)(3) and (1) by suspending and terminating Charg-
ing Party Jaime Romero, and Sec. 8(a)(1) by threatening Placencia with
unspecified reprisals, we find it unnecessary to rely on the judge’s
references to the Respondent’s various lawful antiunion statements and
actions in November 2011 and during the spring of 2014.
modified and set forth in full below.4 We also adopt, for
the reasons stated by the judge, her overruling of the Re-
spondent’s election objections. We therefore certify In-
ternational Brotherhood of Teamsters, Local 63, as the
exclusive bargaining representative of the employees in
the unit.5
I. SUSPENSION AND TERMINATION OF JAIME ROMERO
Facts
The Respondent, Con-Way Freight, transports freight
across North America; this case involves the Respond-
ent’s Los Angeles facility, where it employs about 44
drivers. Jaime Romero had worked for the Respondent
since 1990 and had received various safety-related
awards. International Brotherhood of Teamsters, Local
63 began organizing at the Respondent’s facility in 2009.
The judge found that Romero was a member of the Un-
ion’s organizing committee and “the leader among em-
ployee organizers.” Romero had collected around 20
authorization cards from coworkers and had attended
about 35 Union meetings, including during the months
leading up to the filing of the September 2014 represen-
tation petition at his facility. In addition, Romero had
previously assisted drivers in organizing at the Respond-
ent’s Laredo facility, where a union election was held in
September 2014, and at other Con-Way facilities
throughout the country. The Respondent, through its
managers and supervisors, knew that Romero was en-
gaged in Union activity. In March 2014, 4 months before

4 We shall modify the judge’s recommended broad order requiring
the Respondent to cease and desist from violating the Act “in any other
manner.” We find that a broad order is not warranted under the circum-
stances of this case, and shall substitute a narrow order requiring the
Respondent to cease and desist from violating the Act “in any like or
related manner.” See Hickmott Foods, 242 NLRB 1357 (1979).
Further, in accordance with our decision in AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016), we shall modify the judge’s recom-
mended tax compensation and Social Security reporting remedy. We
shall modify the judge’s recommended Order and substitute a new
notice to reflect these remedial changes and the Board’s standard reme-
dial language.
In accordance with our decision in King Soopers, Inc., 364 NLRB
No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir. 2017), we
shall also order the Respondent to compensate affected employees for
their search-for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
5 Pursuant to a stipulated election agreement between the parties, a
secret-ballot election was conducted on October 23, 2014. The Region-
al Director issued a Revised Tally of Ballots on July 20, 2015, which
finalized the vote at 22 ballots in favor of the Union and 20 against.
Under Sec. 102.69 of the Board’s Rules, the Board itself has the author-
ity to issue a certification. Because the Union prevailed in the election,
we so certify. See Talmadge Park, 351 NLRB 1241, 1241 fn. 4 (2007).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the incident at issue, Romero—during a conversation
about the Union with Service Center Manager Paul
Styers—stated that he knew that he was “being targeted”
by the Respondent because of his protected activity and
that “any little thing he did would get him fired but that
was okay with him.”
The Respondent’s trucks are equipped with DriveCam,
a recording device that has lenses facing both toward the
driver and outward. DriveCam continually records but
does not save the footage unless there is an accident or a
sharp brake or turn, or the driver manually activates a
save. Once a save is activated, DriveCam captures foot-
age 8 seconds before the trigger until 4 seconds after.
On August 15, 2014, Romero was driving a tractor-
trailer from the Los Angeles terminal to Blythe, Califor-
nia. About 10 minutes after leaving the terminal, Romero
was driving in the center lane when his passenger mir-
ror—which extended about 18 inches from the body of
the truck—made contact with another tractor-trailer in
the lane to Romero’s right. Romero manually activated
DriveCam’s saving feature and tried to get the other
driver’s attention, but the driver did not stop. Romero
pulled over and, following procedure, called Tricia
Plonte at the Respondent’s line haul center to report the
incident. Romero described the incident—stating that the
other vehicle had drifted to the left—and indicated that
there were no significant damages or injuries. Romero
also filed a telephone report with the highway patrol.
After completing the assignment, Romero returned to the
Respondent’s facility and filled out an accident report.
There was no damage apart from paint residue on the
mirror. The judge found that, based on the video,
Romero was holding a device in his hand before the ac-
cident, but that it was impossible to discern what the de-
vice was; the judge credited Romero’s testimony that he
was holding an iPod and changing a song. Romero did
not mention the iPod in his reports.
The next day, Plonte sent an email to the Respondent’s
Safety Event Notification group stating that Romero’s
accident was non-preventable. Director of Operations
Mike Wattier responded by asking if there was a way to
verify that the other vehicle left its lane. Service Center
Manager Styers suggested that Safety Manager Don An-
dersen review the DriveCam recording. Having reviewed
the recording, Andersen determined that the other vehicle
did not leave its lane, but that it came close to Romero’s
truck when Romero drifted to the far right of his lane.
Andersen also noted that Romero was looking at an elec-
tronic device. Andersen then concluded that Romero had
falsified his report because: (1) the other vehicle had not
left its lane; and (2) Romero omitted mention of being
distracted. Andersen concluded the accident was pre-
ventable, stating that Romero was “seen with a cell
phone in his right hand texting . . . and because of [his]
driving distracted he failed to react to the other truck
coming close to his unit while at the same time [he] is
seen drifting to the far right of his lane . . . .”
On August 20, Romero met with management. Ander-
sen read Romero the accident report, showed him the
recording, and said that he believed Romero was at fault.
Romeo disagreed that he was distracted or at fault. An-
dersen maintained that Romero had falsified the accident
report by failing to mention that he was distracted by the
cell phone in his hand. Romero maintained that he was
changing a song on an iPod, not texting. Styers then sus-
pended Romero, noting in his report that Romero was
distracted and texting while driving, which led to his
accident. In response, Romero wrote that, “I’m being
suspended for other reason this is being created to termi-
nate me” (sic).
The Respondent discharged Romero on September 3.
Human Resources Director Kevin Huner made the final
decision to discharge, testifying that the Respondent
viewed the falsification of an accident report as a “cardi-
nal sin.” In the termination documents, Styers indicated,
by checking a box, that Romero did not work well with
customers and other people.
Discussion
To support his initial burden under Wright Line,6 “the
General Counsel must prove by a preponderance of the
evidence that union animus was a substantial or motivat-
ing factor in the adverse employment action.” Consoli-
dated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007).
The elements commonly required to support such a
showing are protected concerted activity by the employ-
ee, employer knowledge of that activity, and animus on
the part of the employer. Id. As part of his initial show-
ing, the General Counsel may also offer proof that the
employer’s reasons for the personnel decision were pre-
textual.7 A finding of pretext defeats any attempt by the
Respondent to show that it would have discharged the
discriminatees absent their union activities. This is be-
cause where “the evidence establishes that the reasons
given for the Respondent’s action are pretextual—that is,

6 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
7 Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003) (citing Na-
tional Steel & Shipbuilding Co., 324 NLRB 1114, 1119 fn. 11 (1997)).
See also Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir.
1995) (“[W]hen the employer presents a legitimate basis for its actions
which the factfinder concludes is pretextual . . . . the factfinder may not
only properly infer that there is some other motive, but ‘that the motive
is one that the employer desires to conceal—an unlawful motive … .’”)
(quoting Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966)).
CON-WAY FREIGHT, INC. 3
either false or not in fact relied upon—the Respondent
fails by definition to show that it would have taken the
same action for those reasons, absent the protected con-
duct, and thus there is no need to perform the second part
of the Wright Line analysis.”8 It follows that “the mere
existence of a valid ground for [discipline] is no defense
to an unfair labor practice charge if such ground was a
pretext and not the moving cause.”9
First, we agree with the judge that the General Counsel
met his initial burden. Romero had participated in union
organizing activities and the Respondent was well aware
of this activity. Further, there is an ample basis for find-
ing animus here, including the judge’s findings that the
Respondent violated Section 8(a)(1) by telling Juan
Placencia, Romero’s partner on the Union organizing
committee, not to wear the Union insignia, threatening
Placencia with unspecified reprisals, and implicitly
threatening Placencia with physical harm because of his
union support.10 In fact, Styers, the highest ranking man-
ager at the facility and the person who initiated the video
review and drafted Romero’s suspension notice and ter-
mination report, was also responsible for ordering
Placencia to remove his union lanyard and threatening
Placencia. Tellingly, Styers’ assertion in Romero’s ter-
mination report—that he did not “work well with cus-
tomers and others”—was unrelated to the incident at is-

8 Golden State Foods Corp., 340 NLRB 382, 385 (2003) (citing
Limestone Apparel Corp., 255 NLRB 722 (1981)). See also Sanderson
Farms, Inc., 340 NLRB 402, 402–403 (2003), enfd. 112 Fed. Appx.
976 (5th Cir. 2004)).
9 McKenzie Engineering Co., 326 NLRB 473, 484 (1998) (quoting
NLRB v. Yale Mfg. Co., 356 F.2d 69, 74 (1st Cir. 1966)), enfd. 182 F.3d
622 (8th Cir. 1999).
10 Although these violations occurred after Romero’s discharge, they
remain relevant to the issue of the Respondent’s animus. See, e.g., SCA
Tissue North America LLC v. NLRB, 371 F.3d 983, 990 (7th Cir. 2004)
(“[the employer] argues that events occurring after termination are
insignificant to determining a company's motivation at the time of the
discharge . . . . We disagree.”), enfg. 338 NLRB 1130 (2003).
Our dissenting colleague posits that, because the Respondent’s addi-
tional unfair labor practices occurred after the petition was filed, “[t]he
reasonable inference to draw . . . is that it was the filing of the petition
that aroused the Respondent’s unlawful animus.” This position, how-
ever, ignores the fact that Romero was “the leader among employee
organizers,” had assisted in organizing campaigns at other Con-Way
facilities, and had collected a significant number of authorization cards
at this facility. Surely it is not a stretch to find that the Respondent’s
post-petition animus is relevant to the Respondent’s disciplinary action
against the primary employee proponent of that petition in the period
shortly before its filing. This is especially true here, where, as dis-
cussed, Styers played a central role in this incident as well as the un-
lawful post-petition conduct. Indeed, as early as in March 2014 –
months before this incident and the filing of the petition – Romero had
already identified himself as a likely target of the Respondent’s anti-
union retribution.
sue and unfounded,11 and it is a recognized euphemism
for union animus.12 We also note the timing of the Re-
spondent’s disciplinary actions against Romero, which
occurred as the Respondent became increasingly con-
cerned about the Union’s organizing drive—of which
Romero was a recognized leader—and only weeks before
a petition was filed.13
Second, we agree with the judge’s findings that the
Respondent “manipulated the situation to trump up a
disingenuous claim of falsification” and that “the reason
the Respondent offered for terminating Romero was a
pretext to mask unlawful retaliation.” Specifically, the
General Counsel has shown that the Respondent seized
on a relatively minor incident—which resulted in no
damage beyond the paint residue on Romero’s mirror –
in order to discharge the leader of the Union’s organizing
campaign as it reached its climax.
The Respondent asserts in its brief that it took action
against Romero solely because he falsified his accident
report—what the Respondent characterizes as a “cardinal
sin.” This claim is undercut, however, by the Respond-
ent’s sustained effort to inflate and mischaracterize the
nature of Romero’s conduct, as well as the Respondent’s
obviously false attempts to supplement and bolster the
rationale for Romero’s discharge. See Inter-Disciplinary
Advantage, Inc., 349 NLRB 480, 509 (2007) (finding
that “an employer’s shifting explanation for a discharge,
or . . . its post hoc attempt to rationalize such a decision,
are suggestive of a pretext”).14
The most jarring example of this is the Respondent’s
assertion, in its termination documents, that Romero did
not work well with customers and others – a claim that
seemingly came out of nowhere, and indeed, had no
predicate in Romero’s 24-year career with Con-Way.15

11 Documentary evidence in the record does not provide any exam-
ples of Romero’s failure to get along with other individuals, and Styers
could not recall at the hearing any employees with whom Romero did
not get along.
12 See Schaumburg Hyundai, Inc., 318 NLRB 449, 458 (1995) (find-
ing animus based, in part, on witness’s post-discrimination comment
that discriminatee did not work well with his team and had a bad atti-
tude).
13 Our dissenting colleague, in attempting to undercut our animus
finding, asserts that a finding of pretext alone cannot sustain the Gen-
eral Counsel’s initial burden of proof. Here, however, we rely on the
multiple sources of animus set forth, including the Respondent’s unfair
labor practices, Styers’ assertion that Romero did not work well with
others, and the timing of Romero’s discharge – particularly in light of
the fact that Romero was a recognized leader of the campaign.
14 See also Harrison Steel Castings Co., 262 NLRB 450, 479 (1982)
(finding that employer’s defense “bore all the trappings of pretext”
where it involved “exaggeration, implausibility, and contradiction”),
enfd. in relevant part 728 F.2d 831 (7th Cir. 1984).
15 Our dissenting colleague dismisses the import of this assertion, ar-
guing that the Respondent never cited Romero’s inability to work well
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Further, Safety Manager Andersen testified at the hearing
that Romero left his lane and hit the other vehicle even
though his earlier report states only that Romero drifted
to the far right of his lane. Moreover, despite the judge’s
findings that “it [was] completely impossible to discern
from the video what type of device Romero was hold-
ing,” and that Romero’s recorded actions “were particu-
larly inconsistent with the act of texting,” the Respond-
ent’s final ruling on the accident concluded that Romero
was seen in the video “with a cell phone in his right hand
texting.” Indeed, over the course of the Respondent’s
investigation, it appeared to escalate the severity of this
assertion—from holding an electronic device, to holding
a cell phone, to texting—all contrary to the video evi-
dence and Romero’s own account.
Our dissenting colleague repeatedly asserts that “the
Respondent’s belief that Romero was texting on a cell
phone was reasonable.” But the judge found that, after
reviewing the video evidence at the hearing, the Re-
spondent “was no longer able to plausibly assert with
certainty that Romero was texting on a cell phone.” Ac-
cordingly, Safety Manager Andersen—who had initially
written in the final accident report that Romero was, in
fact, texting on a cell phone—scaled back his initial ac-
count to testify only that he saw Romero’s thumb touch-
ing a screen. In other words, when confronted with the
video evidence, Andersen was essentially forced to
acknowledge that his written account in the accident re-
port was not reasonable. Rather, it was an inflated and
distorted interpretation of Romero’s recorded conduct
that was specifically intended to form a potential basis
for disciplinary action.
Even the initial impetus for the Respondent’s investi-
gation is suspect. Notably, Wattier requested a review of
the accident in order to verify specifically that the other
vehicle had left its lane. But Romero had never asserted
– in his report to Plonte, his written statement, or his dia-
gram—that the other vehicle had left its lane.16 It follows

with customers and others “as a reason for the discharge” and points to
the fact that Styers merely checked a box on Romero’s separation doc-
uments 6 days after the discharge. This begs the question of why
Styers would check the box at all if not to bolster its primary assertion
that Romero falsified his accident report. The fact that Styers added this
information 6 days after Romero’s actual discharge only lends credence
to our conclusion that, even after the fact, the Respondent continued to
generate new rationales to support its disciplinary action against
Romero. Likewise, our dissenting colleague ignores the fact that this
assertion was simply not accurate and could not be substantiated by the
Respondent at the hearing.
16 We disagree with our dissenting colleague’s assertion that the ac-
cident would have “require[d] [the other] vehicle to drift out of its
lane.” Romero’s mirror extended 18 inches and, in Romero’s account
and diagram of the accident, he indicated that the other vehicle had
drifted to its left.
that any evidence that Romero may have falsified his
report—the purported official basis for the Respondent’s
disciplinary actions—would have been uncovered by the
Respondent pursuant to an investigation that was initiat-
ed for an implausible reason. See Kidde, Inc., 294 NLRB
840, 840 fn. 3 (1989) (collecting cases) (holding that
employee misconduct discovered during an investigation
undertaken because of an employee’s protected activity
does not render a discharge lawful).17 Moreover, contra-
ry to our colleague, the fact that the Respondent had
conducted video reviews in select previous instances
does not automatically validate its actions here.18
To be fair, Romero may not have been blameless in
failing to mention that he was holding an iPod before the
accident. But the Respondent’s reaction was wildly out
of proportion to any omission that Romero—a longtime
employee with a track record of safe driving—
committed. Indeed, Romero followed the Respondent’s
accident protocol in full: he activated DriveCam after the
collision, he reported the incident through the appropriate
channels, and he cooperated with the Respondent’s in-
vestigation.19 Presumably, Romero would have known
that the video would show his iPod use. Nonetheless, he
adhered to all the required reporting steps. Had Romero
truly been dishonest—as the Respondent vehemently
claims—he would not have activated his DriveCam and
reported the accident in the first place. In this light, the

17 In light of our finding that the Respondent’s given rationale was
pretextual, we find it unnecessary to rely on the judge’s finding that
Romero did not falsify his report because he “was not asked if anything
was in his hand” and because he did not believe that he had been dis-
tracted before the accident.
18 Although the record does not establish the Respondent’s specific
investigatory protocol, it does make clear that the Respondent did not
review the DriveCam footage for every road accident; in fact, absent
Wattier’s request, the inquiry into Romero’s accident would have been
closed without any review of the footage. Andersen testified at the
hearing that he did not know why Wattier was interested in verifying
that the other vehicle left its lane.
By the same token, we reject the applicability of the other instances,
cited by our colleague, in which the Respondent disciplined employees
pursuant to its falsification policy. Unlike the employees in those cases,
Romero’s conduct was investigated solely because he engaged in pro-
tected concerted activity, and the purported violation of the falsification
policy was discovered pursuant to that unlawfully motivated inquiry.
19 Contrary to our dissenting colleague, we do not rely on this evi-
dence to show that “it was unfair of the Respondent to discharge
Romero for this single omission.” Instead, this evidence underscores
the Respondent’s disproportionate response to a minor incident and the
disingenuousness of the Respondent’s assertion that Romero was dis-
charged for his dishonesty about the incident. To the contrary, Romero
made every effort to comply with the Respondent’s protocols and
knowingly activated the recording device even though it would obvi-
ously show him using an iPod. Paradoxically, the Respondent has
supported its assertion that Romero omitted key information from his
accident report by relying on evidence that Romero himself chose to
record as part of his accident report.
CON-WAY FREIGHT, INC. 5
Respondent’s purported reliance on Romero’s falsifica-
tion as the basis for his discharge is simply not credible.
Accordingly, we find that the evidence establishes that
the Respondent’s proffered reason for suspending and
discharging Romero was pretextual—that is, it was not in
fact relied upon. Rather, the evidence shows that the Re-
spondent discharged Romero for engaging in union ac-
tivity.
Our dissenting colleague presents this as a straightfor-
ward situation in which the Respondent simply acted on
a reasonable belief that Romero falsified his accident
report. But “the mere existence of a valid ground for dis-
charge is no defense to an unfair labor practice charge if
such ground was a pretext and not the moving cause.”20
Indeed, our colleague turns a blind eye to the Respond-
ent’s multiple misrepresentations of Romero’s conduct as
well as its shifting and post-hoc disciplinary justifica-
tions, all of which render the Respondent’s entire course
of action to be inherently unreasonable. Here, for the
reasons stated, we find that the Respondent violated Sec-
tion 8(a)(3) and (1) by suspending and discharging
Romero.
II. IMPLIED THREAT OF PHYSICAL HARM TO JUAN
PLACENCIA
The Union filed a representation petition on September
11, 2014. The Respondent subsequently hired labor con-
sultant Luis Camarena, who held meetings at the facility,
talked to employees, rode with drivers, and spread the
Respondent’s views regarding the Union. The General
Counsel’s allegation stemmed from a discussion between
Camarena and employee Juan Placencia on October 6.
Placencia, in the context of discussing the organizing
drive, told Camarena that the Respondent’s employees
“felt like battered wives.” Camarena responded by de-
scribing himself as “the type of person that if you owe
him money, that he will call you. If you ignore his calls,
he will go down to your house and . . . kick the door
down, come up, push you to the ground, put his foot on
your chest and . . . stick a gun out, pull my .45, put it to
your head and I'll get my money one way or the other.”
Camarena then mimicked kicking down a door, pushing
someone down, placing his foot on that person’s chest,
grabbing that person by the hair, and aiming a gun at his
head.
The judge found that Camarena’s words and gestures
“indicated a willingness to resort to physical violence to
protect his interests” and that, in light of the recent filing
of an election petition, this conduct was reasonably con-
strued as a threat. We agree. Specifically, Camarena re-

20 McKenzie Engineering Co., 326 NLRB at 484 (quoting NLRB v.
Yale Mfg. Co., 356 F.2d at 74).
sponded to Placencia’s suggestion that employees needed
a union because they felt “battered” by making a pointed
statement about his own aggressive and vengeful nature
in the face of opposition. The implication was that Cama-
rena was willing to do anything—including committing
acts of physical violence—to stop the Union.21 The seri-
ousness of Camarena’s threat was underscored by the
vivid language that he used, as well as the lurid, graphic
nature of his accompanying gestures.22
Our dissenting colleague argues that there is insuffi-
cient evidence to support a reasonable inference that
Camarena threatened physical violence because of Plan-
cencia’s union activities; instead, he argues that it was
more likely that Camarena was merely making the point
that if he were attacked and “battered,” he would fight
back himself and not ask a third party for help. But the
issue is not whether Camarena made his statement be-
cause of Plancencia’s union activities; it is “whether the
employer engaged in conduct which, it may reasonably
be said, tends to interfere with the free exercise of em-
ployee rights under the Act.” ITT Federal Services
Corp., 335 NLRB 998, 1002 (2001) (quoting American
Freightways Co., 124 NLRB 146, 147 (1959)). Here,
Camarena—who had been hired to disseminate the Re-
spondent’s antiunion message—responded directly to
Plancencia’s statement about the need for the Union with
a graphic account of his own propensity for violence
when opposed.23 Even if Camarena intended to convey
only that he would fight back generally, Camarena’s
words and gestures did not clearly express this thought;
he therefore “ran the risk that his statement—or any am-
biguity in his statement—could be construed by an em-

21 See Evenflow Transportation, 358 NLRB 695, 696 (2012), af-
firmed by 361 NLRB 1482 (2014) (unlawful threat where employer
stated that “he’d call his dogs out from the street to come and get the
union out.”); Thalassa Restaurant, 356 NLRB 1000, 1017 (2011)
(same, where in response to protected activity, employer referred to his
military training and stated he “could take care of” employees).
22 See Hagerstown Kitchens, 244 NLRB 1037, 1040 (1979) (unlaw-
ful threat where employer threatened to oppose the union by blocking
the driveway with his jeep and shotgun so that he could “blow [the]
head off” of ringleader).
23 This case therefore is distinguishable from Children’s Services In-
ternational, 347 NLRB 67 (2006), and Mid-State, Inc., 331 NLRB
1372 (2000), cited by the dissent. In Children’s Services, a supervisor,
responding to a question about her mental state, said she needed to hit
something. In Mid-State, the supervisor said he would “kick [a union’s
representative’s] ass” based on his belief that the union was spreading
rumors about the supervisor. Thus, the cases cited by our dissenting
colleague involved circumstances where it would have been apparent to
employees that the remarks at issue had no relationship to their protect-
ed activity, whereas employees present for Camarena’s response to
Placencia’s explanation for seeking union representation could reason-
ably believe that the conduct of the Respondent’s labor consultant was
connected to the employees’ union organizing at the Respondent’s
facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ployee as containing an unlawful threat.” ITT Federal
Services Corp., 335 NLRB at 1003. Thus, as the judge
found, Camarena’s statement violated Section 8(a)(1).
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 1 in the
judge’s decision.
“1. By instructing employees not to wear union insig-
nia, threatening employees for supporting the Union,
suspending employees, and terminating employees be-
cause they supported the Union, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
Insert the following as Conclusion of Law 3 in the
judge’s decision.
“3. The Respondent violated Section 8(a)(3) and (1) of
the Act by suspending and terminating employee Jaime
Romero because of his union activity and to discourage
employees from supporting the Union.”
ORDER
The National Labor Relations Board orders that the
Respondent, Con-Way Freight, Los Angeles, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from wearing union insig-
nia.
(b) Threatening employees because they support the
International Brotherhood of Teamsters, Local 63, or any
other union.
(c) Suspending employees because of their support for
and activities on behalf of the International Brotherhood
of Teamsters, Local 63, or any other union.
(d) Discharging or otherwise discriminating against
employees for supporting the International Brotherhood
of Teamsters, Local 63, or any other union.
(e) 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) Within 14 days from the date of this Order, offer
Jaime Romero full reinstatement to his former job, or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Jaime Romero whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion, plus reasonable search-for-work and interim em-
ployment expenses.
(c) Compensate Jaime Romero for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 21,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge and suspension of Jaime Romero, and within 3
days thereafter notify Romero in writing that this has
been done and that the suspension and discharge will not
be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Los Angeles, California facility copies of the attached
notice marked “Appendix.”24 Copies of the notice, on
forms provided by the Regional Director for Region 21,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since August 20, 2014.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the

24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CON-WAY FREIGHT, INC. 7
Region attesting to the steps that the Respondent has
taken to comply.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Brotherhood of Teamsters,
Local 63, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All full-time and regular part-time driver sales repre-
sentatives and driver sales representative students em-
ployed by the Employer at its service center located at
1955 E. Washington Boulevard, Los Angeles, Califor-
nia; but excluding all other employees, office clerical
employees, plant clerical employees, confidential em-
ployees, customer service representatives, freight class
specialist employees, temporary employees, temporary
agency employees, staffing agency employees, sales
employees, professional employees, managerial em-
ployees, guards and supervisors as defined in the Na-
tional Labor Relations Act, as amended.
Dated, Washington, D.C. August 27, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN RING, dissenting in part.
I join my colleagues in adopting the judge’s decision
to overrule the election objections filed by Respondent
Con-Way Freight, Inc. (Con-Way or the Respondent)
and to find that the Respondent violated Section 8(a)(1)
of the National Labor Relations Act (the Act) by telling
employee Juan Placencia not to wear union insignia and
by threatening him with unspecified reprisals. I also
agree that a broad cease-and-desist order is not warranted
in this case. However, I disagree with my colleagues’
finding that the Respondent violated Section 8(a)(3) and
(1) of the Act when it suspended and discharged employ-
ee Jaime Romero. I also disagree with their finding that
the Respondent violated Section 8(a)(1) by impliedly
threatening Placencia with physical harm because of his
support for the Union. Accordingly, I respectfully dis-
sent in part from my colleagues’ decision.
1. The Respondent’s suspension and discharge of
Romero were lawful. The Respondent transports freight
across North America. Its trucks are equipped with a
video recording device called DriveCam. On August 15,
2014,1 Jaime Romero, a driver operating out of the Re-
spondent’s Los Angeles facility, was involved in a traffic
accident with another tractor-trailer in the lane to his
right. Romero was holding an electronic device (an Ap-
ple iPod) while he was driving. Romero reported, in
writing, that the accident was a hit-and-run,2 but he failed
to report that he was using an iPod immediately before
the accident.
Upon receiving Romero’s written accident report por-
traying the accident as non-preventable, Director of Op-
erations Mike Wattier asked to verify if the other vehicle
had left its lane, and Regional Safety Manager Donald
Andersen reviewed DriveCam footage of the accident.
In an email to Wattier and three other management per-
sonnel, Andersen explained that the footage showed that
roughly one second before the accident, Romero looked
down at an electronic device and pressed it with his
thumb.3 Andersen’s review of the footage also revealed
that the other vehicle did not leave its lane. Andersen
explained that the accident occurred when the other vehi-
cle “came close to [Romero’s vehicle] while at the same
time [Romero] is seen drifting to the far right of his
lane.” Given Romero’s concurrent use of the electronic
device, Andersen determined that Romero “was distract-
ed leading up to [the] crash” and “failed to react” to the
other vehicle. Andersen concluded, “It is my opinion
[Romero] falsified what exactly lead [sic] to this accident
happening” as “he left out some very important detailed
information” in his accident report (R. Exh. 20). The
Respondent suspended Romero on August 20 and dis-
charged him on September 3. Director of Human Re-
sources for the Western Area Kevin Huner, a final deci-
sionmaker in Romero’s discharge, testified that Romero
was discharged for falsification of an accident report in
violation of Con-Way Policy 541—Employee Conduct.4

1 All dates are in 2014 unless stated otherwise.
2 The Respondent’s accident-report form directs drivers to
“[p]rovide a detailed description of the accident.” Romero wrote: “I
was going on the 3rd lane . . . when a truck in the 4th lane passed by me
hitting the rear view mirror on the passenger side . . . I flashed the
headlights on the other driver; however . . . [h]e continued driving”
(GC Exh. 2). In an initial phone call to the Respondent, Romero simi-
larly reported that the second vehicle “started to drift to the left . . .
[and] made contact with [Romero’s vehicle’s] mirror.”
3 The judge found that it was impossible to discern from the video
what type of device Romero was holding. Although the Respondent
believed that the electronic device looked like a cell phone, the judge
credited Romero’s testimony that he was holding an Apple iPod. The
judge found that Romero looked at his iPod and pressed down on it
once with his thumb, and these actions started 1.25 seconds before the
moment of impact and continued until .75 seconds before impact.
4 This policy prohibits “Falsification of Company Rec-
ords/Dishonesty,” which includes “making false/untrue statements to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Huner testified that the Respondent regards “dishones-
ty/falsification” as one of the “cardinal sins” warranting
immediate termination (Tr. 1471).
On September 9—6 days after Romero was dis-
charged—Los Angeles Service Center Manager Paul
Styers completed an employee separation checklist for
Romero’s personnel file. There, he noted “Involuntary-
Violation of P&P” as the “[r]eason for [s]eparation.” In
addition, he checked the boxes for the items Romero had
returned (such as car keys and uniforms) as well as for
three questions about Romero’s employment. One of the
questions asked whether “this employee work[ed] well
with customers and others.” Styers checked the box for
“no” (GC Exh. 13).
Applying Wright Line,5 the judge found that the Gen-
eral Counsel had met his initial burden by showing that
Romero engaged in union activities, the Respondent
knew about his union activities, and his union activities
were a motivating factor in the Respondent’s decision to
discharge him. The judge further found that the Re-
spondent had failed to meet its burden of showing that it
would have discharged Romero even in the absence of
his union activities. The judge rejected the Respondent’s
stated reason for the discharge as pretextual because, in
her view, “there was no falsification.” The judge
acknowledged that Romero “did not affirmatively report”
that he had been holding an iPod immediately before the
accident happened. But she found that this omission did
not constitute falsification because Romero “was not
asked if anything was in his hand.” And the judge cred-
ited Romero’s testimony that he did not report his use of
the iPod because Romero did not believe “he had been
distracted” by it. Having concluded that “there was no
falsification,” the judge found inapposite the evidence
introduced by the Respondent to show that it has consist-
ently discharged employees for falsification, and she
summarily rejected the Respondent’s reliance on this
evidence to meet its Wright Line defense burden. Final-
ly, the judge cited the “suspicious” nature of the Re-
spondent’s “decision to inquire into” the accident as evi-
dence of pretext. The judge questioned why Wattier
would request DriveCam review, considering Romero
had filed a written report that cited no damage to his ve-
hicle and did not claim the other vehicle had left its lane.
The judge also noted that Andersen could not explain

company management.” The policy provides that such misconduct
“may be subject to discipline up to and including termination” (R. Exh.
25). The General Counsel has not alleged that this policy is unlawful.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
why Wattier wanted to verify the details of the accident.6
My colleagues adopt and bolster the judge’s findings.
Contrary to my colleagues, I would reverse the judge’s
violation finding. Preliminarily, the General Counsel’s
evidence that Romero’s union activities were a motivat-
ing factor in the Respondent’s decision to discharge him
is weak at best.7 But even assuming, arguendo, that the

6 The judge found that the Respondent’s decision to verify the details
of the accident “lend[s] a strong sense of untrustworthiness” to the
Respondent’s case.
7 In adopting the judge’s animus finding, my colleagues rely on the
Respondent’s commission of other unfair labor practices, Styers’ Sep-
tember 9 answer on the employee separation checklist to the question
whether Romero “work[ed] well with customers and others[,]” and
what the judge characterized as the “suspicious” timing of Romero’s
discharge for a “very minor incident . . . in the weeks leading up to the
[election] petition being filed” on September 11. Unlike the judge, they
do not rely on certain lawful antiunion statements cited by the judge or
a video shown at new employee orientation depicting the closure of a
unionized facility.
In my view, the above evidence is insufficient to establish that
Romero’s union activities were a motivating factor in the Respondent’s
decision to discharge Romero. First, all of the other unfair labor prac-
tices found in this proceeding were committed after Romero’s Septem-
ber 3 discharge. Although events occurring after termination are
“sometimes relevant in assessing motive,” Dresser-Rand Co., 362
NLRB No. 136, slip op. at 1 fn. 3 (2015) (emphasis added), enf. denied
in relevant part 838 F.3d 512 (5th Cir. 2016), my colleagues’ explana-
tion fails to show why this is such a case. In this regard, I note that the
Respondent’s unfair labor practices postdating Romero’s discharge also
postdated the September 11 filing of the representation petition. In
other words, Romero was discharged, then the petition was filed, then
the unfair labor practices were committed. The reasonable inference to
draw from this chronology is that it was the filing of the petition that
aroused the Respondent’s unlawful animus. Accordingly, I believe this
is not a case in which postdischarge violations shed light on the motive
for the discharge retrospectively.
Second, the Respondent never claimed that Romero was discharged
for not working well with customers and others. Six days after the
discharge, Manager Styers filled out an employee separation checklist.
The checklist included a question asking if the separated employee
worked well with customers and others, and Styers checked the “no”
box. This is not evidence that the Respondent cited not working well
with customers and others as a reason for the discharge, and there is no
evidence that the Respondent ever so claimed. Thus, the Respondent
did not put forward “shifting and post-hoc disciplinary justifications,”
as the majority contends.
Third, even if Romero was “the leader among union organizers,” as
my colleagues suggest, the timing of his September 2014 discharge is
not shown to be related to any particular union activities of Romero,
who had assisted with the Union’s organizing efforts since 2009. Final-
ly, there is no evidence suggesting that, when the Respondent dis-
charged Romero, it could foresee that the Union’s 5-year-old organiz-
ing campaign was about to culminate in the filing of an election petition
a week later. The Respondent suspended and discharged Romero for
giving a misleading account of the accident, which took place almost
one month before the filing of the petition. The close proximity be-
tween Romero’s discharge and the Union’s subsequent filing of the
election petition falls short of satisfying the General Counsel’s Wright
Line burden.
That leaves my colleagues’ finding that the Respondent’s stated rea-
son for Romero’s discharge was pretextual. As explained below, I
CON-WAY FREIGHT, INC. 9
General Counsel did meet his initial burden under Wright
Line, I find that the Respondent has met its defense bur-
den of showing that it would have discharged Romero
even absent his union activities.
As a preliminary matter, the judge and my colleagues
have misconstrued the nature of the Respondent’s bur-
den. To meet its defense burden, the Respondent need
only show that “it had a reasonable belief that the em-
ployee committed the offense, and that it acted on that
belief when it discharged him.” McKesson Drug Co.,
337 NLRB 935, 937 fn. 7 (2002); see also Cellco Part-
nership v. NLRB, 892 F.3d 1256, 1262 (D.C. Cir. 2018)
(“The only question is whether the company excused
someone it reasonably believed was lying. . . . [The em-
ployer] has made a legitimate business judgment—a not
unusual one—that an employee lying during an investi-
gation is a serious threat to management of the enter-
prise.”) (emphasis added), denying enf. to 365 NLRB
No. 93 (2017). Thus, this case does not turn on whether
the judge, my colleagues, or Romero believe that
Romero engaged in falsification or whether Romero ac-
tually engaged in falsification. It turns on what the Re-
spondent reasonably believed.
Applying the appropriate Wright Line standard, I find
that the Respondent reasonably believed that Romero’s
omission from the accident report of his use of an elec-
tronic device immediately before the accident occurred
constituted falsification.8 Romero was required to pro-

disagree with that finding. But even assuming that “falsification” was
not the real reason for Romero’s discharge, that alone cannot sustain
the General Counsel’s burden of proof. See Union–Tribune Publishing
Co. v. NLRB, 1 F.3d 486, 491 (7th Cir. 1993) (“A finding of pre-
text, standing alone, does not support a conclusion that a firing was
improperly motivated.”) (emphasis added). Under Wright Line, the
General Counsel must show that animus against Romero’s union activi-
ty was a motivating factor in his discharge. To the extent that he relies
on pretext to make that showing, the General Counsel must prove, not
merely that the Respondent’s stated reason for discharging Romero was
false or not in fact relied upon, but that the real reason was animus
against Romero’s union activity. And as explained above, the record
evidence in this case does not support such a finding.
8 As stated above, the judge found that Romero’s failure to report his
use of an electronic device immediately before the accident (and, thus,
his failure to alert the Respondent to the fact that he might have been
distracted) did not constitute falsification because the Respondent did
“not ask[] if anything was in his hand” and because Romero believed
the device did not in fact distract him. My colleagues distance them-
selves from the judge’s faulty reasoning, but instead fault the Respond-
ent for mistakenly finding that Romero was holding a cell phone and
texting before the accident when he denied doing so and when the
DriveCam did not show the type of device he was holding. Of course,
these findings, like the judge’s, erroneously focus on what actually
happened rather than what the Respondent reasonably believed hap-
pened. See Sutter East Bay Hospitals v. NLRB, 687 F.3d 424, 435–436
(D.C. Cir. 2012) (“If [an employer’s] management reasonably believed
that [employee misconduct] occurred, and the disciplinary actions taken
were consistent with the company’s policies and practices, then [the
vide “a detailed description of the accident.” To state the
obvious, when someone is involved in a vehicular acci-
dent, the most important thing to address in any detailed
description is what may have caused or contributed to the
accident. This is especially true for a professional driver
working for a motor freight company. The DriveCam
recording showed that roughly one second before the
accident occurred, Romero was holding, looking at, and
pressing down on an electronic device. However, when
Romero provided his “detailed description of the acci-
dent,” he made no mention of an electronic device, let
alone that he was looking at one immediately before the
accident occurred. The recording also showed, seeming-
ly contrary to Romero’s characterization of the accident
as a hit-and-run, that Romero’s truck drifted to the far
right of his lane. Accordingly, it was reasonable for the
Respondent to believe that Romero was at least partially
responsible for the accident by using an electronic device
while driving, contrary to the picture of the accident
Romero painted in his written report that it was a hit-and-
run without any fault of his own.
Moreover, Director of Human Resources for the West-
ern Area Huner testified, without contradiction, that the
Respondent regards “dishonesty/falsification” as one of
the “cardinal sins” warranting immediate termination,
and the record evidence confirms Huner’s testimony.
Prior to Romero’s discipline, the Respondent consistent-
ly applied its policy prohibiting “Falsification of Compa-
ny Records/Dishonesty” to discharge other employees
for making false statements. Importantly, it discharged
employees pursuant to this policy both for making af-
firmative misrepresentations and for omitting important
facts.9 This evidence of the Respondent’s similar treat-

employer] could meet its burden under Wright Line regardless of what
actually happened.”). It is undisputed that immediately before the
accident, Romero was holding and looking down at an electronic de-
vice and pressing it with his thumb, and that the video footage only
captured 3.5 seconds of the period before the accident. A cell phone is
an electronic device, and people often use their thumbs to type text
messages on a cell phone. Thus, the Respondent’s belief that Romero
was texting on a cell phone was reasonable, notwithstanding that the
video only captured Romero “press[ing] the device once with his
thumb” during the extremely brief pre-accident time period that the
video captured.
9 Employee Adam Phillips reported an accident as a hit-and-run,
when he actually hit a fixed object. The Respondent discharged him
for falsifying an accident report and dishonesty (R. Exh. 26E). Em-
ployee Alex Soria reported hitting tree branches, but he failed to report
that he had also hit a gate. The Respondent discharged him for provid-
ing a false statement (R. Exh. 26 F). Employee Scott Mielnicki did not
report an accident where his trailer was punctured. The Respondent
discharged him for dishonesty (R. Exh. 26D). In addition, the Re-
spondent discharged employees David Zollinger, William Petion, and
Keith Johnson for failing to report an accident in violation of Con-Way
Policy 541 (R. Exh. 26A-26C).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ment of other employees for similar offenses further sup-
ports my finding that the Respondent met its Wright Line
defense burden. See, e.g., Merillat Industries, 307
NLRB 1301, 1302–1303 (1992).10
Finally, contrary to the judge and my colleagues, the
record does not support a finding that the Respondent’s
defense is undermined by its decision to verify the details
of the accident by reviewing the DriveCam footage. To
begin, there is nothing suspicious in Wattier’s request to
verify whether the other vehicle had left its lane.
Romero reported the accident as a “hit-and-run” by a
vehicle in the lane to his right (a fact omitted from the
majority’s decision), a type of accident that could not
have been prevented by proper driving. If Romero was
faultless—i.e., if he was properly centered in his lane—a
“hit-and-run” by an adjoining vehicle would require that
vehicle to drift out of its lane, so it was reasonable for
Wattier to inquire if the other vehicle did leave its lane.11
Moreover, the judge failed to acknowledge record evi-
dence suggesting that a post-accident review of
DriveCam footage is not unusual and perhaps even
common. Specifically, Andersen testified that he had
reviewed about 10,000 DriveCam videos in the two years
since the Respondent implemented that technology (Tr.
1429). Andersen also testified that Wattier had requested
verification of details in an accident report on a “dozen”
occasions and that Wattier’s request was not unusual in
his experience working with him for 15 years (Tr. 1348,

Following Romero’s discharge, the Respondent has continued to ap-
ply its lawful policy prohibiting employee dishonesty and falsification,
and it continued to treat omission of material facts as a violation of the
policy. In late 2014, the Respondent discharged employee Benjamin
Scholes for failing to report that he was looking out of the window and
talking on the phone right before an accident (R. Exh. 26H), and em-
ployee Martin Relles for failing to report that he had drifted into anoth-
er vehicle’s lane (R. Exh. 26I). In 2015, the Respondent discharged
employees Ignacio Munoz and Raymond Deanda, who reported an
accident as a hit-and-run but failed to report that Munoz was drowsy
and that his vehicle crossed into another lane (R. Exh. 26G).
10 The evidence discussed above contradicts the majority’s finding
that the Respondent’s discharge of Romero was “wildly out of propor-
tion to” Romero’s omission, as it shows that the Respondent regards
omission of material facts from accident reports as falsification and
grounds for discharge. My colleagues evidently believe that it was
unfair of the Respondent to discharge Romero for this single omission
in light of his long tenure, his safe driving record, his voluntary record-
ing of the accident, and his procedural compliance with the reporting
requirement. Be that as it may, it is well established that “‘[t]he deci-
sion of what type of disciplinary action to impose is fundamentally a
management function.’” Neptco, Inc., 346 NLRB 18, 20 fn. 15 (2005)
(quoting Midwest Regional Joint Board v. NLRB, 564 F.2d 434 (D.C.
Cir. 1977)).
11 Having gone to the expense of installing the DriveCam system, the
Respondent was within its rights to use it to verify whether, as Romero
claimed in his accident report, the accident had actually been caused by
the other vehicle drifting to the left.
1430).12 Accordingly, there is no basis in the record evi-
dence to find that there was anything suspicious, un-
trustworthy, or unusual about the Respondent’s decision
to review the footage of Romero’s accident, as the judge
and the majority speculate.
Although the Respondent mistakenly believed that
Romero was holding a cell phone and texting immediate-
ly before the accident, the credited evidence shows that
Romero was changing a song on his iPod. But this does
not establish that the Respondent’s belief was unreason-
able or in bad faith. As the majority notes, “it [was]
completely impossible to discern from the video what
type of device Romero was holding,” and therefore the
Respondent’s multiple attempts to discern what type of
electronic device Romero was holding, looking at, and
pressing with his thumb were at least reasonable.13 Ad-
ditionally, Romero was not discharged for using his cell
phone or texting. He was discharged for falsifying his
accident report by reporting the accident as a hit-and-run
without any mention of his use of an electronic device
immediately before the accident.14

12 My colleagues brush off this evidence. Instead, they claim that
Romero’s conduct was investigated solely because he engaged in pro-
tected concerted activity. The General Counsel never advanced this
theory, and the record does not support it. The Respondent conducted
numerous reviews of video footage of accidents prior to Romero’s
accident, and the General Counsel failed to present any evidence that
the Respondent’s review of the video of Romero’s accident was differ-
ent from the previously conducted reviews.
Further, the Respondent’s investigation here is markedly different
from that in Kidde, Inc., 294 NLRB 840 (1989), cited by the majority.
There, the employer directed a private detective to follow a driver on
his route, shortly after asking the driver if he was organizing a union.
The investigation was unprecedented, and implemented without any
prior indication of misconduct on the driver’s part. Here, in contrast,
the Respondent reviewed Romero’s video only after it learned of his
accident, consistent with its review of other similar incidents.
13 I disagree with my colleagues insofar as they imply that Anderson
acknowledged that his conclusion that Romero had been texting was
unreasonable, or, for the reasons stated above, that such an admission
can be reasonably inferred from the fact that he initially reported that
Romero was texting, while testifying at the hearing that Romero “only”
held a device in his hand and touched it with his thumb. Besides, what
gets lost in the debate over texting versus tapping a song on an iPod is
the fact that Romero was using, and looking down at, some kind of
digital device seconds before the accident and, more importantly, that
he failed to disclose this material fact in his accident report.
14 The majority’s characterization of Romero’s misconduct as a “mi-
nor incident” is not supported by the record. As noted above, Huner
testified that the Respondent regards “dishonesty/falsification” as one
of the “cardinal sins” warranting immediate termination. The fact that
Romero’s accident caused no damage is simply irrelevant when the
reason for his discharge was not based on the severity of the accident,
but on the application of the company policy prohibiting falsification.
Harrison Steel Castings Co., 262 NLRB 450 (1982), enfd. in rele-
vant part 728 F.2d 831 (7th Cir. 1984), cited by the majority, is not to
the contrary. There, the employer discharged employee Watkins for
clocking in at the gatehouse and then remaining there for some time
instead of using his assigned timeclock in the machine shop. In finding
CON-WAY FREIGHT, INC. 11
On these facts, I find that the Respondent has demon-
strated by a preponderance of the evidence that it would
have suspended and discharged Romero even absent his
union activities on the basis that it reasonably believed
that by omitting a material fact from his accident report,
Romero had falsified his report in violation of the Re-
spondent’s lawful policy, and that it has treated similar
omissions of material facts from accident reports as falsi-
fication. Accordingly, I would dismiss the allegations
that the Respondent’s suspension and discharge of
Romero violated Section 8(a)(3).
2. The Respondent did not impliedly threaten Placen-
cia with physical harm for engaging in protected activity.
Nearly a month after the election petition was filed, em-
ployee Juan Placencia had a conversation with Luis
Camarena, a labor consultant whose services the Re-
spondent retained during the union organizing drive.
Placencia stated that the employees felt like “battered
wives,” prompting their decision to seek representation.
Camarena responded that he would not let himself be a
battered wife but would fight his own fight and knock
down doors if he had to. As he said this, Camarena pan-
tomimed someone kicking down a door, pushing some-
one to the ground, reaching for a gun, and pointing it.
The judge found that Camarena’s actions “indicated a
willingness to resort to physical violence to protect his
interests.” I agree. The judge further found that Cama-
rena thereby impliedly threatened Placencia with physi-
cal harm for supporting the Union, and the sole basis the
judge provided for this finding was that “the petition for
election had recently been filed.” Here, I disagree. The
petition was filed on September 11. The encounter be-
tween Placencia and Camarena took place nearly a
month later, on October 6. This is insufficient to support
a reasonable inference that Camarena threatened physical
violence because of Placencia’s union activities. Rather,
Camarena’s statements and actions are more reasonably
understood as having been triggered by Placencia’s ref-
erence to employees seeking union representation be-
cause they felt like “battered wives.” That is, if he
(Camarena) were attacked and “battered,” he would fight
back himself rather than ask a third party for help. While
I do not endorse or condone Camarena’s message, I do
not believe his words and actions had the requisite ten-
dency to interfere with the free exercise of Section 7
rights. It goes too far to say, as my colleagues do, that

pretext, the Board relied on the fact that the employee was not normally
required to remain in the machine shop as well as the employer’s ex-
plicit linkage of dishonesty with union activity by stating that the em-
ployee’s word was “no good” because he continued to support the
union after telling the employer that he had had a change of heart. No
such facts are present here.
Camerena’s implicit agreement with Placencia that he
would fight back if battered, while disagreeing as to how,
represented a threat to use physical force against Placen-
cia for supporting the union. Accordingly, I would re-
verse and dismiss the judge’s 8(a)(1) finding. See Mid-
State, Inc., 331 NLRB 1372, 1372 (2000) (no 8(a)(1)
violation where supervisor’s remarks, including that he
would “kick [a union’s representative’s] ass,” were based
on supervisor’s belief that the union was spreading lies
about him, not on employees’ protected activities); Chil-
dren’s Services International, 347 NLRB 67, 68–69
(2006) (no 8(a)(1) violation where supervisor’s statement
that she needed to hit something was in response to a
question about her mental state, and employees would
not reasonably believe she literally intended to hit
them).15
For the reasons set forth above, I respectfully dissent
in part from my colleagues’ decision.
Dated, Washington, D.C. August 27, 2018
______________________________________
John F. Ring, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

15 My colleagues’ reliance on Evenflow Transportation, 358 NLRB
695 (2012), reaffirmed by 361 NLRB 1482 (2014), Thalassa Restau-
rant, 356 NLRB 1000 (2011), and Hagerstown Kitchens, 244 NLRB
1037 (1979), is misplaced. In Evenflow Transportation, the employer
said that “he’d call his dogs out from the street to come and get the
union out.” 358 NLRB at 696 (emphasis added). In Thalassa Restau-
rant, a supervisor responded to employees’ protected concerted com-
plaints by stating that he had been trained in the Turkish Army and
could “take care of” one of the employees engaged in that protected
activity. 356 NLRB at 1017. In Hagerstown Kitchens, the employer’s
president and owner, Richard Young, asked an employee whether he
was the “ringleader” of employees trying to organize a union. After the
employee replied affirmatively, Young told him that “no union and no
one else is going to come in here and tell me how to run this business . .
. if I have to, I’ll close it down and I’ll block the driveway with my jeep
and my shotgun and I hope that the ringleader is in the front line, so I
can blow his head off.” 244 NLRB at 1040 (emphasis added). In each
of these cases, unlike here, the employer’s remarks were threats of
physical violence explicitly linked to union or other protected activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT prohibit you from wearing union insig-
nia.
WE WILL NOT threaten you because of your support for
the International Brotherhood of Teamsters, Local 63, or
any other union.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for supporting the Interna-
tional Brotherhood of Teamsters, Local 63, or any other
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of this Order,
offer Jaime Romero full reinstatement to his former job,
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Jaime Romero whole for any loss of
earnings and other benefits resulting from the discrimina-
tion against him, plus reasonable search-for-work and
interim employment expenses.
WE WILL compensate Jaime Romero for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 21, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year(s).
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful sus-
pension and discharge of Jaime Romero, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the suspension and discharge will
not be used against him in any way.
CON-WAY FREIGHT, INC.
The Board’s decision can be found at
www.nlrb.gov/case/21-CA-135683 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940
Mathew J. Sollett, Cecelia Valentine, for the General Counsel.
Mark W. Robbins, Gordon A. Letter, for the Respond-
ent/Employer.
Gena B. Burns, for the Charging Party.
DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Los Angeles, California, on July 27–31 and August 5–
7, 2015.
Charging Party Jaime Romero (Romero) filed the original
charge in Case 21–CA–135683 on August 28, 2014 and an
amended charge on October 9. Charging Party Juan Placencia
(Placencia) filed the original charge in Case 21–CA–140545 on
November 6, and an amended charge on December 1. These
charges were consolidated in a complaint the General Counsel
issued on March 31, 2015. Con-Way Freight, Inc. (the Re-
spondent or Company), filed a timely answer denying all mate-
rial allegations.
On October 30, 2014, the Company filed objections to the
conduct of the International Brotherhood of Teamsters, Local
63 (the Union) surrounding its employees’ selection of the Un-
ion as their representative. On April 15, 2015, the Regional
Director issued a report on challenged ballots and elections, and
consolidated the objections Case 21–RC–136546, with Cases
21–CA–135683 and 21–CA–140545.
The complaint alleges numerous violations of Section
8(a)(3), and (1) of the National Labor Relations Act (the Act) in
connection with a union organizing campaign at the Respond-
ent’s Los Angeles, California, facility, commonly referred to as
the ULX facility. The allegations include threats to employees,
prohibitions on wearing union insignia, telling employees se-
lecting the Union would be futile, and the suspensions and ter-
minations of the respective Charging Parties.
Con-Way Freight’s objections contend the Union engaged in
threatening, intimidating, coercive, and abusive conduct which
affected the results of the election.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Union, I make
the following1

1 The Respondent filed an unopposed motion to correct the tran-
script, which is granted, and hereby admitted into the record as ALJ
Exh. 5. There are other errors as well. On page 867 “compelled to
buy” should be “compelled by.” Other typos are noted below.
CON-WAY FREIGHT, INC. 13
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with a facility in Los Ange-
les, California, transports freight across North America. The
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES COMPLAINT—FACTS AND
CONTENTIONS
A. The Los Angeles Facility
This case concerns the Respondent’s Los Angeles facility,
commonly referred to as ULX. The ULX facility employs
approximately 44 driver sales representatives (drivers). Some
drivers perform local pickup and delivery (P&D). Others are
line drivers, who transport freight over longer distances.
At all relevant times, Paul Styers (Styers) was the ULX ser-
vice center manager and the highest ranking manager at the
facility. Steve Roman (Roman) and Armando Rosado (Rosado)
were freight operations supervisors, and Kevin Huner (Huner)
served as human resources director for the western area.
B. The Charging Parties
Charging Party Jaime Romero (Romero) worked for the Re-
spondent from October 1990 until his suspension on August 20,
2014. He was terminated on September 3. Romero received a
10-year award for safety and a million mile safety award in
2010. Romero reported to Rosado. At the time of his termina-
tion he was a line driver. (Tr. 44–50.)2
Charging Party Juan Placencia (Placencia) worked for the
Respondent from October 7, 2011, until his termination on
October 7, 2014. Placencia worked as a P&D driver. (Tr. 163.)
C. Early Organizing Efforts.
The Union began organizing efforts at ULX in 2009. The
Union’s lead organizer was Louie Diaz, who was assisted by
Ernie Baraza, Robert Amaya, and Mark Moran, and other or-
ganizers employed by the Union. (Tr. 1570, 1575.)
Romero started speaking with coworkers in 2009.3 He at-
tended about 35 union meetings up until his termination and
was the leader among employee organizers. The Respondent,
through managers and supervisors including Styers, knew that
Romero assisted the Union and engaged in concerted activity
from 2009 until his termination. (Tr. 54, 63, 142.)

2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for the Respondent’s exhibit; “GC Exh.” for the Gen-
eral Counsel’s exhibit; “CP Exh.” for Charging Party’s exhibit; “GC
Br.” for the General Counsel’s brief; “R. Br.” for the Respondent’s
brief, and “U Br” for the Union’s brief. Although I have included
several citations to the record to highlight particular testimony or exhib-
its, I emphasize that my findings and conclusions are based not solely
on the evidence specifically cited but rather are based my review and
consideration of the entire record.
3 The Union organizing efforts at ULX were part of a Teamsters’
campaign to organize the Respondent across the nation. Joint Council
42 as well as Teamsters’ Locals 952 and 63, were also involved.
D. Orientation Videos
During new employee orientation, employees view various
videos. One concerns the Company’s purchase of a union facil-
ity and depicts how the facility was shut down.4 (Tr. 1234–
1235.) Driver John Cabrera (Cabrera) described the video as
depicting a union company Con-Way had purchased, a picket
line, and the message that the union was no longer at Con-Way.
(Tr. 515.)
After Placencia saw the video, Styers said Con-Way was a
nonunion facility and if employees wanted to work there, that’s
how it would stay. (Tr. 155, 277.) Styers admitted he said Con-
Way was union free, but denied stating that’s how it would
need to remain. (Tr. 1254, 1257.) When Placencia asked Styers
what about the union he disliked, Styers said employees were
treated fairly at Con-Way and stated “there’s thuggery. There’s
all kinds of different things that go on in that type of environ-
ment . . .” (Tr. 1256–1257.) Styers told Placencia line drivers
were the biggest crybabies in the Company, and to stay away
them, especially Romero. (Tr. 158–163.)
During another video about the importance of sleep, a former
employee referred to as “Chucky” was depicted. Styers com-
mented that Chucky no longer worked for Con-Way because he
talked about union activity. He and driver trainer Ramsey Ro-
bles laughed about it.5 (Tr. 157–159.)
E. Union Organizing Efforts in 2013–2014
Placencia learned about the organizing campaign a couple
months after he started working at ULX. He became involved
in early 2013, talking to drivers about the union. A union or-
ganizing committee was formed, consisting of Romero, Placen-
cia, and some other drivers. Romero began collecting authori-
zation cards in December 2013, collecting a total of about 20–
23 cards. Placencia collected 5 or 6 authorization cards from
drivers in early 2014. (Tr. 172–179, 351.) Romero and Placen-
cia also assisted drivers at the Respondent’s Laredo, Texas
facility.6 (Tr. 177.)
F. Spring 2014
In March 2014, in the employee break room, Styers asked
Romero why the employees were looking for third party repre-
sentation, and mentioned Company was going to give them a
raise. Romero responded that the union organizing wasn’t about
a raise but was about respect to the employees. Romero also
said he knew he was being targeted and that any little thing he
did would get him fired but that was okay with him.7 (Tr. 57–
59.)

4 This video is referenced in a script Styers later read to employees,
as discussed below. (R. Exh. 13.)
5 Styers denied making this comment, telling Placencia to stay away
from Romero, and stating that if employees wanted to work at Con-
Way it needed to remain union-free. These conflicts are resolved be-
low. Though Robles testified for the Respondent, he was not asked
about this incident.
6 A representation election occurred at Respondent’s Laredo facility
on September 12, 2014. (Tr. 353.)
7 Styers was asked whether this conversation occurred during the
meeting where he read the script, and he denied it. (Tr. 1233–1235.)
He was not asked about the earlier conversation in the break room.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
In March–May 2014, Styers met with employees, either one-
on-one or in groups of 2. He read aloud a script setting forth
the Company’s position about the Union. (R. Exh. 13; Tr.
1222–1233.) Styers stated that union members and union offi-
cials both share a common fear of losing their jobs. He reiter-
ated the Company’s position that unionized companies will not
be able to compete in transportation and logistics distribution
industry due to excessive costs incurred by unionized compa-
nies. Styers stated that many Teamsters’ organized businesses
had gone out of business, and pointed to some examples from
Con-Way. The script Styers’ read further stated:
The Teamsters like to advertise that they want to represent
you in ‘negotiations for better wages, hours, and working
conditions.’ What gets lost in their sales pitch is that Teamster
representation is only the beginning of a NEGOTIATION
FOR EVERYTHING. YOU DON'T START WITH
WHAT YOU ALREADY HAVE. It is a clean sheet of pa-
per negotiation that may result in improved wages, hours and
working conditions; no changes; or that may result in lesser
wages, hours, and working conditions.
(R. Exh. 13, emphasis in original.)
Styers discussed that wages had been restored to pre-
recession levels, and there had been wage increases and bonus-
es since. He pointed out the Teamsters negotiated 15 percent
and 7 percent wage decrease at unionized facilities that had yet
to be restored. Styers stated he wanted to ensure Con-Way
remained an industry survivor rather than an industry statistic.
Styers next mentioned that employees might be approached to
sign an “innocent looking card” requesting Teamster represen-
tation. He warned that union representative might only provide
only some of the facts, and urged employees to seek infor-
mation from the Company. He warned that the cards are legal-
ly binding, and stated employees have the right not to choose
the Union. The final paragraph noted that none of Con-Ways
facilities were unionized, and the customers did not have to
worry about strikes or other labor disputes. He added, “Our
Account Executives can surely tell you just how important that
message is.” Styers concluded by stating, “Now more than
than ever, it is important that we work together to remain com-
petitive in a very competitive business. We are counting on the
fact that the day will never come when our union-free message
will change, and I hope you will help deliver that message to
other Con-way employees. Thank you for your attention and
for the good work you do, day in and day out. I am always
available to discuss this and any other topic with you.” (R. Exh.
13.)
Styers’ one-on-one meeting with Romero took place in
Styers’ office in May 2014. (Tr. 66–67, 119.)
G. Romero’s August 2014 Accident and Termination
The Respondent’s trucks are equipped with DriveCam, a re-
cording device on a 30 second continuous loop. There are two
lenses, one facing toward the driver and one facing away. If
there is an accident or event, the driver triggers DriveCam and
it saves the recording from 8 seconds before the trigger and 4
seconds after. DriveCam may also be triggered automatically
by external events such as braking, a sharp steering wheel turn,
or an accident. Every day, during off peak hours, it downloads
any events that are saved on it. DriveCam sends notifications to
the Company if an event triggers DriveCam, but not if it is
manually activated. (Tr. 1335–1337.)
In the event of an accident, breakdown, or other problem
while on the road, drivers are to pull over in a safe place and
call the Respondent’s main dispatch, referred to as line haul. If
a driver has an accident that is seen on DriveCam but not called
in, the driver is instructed to call it in after the fact. (Tr. 1446.)
On August 15, 2014, Romero was driving a tractor-trailer
from the ULX terminal to Blythe, California. He was about 10
minutes from the ULX facility, in the center lane of Highway
60 East. The passenger side mirror of Romero’s truck, which
extended out about 18 inches, made contact with the tractor-
trailer in the lane to Romero’s right. Romero activated Drive
Cam and tried to get the other driver’s attention. The other
driver did not pull over. (Tr. 90.) Romero pulled over and
called line haul to report the incident. He spoke with Tricia
Plonte (Plonte), who described Romero’s report as follows:
SOS Description: Hit/Run V2 side swiped. V2 – tractor pull-
ing a contained trailer, no other information. CWF damage –
tractor #432-3575 – p/s mirror pushed forward, paint scuffed;
No V2 damage. No injuries. DSR was traveling/b HWY 60 in
the third lane (of six lanes) when V2 started to drift to the left.
The d/s of V2’s container trailer made contact with DSR’s p/s
mirror. V2 did not stop. DSR called police but they said he
would have to go to police station to make a report.
(R Exh. 21.)
Romero called the California Highway Patrol and filed a re-
port over the phone. (Tr. 92–93.) Romero continued to com-
plete his work assignment, returning to the ULX facility at
about 8 a.m. He filled out an accident report, with a diagram
and a written description of what occurred. The written de-
scription stated:
I was going on the number three lane, driving eastbound on
60 Freeway when a truck in the 4th lane passed by me hitting
the rear view mirror on the passenger side. As a result, paint
residue from the hit is visible. I flashed the headlights on the
other driver; however, the driver of the other truck did not
stop. He continued driving.
(GC Exh. 2.) There was no damage to the vehicle, and the
accident was ruled non-preventable.
Romero was holding an iPod while he was driving.8 He
looked at for .5 second and pressed down on it once with his
thumb, from -6.25 seconds to -5.75 seconds. From that point
until the time of impact at -5 seconds to -4.5 seconds, Romero
was looking forward. At the time of impact, the front wheels of
the other vehicle were touching the left side of line separating
the two lanes. (Jt. Exh. 1.)
An email grouping entitled “ULX Safety Event Notification”
includes Regional Safety Manager Don Andersen (Andersen),
Director of Operations Mike Wattier (Wattier), Human Re-
sources Generalist Dan Degener (Degener), and Styers. On

8 Drivers commonly use Bluetooth devices and other wired listening
devices. (Tr. 669.)
CON-WAY FREIGHT, INC. 15
August 16, Plonte sent an email to ULX Safety Event Notifica-
tion stating Romero’s accident was non-preventable. That
same day, Wattier sent an email asking if there was any way to
verify that the other vehicle had left its lane. Styers suggested
having Andersen review the tape. (R. Exh. 20.) Andersen did
not know why Wattier was interested in this verification. (Tr.
1430.)
Andersen reviewed the DriveCam video and reported the
second vehicle “never left there (sic) lane and came into ours,
this is clearly seen.” He noted that the other truck came close
to Romero’s truck while Romero drifted to the far right of his
lane. He detailed the timeline of events, and sent it via email to
Styers and Wattier, copied to Huner and Degener:
1. At -8.0 to seconds you can see an electronic device in his
right hand
2. From -7.50 to -6.50 Jamie is looking out the driver's side
window at the vehicle next to him
3. From -6.25 to -5.75 Jamie is seen looking down at the
electronic device in his right hand
4. At -4.50 seconds it appears contact is made between him
and the truck next to him on the right as you can see his hand
holding the steering wheel moves in the down direction more
then it normally should
5. At -3.75 to -3.50 Jaime looks at the camera to see if it went
off
6. At -3.25 to -3.0 it appears he looks over to the mirror that
was just hit
7. At -1.50 Jaime is seen switching the electronic device from
his right hand into his left
8. At -1.25 to 0.0 Jaime is seen reaching for the event record-
er to manually trigger it to capture this event
9. At 2.25 Jaime is seen trying to hide the electronic device
from the event recorder that's in his left hand.
(R. Exh. 20.) Andersen had reviewed the video about a dozen
times before he sent this message, using the frame-by-frame
technology. 9 (Tr. 1427.) Huner became aware of the incident
when he received the email from Andersen. He also reviewed
the DriveCam video. (Tr. 1459–1462.)
Andersen concluded the report was falsified because the sec-
ond vehicle had not left its lane and Romero did not report that
he was distracted by operating an electronic device while driv-
ing.10 Andersen concluded the accident was preventable and

9 Andersen did not have the access to the sound graph when he re-
viewed the DriveCam footage; He first had it a week before the hear-
ing. (Tr. 1428.) It therefore could not have played a role in Andersen’s
assessment of Romero’s accident. Andersen testified for the first time
at the hearing that at -7.25 seconds, a lane departure warning system
installed in Romero’s tractor-trailer was activated, resulting in a beep-
ing sound. (Tr. 1369, 1371.) This observation was not included in any
of the correspondence leading up to Romero’s termination and there is
no evidence Andersen or anyone else relied on this in determining
Romero was distracted and at fault prior to his termination. Moreover,
at time of beep, -7.00, the graph shows very minimal change of the
truck’s position.
10 For the first time at the hearing, Andersen stated his belief that
Romero had left his lane and hit the other vehicle. (Tr. 1352.) This
does not appear in any of the contemporaneous correspondence. (R.
Exhs. 20–23.)
had the ruling changed accordingly. (Tr. 1352–1353; R. Exhs.
21, 22.) The revised final ruling status report states that
Romero was “seen with a cell phone in his right hand texting
and from what I seen both trucks move toward each other and
because of Jaime driving distracted he failed to react to the
other truck coming close to his unit while at the same time
Jaime is seen drifting to the far right of his lane then contact is
made between both trucks.” (R. Exh. 22.)
Andersen sent an email to Styers later that afternoon stating,
“I just looked at this again and he not only has an electronic
device I believe is a cell phone, but he is actually texting using
his thumb just for (sic) contact is made.”11 (R. Exh. 20.)
On August 20, Romero met with Licon, Styers, and Ander-
sen. Andersen read the accident report to Romero, showed
Romero segments of the DriveCam video, and said he believed
the accident was Romero’s fault. Romero disagreed that he
was distracted or at fault. (Tr. 102; Tr. 1236–1239.) Andersen
then said Romero falsified his accident report because he failed
to mention he had been distracted by a cell phone in his hand.
Romero said he was not texting, he was just selecting a song.
(Tr. 103, 1405.) Andersen informed Huner about the meeting.
(R. Exh. 23.)
Styers suspended Romero pending further investigation of
the accident. (Tr. 137–138, 1240.) Licon asked Romero to
provide a written statement. Romero submitted the following
statement: “I’m being suspended for other reason this is being
created to terminate me.” (Tr. 103–104; GC Exh. 3.)
Styers prepared an out of service report (essentially a sus-
pension), stating that Romero was distracted by texting on a
cell phone, which led to the accident. He said Romero drifted
to the far right side of his lane, causing contact between his
truck and the other truck. Styers noted that Romero had failed
to report that he was distracted, which was a falsification of his
accident report. (R. Exh. 14; Tr. 1242.) Romero was terminat-
ed effective September 3. (R. Exh. 16.) Huner, who decides for
all terminations, was the final decisionmaker. When asked why
he did not implement progressive discipline, Huner stated,
“There are certain policies within the Company that we regard
as cardinal sins, and dishonesty/falsification is one of them.”12
(Tr. 1471.)
Styers completed an employee separation checklist in con-
nection with Romero’s termination. (Tr. 1317, GC Exh. 13.) He
indicated that Romero did not work well with customers and
other people.13
Between September 2011 and January 2013, Romero re-
ceived four warnings from the company. Two were based on
accidents, one for taking too long to connect a trailer, and an-

11 On cross examination, when asked why this detail was now in-
cluded, Andersen stated he wanted to make sure this was conveyed
because operation of a cell phone is against the law and Company
policy. (Tr. 1353–1354.)
12 According to Huner, had Romero admitted he had been distracted,
a point would have been assessed for having a preventable accident and
he would have received a coaching event with a driver coach. (Tr.
1464–1465.)
13 At the hearing, Styers testified that Romero did not get along with
all of his fellow employees, but could not name any employees with
whom Romero did not get along. (Tr. 1318).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
other for failing to put a chock on a wheel. (Tr. 140; R. Exhs.
15.)
H. September 2014
The Union filed a representation petition on September 11,
2014.
Soon after, Placencia told Rosado he was a union supporter.
Rosado told him to stick to his guns and fight for what he be-
lieved in.14 (Tr. 184, 516–517, 184.)
Around this same time period, Placencia and some employ-
ees wore blue lanyards with yellow letters depicting “Local
63.” Placencia was in the process of getting work instructions
from Roman when Styers approached, pointed to the lanyard,
and asked Placencia what it was. After Placencia told Styers it
was his lanyard, Styers told Placencia to take it off because it
was against Company policy.15 (Tr. 187–191.)
Placencia clocked out for his lunch break. Styers left the
break room for a few minutes, then returned to tell Placencia he
had not chocked his truck.16 Placencia explained why the truck
wasn’t chocked, and then went to Licon’s office. Placencia
complained about the way Styers was treating him, and refer-
enced the lanyard incident. Placencia said the “drama” occur-
ring because of the campaign was unnecessary. Licon told
Placencia he could wear a union button but not a lanyard.
Styers walked into Licon’s office and asked what Licon and
Placencia were discussing. Placencia stated again that the
“drama” between drivers and management was unnecessary.
Styers responded, “You haven’t seen nothing yet.” Placencia
replied, “What else can you do. You already harassed me. Are
you going to fire me?” (Tr. 192–195.) Placencia continued to
wear the lanyard up through his suspension and no manager or
supervisor mentioned anything about it. (Tr. 335–336.)
The Respondent hired Cruz & Associates in response to the
union drive. Labor Consultants Edward Echanique
(Echanique) and Luis Camarena (Camarena) from Cruz & As-
sociates provided services to the Respondent from September
23–October 21, 2014.17 Shortly after they were hired, Cama-
rena and Echanique held meetings and talked to employees
one-on-one. (Tr. 632–634.) Camarena rode along with em-
ployees on their routes to answer questions starting the week of
September 29. (Tr. 520–522, 632–634, 724–725, 783–784.)
When they introduced themselves they said they were there on
Con-Way’s behalf, as representatives of Con-Way. (Tr. 737–
739, 793.)
As part of their work at Con-Way, Camarena and Echanique
assessed which employees were pro-union and which employ-
ees were antiunion. Employees were rated on a scale of 1–5,
with a rating of 1 indicating pro-Company, and a rating of 5
being prounion. (Tr. 914–919.)
During the week of September 23, Placencia attended a

14 Placencia recalled Rosado stating that there were “eyes on him.”
Resolution of what Rosado said in response is unnecessary because it is
undisputed that Placencia informed Rosado of his support for the Un-
ion.
15 Other drivers wore lanyards with sports team logos. (Tr. 196.)
16 The transcript erroneously says “chalked” instead of “chocked.”
17 Echanique was at another Con-Way facility September 9–October
8. (Tr. 745.)
meeting Camarena conducted. At least one other driver, Victor
Rivas, was also present. (Tr. 197, 726.) Camarena spoke, and
Echanique was in the room but remained silent. There are dif-
ferent versions of what occurred. I find no particular version
entirely credible, and address my salient credibility findings in
the context of my decision and analysis.
According to Placencia, Camarena said that if the Union
won, they would start negotiations from zero. Camarena also
said the company was not going to negotiate with the Union.
Placencia said wages and benefits freeze during an election and
if the employer didn’t want to negotiate, a mediator would be
brought in. (Tr. 202.) At that point, Camarena’s demeanor
changed, and other drivers spoke up and expressed that Cama-
rena was there to talk them out of joining the union. (Tr. 283,
341.) Placencia discussed his parents coming to the country
more than 50 years ago to better their lives and he was always
taught to look out for other people. (Tr. 346–347.)
According to Echanique, Camarena conducted the meeting
with Placencia and one other driver, Rivas. Echanique was
present but did not speak. Camarena talked about the upcom-
ing election. He said that under Section 7 of the Act, employ-
ees have the right to choose representation or not to choose
representation. If they choose representation the company
would have to negotiate in good faith. Employees could end up
with more, less, or the same.18 Placencia asked why anyone
would vote for the union if things could go down. Placencia
then talked about people dying to protect rights in our country
and inquired about Camarena’s military service. He also dis-
cussed immigrants and how they have suffered, and said people
like Camarena are hired by the company to make sure people
don’t exercise their rights. Placencia became tearful and upset,
and talked about the need to protect rights and how he had em-
bedded this belief in his son. Rivas asked to be excused from
the meeting and Camarena concluded the meeting. (Tr. 726–
730.)
According to Camarena, the meeting was an introduction to
labor relations. He discussed the Act and the election process.
Camarena explained that during negotiations employees’ wages
and benefits could go up, down, or stay the same. He drew a
diagram on a whiteboard depicting the Company and the Union
at a bargaining table with arrows going back and forth between
them. Placencia called Camarena a liar and said things could
only stay the same or go up. Camarena corrected him utilizing
the basic guide to the Act. (R. Exh. 4.) Placencia said Cama-
rena was wrong and became upset. He said no matter what, the
employees were going to fight for their rights. He then went on
a “rant” about immigrants fighting for their rights and the mili-
tary. Placencia compared the employees’ fight to organize to
the soldiers’ fight, and referenced bloodshed overseas. He was
visibly upset and began to cry. Camarena encouraged him to
calm down, stated it was an election for representation, not life
or death. At that point, Placencia got up and the meeting con-
cluded. (Tr. 785–794.)

18 According to Camarena and Echanique, Camarena never said ne-
gotiations would start from zero. (Tr. 731–732; 794.)
CON-WAY FREIGHT, INC. 17
I. October 6
On October 6, Placencia asked Rosado if he was done for the
day. Rosado was standing by Camarena, and a conversation
between Placencia and Camarena ensued. There are different
versions of what occurred. I address my salient credibility
findings in the context of my decision and analysis.
According to Placencia, Camarena said, “Are you aware un-
der Article 8, that the company does not have to negotiate with
the Union?” Placencia said the Union did not look for them
(meaning the employees), they looked for the Union. Placencia
said the employees felt like battered wives. (Tr. 370.) He told
Camarena they were not going to change their minds, they had
done everything possible to try to communicate with manage-
ment, and it wasn’t about money. Camarena described himself
as “the type of person that if you owe him money, that he will
call you. If you ignore his calls, he will go down to your house
and he said that he'll kick the door down, saying when I kick
the door down, come up, push you to the ground, put his foot
on your chest and then he said I'll stick a gun out, pull my .45,
put it to your head and I'll get my money one way or the other.”
Placencia, described Camarena’s bodily actions as pretending
to kick the door down, push someone down, place his foot on
the person’s chest, grab the person by the hair, and reaching
behind his back like he had a gun, pulling it out and pointing it
to someone’s head. Placencia asked Rosado if that was all, and
he left. (Tr. 205–208.) He did not report feeling threatened to
any supervisor. (Tr. 367.)
Later that afternoon, Placencia prepared a statement,19 which
described the interaction. With regard to Camarena’s response
to Placencia commenting that the organizing drive was not
about the money, Placencia wrote, “I am the type of guy if you
owe me money, $1000, I will call you. If you ignore my calls I
will go to your house, kick down the door and grab you by the
head, put my foot on your chest with my 45 pointing at your
head and I will get my money one way or the other.” (GC Exh.
7.)
According to Camarena, Placencia approached him and said,
“We’re taking this shit nationwide.”20 Placencia asked who
was selecting attendants at the meetings. He then went on a
weird rant and said he and the rest of the guys felt like battered
women. Placencia said Styers mistreated them like an abusive
spouse and they were in this fight because of their families. In
response, Camarena stated, “I told him that I—about my fami-
ly, you know, and the fight as well. That I am willing to do
anything for my three kids. I'll kick doors down and anything
that I need to do to help my family.” Camarena also said “That
I was the type of person that could speak on my behalf, that I
didn't believe in anyone representing me. And that I didn't
believe that they needed any representation, that he could do it
himself.” They continued to talk about rights and the union.
The conversation ended by Camarena saying he would continue
to give Placencia information to help him. (Tr. 797–804.)

19 The statement is missing the word “not” (Tr. 363.) Though
Placencia testified he wrote the statement on October 6, he did not
email it to himself until October 10.
20 Camarena claimed to not know what Placencia was referring to
with this comment. (Tr. 798.)
According to Rosado, the conversation began with Placencia
and Camarena making introductions. Placencia asked why he
was not included in the LEAN meetings. Camarena said he was
not in charge of who attended the meetings. The two discussed
pros and cons on unionizing and debated. Camarena said eve-
rything would have to go to bargaining and there were no guar-
antees. When Camarena began discussing the Union’s consti-
tution, Placencia became “a little frustrated, a little taken aback,
a little emotional” but “[t]he whole conversation was very pro-
fessional.” Placencia referred to himself as a battered wife and
said he couldn’t’ take it anymore and that is why he and the
employees had organized. Camarena said that as father, he
would not let himself be a battered wife and he would take a
stand for what he believes in, “fight his own fight, knock down
doors if he has to. But he would not let himself be a battered
wife.” Camarena said he would support the union if it could
guarantee certain benefits, but since it cannot, the union should
not collect fees. He said that until the union could guarantee
benefits, he would continue to expose it for what it really is.
The conversation ended very amicably and professionally, and
the two parties wished each other their best. During the conver-
sation, Rosado was pulled away from time to time for a total of
7–8 minutes.21 (Tr. 1106–1112.) At human resources’ request,
on October 9, Rosado made a statement about his observations
of the conversation. (R. Exh. 8; Tr. 1114.)
J. October 7
1. Background
After clocking in, the drivers report to the dispatch office to
receive their assignments. The dispatch office is attached to
the break room. Separating the rooms is a four-foot counter, on
top of which sits a glass wall with two window openings, which
splits the counter in half. Drivers communicate with dispatch
through the two windows, which are at chest level. Around the
corner from the dispatch counter there are three tables in the
break room. It is not possible to see the entire break room from
the dispatch office. (R. Exh. 9; Tr. 1125–1126.)
During the relevant time period, Freight Operations Supervi-
sor Roman and driver Sal Navarro (Navarro) sat in the dispatch
office. Though classified as a driver, Navarro’s primary duties
were dispatch. (Tr. 622.) Facing the dispatch windows, Ro-
man’s workstation was to the left and Navarro’s to the right.
(R. Exh. 9(a); Tr. 1125.)
On October 7, Navarro led two LEAN meetings in the morn-
ing. One went from 8:30–9:30, and the other from 9:30–10:30.
The drivers who started their shifts at 10:30 attended the 9:30–
10:30 LEAN meeting, which ran a little long.22 Placencia and
Cabrera were not invited to attend the LEAN meetings. (Tr.
635–639, 685.)
2. The knife incident
Most drivers carry either a knife or box cutter because they
sometimes have to break down pallets and cut shrink wrap.
(Tr. 227–228; 534–536, 645, 1016–1017.)

21 Rosado did not see or hear Camarena talk or act in the manner
Placencia described. (Tr. 1111.)
22 Driver Elvis Martinez was at the LEAN meeting from 9:27 a.m. to
10:34 a.m. (Tr. 1527; R. Exh. 28.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Placencia and Cabrera both clocked into work at 10:30 on
October 7 and entered the break room at about the same time.
(Tr. 523, 579; R. Exhs. 1, 2.) Placencia had been filling in for
another driver on the Beverly Hills route, so he thought he
would be driving that route again, but was not certain. (Tr.
457.)
What occurred next is the subject of much dispute.
According to Placencia and Cabrera, Placencia dumped his
work items out of a small backpack onto the table in front of
the dispatch office. Roman and Navarro were at their usual
positions in the dispatch office. (Tr. 212, 523–525.) A couple
of drivers, Elvis Martinez and Hector Sanchez, entered the
break room after attending a LEAN meeting. (Tr. 454.) The
drivers were joking about all the things Placencia carried in his
little backpack.
Placencia asked Camarena if he wanted to go on a ride
along, stating his route covered Hollywood and Beverly Hills
so they could check out the celebrities. Cabrera asked Cama-
rena if he wanted to go on a ride along with him, because his
route covered Santa Monica and Malibu so they could check
out the girls.23 Camarena looked toward Placencia, who was
holding his work knife,24 and quoting from the movie Crocodile
Dundee, said, “That’s not a knife,” gestured pulling a knife out
from behind him, and said, “This is a knife. (Tr. 528.) Placen-
cia responded, “That’s not a knife, that’s a machete.” The ex-
change was done in a joking manner.25 After this exchange,
Navarro led a safety meeting for Cabrera and Placencia. (Tr.
217–224; 527–529, 649; GC Exhs. 6–7.) Cabrera and Placen-
cia then proceeded to their work assignments. (Tr. 531.)
Navarro recalled coming upstairs from LEAN meetings a lit-
tle after 10:30. He saw Placencia and Cabrera talking with
Camarena about doing ride-alongs and touting their respective
routes. The LEAN meeting Navarro had conducted had just
ended, so there were others in the break room including Elvis
Martinez, and drivers named Jermaine and Moe. Navarro was
at his printer getting documents for the drivers when he heard
Placencia, Cabrera, and Camarena laughing and being kind of
loud. When Navarro turned around, he heard Camarena say
“That’s not a knife, this a knife,” and saw him pretend to pull
out a knife. Afterward, Navarro led a safety meeting for
Placencia and Cabrera. (Tr. 639–642, 653.)
According to Camarena, he came to the dispatch office at
around 10 or 10:15 the morning of October 7. Roman was
assisting him to figure out who he could do ride-alongs with.
Placencia came in and approached the dispatch counter.
Placencia and Camarena greeted each other, and Placencia
asked why Camarena was in the dispatch office. Camarena
said he was doing ride-alongs to help answer any questions
drivers might have. Placencia sarcastically said he had a lot of

23 Cabrera had been driving a route that included Santa Monica and
Malibu. Camarena and Roman said there was no discussion about the
route Placencia had or what routes would afford an opportunity to see
celebrities. (Tr. 850–851, Tr. 1185–1186.) Camarena testified Cabrera
did not ask for a ride-along. (Tr. 850–851.)
24 The blade of Placencia’s knife is approximately 4 inches. (GC
Exh. 9.)
25 Placencia said he did not point his knife at Camarena. (Tr. 222–
223.)
questions, and suggested Camarena ride along with him.
Camarena declined, and Placencia persisted in asking him to
ride along with him. Camarena told Placencia he would let him
know in the future when he would ride with him. Placencia
reached into his pocket, pulled out a knife, flipped open the
blade. He looked down at it and said, “What, are you scared?”
twice.26 Camarena was overcome with shock and saw his wife
and children flash before his eyes. He wasn’t sure if Placencia
was going to try to jump over the counter and stab him or try to
throw his knife at him. Camarena said, “That’s not a knife”
reached behind his back pretending to pull out a knife and wave
it forward, and said “This is a knife.” He did this because he
was scared and wanted to diffuse the moment. At that point,
Placencia turned around and left. Camarena did not see anyone
else in the break room.27 He immediately looked over to Ro-
man, and asked if he had heard that.28 Roman said that he did.
Camarena told Roman he was going to prepare a statement, and
asked him to prepare one too. (Tr. 806–821.)
According to Roman, Placencia approached the window
around 10:40–10:45 to receive his assignment. Right after that,
Roman saw Cabrera leave the break room. Camarena then
came into the dispatch area. Placencia was still at the dispatch
window, and his backpack was on a table. Placencia asked
about ride-alongs and repeatedly told Camarena he should ride
with him. Placencia reached down his right side and pulled out
a closed knife. He put his elbow on the counter and held it for-
ward at a 45 degree angle toward Camarena. Placencia clicked
the knife open and said, “Why don't you go with me? You
don't have to be afraid. Nothing's going to happen.”29 He then
closed the knife and opened it again and said the exact same
words.30 Camarena appeared shocked. He then made the
“That’s not a knife” statement and gestures. Placencia did not
appear to be joking, and he was looking directly at Camarena.
There was nobody else in the break room and nobody laughed.
Cabrera then came back into the break room after the incident
occurred. Camarena asked Roman about Placencia, wondering
if he was going to come after him. Roman responded he wasn’t
sure, as he had never seen this happen before. (Tr. 1142–1163.)
Camarena walked away before Placencia. (Tr. 1216–1217.)
3. Management’s actions after knife incident
According to Camarena and Styers, Camarena went to
Styers’ office after the knife incident. Only the two of them
were present. Camarena told Styers that Placencia had threat-
ened him with a knife. Styers called Licon, who came into
Styers’ office and they discussed the incident. (Tr. 821–82.)
After Camarena left, Styers called Roman on the phone and

26 According to Styers, Camarena reported saying the way Placencia
looked at him scared him. “Said it was the eyes.” (Tr. 1262.) Navarro
and Roman denied Placencia asked Camarena if he was scared. (Tr.
644, 1205.)
27 He could not see who was on the other side of the break room be-
cause a wall impedes the view. (Tr. 913.)
28 He referred to Roman as his supervisor. (Tr. 820.)
29 Cabrera testified that Placencia did not make such a comment.
(Tr. 530.)
30 Camarena recalled that Placencia flipped his knife open just once.
(Tr. 906.)
CON-WAY FREIGHT, INC. 19
asked him to come to his office. At that point, Roman came
and told Styers what had occurred. (Tr. 1263.)
By Roman’s account, following the knife incident, Roman
went to Styers’ office and told him what had occurred. Cama-
rena then joined them and told Styers what had occurred. (Tr.
1163–1164.)
Styers called Kimball Hinds, human resources generalist.
Hinds instructed Styers to get statements from Roman and
Camarena, and to place Placencia out of service. (Tr. 1264–
1265, 1269–1270.)
When Camarena left Styers’ office, he went downstairs to
the training room, which he used as his office. Camarena next
called his wife and his employer, and said he felt scared and
uncomfortable. He then prepared the following statement.
At approximately 10:45a.m. on Tuesday October 7, 2014 I
was threatened at knife point by driver Juan Placencia at the
Conway ULX facility. I was behind the dispatching counter
with supervisor Steve Roman when Mr. Placencia began to
interrogate me regarding my scheduled ride a longs for the
day. He wanted to know whom I was going to ride with and
then began to say, “Why don't you ride with me?” He contin-
ued to say, “You really should ride with me.” I began to get
tired with his persistence and told him that in the coming days
I would choose a day to ride with him. He did not like my an-
swer as he was trying real hard to get me in his truck today.
He then reached into his pocket and proceeded to open up a
blade and stated “what are you scared?” He held the knife in
his right hand as he looked back and forth between the knife
and myself. He then folded the knife, smiled at me and put it
back in his pocket and proceeded to walk away.
This direct threat comes as no surprise as other drivers have
recently been dealing with threats and violence as well. One
driver just reported having the windshield of his vehicle
smashed in two nights ago outside his home. I am a family
man with three wonderful kids at home, at this time I have
great concern over my wellbeing and getting home safely to
my family. I cannot and will not tolerate being threatened
with my life while on the job.
(R. Exh. 5; Tr. 821–830.) After writing the statement, Cama-
rena called his wife again and ate lunch. (Tr. 832–833.) He did
not know where Placencia was at the time.31 (Tr. 863.)
Roman sent Styers an email at 1:33 recounting what he
saw.32 (R. Exh. 10.) At Styers’ direction, he sent an amended
statement at 5:16 p.m., stating there was nobody else in the
room when the knife incident occurred.33 (R. Exh. 11; Tr.
1179–1180.)
In an October 10 email to Huner, responding to the question
of whether Placencia pointed the knife at Camarena, Roman

31 Camarena could not give a reason for why he stayed at facility.
(Tr. 883).
32 He did not recount Camarena’s action of reaching for the fake
knife and stating, “That’s not a knife, this is a knife.” Roman also
opined that Placencia’s actions were not done in a friendly manner, but
were more of an intimidation or threat. (R. Exh. 10.)
33 Styers faxed both statements to Hinds. (R. Exhs. 17–18, Tr.
1269.)
stated, “No he did not point the knife at him, as he was talking
with he pulled out the knife holding it in his hand and began
telling him when he will go on a ride along with him, as Luis
said he didn't know that is when Juan snapped the knife open
and said don't worry nothing will happen to you, he did that
same thing twice looking straight at him.” (R. Exh. 12.)
4. Placencia’s Arrest and Termination
After Camarena and Placencia left the break room following
the safety meeting, they went to their assigned trucks. Robert
Salas, freight operations supervisor for inbound, approached
them and asked if they knew the standard work instruction for
loading a long box. Placencia broke down pallets with his
knife so they would fit in his truck. (Tr. 531–534.)
Later that afternoon, Licon drove Camarena to the Newton
police station to file a police report about the knife incident.
(Tr. 833–836.) Camarena spoke with Officer Bell and made a
report at 3:45 p.m. (Tr. 425; R. Exh. 6.) Licon drove Cama-
rena back to the ULX facility at about 4. Camarena gave Styers
a copy of the police report and then went to his hotel room. (Tr.
846–847, 1272–1273.)
At 4 or 4:30, Styers asked Roman for Placencia’s location. A
little before 5, at Styers’ request, Roman instructed Placencia to
come back to the facility. (Tr. 1168–1169, 1277.) Placencia
stopped at a strip mall about 2 miles from the ULX facility to
take a lunch break.
Styers called the Newton Station so an officer could be pre-
sent when Styers put Placencia out of service. (Tr. 1275.)
Officers in the field are contacted when somebody calls for
service. (Tr. 420, 436.) At 5:30 p.m., Officer Mario Lagac
received a call to report to the Respondent’s ULX facility be-
cause there was a business dispute. Styers was the individual
who had placed the call. (Tr. 376–378, 398–399.)
Officer Lagac and his partner, Officer Flores, reported to the
ULX facility, and Styers told him there had been a verbal ar-
gument at approximately 11 a.m. Styers showed Lagac a copy
of the police report. Lagac contacted the Newton Police Station
and spoke with Officer Bell, who advised that a criminal re-
ports investigation report had been completed. (Tr. 382.) Of-
ficer Bell relayed that Camarena had reported Placencia had
pulled out a five-inch pocket knife, tapped it on his own chest,
and said, “Are you in fear?” or “Are you scared?” (Tr. 378–
384; GC Exh. 9.) Officers Lagac and Flores were then directed
by their detective supervisor to arrest Placencia for criminal
threats if he returned. (Tr. 385.) Had Styers not called the po-
lice station, Placencia would not have been arrested that day.
(Tr. 437.)
After waiting for a while at ULX , Styers told the officers
where Placencia’s truck was parked and they proceeded to
Placencia’s location. (Tr. 385–386, 418–419.) Styers and
Licon went with them so that Styers could retrieve the vehicle.
(Tr. 1284.) At about 6, Wattier told Roman the police needed
him to go to identify Placencia.34 Wattier drove Roman to the
strip mall, and Roman identified Placencia and the knife. (Tr.
1171–1174.)
The police approached Placencia, took his knife, handcuffed

34 Wattier was retired at the time of the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
him, and arrested him at 6:15 p.m. (Tr. 235–236, 387, 410.
418–419; 423–424, GC Exh. 9.) At Styers’ request, the officers
told Placencia he was placed out of service. (Tr. 1286; R Exh.
19.) Placencia was taken to jail where he remained until he was
bailed out about 1 a.m. on October 8.
Though it was Officer Lagac’s normal practice to contact the
victim, he never spoke with Camarena. This is because Styers
advised him that Camarena had already left work and could not
be contacted since he resided out of town in Chula Vista.35 (GC
Exh. 9; Tr. 390–391, 405, 408–409.)
Placencia spoke with Huner on the phone. Huner instructed
Placencia to write a statement. Placencia mentioned there were
witnesses to the incident, and Huner said to get statements from
them. (Tr. 247.) At Placencia’s request, Martinez, Navarro, and
Cabrera wrote statements.36 (CP Exhs. 1–3; Tr. 544–546.)
Cabrera wrote his statement on October 8. That same day,
he went to Styers’ office and informed Styers and Licon that no
threat was ever made, there were witnesses, and he was not
going to stay quiet about it. (Tr. 547.) Styers explained that
Con-Way had nothing to do with the incident, and it was be-
tween Placencia and Camarena. (Tr. 1293.) Huner contacted
Cabrera and asked for a statement. Cabrera told him he had
already provided one, and he emailed his October 8 statement
to Huner. (Tr. 549–551.)
Placencia wrote a statement recounting his recollection of
the events of October 7. He sent it, along with his statements
about the events of October 6, to Huner on October 9 or 10.
(Tr. 260.)
Placencia was terminated for violence in the workplace. As
with all terminations in the Western area, Huner was the deci-
sionmaker. (Tr. 1296–1297, 1482, 1503, 1541; R Exh. 29.) In
a report created between October 13–15, Huner determined that
the conversation began with lighthearted banter, but Cabrera
left the room before the conversation turned threatening. Huner
discredited employee statements because they were nearly iden-
tical in detail.37 (R. Exh. 30.) Though he claimed to believe
Cabrera, Navarro, and Martinez were each dishonest in their
respective statements, none of them were disciplined. (Tr. 564,
1548.)
The criminal case against Placencia was dismissed. (Tr. 263–
264.)
III. DECISION AND ANALYSIS
A. Witness Credibility
Many of the disputes at issue can be resolved only by as-
sessing witness credibility. A credibility determination may
rest on various factors, including “the context of the witness'
testimony, the witness' demeanor, the weight of the respective
evidence, established or admitted facts, inherent probabilities

35 Lagac thought Camarena was an employee of Con-Way based on
what Styers had told him. (Tr. 409.)
36 Navarro wrote his statement the same night Placencia called him
and told him about his arrest, without talking to Cabrera or Martinez.
He provided the statement to human resources. (Tr. 662–664.) Cabrera
did not talk to Navarro or Martinez before making his statement. (Tr.
551.)
37 Huner reported that Placencia provided all of the statements, but
Navarro provided his own statement to Huner. (Tr. 664, 1528.)
and reasonable inferences that may be drawn from the record as
a whole.” Hills & Dales General Hospital, 360 NLRB 611,
617 (2014), citing Double D Construction Group, 339 NLRB
303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001).
In making credibility resolutions, it is well established that the
trier of fact may believe some, but not all, of a witness’s testi-
mony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir.
1950).
The Board has agreed that “when a party fails to call a wit-
ness who may reasonably be assumed to be favorably disposed
to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have
knowledge.” International Automated Machines, 285 NLRB
1122, 1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is
particularly true where the witness is the Respondent’s agent.
Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006). Moreover, an adverse inference is warranted by the
unexpected failure of a witness to testify regarding a factual
issue upon which the witness would likely have knowledge.
See Martin Luther King, Sr., Nursing Center, 231 NLRB 15, 15
fn. 1 (1977) (adverse inference appropriate where no explana-
tion as to why supervisors did not testify); Flexsteel Industries,
316 NLRB 745, 758 (1995) (failure to examine a favorable
witness regarding factual issue upon which that witness would
likely have knowledge gives rise to the “strongest possible
adverse inference” regarding such fact).
Testimony from current employees tends to be particularly
reliable because it goes against their pecuniary interests. Gold
Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia
Rug Mill, 131 NLRB 1304, 1304 fn. 2 (1961); Gateway Trans-
portation Co., 193 NLRB 47, 48 (1971); Federal Stainless Sink
Div. of Unarco Industries, 197 NLRB 489, 491 (1972).
It is impossible to reconcile all of the different recollections
of the witnesses for both sides. In evaluating the various dif-
ferent versions of events, I have fully reviewed the entire record
and carefully observed the demeanor of all the witnesses. I have
considered the apparent interests of the witnesses; the inherent
probabilities in light of other events; corroboration or the lack
of it; consistencies or inconsistencies within the testimony of
each witness and between witnesses with similar apparent in-
terests. See, e.g. NLRB v. Walton Mfg. Co., 369 U.S. 404, 408
(1962). Testimony in contradiction to my factual findings has
been carefully considered but discredited. Where there is in-
consistent evidence on a relevant point, my credibility findings
are incorporated into my legal analysis below.
B. Alleged 8(a)(1) violations
Under Section 8(a)(1) of the Act, it is an unfair labor practice
for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The rights guaranteed in Section 7 include the right “to form,
join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection . . .”
The basic test for a violation of Section 8(a)(1) is whether
under all the circumstances the employer's conduct reasonably
tended to restrain, coerce, or interfere with employees’ rights
CON-WAY FREIGHT, INC. 21
guaranteed by the Section 7 of the Act. Mediplex of Danbury,
314 NLRB 470, 472, (1994); Sunnyside Home Care Project,
308 NLRB 346 fn. 1 (1992), citing American Freightways Co.,
124 NLRB 146, 147(1959). Further, “It is well settled that the
test of interference, restraint, and coercion under Section
8(a)(1) of the Act does not turn on the employer’s motive or on
whether the coercion succeeded or failed.” American. Tissue
Corp., 336 NLRB 435, 441 (2001) (citing NLRB v. Illinois Tool
Works, 153 F.2d 811, 814 (7th Cir. 1946)).
1. Union insignia
Complaint paragraphs 6, 7(b), and 12 allege that the Re-
spondent violated Section 8(a)(1) of the Act when Styers and
Licon prohibited Placencia from wearing union insignia on or
around September 15, 2014.
In Republic Aviation Corp v. NLRB, 324 U.S. 793, 801–803
(1945), the Supreme Court held that employees have a protect-
ed right to wear union buttons and other insignia at work. This
right is balanced against the employer's right to maintain order,
productivity, and discipline. The Board has struck this balance
by permitting employers to prohibit employees from wearing
union insignia where the employer proves that “special circum-
stances” exist. Id. at 797–798; see also Boch Honda, 362 NLRB
No. 83, slip op. at 2 (2015); Sam's Club, 349 NLRB 1007, 1010
(2007); Control Services, 303 NLRB 481 (1991).
Placencia provided unrefuted testimony that Styers instruct-
ed him, on one occasion, to remove the lanyard bearing the
Union’s insignia. Placencia further testified that Licon told him
he could wear a button with the Union’s insignia, but not a
lanyard. Licon did not testify at the hearing. Though Styers
testified, he did not deny instructing Placencia to remove the
lanyard.
The Respondent contends that any alleged violation should
be dismissed as de minimis. The fact that the infraction only
occurred on one occasion, however, does not render it de mini-
mis. See Regency at the Rodeway Inn, 255 NLRB 961, 961-
962 (1981); Golub Corp., 338 NLRB 515, 516 fn. 13 (2002).
This is particularly true considering other violation of the Act
that occurred during the organizing campaign, as discussed
below. Based on the foregoing, I find the Respondent violated
the Act as alleged.
2. Alleged threats
a. Styers’ September 15 comment to Placencia
Complaint paragraphs 7(a) and 12 allege that on or around
September 15, 2014, the Respondent threatened Placencia with
unspecified reprisals because he supported the Union. More
specifically, the allegation is that, in response to Placencia say-
ing all the drama surrounding the union campaign was unneces-
sary, Styers responded, “You haven’t seen nothing yet.”38
In assessing whether a remark constitutes a threat, the appro-
priate test is “whether the remark can reasonably be interpreted
by the employee as a threat.” Smithers Tire, 308 NLRB 72
(1992). The actual intent of the speaker or the effect on the
listener is immaterial. Smithers Tire, 308 NLRB 72 (1992); see

38 This allegation was amended at the hearing; initially it alleged
Licon made the threat.
also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir.
1981) (inquiry under Sec. 8(a)(1) is an objective one which
examines whether the employer's actions would tend to coerce
a reasonable employee). The “threats in question need not be
explicit if the language used by the employer or his representa-
tive can reasonably by construed as threatening.” NLRB v. Ayer
Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). The Board
considers the totality of the circumstances in assessing the rea-
sonable tendency of an ambiguous statement or a veiled threat
to coerce. KSM Industries, 336 NLRB 133, 133 (2001).
Styers recalled the conversation at issue generally, but de-
nied that he made the comment Placencia attributed to him.
The only other individual to witness the conversation, Licon,
did not testify. The General Counsel asks that I draw an infer-
ence that Licon would have testified in a manner unfavorable to
the Respondent. Because Licon is the Respondent’s agent and
there was no explanation for his failure to testify at the hearing,
I agree an inference is warranted. See International Automated
Machines, supra; Roosevelt Memorial Medical Center, supra.
Even without the adverse inference, however, I find Styers
made the comment and it constituted a threat.39 First, as the
General Counsel notes, Styers did not testify about how what
happened after Placencia’s comment about the unnecessary
drama. In addition, it is clear Styers was hostile to the organiz-
ing campaign. Admittedly, in response to Placencia asking him
what he disliked about the union, Styer’s responded that there
was “thuggery” and “all kinds of different things that go on in
that type of environment.” I also find Styers told Placencia that
Con-Way needed to remain a nonunion facility. Styers admit-
ted stating that Con-Way was union-free, and the context was
the orientation video depicting a unionized facility closing
down. Placencia’s version is more in line with this context and
it is consistent with the message Styers sent to employees when
he read the script to them detailed above, in the Spring of 2014.
(R. Exh. 13.) Moreover, I find Styers commented that
“Chucky” no longer worked for the Company because of his
support for the union. Though Styers denied making this com-
ment, Robles, who testified at the hearing and who Placencia
recalled as being present, was not asked about it. The Re-
spondent did not present evidence to negate that “Chucky” was
depicted in the orientation video about the importance of sleep.
I find it highly implausible that Placencia would fabricate this
specific video and the comments that accompanied it.
Against this backdrop, considering the totality of the circum-
stances, I find Styers’ made the comment, “You haven’t seen
nothing yet,” and it constituted a threat.
b. The September 23 meeting
Complaint paragraphs 8 and 12 allege that on or about Sep-
tember 23, the Respondent, by Luis Camarena, threatened em-
ployees with loss of wages and benefits if the Union won the
election, and told employees the Respondent would not negoti-
ate with the Union.40
As a threshold issue, I must determine whether Camarena

39 I note that neither Styers nor Placencia is a disinterested witness.
40 The complaint alleges Echanique also engaged in these threats, but
the evidence is clear that he was silent at the meeting where the alleged
threats occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
was an agent of the Respondent while he performed labor con-
sulting services there.
Section 2(13) of the Act states: “[i]n determining whether
any person is acting as an ‘agent’ of another person so as to
make such other person responsible for his acts, the question of
whether the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.” In other words,
an individual need not be actually authorized by the employer
to take the actions at issue if it appears he or she possesses such
authority. In determining whether an individual has apparent
authority, the Board applies common law principles which it
summarized in Mastec North America, Inc., 356 NLRB 809,
809–810 (2011):
Apparent authority results from a manifestation by the princi-
pal to a third party that creates a reasonable basis for the latter
to believe the principal has authorized the alleged agent to
perform the acts in question. Either the principal must intend
to cause the third person to believe the agent is authorized to
act for him, or the principal should realize that his conduct is
likely to create such a belief. [Citations and internal punctua-
tion omitted.]
Moreover, under the common law of agency, a principal may
be responsible for its agent's actions if the agent reasonably
believed from the principal's manifestations to the agent that
the principal wished the agent to undertake those actions. See
Restatement 2d, Agency, § 33. The Board has found the ques-
tion of whether the individual serves as a conduit of infor-
mation to employees particularly useful in determining agency
status. A.D. Conner Inc., 357 NLRB 1770, 1790, and cases
cited therein; see also Blankenship & Associates, 306 NLRB
994, 1000 (1992), enfd. 999 F.2d 248 (7th Cir. 1993).
In the instant case, Camarena stated at the outset of the meet-
ing at issue that he was present on Con-Way’s behalf. It is
undisputed his purpose was to serve as a conduit of information
to the employees. I find, therefore, that Camarena was an agent
of the Respondent within the meaning of Section 2(13) of the
Act.
With regard to the statement about loss of benefits, there is a
dispute regarding what precisely Camarena said. According to
Placencia, Camarena stated negotiations would start from zero.
According to Camarena and Echanique, Camarena said nego-
tiations could result in employees going up, going down, or
staying the same. I find it likely the parties were prone to recall
the points that solidified their respective positions, and that
both comments were made. I credit Placencia’s testimony that
he challenged the comment about negotiations starting from
zero by stating wages and benefits freeze during an election
process. His testimony on this matter was certain and straight-
forward. I also find, however, that Camarena conveyed the
various results that could occur as the result of bargaining.
This testimony is consistent with what Camarena stated at an-
other meeting with employees and is consistent with the script-
ed message Styers conveyed to employees during his previous
meetings with them.
Though I have found Camarena to lack credibility generally
for the reasons detailed below, I believe he never came right
out and said Con-Way would not bargain with the Union. First,
as noted directly above, Camarena’s testimony is corroborated
by Echanique and is consistent with what another driver was
told in a similar meeting. It is also consistent with what Rosado
recalled Camarena saying to Placencia on October 6. Though
there was at least one other employee in the meeting, this em-
ployee was not called to testify.41 I find it implausible that
Camarena, who works as a labor consultant, would so blatantly
state the Company would refuse to bargain. I do not doubt that
Placencia, given his viewpoint about the Union and his clear
skepticism of the labor consultants’ information, took away the
message that the Company would not be eager to bargain. The
evidence, however, does not establish that Camarena explicitly
said the Company would not bargain with the Union.
Turning to the “negotiation sill start from zero” comment,
such statements are not a per se violation of the Act. In Taylor-
Dunn Mfg. Co., 252 NLRB 799, 800 (1980), enfd. mem. 679
F.2d 900 (9th Cir. 1982), stated:
It is well established that “bargaining from ground zero” or
“bargaining from scratch” statements by employer representa-
tives violate Section 8(a)(1) of the Act if, in context, they rea-
sonably could be understood by employees as a threat of loss
of existing benefits and leave employees with the impression
that what they may ultimately receive depends upon what the
union can induce the employer to restore. On the other hand,
such statements are not violative of the Act when other com-
munications make it clear that any reduction in wages or ben-
efits will occur only as a result of the normal give and take of
negotiations.
In Coach and & Equipment Sales Corp., 228 NLRB 440, 440–
441 (1977), the Board emphasized that such statements must be
read in context, noting that the “presence of contemporaneous
threats or unfair labor practices is often a critical factor in de-
termining whether there is a threatening color to the employer's
remarks.”
Because I have found Camarena never affirmatively said the
Company would not negotiate, I find his comments that negoti-
ation would “start from zero” came close to the line of consti-
tuting a threat, but did not cross it. I therefore recommend
dismissal of this complaint allegation.
c. October 6
Complaint paragraphs 9 and 12 allege that on October 6,
Camarena: (a) impliedly threatened Placencia with physical
harm because he supported the Union, and (b) made statements
implying support of the Union would be futile.
The conversation at issue is the subject of much dispute. Re-
solving every little inconsistency is unnecessary, and I therefore
focus on the material disputes. The only disinterested witness
is Rosado, who was present for most of the conversation.42 I
find Rosado to be credible, based on his straightforward de-
meanor along with the fact that he did not appear to embellish
his testimony. He also strikes me as impartial based on the fact
that his testimony does not wholly support either Placencia or

41 It is undisputed that Victor Rivas was also present. His sympa-
thies regarding unionization are unknown.
42 Though Rosado is a supervisor, his feelings about the employees
organizing is not a matter of record.
CON-WAY FREIGHT, INC. 23
Camarena. Where his testimony resolves a conflict between
Placencia and Camarena, I credit it.
With regard to the allegation regarding the Union’s futility,
this stems from Placencia’s testimony regarding what occurred
immediately after Placencia approached Camarena and Rosado.
According to Placencia, Camarena said that under Article 8 the
Company does not have to negotiate with the Union. By
Camarena’s account, the conversation started by Placencia
stating, “We’re taking this shit nationwide.” Rosado was pre-
sent at the outset of the interaction, and his testimony contra-
dicts both versions. By Rosado’s account, the interaction began
with introductory pleasantries, Camarena and Placencia dis-
cussed the pros and cons of unionization, and Camarena said
negotiations came with no guarantees.43 Rosado’s testimony is
credited, and I therefore recommend dismissal of complaint
subparagraph 9(b).
With respect to the other relevant portion of the conversa-
tion, Rosado’s recollection was that, in response to Placencia
stating that the employees felt like battered wives, prompting
their decision to seek representation, Camarena responded that
he would not let himself be a battered wife, would “fight his
own fight and knock down doors” if he had to. This is largely
consistent with Camarena’s recollection, and I find Camarena
made such a comment.44
It is important to note, however, that though Rosado was
present at the outset of the conversation, he was absent for
about 7–8 minutes of its later portions. The question therefore
remains as to whether, outside of Rosado’s presence, Camarena
also made the comments and gestures Placencia attributed to
him in response to Placencia stating the union drive was not
because of money. I resolve this conflict in Placencia’s favor.
First, and foremost, I find Camarena generally lacks credibil-
ity.45 His repeated denials that he was present at the ULX facil-
ity to dissuade employees from choosing the Union were easily
shown to lack credence. He denied his job was to stop unioni-
zation and he claimed not to understand that Con-Way did not
want a union in place. (Tr. 896, 898.) The following exchange
shows Camarena’s evasiveness:
Q. Did Cruz & Associates give you any instructions on what
you were supposed to do to address the Union organizing at
Con-Way?
. . .
THE WITNESS: To inform the employees of their rights un-
der the National Labor Relations Act.
Q. BY MR. RUTTEN: Anything else?

43 Although Placencia and Camarena had met at the meeting in late
September, there is no evidence that they interacted between the meet-
ing and October 6, and therefore Rosado’s recollection of introductory
pleasantries is highly plausible, particularly considering the number of
employee meetings Camarena conducted.
44 Though Placencia did not reference this comment in his statement
or his testimony, it is clear none of the witnesses recounted everything
that transpired during the conversation, which Rosado recalled took
place over the course of about 30 minutes.
45 That I believed he never said the Company would not bargain, I
disbelieved most of the rest of his testimony regarding material dis-
putes. See NLRB v. Universal Camera Corp., supra.
A. I'm there to provide information regarding the Act.
Q. And was it your understanding that you were to provide
the information in a way to discourage unionization?
A. No.
Q. Do you believe that your employer is pleased when the re-
sult of your labor relations efforts result in unionization?
A. I believe we inform the employer at the time of hiring that
we don't have a crystal ball to know what the outcome of an
election can be. And that we will do our best to provide the
most factual information to help employees make an informed
decision, but we have nothing—no power to know how eve-
rything can end up after an election?
Q. That wasn't my question. My question was, is your boss
pleased when unionization occurs after your labor relations
efforts?
MR. LETTER: Objection. Vague as to who boss is.
JUDGE LAWS: Sustained.
Q. BY MR. RUTTEN: Is Cruz & Associates pleased when
they send you out on an assignment as a labor relations con-
sultant and unionization occurs?
A. Yes.
Q. They're pleased when unionization occurs?
A. We lose. It happens. We don't win every time.
(Tr. 899–900.) Yet, when pressed, he admitted that it's “com-
mon knowledge when we're hired on to try to help a company,
that their preference would be to continue to work directly with
their employees.” (Tr. 898.)
Similarly, when asked whether he got a sense of which em-
ployees were prounion and which were anti-union, Camarena
responded that he did not. When it became clear to him the
Union was aware of the point system he used to evaluate em-
ployees’ sympathies, he changed his testimony:
Q. When you worked at Con-Way ULX, did you get a sense
of which employees were pro-union and which employees
were anti union?
A. No.
Q. You didn't? That wasn't part of your duties on this cam-
paign?
A. My duty is to inform them of their rights and to help them
understand the process, yes.
Q. So part of your duties weren't—you didn't do a number
system where you rated the employees on this campaign?
A. We do sometimes.
Q. But on this campaign, did you do that?
A. Yes, we did.
(Tr. 914–915.) Even in light of this reluctant admission, Cama-
rena still remained evasive:
Q. Can you kind of describe how that rating system works?
[objection and ruling]
THE WITNESS: Yes, we gauge, you know, whether or not
we believe that they're understanding the information.
Q. BY MS. BURNS: Okay.
A. And yes, we—
JUDGE LAWS: Understanding what information?
THE WITNESS: The Act.
JUDGE LAWS: So it's based on understanding the Act, not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
whether they're pro-union or anti-union?
THE WITNESS: Well, depending on how much they're un-
derstanding the info we believe then, you know, sometimes it
affects their view.
JUDGE LAWS: I know, but I need you to listen to my ques-
tion.
THE WITNESS: Okay.
JUDGE LAWS: Because you're saying two different things
and I want to try to make sense of it.
THE WITNESS: Okay, ma'am.
JUDGE LAWS: You responded that you do assign a number
based on whether they're pro-union or anti-union.
THE WITNESS: Yes.
JUDGE LAWS: But then you said you assign the number
based on how much they understand the information you're
giving them. So is that also true?
THE WITNESS: Yes, because when --
JUDGE LAWS: Now, hold on. Just yes.
THE WITNESS: Yes.
JUDGE LAWS: How do those two things relate to each oth-
er? Are there two numbers? One, this person understands the
information, I'm going to give them this number and then an-
other number for your assessment of where they fall with re-
gard to support of the union, or is it one number?
THE WITNESS: It's one number.
(Tr. 915–917.)
I also find Camarena had a tendency to exaggerate and em-
bellish when it served him. His attempt to paint Placencia as
“mentally unstable” is not supported by objective evidence. No
supervisor or coworker who worked with Placencia on a daily
basis testified or insinuated that Placencia behaved in a manner
warranting such a conclusion. Though Rosado observed
Placencia become “a little emotional” during the October 6
exchange, he viewed the conversation as professional through-
out. The record as a whole fails to support a conclusion that
Placencia was an employee with emotional problems. Other
examples of Camarena’s tendency to exaggerate are discussed
below in connection with Placencia’s termination.
Though Placencia was clearly in favor of the Union, and like
any witness with similar leanings would tend to view things
with a pro-union lens, his testimony was clear and forthright,
and lacked the evasive, slippery, and at times outright dishonest
qualities Camarena’s testimony exhibited. In addition, Placen-
cia’s account of Camarena pantomiming the actions of pretend-
ing to kick down a door, push someone to the ground, reach for
a pretend gun, and point it, are similar to Camarena’s admitted
actions of reaching for and wielding a fake knife the following
day.
Having resolved the conflicting testimony, I find Camarena’s
actions indicated a willingness to resort to physical violence to
protect his interests. Given the fact that the petition for election
had been recently filed, this conduct was reasonably construed
as a threat. Accordingly, I find the General Counsel has met
his burden that Camarena made an implied threat to Placencia,
as alleged.
C. 8(a)(3) and (1) Allegations
1. Romero’s suspension and termination.
Complaint allegations 10 and 13 allege the Respondent vio-
lated Section 8(a)(3) and (1) of the Act when it suspended and
terminated Romero.
The General Counsel Contends that Romero was suspended
and discharged because of his union activities. The Respondent
contends it took these actions because Romero falsified an ac-
cident report. In cases involving dual motivation, the Board
employs the test set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). To prove a violation
under Wright Line, the General Counsel must make an initial
showing “sufficient to support the inference that protected con-
duct was a ‘motivating factor’ in the employer's decision.” 251
NLRB at 1089. If this is accomplished, the burden shifts to the
employer “to demonstrate that the same action would have
taken place even in the absence of the protected conduct.” Id.
The employer cannot carry this burden merely by showing that
it also had a legitimate reason for the action, but must persuade,
by a preponderance of the evidence, that the action would have
taken place absent the protected activity. Dentech Corp., 294
NLRB 924, 956 (1989).
There is no question that Romero engaged in union activity
and the Respondent knew about it. It is clear management
knew not only that he engaged in union activities, but he was
among the leaders of the ongoing campaign. The remaining
question turns on the Respondent’s motivation for suspending
and terminating Romero.
A discriminatory motive or animus may be established by:
(1) the timing of the employer’s adverse action in relationship
to the employee’s protected activity; (2) the presence of other
unfair labor practices, (3) statements and actions showing the
employer’s general and specific animus; (4) the disparate
treatment of the discriminatees; (5) departure from past prac-
tice; and (6) evidence that an employer’s proffered explanation
for the adverse action is a pretext. See Golden Day Schools v.
NLRB, 644 F.2d 834, 838 (9th Cir. 1981); NLRB v. Rain-Ware,
Inc., 732 F.2d 1349, 1354 (7th Cir. 1984) (timing); Mid-
Mountain Foods, Inc., 332 NLRB 251, 260 (2000), enfd. mem.
169 LRRM 2448 (4th Cir. 2001); Richardson Bros. South, 312
NLRB 534 (1993) (other unfair labor practices); NLRB v. Vem-
co, Inc., 989 F.2d 1468, 1473–1474 (6th Cir. 1993); Affiliated
Foods, Inc., 328 NLRB 1107 (1999) (statements); Naomi Knit-
ting Plant, 328 NLRB 1279, 1283 (1999) (disparate treatment);
JAMCO, 294 NLRB 896, 905 (1989), affd. mem. 927 F.2d 614
(11th Cir. 1991), cert. denied 502 U.S. 814 (1991) (departure
from past practice); Wright Line, 251 NLRB at 1089; Roadway
Express, 327 NLRB 25, 26 (1998) (disparate treatment).
It is very clear the Respondent has gone to great lengths to
keep the Union out of its ULX facility. Among the evidence of
the Respondent’s animus are: (1) The video shown at new em-
ployee orientation depicting the closure of a union facility, (2)
Styers’ comments regarding the Company’s need to stay union-
free and his comments about “Chucky,” detailed above, and (3)
CON-WAY FREIGHT, INC. 25
the conduct found to have violated Section 8(a)(1), above.46
The timing of Romero’s termination is likewise suspicious.
Management clearly knew the organizing campaign was gain-
ing strength—Styers’ scripted message to the employees in
meetings during the spring of 2014 underscores this. Though
Romeo had been written up for a few infractions, including
accidents, between 2011 and January 2013, this very minor
incident led to his termination in the weeks leading up to the
petition being filed.
I find, therefore the General Counsel has established an in-
ference that Romero’s union activity was a motivating factor in
the Respondent’s decision to terminate his employment.
The Respondent must prove that Romero would have been
suspended and terminated even absent his union activity. I find
highly significant the lack of explanation as to why Wattier
asked if there was any way to verify the other vehicle had left
its lane, and why Styers suggested having Andersen review the
tape. The very decision to inquire into this incident is suspi-
cious, particularly considering Romero followed reporting pro-
tocols and there was no damage to the vehicle.
Moreover, at its inception, the unexplained decision to look
into Romero’s report shows embellishment that continued and
built over time. Significantly, Romero never reported that the
other vehicle left its lane, so Wattier’s initial request to verify
that the other vehicle left its lane stands on faulty ground based
on its substance as well as its unexplained origin. Indeed,
though Romero did not have the benefit of reviewing
DriveCam before making his report, his picture of the incident
does not show the other vehicle crossing over the lane line, nor
does his narrative make such a report. (GC Exh. 2.) The report
he gave to Plonte likewise does not state the other vehicle left
its lane. (R. Exh. 21.) From the start, therefore, both the deci-
sion to look into Romero’s report, and the misstatement of what
Romero reported, lend a strong sense of untrustworthiness to
the Respondent’s actions.
The Respondent’s embellishment of the situation is com-
pounded by Andersen’s testimony, for the first time at the hear-
ing, that it appeared Romero crossed over his lane line and hit
the other vehicle. This is not reflected in any of the documents
contemporaneously explaining what occurred. It is likewise
contradicted by evidence that there is no way to tell where in
the lane Romero’s vehicle was by looking at DriveCam. Final-
ly, it does not square with Andersen’s testimony that at -7.25
seconds, a lane departure warning system installed in Romero’s
tractor-trailer was activated, resulting in a beeping sound. No
such beeping sound can be heard shortly before or at the time
of impact at -4.50 seconds.
The Respondent’s justification that Romero was distracted
because he was texting on his cell phone is belied by a wealth
of evidence. In Andersen’s initial report, which was made after
reviewing DriveCam frame-by-frame about a dozen times, he
referred to an “electronic device” Romero was holding. Later,
after reviewing the video again, he expressed his belief it was a
cell phone. When asked why he reviewed the footage again to
glean this fact, Andersen stated, “As time permitted, I went

46 Though some of this conduct occurred after Romero’s termination,
it nonetheless supports an inference of union animus.
back after things had slowed down that day from taking calls,
and I looked at this event again just to look at the details of it.”
(Tr. 1353.) In the final status ruling report, it states that in fact
Romero was using a cell phone and texting, thus apparently
transforming what was once purported to be Andersen’s belief
into a matter established fact. This “fact” was relied upon
when Romero was put out of service and subsequently termi-
nated. This strikes me as a convenient after-the-fact determina-
tion, particularly considering review of the DriveCam contra-
dicts any notion Romero was texting, and it is completely im-
possible to discern from the video what type of device Romero
was holding.47 At the hearing, where the DriveCam was re-
viewed, Andersen scaled things back, and returned to stating
that it “looked like he had his cell phone in his hand” and “his
thumb was actually touching the screen” in one clip. (Tr.
1353.) Thus when it was clear the recording was being placed
into the hearing record, the Respondent was no longer able to
plausibly assert with certainty that Romero was texting on a
cell phone.
Romero consistently stated he was holding an iPod.48 I cred-
it Romero’s testimony in this regard because it is most con-
sistent with what the DriveCam recording shows. The video
clearly depicts Romero pressed the device once with his thumb,
consistent with the use of an iPod or similar mp3 player, incon-
sistent with the operation of a cell phone, and particularly in-
consistent with the act of texting. Moreover, Romero’s de-
meanor when testifying was consistent and straightforward.49
Compared with the inconsistencies of the Respondent’s asser-
tions, detailed above, along with my own opportunity to view
the DriveCam footage, Romero’s account is easily credited.
The Respondent contends that when Andersen showed
Romero the DriveCam video depicting him lowering the elec-
tronic device out of sight to hide it, he “really didn’t argue that
point.” (Tr. 1407.) First, this does not show Romero had a cell
phone. In addition, Romero voluntarily activated the
DriveCam to record himself. Had he wanted to hide the fact
that he was holding something, it is curious he would choose to
record himself.
Turning to the Respondent’s contention that falsification is a
“cardinal sin” worthy of immediate termination, I find, for the
reasons set forth above, that there was no falsification.
50

47 This was my observation both when the video was depicted on a
large screen at the hearing, and in my repeated review of it on 24-inch
computer screen, with any eye specifically focused on trying to deter-
mine what Romero was holding.
48 Given how ubiquitous Apple products are in these times, the need
to take judicial notice that an iPod is an mp3 player and not a phone
seems akin to the need to take judicial notice that a radio is a device
that plays music. There really can be no dispute.
49 The word “knife” appears as a clear error on p. 103 of the tran-
script, and should read “iPod.”
50 The Respondent’s Policy 541—Employee Conduct, states the fol-
lowing regarding falsification:
“Falsification of Company Records/Dishonesty, For example, falsi-
fication of employment application or resume information, personnel
records, medical history forms, insurance claims, payroll records, time
cards, trip sheets, DOT logs, business expense reports, among others as
well as making false/untrue statements to company management.” It
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
Romero did not affirmatively report that he was holding an
iPod, but he was not asked if anything was in his hand. I credit
Romero’s testimony that he did not believe he had been dis-
tracted, and that is why he did not report he was distracted. His
actions of turning on DriveCam and reporting the incident ac-
cording to protocol belie that he was attempting to conceal
anything. Moreover, as detailed below, the Respondent was
faced with what it deemed to be false statements in connection
with the termination of Placencia, yet the employees who made
those statements were not terminated.
The Respondent presented evidence of other individuals ter-
minated for allegedly similar infractions. Because I find there
was no falsification, and I further find the Respondent knew
this and manipulated the situation to trump up a disingenuous
claim of falsification, I find Romero is not similarly situated to
these other employees, and therefore any comparisons are un-
helpful.
Based on the foregoing, I find the reason the Respondent of-
fered for terminating Romero was a pretext to mask unlawful
retaliation. I therefore find the General Counsel has sustained
his burden to prove this complaint allegation.
2. Placencia’s arrest, suspension, and termination
Complaint paragraphs 11 and 13 allege that the Respondent
violated Section 8(a)(3) and (1) of the act by filing criminal
charges against Placencia resulting in his arrest, and suspending
and terminating him because of his Union activities.
The General Counsel Contends that Placencia was arrested,
suspended and discharged because of his union activities. The
Respondent contends it took these actions because Placencia
pulled a knife on Camarena and exhibited violence in the
workplace. As such, the Wright Line framework applies.
Placencia had, by this time, identified himself to manage-
ment as a union supporter and leader. Coupled with the 8(a)(1)
violations and the evidence of animus set forth above, I find the
General Counsel has established an inference of unlawful moti-
vation. The Respondent, therefore must prove Placencia would
have been arrested, suspended, and terminated even had he not
engaged in protected activity.
In determining what actually occurred the morning of Octo-
ber 7, I note that many of the witnesses were asked to go back
and recall highly specific details of that morning, essentially in
real time. It is not realistic to expect witnesses to recall in such
detail the minutiae of what, at the time, seemed like just any
other morning at work. Resolving disputes over exactly where
witnesses were standing and the other seemingly unending
details of what various individuals did at precise moments that
morning is neither helpful nor material.51 I therefore resolve the
material disputes.
For the reasons set forth above, I find Camarena lacks credi-
bility. I credit Placencia’s version of what occurred the morn-
ing of October 7 because it is more plausible and better corrob-
orated.

does not prescribe a specific form of discipline for falsification. (R.
Exh. 25.)
51 These details have not been overlooked; they just are not things I
would expect witnesses to recall with a precise degree of certainty
given how long ago the events occurred.
First, I find Cabrera to be a very credible witness. He was
resolute in his position that there was foul play in connection
with Placencia’s termination, he knew there were witnesses,
and he was not going to sit idly by in the face of what he per-
ceived as an injustice. As a current employee testifying against
his own pecuniary interests, I find his testimony particularly
reliable. I note that Cabrera’s testimony is corroborated by
Navarro, another current employee who I likewise find credi-
ble.
The Respondent relies on Roman’s corroboration of Cama-
rena’s account to establish Placencia threatened Camarena.
Roman’s account is flawed, however. He admittedly could not
see if there were other employees in the break room and he
initially did not note the absence of other employees when he
made his initial statement shortly after the events occurred. He
then added that there were no other employees in the room
when prompted by Styers. (R. Exhs. 10, 11.) During his testi-
mony, he said that Cabrera came back into the break room after
the knife incident was over. Yet in his interview with Hinds,
Roman said he could not be certain Cabrera was not still in the
room. (R. Exh. 27.)
Tellingly, the fact that at 1:33 p.m. on October 7, Roman
wrote he did not think the knife incident was done in a friendly
manner but was more of an intimidation or threat shows it was
written to dispel such a notion. (R. Exh. 9.) Yet why would
there be a need to dispel the notion that pointing a knife at
someone was not done in a friendly manner unless the incident
was arguably done in jest? At 1:33 p.m., Roman, who had seen
the incident, would have no idea Placencia was going to make
such a claim unless it was grounded in fact. In addition, Ro-
man initially stated Placencia did not point the knife at Cama-
rena. He attempted to explain this statement by testifying that
he thought pointing the knife meant holding it straight out. (Tr.
1184–1185.) I do not credit this explanation, as it rings false
and is contradicted by more reliable testimony.
Moreover, Roman’s testimony that Navarro was not in the
dispatch office when the incident occurred is unworthy of be-
lief. It is contradicted by Navarro, who testified he heard the
entire incident, saw the end of it, and described the atmosphere
as light-hearted and joking. I accord high reliability to Navar-
ro’s testimony based on his open and forthcoming demeanor,
and the fact that he is a current employee testifying against his
pecuniary interests. Roman’s testimony that Navarro left the
dispatch office and came back in at 10:46 or 10:47 is contra-
dicted by the weight of the evidence, and less plausible than
Navarro’s account. The Respondent contends that the other
drivers could not have witnessed what occurred, because they
had already left the break room and proceeded to their assigned
routs. There is no dispute that Navarro generates the paper-
work the drivers need for their routes. Yet, to explain Navar-
ro’s absence from the break room during the knife incident,
Roman testified the drivers receive their paperwork any time
between about 10:46 up to 11:30. (Tr. 1204.)
Turning to Camarena, in addition to his credibility problems
detailed above, his purported fear of Placencia was grossly
exaggerated. The manner in which he testified about the knife
incident struck me as practiced and disingenuous. He said he
felt fear for his wife and children during and after the knife
CON-WAY FREIGHT, INC. 27
incident, yet even crediting Camarena’s account, Placencia
never did anything to suggest Camarena’s family was in dan-
ger. Moreover, Camarena delayed hours before contacting the
police and never alerted authorities in his home town near San
Diego about the threat. It also strikes me as unlikely Camarena
really believed Placencia would jump over the counter and
through the window and attack him, or throw his work knife at
him. Camarena’s overreaction coupled with the failure to noti-
fy authorities about what Camarena ostensibly perceived as a
threat to his family, supports the conclusion that the incident
did not occur as Camarena alleged.
Moreover, Camarena could offer no explanation as to why
he waited more than four hours to file the police report. (Tr.
884.) He admittedly did not know where Placencia was when
he went downstairs after the incident, called his wife, wrote his
statement, and ate his lunch. When asked why he stayed at the
facility, Camarena testified, “I just did.” (Tr. 883.) This leads
to the conclusion that Camarena was not in fear for his life
because the incident did not occur as he alleged.
When it comes to a key element of Placencia’s alleged threat
of violence, Camarena and Roman’s accounts differ. Camarena
recalled Placencia stated, “What, are you scared?” twice, as he
pointed the knife at him. Roman recalled Placencia stated,
“Why don’t you go with me? You don’t have to be afraid.
Nothing’s going to happen.” Camarena denied Placencia made
such a comment. This inconsistency about a primary piece of
the alleged threat points to pretext. There are also other incon-
sistencies between Camarena and Roman, including how many
times Placencia opened the knife, and whether it was Placencia
or Camarena who walked away from the incident.
Another anomaly stems from Huner’s conclusion in the in-
vestigative report that the conversation started out as lightheart-
ed banter, but the witnesses had left the room before the con-
versation turned threatening. Yet, by Camarena and Roman’s
accounts, the incident did not start out has lighthearted banter,
but was marked from the outset by Placencia being aggressive,
pushy, and sarcastic.
In addition, while I find the timing of events cannot be nailed
down with precision, the disparity between Camarena and Ro-
man regarding Camarena’s arrival in the dispatch office is high-
ly disparate. Camarena recalled going to the dispatch office at
10 or 10:15 to go over assignments with Roman. According to
Roman, Camarena did not come into the dispatch area until
after Placencia had approached the dispatch window.
The Respondent’s failure to offer a legitimate explanation
for discrediting the employee witnesses who corroborated
Placencia’s version of what occurred also points to pretext.
Huner asserted that the employee and former employee wit-
nesses could not be believed because their statements matched
too closely. The record belies this, however, and it is readily
apparent that the witness’ testimony, while generally corrobora-
tive, is not exactly the same. None of the employees were dis-
ciplined despite having ostensibly committed the “cardinal sin”
of falsification. This leads me to conclude that the statements
were not false and the Respondent knew it.
The witness’s presence in the break room at the time of the
incident is further corroborated by the LEAN meetings that
occurred the morning of October 7. The 9:30 meeting ended
after 10:30, after which time employees proceeded to get their
work assignments. This dovetails with the testimony that driv-
ers witnessed the incident, and makes it highly improbable the
attendees of the 9:30 meeting had received their assignments
and cleared out of the break room by 10:30.
The Respondent contends that Huner also reviewed time
records for Cabrera and Martinez, showing Cabrera clocked
in at 10:30 a.m., and that Martinez swiped in his dock work
code at 10:34 a.m., which supported Huner's conclusion they
both had left the break room to handle their work assign-
ments before the knife incident occurred. (R. Exhs. 2, 28.)
Placencia also clocked in at 10:30, however, and he was obvi-
ously in the break room when the knife incident occurred.
Cabrera’s clock-in time therefore lacks probative value. More-
over, this conclusion does not square with the version of Ro-
man’s account that has Cabrera coming back into the break
room after the knife incident.
With regard to Martinez, Huner testified that at 10:34, his
time card showed code 913, which is inbound dock. (Tr. 1502–
1503.) Yet, on cross-examination Huner testified Martinez’s
time card indicated he was attending a meeting between 9:27
and 10:34. (Tr. 1527.) This is consistent with Navarro’s testi-
mony about the LEAN meeting running a few minutes late. It
is undisputed employees left the LEAN meeting and went up-
stairs to get their assignments. Huner’s attempt to establish
Martinez was not present in the break room at the time of the
incident therefore does not hold up.
There is also significant evidence the Respondent’s manag-
ers seized on opportunities to paint Placencia in a negative
light. Regarding the events of October 6, Huner testified that
Rosado had communicated to him that the interaction between
Placencia and Camarena the evening of October 6 “had ele-
ments to it that of an escalation type thing where it wasn't a
totally amicable conversation.”(Tr. 1486.) Yet Rosado viewed
the conversation as “professional the whole time” and de-
scribed it as “a spirited debate of sharing opinions” that ended
amicably. Despite this, Huner attempted to paint a different
picture, stating, “It then carried over into the next morning
when Placencia came into work and addressed Mr. Camarena
which was the event where the knife was pulled on Camarena
and the threat of violence was made.” (Tr. 1486.)
Finally, Placencia and the driver witness’s account of what
occurred is much more plausible. Camarena’s actions of pre-
tending to grab a knife from behind his back and mimicking the
line from Crocodile Dundee fits with the multiple witness’s
description of lighthearted banter. Camarena’s attempt to
couch his actions as a frightened and shocked response made to
diffuse a tense situation does not ring true.
The Respondent contends other employees who did not en-
gage in union activity were terminated for similar infractions.
Because I find there was no threat of violence, and I further
find the Respondent knew this and manipulated the situation to
fabricate a disingenuous claim of violence in the workplace, I
find Placencia is not similarly situated to the other employees
who were terminated for violating the Respondent’s policies
against violence in the workplace. For this reason, a compara-
tive analysis is of no utility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
The Respondent argues at length that Camarena was not act-
ing as the Respondent’s agent when he filed the police report
leading to Placencia’s arrest. Unlike the Respondent’s argu-
ment, however, my analysis is grounded in my findings that
there was never a real threat and never a legitimate police re-
port, and the Respondent knew it. Camarena’s delay in making
the police report, which occurred only after consultation with
Styers and Licon, underscores this. Moreover, the Respondent
ratified Camarena’s actions by driving him to the police station,
calling the police later that day to come to the facility because
of a workplace dispute, and leading the police to Placencia’s
truck to facilitate his arrest. Office Lagac’s testimony is clear
that had Styers not initiated the call for service, Placencia
would not have been arrested that day.
Other evidence casts considerable doubt on Styers’ motiva-
tions for calling the police. When Officer Lagac asked Styers
for Camarena’s phone number so that he could interview him,
Styers said Camarena was out of the area in Chula Vista where
he resided, when in fact he had gone back to his hotel room.
Moreover, neither Styers nor any other supervisor or manager
has explained why Placencia, who had supposedly made a vio-
lent threat with a knife in the morning, was permitted to work
almost his entire shift before any action was taken.
The Respondent’s attempts to disavow responsibility for
Placencia’s arrest are disingenuous. In short, I find Camarena
was acting as an agent of the Respondent when he filed the
police report. His actions set in motion a course of action, rati-
fied by the Respondent’s managers, culminating in Styers’ call
to the police. This led to Placencia’s arrest and, in turn, his
suspension and termination.
As to the Respondent’s argument that Camarena’s police re-
port was protected by the First Amendment, this is easily re-
solved by two findings: (1) The police report was false; and (2)
The police report was made with retaliatory motivation.
Based on the foregoing, I find the General Counsel has
proved Placencia was terminated based on his union activity.
IV. THE OBJECTIONS
A. Background
After the petition for representation was filed Con-Way and
the Union entered into a stipulated election agreement for an
election to be conducted on October 23, 2014, which was ap-
proved on September 24, 2014. The employees included in the
agreed-upon unit eligible to vote consisted of all full-time and
regular part-time driver sales representatives and driver sales
representative students employed by Con-way at its ULX facili-
ty. The election was conducted as scheduled. 22 votes were
cast for the Union and 20 votes were cast against. Con-Way
challenged the ballots of Romero and Placencia because that
they had been terminated prior to the election. (GC Exh. 1(x).)
Both parties filed objections to the election. On July 20, 2015,
the Board approved of a stipulation between the Company and
the Union whereby the Union agreed to withdraw its objections
to the election. The parties also stipulated not to open or count
Romero’s or Placencia’s ballots. The Board issued a Revised
Tally of Ballots which finalized the vote count at 22 being cast
in favor of the Union and twenty 20 cast against. (GC Exh. 1
(ab)).
The Regional Director set the following Objections for Hear-
ing:
Objection No. 1
During the critical period, the Union and its representatives,
agents and supporters engaged in threatening, intimidating,
coercive and abusive conduct directed at the Employer's em-
ployees, supervisors, managers, consultants, and others, which
threatened, intimidated, and coerced employees, placed them in
reasonable fear for their safety, and placed them in reasonable
fear of retaliation, retribution, and other reprisals if they did not
support or vote for the Union in this election.
Objection No. 2
On the day of the election, the Union and its representatives,
agents, and supporters threatened, intimidated, and coerced
employees while they were on their way into the Employer's
facility to vote in this election.52
Objection No. 3
Even if the conduct set forth in Objections 1 and 2, above,
cannot be attributed to the Union or its agents, this conduct
constituted improper third party conduct that, either singularly
or cumulatively, destroyed the minimum laboratory conditions
necessary for a free and fair election and interfered with the
election result inasmuch as it constituted improper pressuring,
threatening, coercion, and intimidation of eligible voters.
Objection No. 4
A general atmosphere of fear, coercion, and confusion was
created during the critical period by the Union and its repre-
sentatives, agents, or supporters, or by third parties, that inter-
fered with the employees' ability to exercise a free, fair, and
uncoerced choice in this election, and interfered with the con-
duct of the election and the election result.
Objection No. 5
The conduct set forth in Objections 1, 2, 3, and 4, above, ei-
ther singularly or cumulatively, destroyed the minimum labora-
tory conditions necessary for a free and fair election, interfered
with the employees' ability to exercise a free, fair, and unco-
erced choice in this election, and interfered with the conduct of
the election and the election result.
Objection No. 6
During the critical period, the Union and its representatives,
agents and supporters engaged in additional improper or objec-
tionable conduct that interfered with this election or rendered a
free and fair election impossible.
More specifically, the alleged objectionable conduct consist-
ed of: (1) Dissemination of Placencia’s knifepoint threat the
Camarena; (2) Receipt of silent calls by a unit employee who
opposed the Union on his personal cell phone; (3) Employees,
including Placencia, forming an intimidating gauntlet outside
the entrance to Con-Way’s facilities during the evening polling
session; (4) Placencia contacting unit employees at home dur-
ing the last few days before the election; (5) Styers’ receipt of a

52 This objection was withdrawn at the hearing. (Tr. 926.)
CON-WAY FREIGHT, INC. 29
threatening text message on his cell phone, about which unit
employees became aware; (6) Receipt of a threatening text
message by a unit employee; (7) Employees circulating com-
ments about employees' cars at Con-way's Laredo, Texas facili-
ty being scratched before the NLRB election there on Septem-
ber 12, 2014; and (8) The Union posting objectionable message
on its “Change Con-Way to Win” blog.
Some of the facts relevant to the objections case are inter-
twined with facts relevant to the unfair labor practices com-
plaint, and are set forth above. Additional facts were adduced
at the hearing and are set forth below in connection with the
specific objections.
B. Objections Lacking Evidentiary Support
No evidence was presented that Styers received a threatening
text. I therefore recommend overruling of any objections based
on this allegation.53 Likewise not evidence was adduced to
support the allegation concerning rumors circulating at the
ULX terminal regarding vandalized cars at the Company’s
Laredo, Texas facility. I therefore recommend overruling any
objections based on this allegation.
No evidence was presented that Placencia visited employees
at home in the days preceding the election. I therefore recom-
mend overruling any objections based on these factual asser-
tions.
C. Employees’ Discussions about the Knife Incident
The only other objection potentially related to Placencia is
that the knife incident between him and Camarena was widely
disseminated among drivers. I find it unnecessary to determine
whether Placencia was an agent of the Union because I find
there was no evidence that any of the conduct attributed to him
occurred.
It is undisputed that after Placencia’s arrest, the knife inci-
dent was widely discussed among drivers at the ULX facility.54
For the reasons set forth in my analysis of the unfair labor prac-
tices complaint, I find Placencia never threatened Camarena
with a knife. Placencia was not at work after October 7, so
whatever scuttlebutt was circulating among the drivers was not
of his making. There was no evidence presented that anyone
from the Union circulated information about the knife incident.
The incident was only fodder for employee gossip because the
Company distorted it and used it to justify terminating Placen-
cia.
Because the evidence shows Placencia never threatened
Camarena with a knife, any objection based on this allegation
lacks a factual foundation and recommend overruling it.
D. Change Con-Way to Win Blog
1. Facts
Some of the objections are based on the “Change Con-Way
to Win” blog, which displayed pro-union, anti-management
commentary. (R. Exh. 7.) The blog’s administrator controlled

53 Camarena briefly mentioned a text Styers purportedly received,
but Styers did not testify about it and it was not otherwise authenticat-
ed.
54 The record is replete with testimony that this was a common topic
among drivers at the time.
what was posted. The Union did not create and or manage the
blog, the Teamsters logo appeared on it and Diaz was aware of
it and visited it on a few occasions. (Tr. 1589, 1599.)
One entry, dated September 19, 2014, entitled “Outing The
Rats at ULX” denigrates Styers and Robles for allegedly
spreading lies about the Union. Driver Gerardo Lopez was sent
a link to this post on his personal cell phone. The entry states:
Paul Styers and his henchmen have done it again. They are
out spreading lies about the union. Steyers' [sic] lead liar and
master kiss-ass, Ramsy [sic] Robles are deceiving employees
regarding the union. They are reaching into their bag of tricks
and pulling out some of the most common lies. Stating that
with a union in place, we would be paying for ABF and YRC
pensions, that ABF and YRC drivers can come to Conway
and dovetail into the roster with their company seniority.
They need to be a little more original, these are old, tired, and
frankly just lazy lies. We don't expect any less of Paul Styers,
he is a known liar and bigot. He's not fit to be a manager with
his dirty tricks. As for Ramsy [sic] Robles, he is a lazy em-
ployee that is only kept around because he does Steyers' [sic]
dirty work. As we continue to push forward with our efforts
we will be outing any employees that are knowingly lying
about the union. If they can go around spreading lies, then
they can proudly look at their names here and stand behind
their words and actions. Out with the rats!
(R. Exh. 7.) There were 82 comments regarding the post. Oth-
er comments on the blog were made by someone named
“Jaime” and by other individuals identified only by first names
or by pseudonyms.55 Driver Clemente Fuentes was mentioned
in a post as follows:
Richard said. . .
Clemente Fuentes from ulx, I thought you were a man you
sorry ass punk.
October 10, 2014 at 3:07 PM Jaime said. . .
Clemente pay your child support that you're complaining
about and don't be ignorant saying you will pay someone
else's pension, you stupid fool.
October 12, 2014 at 5:52 PM
(R. Exh. 7.)
Lopez initially perceived “outing the rats” entry as a threat,
but his perception changed when he looked at the comments
posted with it.56 He showed the text message to Roman, but he
did not make a record of it. Robles saw the “outing the rats”
entry and thought on was that it was funny. It did not upset
him. (Tr. 959.) Driver Clemente Fuentes’ reaction to the web-
site was it was a bunch of lies. (Tr. 988.) Driver Leonard
Loya’s reaction was that the blog was childish. (Tr. 1008.)
Mario Cruz saw the entry and was curious to see whether his
name was mentioned. He felt relieved that his name was not

55 It has not been established that the “Jaime” who posted on the
blog was Romero. He was not asked about the blog during his testimo-
ny.
56 Employees were unsuccessful when they attempted to post com-
ments contrary to the comments that appeared on the blog.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
included. (Tr. 1033–1034.)
Victor Cruz was afraid his name would appear on the blog if
he put up a fight. He thought somebody might hurt him or his
family. He thought people were afraid to speak out because
their names might appear on the blog. (Tr. 1057–1058, 1090.)
Viewing the “Change Con-Way to Win” blog did not cause
any witness to change his mind about how he voted in the elec-
tion. No witness heard of any other employee changing his or
her mind about the election based on the blog.
2. Analysis
“The burden of proof on parties seeking to have a Board-
supervised election set aside is a heavy one. The objecting party
must show, inter alia, that the conduct in question affected em-
ployees in the voting unit and had a reasonable tendency to
affect the outcome of the election.” Delta Brands, Inc., 344
NLRB 252, 253 (2005) (internal quotations omitted). The ob-
jecting party must prove that the specific conduct in question
had a reasonable tendency to affect the outcome of the election.
Affiliated Computerizing Services, 355 NLRB No. 163 (2010).
The Respondent has failed to establish that a union agent
published the “Change Con-Way to Win” blog. I therefore find
that the standards for evaluating conduct by a third party are
applicable to objections based on the blog.
Where misconduct is attributable to a third party, the Board
will overturn an election if the misconduct is “so aggravated as
to create a general atmosphere of fear and reprisal rendering a
free election impossible.” Beaird-Poulan Division, Emerson
Electric Co., 247 NLRB 1365, 1388 (1980); see also Westwood
Horizons Hotel, 270 NLRB 802, 803 (1984). The Board applies
an objective standard. See Emerson Electric Co., supra; Pico-
ma Industries, Inc., 296 NLRB 498, 499 (1989) In determining
whether a threat is serious and likely to intimidate prospective
voters, the Board evaluates not only the nature of the threat
itself, but also: (1) whether the threat encompassed the entire
bargaining unit; (2) whether reports of the threat were dissemi-
nated widely within the unit; (3) whether the person making the
threat was capable of carrying it out, and (4) whether it is likely
that the employees acted in fear of this person’s capability of
carrying out the threat; and (5) whether the threat was ‘rejuve-
nated’ at or near the time of the election.” Accubuilt, Inc., 340
NLRB. 1337 (2003) (citing Westwood Horizons, supra). While
the Board will pay particular attention to the fairness of close
elections, the Westwood Horizons standard applies even where
the election margin is narrow. Id.
While very critical of Styers and, to a slightly lesser extent
Robles, there is insufficient evidence to prove the “Outing the
Rats” entry, or any other part of the “Change Con-Way to Win”
blog specifically had a reasonable tendency to influence the
outcome of the election. The employees voluntarily chose to
view the website. The “threat” implicated by the blog is that
employees who made false statements about the Union would
be named, or “outed.” Although the blog was viewed by many
of the drivers, the statements in it lacked specificity regarding
the election. While the comments were certainly derogatory
and unkind, I find they did not instill fear in employees so as to
render a free election impossible. Accordingly, I recommend
any objection based on the “Change Con-Way to Win” blog be
overruled.
E. The Phone Calls
After the election petition was filed, Robles received calls on
his cell phone that were silent. The calls occurred 2 or 3 times a
day for a couple of weeks. A number showed up but he never
tried to find out who the caller was. (Tr. 963–965.) He did not
feel scared or threatened by the calls. He told Styers about the
calls. Styers did not ask for the number from which the calls
originated, and he took no action. (Tr. 981–982, 1321.)
No evidence, aside from timing, ties the phone calls to the
election, and there is nothing to establish who initiated the
calls, despite the fact that a number showed up on Robles’
phone. Had there been a reasonable perception of a threat by
virtue of the calls, it is hard to believe Robles and Styers
thought the best course was to take no steps to identify who
was making that threat. In addition, the evidence regarding the
calls is inconsistent. Styers thought it was Victor Cruz who
received the calls. (Tr. 1321.) Loya testified the calls to Robles
were obscenities. (Tr. 1015.)
For the foregoing reasons, I recommend overruling any ob-
jections based on the silent calls to Robles’ cell phone.
IV. CONCLUSIONS OF LAW
(1) By instructing employees not to wear union insignia,
threatening employees for supporting the Union, filing criminal
charges against an employee, suspending employees, and ter-
minating employees because they supported the Union, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
(2) The Respondent violated Section 8(a)(1) of the Act by
instructing employee Juan Placencia not to wear union insignia
and threatening him.
(3) The Respondent violated Section 8(a)(3) and (1) of the
Act by filing criminal charges against employee Juan Placencia,
suspending employees Jaime Romero and Juan Placencia, and
terminating employees Juan Placencia and Jaime Romero be-
cause of their union activities and to discourage employees
from supporting the Union.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having told an employee not to wear a lanyard bearing the
Union’s insignia, the Respondent shall be ordered to cease and
desist from this action.
Having threatened an employee because of his support for
the Union, the Respondent shall be ordered to cease and desist
from this action.
Having unlawfully caused employee Juan Placencia to be ar-
rested, the Respondent shall be ordered to cease and desist from
this action.
CON-WAY FREIGHT, INC. 31
Having unlawfully suspended and terminated Juan Placencia
and Jaime Romero, the Respondent will be required to restore
the status quo ante by rescinding their unlawful suspensions
and terminations and removing all references to them from the
Respondent’s files.
The Respondent, having discriminatorily terminated Juan
Placencia and Jaime Romero, must offer them reinstatement
and make them whole for any loss of earnings and other bene-
fits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). The Respondent shall file a report with
the Social Security Administration allocating backpay to the
appropriate calendar quarters. Respondent shall also compen-
sate the discriminatees for the adverse tax consequences, if any,
of receiving one or more lump-sum backpay awards covering
periods longer than 1 year. Latino Express, Inc., 358 NLRB
823 (2012), reaffd. 361 NLRB No. 137 (2014); Don Chavas,
LLC, d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014).
The General Counsel seeks, as part of the remedy, that
Placencia and Romero be reimbursed for search-for-work and
work-related expenses, regardless of whether interim earnings
are in excess of these expenses. The General Counsel is seek-
ing a change in Board law, and the Board has declined to grant
this remedy absent a full briefing by the affected parties. See
East Market Restaurant, Inc., 362 NLRB No. 143, slip op. at 5
fn. 5 (2015). Accordingly, I decline to include the requested
remedy in my recommended order.
The General Counsel has also requested a broad remedial or-
der. Because of the Respondent’s egregious misconduct,
demonstrating a general disregard for the employees’ funda-
mental rights, I find it necessary to issue a broad Order requir-
ing the Respondent to cease and desist from infringing in any
other manner on rights guaranteed employees by Section 7 of
the Act. Hickmott Foods, 242 NLRB 1357 (1979).
I will order that the employer post a notice in the usual man-
ner, including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, 15–16 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended57
ORDER
The Respondent, Con-Way Freight, Inc., Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from wearing union insignia;
(b) Threatening employees because they support/supported
the Union;
(c) Causing the arrest of employees because they joined or
assisted the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities;
(d) Suspending employees because they joined or assisted

57 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
the Union and engaged in concerted activities, and to discour-
age employees from engaging in these activities;
(e) Terminating employees because they joined or assisted
the Union and engaged in concerted activities, and to discour-
age employees from engaging in these activities;
(f) In any other manner, interfering with, restraining or co-
ercing employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative actions.
(a) Within 14 days from the date of the Board’s Order, offer
employees Jaime Romero and Juan Placencia immediate and
full reinstatement to their former positions, or, if those positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make employees Jaime Romero and Juan Placencia
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner set forth
in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Los Angeles, California, copies of the attached notice
marked “Appendix.”58 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since August 15, 2014.

58 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. November 5, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising
these rights.
WE WILL NOT instruct you to remove lanyards or other
items bearing the Union’s insignia.
WE WILL NOT threaten you because of your support for the
International Brotherhood of Teamsters, Local 63, or any other
union.
WE WILL NOT suspend, discharge, or otherwise discriminate
against any of you for supporting the International Brotherhood
of Teamsters, Local 63, or any other union.
WE WILL NOT take actions to cause you to be arrested be-
cause of your support for the International Brotherhood of
Teamsters, Local 63, or any other union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you by
Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Juan Placencia and Jaime Romero full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Juan Placencia and Jaime Romero whole for
any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest com-
pounded daily.
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters.
WE WILL compensate Juan Placencia and Jaime Romero for
the adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, re-
move from our files any reference to the unlawful suspensions
or discharges of Juan Placencia and Jaime Romero, and WE
WILL, within 3 days thereafter, notify each of them in writing
that this has been done and that the suspensions and discharges
will not be used against them in any way.
CON-WAY FREIGHT, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CA-135683 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.