Gateway Freight Services

National Labor Relations Board - Board Decisions

Apr 9, 1993

310 N.L.R.B. 1058 (N.L.R.B. 1993)

1058
310 NLRB No. 173
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 The Respondent’s request that the Charging Party’s exceptions be
rejected lacks merit and is denied.
1 All dates are in 1990 unless otherwise indicated.
2 Counsel for the General Counsel’s motion to strike Respondent’s
reply brief is granted.
Gateway Freight Services, Inc. and Allied Services
Division, Transportation Communications
International Union, AFL–CIO–CLC. Case 13–
CA–29889
April 9, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 21, 1992, Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
Charging Party filed exceptions to the judge’s decision
and a supporting brief. The Respondent filed an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Richard Andrews, Esq. and Aaron Karsh, Esq., for the Gen-
eral Counsel.
James E. Moye, Maria Sorolis, and John O’Rourke, Esqs.,
for the Respondent.
Robert Bloch, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried at Chicago, Illinois, on October 2 through 4, 1991,
and January 6 through 9, 1992. On November 28, 1991,1 Al-
lied Services Division, Transportation Communications Inter-
national Union, AFL–CIO–CLC (the Union) filed a charge
against Gateway Freight Services, Inc. (the Respondent) al-
leging violations of Section 8(a)(1) and (3) of the Act. On
January 4, 1991, the Union filed a first amended charge al-
leging violations of Section 8(a)(1), (3), and (5) of the Act
by Respondent. The complaint and notice of hearing issued
on April 29, 1991.
The complaint alleges that, inter alia, Respondent failed
and refused to hire certain employee applicants of Ogden
Maintenance Cargo Services, Inc., the predecessor employer,
whose employees were represented by the Union for pur-
poses of collective bargaining. Counsel for the General
Counsel’s theory is that certain of these employee applicants
were not hired because of their union affiliation, and to avoid
a successorship obligation by failing to recognize and bar-
gain with the Union as the exclusive representative of Re-
spondent’s employees engaging in air cargo handling at Re-
spondent’s Chicago facilities. Furthermore, Respondent is al-
leged to have unilaterally changed terms and conditions of
employment without prior notice to the Union. During the re-
cess in the hearing counsel for the General Counsel’s motion
was granted to allege additional discriminatees by name, and
to allege an alternate bargaining unit theory.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs,2 I
make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material here, Respondent, a corporation with
offices and places of business in Los Angeles, California;
Boston, Massachusetts; Honolulu, Hawaii; Seattle, Wash-
ington; San Francisco, California; Atlanta, Georgia; Chicago,
Illinois (the Chicago O’Hare facility); and Schiller Park, Illi-
nois (the Schiller Park facility), and together with the Chi-
cago O’Hare facilities collectively called Respondent’s Illi-
nois facilities, has been engaged in the provision of air cargo
services to airlines.
During the past calendar year, Respondent, in the course
and conduct of its business operations, performed services
from its Illinois facilities valued in excess of $50,000 for
corporations located in States other than the State of Illinois.
During the past calendar year, Respondent, in the course
and conduct of its business operations purchased and re-
ceived at its Illinois facilities goods, products, and materials
valued in excess of $50,000 directly from points outside the
State of Illinois.
Respondent is now, and has been at all times material
here, an employer engaged in commerce within the meaning
of Section of 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is now, and has been at all times material here,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is a corporation engaged in the business of
cargo handling services for various air carriers nationwide.
Gateway commenced its operations in approximately 1980,
and handled the cargo for many airlines in various cities on
a contract basis. Prior to June 1, Respondent operated from
two facilities in the vicinity of Chicago’s O’Hare airport.
They included an import operation in the Delta cargo build-
ing at O’Hare, and an export facility in the Alitalia building.
1059GATEWAY FREIGHT SERVICES
3 Respondent’s human resources director.
At that point and time, Respondent employed 35 rank-and-
file employees.
Ogden Maintenance Cargo Services, Inc. (Ogden) was a
competitor of Respondent in the air cargo business. It also
provided cargo handling services for various airlines at
O’Hare including El Al, LOT, AerLingus, and KLM Air-
lines, Ogden’s largest customer accounting for approximately
90 percent of Ogden’s business in May 1990.
In April 1990, Respondent sought to expand its operations
as a result of successfully competing for, and being awarded,
the contract from KLM Airlines to service KLM’s operation
out of Chicago’s O’Hare Airport.
The Union had represented a unit of Ogden employees
consisting of all dock agents and office agents since 1984.
Approximately 50 to 60 employees were employed by Ogden
during the month of May 1990. They were covered by a col-
lective-bargaining agreement which was in effect from June
1, 1989, through May 31, 1992.
In order to implement the new contract between Respond-
ent and KLM, on or about June 1, Respondent sent a man-
agement individual, Lloyd Barber, to oversee its operations
there. It was Barber’s function to oversee the construction of
Respondent’s new facility located at O’Hare, and to begin
interviewing and hiring employees to perform the additional
work the KLM contract would generate. He arrived at Re-
spondent’s Chicago operation in mid-April. Barber had full
authority to make decisions with respect to hiring and he an-
ticipated hiring 40 to 50 additional people for the work
which would be created by KLM’s air freight. The additional
staff, according to Barber, was to be selected by hiring the
best qualified applicants and realigning assignments of exist-
ing Gateway employees. Barber’s wife, Ina Barber, was em-
ployed by Respondent as an administrative assistant to Bar-
ber, and she assisted him in the hiring process.
Testimony reflects that Respondent’s method of operation
was to attempt to achieve greater economy by maintaining
work forces smaller than those traditionally used by air
freight handlers. Barber testified that he intended to use 40
to 50 employees to service the KLM contract, as opposed to
Ogden who utilized over 70 employees to perform the same
functions. Chuck Fiske, who had worked for Ogden as an as-
sistant manager and subsequently became a supervisor for
Respondent, testified that Respondent was able to operate
with a much smaller work force because it uses highly quali-
fied employees to perform many different tasks. Moreover,
cross-utilization of qualified personnel is highly stressed by
Respondent and allows it to economize its operations.
As a means of obtaining applicants, Respondent placed
adds in various newspapers such as the Chicago-Sun Times
and a local airport journal. Also, Barber sought assistance
from the State of Illinois economic development department.
Ogden employees were invited to apply for employment with
Respondent, through Ogden’s administrative assistant, Jeanne
Andres (Porter), told Ogden employees to apply for jobs. The
screening process began approximately on April 20.
Barber was given an office so as to be able to interview
applicants, including Ogden employees and individuals from
the general labor market, who responded to advertisements in
the newspaper. Applicants were asked to complete an appli-
cation and to be interviewed by Barber. Also, applicants
were given a personnel selection inventory test (PSI). There
was also a background and a driver’s license test, and a
physical examination, including a drug screen.
Barber interviewed approximately 200 applicants in April
and May 1990. He considered his personal observations of
the individuals working at Ogden and recommendations con-
cerning them. These recommendations usually came from the
supervisors of the Ogden employees.
Jerome Adducie was the KLM cargo handling supervisor
in Chicago. As such, he oversaw the performance of the
Ogden employees in handling KLM’s air cargo freight and
formed opinions regarding these employees. They were com-
municated to Barber in a memorandum which Adducie made
available to Gateway management in Los Angeles, Cali-
fornia. In his memorandum, Adducie set out two levels of
Ogden employees, the first being 23 persons whom KLM re-
ferred to as ‘‘core group.’’ Adducie referred to a second
small group of 8 individuals from the list of 33 core employ-
ees who he characterized as ‘‘absolute mainstays.’’ The ab-
solute mainstays were people who Adducie felt were highly
qualified and necessary for the Gateway operation.
Barber only considered recommendations once an appli-
cant had completed successfully the entire process, and no
applicant was hired without a successful interview by Barber,
a passing score on the PSI test, the 5-year background check,
a valid driver’s license, and the medical exam which must
reflect negative on the drug screening. The only individual
who was hired and had not successfully completed the PSI
test was Giovanni Carlino. It was obvious when Carlino took
the stand at the hearing that his command of the English lan-
guage was nonexistent. I was unable to administer the oath
to him and accordingly excused him from testifying. Carlino
was unable to successfully complete the PSI test but he was
hired based on the outstanding recommendations of his su-
pervisors, coworkers, and Barber’s evaluation of Carlino’s
work, which Barber observed during his tours of the ware-
house in April and May 1990. The exception in hiring
Carlino was because the test was unavailable in Italian and
he spoke virtually no English. Because of Carlino’s out-
standing work record and evaluations, Curtin3 contacted Lon-
don House regarding Carlino’s test results. London House is
the company that assembles the test and scores it. It advised
Curtin that Carlino’s failure reflected solely that he did un-
derstand the test and therefore it was invalid. According to
documentary evidence and testimony, no other applicant’s
test was rendered invalid by a low accuracy score. Carlino’s
test reflected that his accuracy score was below the standard.
During the interviewing, Barber kept a log which he uti-
lized to keep track of the applicants and at what stage they
were, during the application procedure. The log was also uti-
lized by Barber to track equal employment criteria to make
sure that the Respondent was staying within the law, with re-
spect to age and race. Barber utilized another log, in which
to record the results of his interview with an applicant and
his impressions of said applicant. He completed this log dur-
ing the interviews of the applicants.
As of June 1, Gateway’s Chicago operation occupied four
buildings. The air cargo business for KLM was performed at
the same two buildings which Ogden had used. These build-
ings were owned by the city of Chicago and leased to KLM.
One housed KLM’s export cargo and the other its import
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cargo. Of Gateway’s four buildings, three were basically
across the street from one another, and the fourth building
housing KLM’s import cargo was several miles away. Each
of the four buildings had its own timeclock, lunchroom, and
locker room.
On approximately January 17, 1991, Gateway completed
construction of the building which had been under construc-
tion since Gateway was awarded the KLM contract. When
this building was completed all of Gateway’s operations
were consolidated into this one location. The 40 to 50 com-
plement of employees which Barber had thought would be
necessary to service the KLM contract was reduced to ap-
proximately 35 people.
A unit of all dock agents and office workers employed by
Ogden were represented by the Union prior to the advent of
Gateway.
The Union alleges it made a demand for recognition on
Gateway in a letter mailed on June 1, 1990, addressed to
Gateway at the building out of which it operated on Rose
Street in Schiller Park. Accordingly, the Union avers that Re-
spondent’s failure to bargain with it following the June 1,
1990 letter, constituted an unlawful refusal to bargain within
the meaning of Section 8(a)(5) of the Act. Respondent con-
tends the letter was never received by it. It is undisputed that
the letter was not mailed certified or registered.
Jeanne Porter (Andreas) testified that she was the adminis-
trative assistant for Ogden prior to June 1. As such, she was
the only individual responsible for opening mail for Gate-
way’s Rose Street facility. She testified that she never re-
ceived an envelope from the Union and prior to the hearing
had not seen the demand letter. Porter was unequivocal that
she would have recalled receiving a letter from the Union de-
manding recognition, because she would have not known to
whom the letter should have been routed and would need to
seek assistance.
Joseph Condo, who was president of the Union, and Rob-
ert F. Davis, who was general secretary treasurer of the
Union, testified that they prepared and mailed a letter to Re-
spondent at its Schiller Park address, in which the Union re-
quested recognition in the same identical unit that was pre-
viously represented by the Union at Ogden.
The letter was directed to Barber who was in charge of
Respondent’s Chicago operation. He testified that he never
saw nor received the demand letter.
The record reflects that beginning on June 1, Respondent
provided essentially the same services for KLM that Ogden
had performed prior to that. The same facilities, Schiller Park
Import Facility and KLM Export Facility located at O’Hare
and used by Gateway, were the ones used by Ogden. Em-
ployees hired by Respondent for the KLM contract used
similar equipment and skills working under similar condi-
tions as Ogden employees. As in the case of Ogden, Re-
spondent leased its equipment, although from a different les-
sor. Job classifications were similar and Respondent’s em-
ployees were supervised by individuals who had previously
supervised the Ogden employees who performed KLM work.
Chuck Fiske, a witness called by counsel for the General
Counsel, worked as an assistant manager for Ogden. He testi-
fied that after May 31, he went to work as a supervisor for
Respondent. Fiske testified, in explaining the reason why
Gateway was able to staff the KLM work with a lot less em-
ployees than Ogden, that Respondent consolidated operations
and stresses cross-utilization of personnel. People are used
not only in performing KLM work but also to perform work
on other contracts of Respondent. Barber testified similarly
that Respondent’s employees were trained in a greater vari-
ety of tasks and had to be familiar with crate loading require-
ments of a number of Respondent’s customers, and that em-
ployees were switched back and forth from contract to con-
tract.
Many of the employees who were supervisors at Ogden
were employed by Respondent as rank-and-file. As stated
earlier, Gateway and Ogden’s equipment was leased through
different companies. Gateway’s equipment is marked with its
name, it did not lease equipment from Ogden. Gateway pur-
chased vans, office equipment, and a truck.
Counsel for the General Counsel and counsel for the Re-
spondent entered into a stipulation regarding the unit to be
litigated:
All full-time and regular part-time dock agents and of-
fice agents employed by Respondent in Respondent’s
Chicago, Illinois area facilities, but excluding guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
In order to maximize the productivity of the employees,
Respondent interchanged its employees between the various
contracts for the airline carriers. Although Ogden operated
differently than Respondent, in that it did not utilize this
interchange, Ogden was organized by the Union on a Chi-
cago-wide basis. Thus the single Ogden unit included em-
ployees that worked on different contracts and different
buildings sometimes miles apart, and utilized different
lunchrooms and locker room facilities.
The General Counsel and the union counsel, subsequent to
the stipulation, are now seeking a unit of only those employ-
ees who service the KLM contract. The terms and conditions
of the employment of Respondent’s employees in Chicago,
whether assigned mainly to the KLM contract or to other
contracts are set forth in an employee handbook. Barber tes-
tified that the wage structure of all employees was very simi-
lar regardless of the contract assignment. The hours of work
were the same and the shifts each contract required were
very similar. Moreover, all Gateway employees in Chicago
received the same medical benefits, dental benefits, sick
time, vacation time, holiday pay, and retirement programs.
All employees, regardless of their main contract assignment
reported to Barber.
Testimony by Barber and others reflect that Gateway em-
ployees had the same job classifications, i.e., cargo agents,
office agents, and lead agents, regardless of the contract to
which they were assigned. Their skills are the same regard-
less of contract employment. Furthermore, the amount of
time spent away from the facility by employees would be the
same, regardless of a contract assignment. With respect to
interchange, it occurred two or three times a week in order
to meet the demands of flight schedules. Six of the 35 pre-
vious Gateway employees were used to staff the KLM oper-
ations. The Gateway organizational structure included all
contract operations reporting to Barber. He controlled labor
relations regardless of the principal contract for the em-
ployee.
1061GATEWAY FREIGHT SERVICES
The parties stipulated ‘‘that beginning on June 1, 1990 and
continuing until January 18, 1991, Gateway conducted its op-
erations in the Chicago, Illinois facilities which included
those facilities previously used by Ogden in the perform-
ances of services for KLM.’’
Record testimony reflects that in order for Respondent to
be able to perform at a substantially normal level of oper-
ation for KLM on June 1, 1990, Gateway necessarily used
employees from other locations who came to Chicago tempo-
rarily to assist in the startup of the KLM contract assign-
ment.
Whether the critical date be considered June 1 or 30, 1990,
testimony and documentary evidence reflect that at no time
did Ogden employees comprise a majority of the overall
compliment of Respondent’s employees. The question is, did
Respondent engage in an unlawful scheme to avoid
successorship status, and an obligation to recognize and bar-
gain with the Union by discriminatorily refusing to hire
former Ogden employees because of the union affiliation?
As of June 1, 1990, there were at Gateway a total of 68
rank-and-file employees. Thirty-five were Gateway employ-
ees prior to May 31, and 22 were former Ogden employees.
Eleven employees were hired from the outside labor market.
As of June 30, 1990, Respondent employed a total of 79
rank-and-file employees, 35 were Gateway employees prior
to May 31, 1990. Twenty employees were former Ogden em-
ployees and 24 were hired from outside labor market
sources.
The amended complaint contains no independent allega-
tions of Section 8(a)(1) of the Act with respect to unlawful
interrogation or threats. Counsel for the General Counsel
takes the position that certain statements made by supervisors
demonstrate Respondent’s antiunion animus, its opposition to
unions, and its desire to avoid having a union as a collective-
bargaining representative for its employees. Moreover, ac-
cording to counsel for the General Counsel, the statements
would be violations of Section 8(a)(1) of the Act if they
were not barred by Section 10(b) of the Act.
Russell Scheitlin, an employee who is no longer employed
by Respondent, testified that during his job interview with
Barber, the last week in May, Barber told him that there is
not going to be any union at Gateway, that Gateway does
not believe in unions, does not deal with unions, and that
there would not be any union in Respondent’s operation.
Scheitlin admitted that he raised the issue of unionization
with Barber during his interview. Moreover, during his inter-
view, Scheitlin repeated to Barber the statement of Union
President Condo, that if the Union represented a majority of
Respondent’s employees the Union would continue as bar-
gaining representative. In response to Scheitlin’s question re-
garding whether the Union would continue to be the employ-
ees’ bargaining representative, Barber stated that Gateway
was then nonunion and that the employees and management
would have to get to know one another. Barber testified that
in reaching any hiring decision, he did not consider whether
or not someone had any union affiliation. Moreover, he spe-
cifically denied that during the application process, he raised
the subject of unionization in any way with the applicants.
Barber further testified that the subject of unionization came
up probably six to eight times. According to Barber, there
were people who were concerned about working in a non-
union environment. Furthermore, there were people con-
cerned about working in a union environment. Barber told
the individuals that Respondent was a nonunion company
and preferred dealing with the employees rather than a third
party, but everybody has a right to representation if they so
wish. Specifically he testified with respect to his discussion
with Scheitlin that Scheitlin brought up the subject about the
Union and he, Scheitlin, did not want to be in any union en-
vironment. Barber told him Respondent was a nonunion
company but that he had no control over it, if the Union
came in and took a vote, he had no control over it.
Elywarto Gemina testified that Barber told him Gateway
would not be unionized and that Gateway did not believe
that it needed a union to operate. According to Gemina, Bar-
ber stated further that he attributed the lack of union organi-
zation at Gateway to the fact that KLM does not want a
union.
Barber denied the conversation with Gemina with ref-
erence to unionization and testified further that ‘‘I could not
speak on behalf of KLM.’’
Preston Earl Crisler Jr. testified that he was interviewed by
Barber sometime in May, possibly mid-May 1990. During
his discussion with Barber, Preston testified, ‘‘I was mostly
concerned with the hospitalization plan and the wages, so, I
asked him about the wages.’’ According to Crisler, Barber
stated nobody’s salary would change from what they were
making at Ogden. Crisler asked about the KLM operation
and Barber asked Crisler if he would be willing to take a
lead position or show some of the other employees the oper-
ation for KLM. Crisler responded that that would not be a
problem. There was further discussion about the hospitaliza-
tion plan and Barber allegedly told Crisler it was similar to
one that Ogden employees had with the Union, but that Re-
spondent was nonunion. Moreover, according to the testi-
mony of Crisler, Barber told him how many years he had
been working for Respondent and that Respondent had never
been in a union and never would be.
Barber specifically testified recalling telling Crisler that
Respondent never had a union and was presently a nonunion
company.
Roosevelt Smith testified that during his interview, Barber
told him that Respondent is a nonunion company and would
remain a nonunion company.
Steve Hammond testified that he was interviewed by Bar-
ber in May 1990. Hammond testified as follows, ‘‘Ok, he
[Barber] told me what he had to offer me and what I had
asked about was pension, benefits. He told me about Gate-
way’s benefits and how long he has been working for Gate-
way. Just the typical things that he would talk about, money,
advancement potential, just things that he would generally
talk about.’’ When asked on direct examination whether
there was anything else discussed during the interview, Ham-
mond responded, ‘‘Yes, we talked about how long they had
been in business. He asked me about my attendance, typing
skills and if I was familiar with a computer, things of that
nature.’’ Hammond asked Barber why there was no union,
and according to Hammond, Barber did not respond. Ham-
mond testified that Barber did state that Respondent does not
have a union and that they have not had one, but that does
not mean that they would not ever get a union in the future.
Hammond testified further that Barber made a comment,
‘‘He didn’t know but they kind of tried to keep away from
it.’’ According to Hammond, Barber stated that there was
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 At this time, McDonough was an admitted supervisor and not a
member of any union.
nothing to be afraid of as long as you show up on time and
do your job duties. They really like punctuality and you
doing your job and if you did that, then you do not have
anything to worry about.
Andrew Knox testified that in his job interview with Bar-
ber, Barber discussed the Gateway operation and how
‘‘they’’ want you to have your uniforms and there would not
be a union. According to Knox, Barber, during the discussion
of the Gateway operations, stated that there would not be a
union because Barber’s supervisors would take care of all of
that, there would be no need for one. Furthermore Barber al-
legedly stated that, ‘‘They weren’t taking any crap off of
anyone.’’ Knox continued that Barber stated his supervisors
were strict and were not taking any crap and that was basi-
cally the reason they do not need a union in their operations.
Barber testified that he could not have told Knox that there
would not be a union, that he has no control over it. He re-
sponded further that Respondent was a nonunion company.
Nicola Chiusolo testified that he was interviewed by Bar-
ber. According to Chiusolo, Barber talked about the Com-
pany, benefits, and rate of pay. In response to a leading
question, Chiusolo testified that Barber allegedly stated Re-
spondent was nonunion and it intended to stay that way. On
cross-examination Chiusolo stated that his affidavit contained
the statement, ‘‘He [Barber] mentioned to me that Gateway
was a non-union company and they want to stay that way.’’
Chiusolo testified that in fact that was what Barber stated to
him during the interview.
Barber testified that he recalled the only conversation he
had with respect to the Union was that Gateway was a non-
union company.
Counsel for the General Counsel cites as additional proof
of Respondent’s animus, Barber’s interrogation of Ogden Su-
pervisor James McDonough, about his attendance at a union
meeting held at Rog’s Restaurant on May 18.
As a supervisor, McDonough was not a member of the
Union when he was employed by Ogden. After May 31,
McDonough was hired by Respondent as a supervisor. After
approximately 6 months, McDonough was terminated by Re-
spondent, allegedly for misappropriating funds.
McDonough testified that while he was still a supervisor
in the Ogden organization he joined a unit employee for a
beer at ‘‘Mama Kay’s.’’ From there the unit employee, Andy
LaRocco, stated he had to go to a union meeting at a res-
taurant called ‘‘Rog’s.’’ Rog’s facility has a restaurant
lounge and, according to McDonough’s testimony he waited
in the lounge drinking beer while LaRocco attended the
union meeting in the restaurant with other employees. Ac-
cording to the testimony of McDonough, the next day, Bar-
ber asked him if he had been at the union meeting, to which
he responded he was in the building where the meeting oc-
curred, but he did not actually attend the meeting.
McDonough alleges that Barber told him he would have to
speak to Gateway’s attorneys because he had been present in
a place where a union meeting occurred.
Although McDonough’s testimony is not quite clear, it ap-
pears that he is implying that Barber asked him to talk to
Respondent’s attorneys because if he was a union adherent
he would not be hired.4
Barber testified that McDonough approached him and
asked if saw the bulletin referring to the union meeting at
the restaurant. McDonough stated that he was going to the
meeting and he was going to let Barber know who was in
attendance. Barber responded that he was being put in a
compromising position and he did not want McDonough to
attend the meeting, but inasmuch as McDonough was not a
Gateway employee he could not stop him, but that he should
please not attend.
The next morning, according to Barber, McDonough came
to him and stated, ‘‘I went to the meeting but I didn’t go
in. I sat at the bar and sucked down a few.’’ Allegedly,
McDonough went on to state he would let Barber know who
attended, and Barber said he did not want to hear about it
and does not want to be in that situation. Barber testified that
he dropped the conversation at that point. Respondent hired
McDonough in a supervisory capacity.
Testimony was adduced with respect to McDonough’s ter-
mination. Barber testified that there were two reasons for his
termination. One was that he had a habit of showing up late
for work as much as up to 3-1/2 hours, and that he had been
counseled by Barber both verbally and in writing. The final
basis for McDonough’s termination, according to Barber,
was that he improperly handled $601.44 which had been en-
trusted to him as Respondent’s supervisor.
On a Sunday McDonough accepted $601.44 in cash and
logged the money into the safe. When he left work at the
end of the shift, he took the money out of the safe with him.
When Barber checked the safe on the following Tuesday
morning the money was missing. According to Barber, he at-
tempted to reach McDonough by telephone regarding the
missing funds on Wednesday, Thursday, and Friday with no
results. Barber then got in touch with the police department,
and, rather than Respondent pressing charges, the police con-
tacted McDonough by telephone and told him that Barber
had contacted them about pressing charges against him. After
the telephone call McDonough returned the missing money
to Respondent. At that point Barber terminated his employ-
ment. Barber was suspicious because the 6, $100 bills that
McDonough returned, which had been in his pocket for al-
most a week, were brand new crisp $100 bills.
Chuck Fiske was an assistant manager at Ogden, who was
hired by Respondent and assigned primarily to the KLM con-
tract. Fiske alleges that during his interview with Barber they
both agreed that they did not want to see the Union come
to Gateway. According to Fiske, he said that he did not want
the Union at Gateway because he had a lot of problems with
it at Ogden. Moreover, he was not sure if it was during his
interview, but in this course of discussions, both formal and
informal, he remembered an occasion where Barber said he
thought that Joe Finley, president of Respondent, would rath-
er shut down, than let the Union come to Gateway.
Fiske testified that the Union came up between himself
and Barber on at least 20 occasions during an 8–10-week pe-
riod. Moreover, in the aggregate, his conversations took up
either a couple or several hours. When asked who would be
the first to bring up the question of the Union, Fiske did not
recall, he stated either he or Barber could have brought it up
first.
Fiske also testified that in spite of his opposition to the
Union he made a strong recommendation that Rich Waters,
1063GATEWAY FREIGHT SERVICES
the union steward at Ogden, be hired, because he was an out-
standing employee.
I note that Fiske’s affidavit, given to the Board agent, con-
tains no statement regarding Finley’s alleged comment to
Barber and Barber’s communicating the information to Fiske.
Fiske also testified that he spoke with Ogden and Curtin,
Gateway’s human resources director, wherein Fiske provided
Curtin and Barber with a contract between Ogden and the
Union. According to Fiske’s testimony, Curtin allegedly sug-
gested that Gateway distribute a letter expressing Gateway’s
opposition to unionization. There is no evidence in the record
that such a letter was ever disseminated.
Approximately 5 months after Fiske was hired by Re-
spondent as a supervisor, he was demoted to the position of
office agent rather than lead agent which was a demotion of
two notches. He acknowledged that management specifically,
Dean Vaccarino, who at that time was Respondent’s terminal
manager, was not satisfied with Fiske’s supervisory abilities.
Fiske’s demotion occurred after his probationary period
was extended by a month. After his demotion Fiske acknowl-
edged that his employment record was laden with rep-
rimands, counseling, suspension, and probation. Ultimately
Fiske quit his employment with Respondent.
Dennis Paschen was employed by Respondent as an assist-
ant terminal manager from October through December 1990,
when he was promoted to terminal manager. As such, he re-
ported directly to Vaccarino. Respondent fired Paschen in
April 1991.
Paschen testified that at supervisors meetings in April and
May 1990, Vaccarino stated that the PSI test was being uti-
lized by Respondent during the hiring process for the KlM
contract to ‘‘weed out’’ union employees. Paschen’s testi-
mony is the only testimony of any supervisor that such an
alleged statement was made.
Vaccarino and Barber denied making statements to super-
visors or anyone else regarding the use of a PSI test to
‘‘weed out’’ Ogden employees.
Paschen also testified that Respondent wanted to limit the
number of Ogden employees it hired in order to avoid the
Union and that Curtin stated that Gateway wanted to hire 25
or 26 employees from Ogden’s work force. Paschen testified
further that in general conversations with Barber, Barber stat-
ed if the Chicago facility became unionized Joe Finley would
close the operations. This statement is also attributed to Bar-
ber. Both Barber and Vaccarino testified that they did not be-
lieve Finley would be spending $15 million on a building
only to close down the business. Vacarrino’s response was
allegedly to a question at a supervisor’s meeting by Paschen,
that he had heard Finley, the owner of Gateway, would close
it down if it were to go union.
A profusion of testimony was elicited, much of it hearsay,
to discredit Paschen. The hearsay was not admitted to litigate
the truth or falsity or the merits of Paschen’s termination.
Rather, the Respondent was given the opportunity to register
its good faith, or lack of same, as the motive for firing
Paschen, and to test his credibility.
On March 30, 1991, Paschen was formally disciplined and
given a written warning concerning allegations regarding his
harassment of a female employee who resigned from Re-
spondent’s employ possibly because of this situation.
In April 1991, while Paschen was on vacation, several of
Respondent’s employees, who were supervised by Paschen,
approached Vaccarino regarding complaints about Paschen’s
treatment of employees based on race and sex. Vaccarino
conducted an extensive investigation into these allegations
and as a result he believed the charges were true. Vaccarino
took written statements of several employees and on April 8,
1991, Paschen was put on a leave of absence pending com-
pletion of the investigation. When the investigation was com-
pleted, Respondent believed that the complaints were truthful
and that Paschen was racially biased and sexually discrimina-
tory. Accordingly, Paschen was fired.
Paschen hired an attorney for the purpose of getting unem-
ployment compensation benefits. He was found to be not en-
titled to unemployment compensation benefits for his termi-
nation.
A. The Hiring Process
Respondent used the same criteria systemwide for hiring
at its facilities. A potential employee was given a 5-year
background check, must have a valid driver’s license, and
was given a personal interview. Moreover, an individual was
given a drug test as required by U.S. Customs. It was also
necessary that an individual receive a passing grade on the
PSI test. The PSI test was implemented shortly before the
staffing of the KLM contract. The PSI test at this time was
implemented systemwide.
An individual was also given an physical examination
which included the drug test required by U.S. Custom Serv-
ice.
Respondent’s director of human resources, Dan Curtin,
testified that he made the decision to utilize the PSI test as
a screening tool. Curtin had used objective tests in the past
when he was director of human resources for other employ-
ers, including Borg Warner, a union employer. The PSI test
asks questions about applicants’ safety habits, honesty, drug
use, and awareness. Four measurements are evaluated into a
composite employee ability index. The scales used to cal-
culate employee ability are honesty, drug avoidance, super-
visory attitudes, and work attitudes. Safety is measured sepa-
rately and carries its own score. A passing score on the PSI
overall employee ability index is 40. A passing score on the
safety index is 35 or higher. After the test is taken, the
scores are then coded and sent to Respondent’s headquarters
for grading. The score sheet is scored by a computer as ac-
ceptable or unacceptable, according to the software supplied
by Londonhouse, the manufacturer of the test. Respondent
cannot change the software used to grade the test and played
no role in creating the grading software. Londonhouse sets
recommended passing grade which was adopted by Respond-
ent.
Curtin testified as follows with respect to why he chose
the PSI test over other tests, ‘‘The PSI itself had a separate
rating for safety purposes and also for drug avoidance which
are the two areas of importance to us since we are part of
the airport community and are subject to FAA regulations
and DOT regulation regarding drug testing. It is an expensive
process to give somebody a physical and when you fail it
you are out of that money because you can’t hire them. I
wanted a way to maybe help reduce the incidence of positive
drug tests when people are hired in. I also wanted to find
a way to uncover attitudes that would be conducive towards
theft, which is a significant problem in our industry as well
as workman’s comp, incidents of safety violations and acci-
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dents, which were all things I felt that the Londonhouse test
measures better than the Reed test.’’
Documentary evidence reflects that the Ogden employees
successfully completed the PSI test at a a much greater rate
than did employees from the general labor market. All per-
sons hired by Respondent passed the PSI test and were sub-
jected to the same physical examination. The only individual,
a former Ogden employee, Carlino, was hired, although he
failed to successfully complete his PSI test. Carlino received
outstanding recommendations from his supervisors and co-
workers including Barber’s evaluation from personal obser-
vation. Barber testified he found by watching Carlino that he
was very proficient in what he did, and could communicate
in sign language. Carlino’s test results indicated that he did
not fail any of the substantive scores but his accuracy score
was below standard. In this regard, Curtin contacted
Londonhouse regarding Carlino’s test results. Curtin was ad-
vised by Londonhouse that Carlino’s failure on the validity
score simply indicated that he did not understand the test be-
cause of the language barrier.
Roosevelt Smith, Sonny Pittman, and Phillip Mazzio each
took the PSI test more than once over a 12-month period.
Vaccarino testified that he thought that Curtin told him that
an employee who had taken the test previously must wait 6
months to take the test again. Respondent, through
Vaccarino, felt that they needed to hire Pittman who had
been a good Ogden employee. Pittman failed the PSI test he
took in May 1990. In July 1990 Respondent contacted Pitt-
man and he took the PSI test a second time. Terminal man-
ager at that time for Respondent, Vaccarino, did not know
that Pittman had taken the test within the past 6 months and
therefore retested in error.
Roosevelt Smith, another former Ogden employee, took
the PSI test the second time over a year after he initially
sought employment with Respondent. Smith passed and was
hired after taking the test a second time.
Mazzio applied for an office position and scored a 39 on
the test which is one point below passing. He had erro-
neously been given the PSI warehouse test rather than the of-
fice test. As a result, Respondent asked Mazzio to take the
test again on the proper test form.
Counsel for the General Counsel takes the position that
Respondent failed to maintain a controlled environment when
administering the PSI test to job applicants. Barber’s wife
Ina, and Porter distributed the test to the applicants. The ap-
plicants completed the test in the work area at Ogden after
receiving them from the desk of Supervisor Fiske. The com-
pleted books were then returned to Fiske’s desk. Based on
this, counsel for the General Counsel avers that Respondent
should have realized that the test results may have been taint-
ed. There is no evidence that an applicant’s test results
would be adversely affected by administering the test in an
environment that was not controlled.
Barber’s uncontradicted testimony is that Robert Bruce,
Eugene Eason, Brent Wills, and Maurice Phillips never ap-
plied for employment with Respondent. Moreover, the
uncontradicted testimony is that Derrick Wells (Wills) was
an individual who had an appointment for an interview with
Barber and never appeared for the interview.
Several individuals initially looked towards employment
with Respondent, but during the course of the application
process withdrew their applications, expressing that they
were no longer interested in employment with Respondent.
Kim Haiges withdrew from the application process prior to
being offered a job. She left the employ of Ogden before Re-
spondent had fully implemented its application procedure. A
friend of Haiges’ and a former Ogden employee, Mary
Kolodzij testified that she was aware that Haiges accepted a
position elsewhere prior to working for Respondent.
Barber noted on his log, Haige’s withdrawal from the ap-
plication process Candice Kubow, who is a current employee
of Respondent, having been hired on February 3, 1991, testi-
fied that she told Barber in May that she did not want to
work for Respondent, that she was going to do something
else. Accordingly, he took herself out of the application proc-
ess during the time she was working for Ogden.
Preston Crisler completed the employment application and
was interviewed by Barber. Crisler acknowledged in his testi-
mony that Barber asked him if he would accept a lead posi-
tion with Respondent. Barber testified that he had made a de-
cision to hire Crisler pending the outcome of his physical
and his PSI test results. Crisler completed the PSI test and
a day or so later Barber misplaced his test booklet. Accord-
ingly, he asked Crisler to complete a second test. Crisler
never attempted to obtain a second PSI booklet from Barber.
Barber testified that on May 29, his wife received a tele-
phone message from Crisler that he had accepted other em-
ployment. This was noted on Barber’s log. Porter, the former
secretary of Ogden’s terminal manager, and Respondent’s
terminal manager testified she knew Crisler as a coworker
and friend. According to her, Crisler told her he was not
going to go to work for Respondent, but was going to file
for unemployment for a while while waiting for a specific
job to open up. Crisler denies this conversation with Porter.
He does acknowledge that he received unemployment com-
pensation for 6 months, from June to November 1990, and
then accepted a job with AAC Express, exactly 6 months
after his Ogden employment ended.
Sherry Grela failed to complete the application process for
employment with Respondent. Barber testified that he would
have hired her but she told him she had accepted other em-
ployment. This fact was recorded on the interview sheet. Re-
spondent introduced documentary evidence reflecting that
Grela became a full-time employee with Link America.
Documentary evidence reflects that William Saunders did
not show up for his interview. There is no evidence to refute
this.
Deborah Taylor was employed by Respondent pending
completion of her physical exam and the drug testing. Barber
had been impressed by Taylor who was very experienced. He
had scheduled her to leave for Amsterdam, where KLM con-
ducted the dangerous goods training required of employees
who service its contract. Taylor did not appear for her phys-
ical and drug test until several days after a scheduled ap-
pointment. The laboratory contacted Barber who advised
them that it was too late for Taylor to complete her physical
and drug test, because she already missed the training for
which she had been scheduled in Amsterdam. Barber ex-
plained this situation to Taylor and told her further he pre-
sumed she was going to accept employment with the Re-
spondent. This episode was noted on the log and interview
sheet.
1065GATEWAY FREIGHT SERVICES
Richard Waters applied for employment and on comple-
tion of a PSI test placed it on the desk of Ogden Supervisor
Chuck Fiske. Waters testified that there were other com-
pleted test booklets on Fiske’s desk and they remained there
for several days. Waters made no inquiry of Fiske or Barber
as to why his PSI booklet continued to remain on Fiske’s
desk with other booklets. After a week, Waters took his book
off of Fiske’s desk and took it home with him. He acknowl-
edged that he neither told Barber or Fiske of his action al-
though he saw Fiske on a daily basis. Waters testified that
he assumed since the booklet wasn’t turned in, that he was
not going to be hired and he left it at that. Waters acknowl-
edged further in his testimony that he had no reason to be-
lieve that Fiske would not turn in his booklet to Barber.
Respondent sets forth as another reason for not hiring Wa-
ters his negative recommendations by Vaccarino and Marcel
Brunious. Moreover, Waters’ prior employment with Conti-
nental Airlines was terminated. Vacarrino recommended
against hiring waters based on his experience working with
him at Continental. Waters worked the shift immediately pro-
ceeding Vaccarino’s. Both Vaccarino and Waters were
charged with performing crate transfers. Vacarrino testified
that Waters’ did not complete his work during the shift, mak-
ing it more difficult for Vaccarino to keep up with his work.
According to Vaccarino, Waters’ failure to complete his
work was due in part to his gambling activities. He ran a
check pool where it was necessary for him to contact every
Continental employee and solicit their participation in the
pool.
Ogden Supervisor Brunious advised Barber that he would
not have hired Waters because he could not depend on him,
Waters was lazy and slow. A necessary part of Waters’ job
was building pallets and, according to Brunious, he was not
interested in building pallets and he was also not proficient
in performing this work.
Tom Foy, a supervisor for Respondent also was employed
by Continental during the same time as Waters. According
to Foy, Waters was not a hard worker and lacked personal
incentive.
Jim McDonough and Chuck Fiske testified that they had
recommended Waters for employment.
With respect to his termination from Continental, Waters
told Barber that as a member of the ‘‘skid committee’’ he
took it upon himself to take the proceeds from skid sales,
and after failing to seek permission from anyone, he used the
money to entertain employees on his shift. Therefore Conti-
nental terminated him for selling skids without company per-
mission, and retaining the proceeds.
Because they failed the PSI test, Respondent did not em-
ploy the following individuals: Tremont Burns, Alexander
Butler, Nick Chiosolo, Evan Fermont (Fermaint), Brian
Flowers, Gerard (Jay) Fowler, Gilberto (Gil) Guzman,
Salvatore (Sal) Guzman, Andrew Knox, Darlene Lanham,
Andy Larocco, Sonny Pittman, Frederick (Rick) Priest, and
Roosevelt Smith.
Respondent assigned ancillary reasons for not hiring some
of the above-named individuals. For example, McDonough,
a witness for the General Counsel testified that more than
once, ‘‘He [Knox] would come in smelling like a brewery.’’
Pittman was given an opportunity to take the PSI test on
September 7, which he also failed. Roosevelt Smith was
given a second opportunity to take the PSI test after 6
months. Smith passed the test and was hired. He was later
terminated for his attendance record during his first 3 months
of employment.
William Saunders had scheduled an appointment for an
interview on April 25, but Barber testified he did not show
up for this appointment. Barber’s log reflects this, and he tes-
tified that he never heard from Saunders afterwards.
Billy Allen and Glenn Miller were both fired by Ogden for
unsatisfactory job performance prior to June 1, 1990. Allen
had only 3 months experience at Ogden. Prior to that, he
worked as a security guard, which involved no warehouse or
airline experience, and prior to the security guard job, he was
a cook. Miller, who was also fired by Ogden for poor job
performance was also referred to on Barber’s log as ‘‘Not a
ball of fire.’’ In other words, according to Barber, Miller was
lazy. Moreover, Barber testified that Miller was going back
to school in September. Miller’s background was that he
began with Ogden in February 1990, worked for Continental
Air Express as a ticket agent and he was a taxi driver.
Theodore Carter was not hired by Respondent when his
background check reflected that he had been arrested on four
occasions, two of which were drug related. Because of the
United States Customs’ regulation, that an employee be
bondable, Carter was unemployable by Respondent.
Eli Gemina had attendance problems when he was em-
ployed by Ogden. When Gemina was asked on cross-exam-
ination if he was sick 1 day a week, at least, he responded
that he did not recall if it was consecutive. Gemina conceded
that he received two or three warnings by Ogden for his ab-
senteeism. He testified that he did not consider that he had
been warned by Ogden, rather they were merely a ‘‘barom-
eter.’’ Gemina testified further that he had received an award
for honesty when he worked for Ogden because he turned
over found jewelry to his supervisor. Moreover, he won a
contest as a result of his knowledge of the KLM procedures
and practices. Gemina acknowledged that he never commu-
nicated winning these awards to Barber.
Barber testified that he did not hire Reginald Johnson be-
cause Johnson advised Barber that there were conflicts be-
tween his school schedule and Respondent’s needs. Barber
recorded this on the interview sheet. Furthermore, several su-
pervisors of Ogden recommended against hiring Johnson and
testified that he was lazy, displayed a poor attitude, and kept
his own pace. Amato stated that he had experienced prob-
lems with Johnson’s attendance.
Barber’s testimony and log entries, reflect that Umberto
Pagan was, during his interview, showing little interest.
Moreover Pagan indicated that he was burned out and not in-
terested in continuing in the air freight business. Another
entry in the section relating to Pagan reflects that he might
move to Florida and he took a long time turning in his PSI
and application. Pagan denied making this statement, and he
further denied he made similar statements to Oates,
Kolodziej, and Porter. Pagan also testified that none of the
Ogden employees wanted to work for Respondent.
According to the testimony of Porter, Pagan felt he had
left employment with Continental and taken a pay cut to
work with Ogden. Pagan was of the opinion that he would
have to take another pay cut, and stated to her that he did
not want to go through it again. Pagan denied that he told
Barber he wanted to move to Florida, but at the same time
he admitted that he had been saying he wanted to move to
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Florida for many years and that he traveled to Florida as late
as 1990. He claimed this was his yearly trip to Florida and
denied that he was looking for work there. Pagan was an
evasive witness, who I discredit.
Barber did not hire Greg Walker because he only had a
few months experience, and was given a poor evaluation by
his supervisor. Brunious, a supervisor at Ogden, testified that
Walker was a mediocre employee, who had to be told what
to do repeatedly, and prodded to complete assigned tasks.
Fiske did recommend Walker for employment.
John Ingram had only been employed by Ogden for ap-
proximately 6 weeks, and Barber was told by his supervisor
that he was not a hard worker and had an attendance prob-
lem. This was noted in Barber’s log. Another Supervisor
Mugni, testified that Ingram had to be watched to make sure
he was performing his job properly.
Tyrone Garr was also poorly recommended by his super-
visors, and he was not available to work in the morning. Bar-
ber’s log also reflects that he was advised that Garr was not
dependable.
Anthony Hawkins had only 6 days of experience with
Ogden at the time Gateway assumed the KLM contract.
Brunious testified that Hawkins was lazy and lacked initia-
tive. Accordingly, Barber did not hire Hawkins.
Although Fiske testified that he recommended Tyrece
Hooker, for employment, Hooker was not hired. He had been
employed by Ogden since November 1989, and his super-
visors gave him poor recommendations, as is recorded in
Barber’s log. Both Mugni and Amato, who supervised Hook-
er at Ogden, testified that he was unenthusiastic about his
work. Mugni testified that Hooker attempted to avoid work
by hiding from Mugni.
During his interview with Barber, Ken Lucas was asked
by Barber what his goals were in working for Respondent.
Lucas’ goals were to have good pay, a good job, not too
strenuous working conditions, and to drive a forklift all day.
Barber did not hire Lucas’ because he felt that anyone who
lacked ambition to that extent would not be a good em-
ployee.
Bevon Stovall had only been employed with Ogden for ap-
proximately 6 weeks. He was 20 years old at the time of his
application, and Barber was of the view that his work experi-
ence was limited only to that which he acquired as an Ogden
employee. Stovall did not include any previous experience on
his application form. As a result of these facts, Stovall was
not selected for employment with Respondent, based upon
his lack of experience in the air cargo industry.
Freeman Willis was also denied employment with Re-
spondent based on his limited experience. He only had 1-
week experience with Ogden when he completed an applica-
tion for employment and was interviewed by Barber.
B. Conclusion and Analysis
1. The demand
Joseph Condo, who was president of the Union and a wit-
ness for the General Counsel, conceded that he had no infor-
mation from which to conclude that Respondent received a
demand letter.
Porter (Andreas), a disinterested witness, testified without
equivocation that she never received an envelope from the
Union, and had never seen a demand prior to the hearing.
She was the only person responsible for opening Respond-
ent’s mail in June 1990. I fully credit Porter’s testimony.
Interestingly, when the original charge was filed in De-
cember 1990, it did not contain an 8(a)(5) allegation. Later,
after commencement of the investigation, as if an after-
thought, the Union amended the charge to include an 8(a)(5)
allegation.
The evidence overwhelmingly demonstrates that Respond-
ent never received a demand letter. Accordingly, I rec-
ommend that the allegation that Respondent refused to bar-
gain in violation of Section 8(a)(5) of the Act be dismissed.
2. Successorship
By the very nature of Respondent’s business, it is similar
in operation to Ogden. Respondent continued to perform
services under a contract with KLM, which were previously
performed by Ogden.
Respondent had stressed its cross-utilization by personnel.
In my view this is not enough to alter the nature of Respond-
ent’s business sufficiently to differentiate it from Ogden.
The determinate factor as to whether Respondent is a suc-
cessor to Ogden, and the threshold issue, is whether or not
Respondent engaged in an unlawful scheme to avoid
successorship status and an obligation to recognize and bar-
gain with the Union.
In my opinion, Respondent conducted its staffing in a
proper, legal, nondiscriminatory manner, and not with a view
towards precluding Ogden’s employees from being hired as
a majority of Respondent’s overall work force. My rationale
for reaching this conclusions will follow.
This case presents a situation where Ogden and Respond-
ent are, two distinct entities and competitors competing for
the KLM contract. The contract was awarded to Respondent.
Ogden is still a viable entity, operating in Chicago and
throughout the United States. I conclude that Respondent is
not a successor obligated to bargain with the Union.
3. The unit
Initially, counsel for the General Counsel and counsel for
Respondent stipulated the unit to be litigated as:
All full-time and regular part-time dock agents and of-
fice agents employed by Respondent in Respondent’s
Chicago, Illinois area facilities, but excluding guards
and supervisors as defined in the Act, constitutes a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
Subsequently, counsel for the Union and counsel for the
General Counsel sought to reduce the unit to employees as-
signed to service the KLM contract. All employees of
Ogden, regardless of the contract to which they were as-
signed, were in one Chicago-wide unit. Evidence revealed
that Ogden serviced several airlines, including KLM.
Ogden’s employees worked in different buildings, sometimes
miles apart, utilized different lunchrooms, timeclocks, and
locker rooms.
When Respondent’s new building was completed in Janu-
ary 1991, approximately 6 months after the KLM contract
was awarded it, its operations were consolidated. There was
one lunchroom, a single timeclock, and two locker rooms for
male and female employees.
1067GATEWAY FREIGHT SERVICES
5 A recently opened $15 million facility.
Employees from all contracts, including KLM are inter-
changed to accommodate flight schedules. There is the same
community of interest in the larger unit as there was at
Ogden.
Skills and categories of employees are the same as at
Ogden, although Respondent’s employees are cross-trained.
Terms and conditions of all of Respondent’s employees in
Chicago, are the same, or similar, regardless of what contract
they are assigned to.
Wage structure is similar and hours of work are the same.
Respondent’s employees receive the same medical and
dental benefits, sick leave, vacation, holidays, and 401(K)
programs.
Accordingly, although possibly academic, the original stip-
ulated larger unit, is an appropriate unit. I refer specifically
to those employees employed by Respondent in Respond-
ent’s Chicago, Illinois area facilities.
4. Motive and antiunion animus
Without a further recitation of the numbers, the evidence
reflects that a majority of Respondent’s employees were
never former Ogden employees. As of June 30, only 20 of
Respondents 79 rank-and-file employees were former Ogden
employees. As of June 1, only 22 of Respondent’s 68 rank-
and-file employees were former Ogden employees.
Barber acknowledged that during his interview, he dis-
cussed the fact that Respondent was nonunion. He recalled
that six to eight individuals from Ogden discussed with him
whether Respondent was unionized. These people raised the
topic out of their concern and wonder about working for a
nonunion employer.
Barber testified that he did not raise the subject, and he
specifically denied stating that Respondent would never be
unionized.
I credit Barber and find him to be a scrupulous witness
with an exacting memory. I discredit those individuals whose
testimony is in conflict with Barber’s testimony.
Scheitlin’s testimony relating to antiunion animus, or to
suggest an illegal motivation in staffing Respondent’s work
force is, in my opinion fabricated and I discredit him.
I discredit Gemina’s version of his interview with Barber.
Moreover, I credit Barber’s denial, and note that Barber
could not speak with any authority on behalf of KLM.
Gemina may not have been bent on lying, I rather believe
that Barber’s words were erroneously intepreted by him.
During the course of Crisler’s extensive testimony, he im-
pressed me as a witness disposed to fabricate. A neutral dis-
interested and credible witness, Porter, testified regarding
Crisler’s statements regarding unemployment compensation.
Crisler’s denials in that regard demonstrated to me an overall
lack of credibility. I credit Barber’s denial of Crisler’s
version of the conversation.
Hammond’s version coincided with Barber’s rendering.
There is no evidence of antiunion animus. Nor is there any
evidence of a scheme to staff Respondent’s work force with
a minority of union members.
Roosevelt Smith, after taking the PSI test twice, was hired
by Respondent. He was fired approximately 4 months later
because of his poor attendance record. I believe that Smith’s
allegation that Barber stated Respondent would remain non-
union is pure fabrication, and I discredit Smith in this regard.
Smith evinced a hostility with regard to his discharge. I cred-
it Barber’s recollection of his interviews, including the Smith
interview. I discredit Smith’s testimony even absent any dis-
play of hostility.
Knox’s testimony was ill-defined and contradictory. I be-
lieve his testimony, on direct examination to have been pre-
varicated, and therefore I discredit him. Conversely, I credit
Barber who testified he might have said Respondent was
nonunion and had not had a union in the past.
An employer may even express a desire to operate non-
union so long as he does not translate that desire into action
violative of the Act. Great Plains Beef Co., 241 NLRB 948
(1979).
Chiusolo, a witness who is alleged as a discriminatee, as
a result of his not being hired by Respondent, testified that
Respondent intended and wanted to stay nonunion. Barber
denies said conversation. I discredit Chiusolo and credit Bar-
ber’s denial. The three supervisors who testified with regard
to antiunion animus were Fiske, Paschen, and McDonough.
At the outset, the evidence is overwhelmingly convincing
that they left Respondent’s employ under inauspicious cir-
cumstances.
Respondent was convinced that McDonough misappro-
priated funds.
He worked for Respondent for approximately 1-1/2
months. I am convinced that McDonough’s testimony with
respect to Respondent’s antiunion animus was made out of
whole cloth. He was vague, ambiguous, and displayed no re-
gard for the truth. His testimony was not credible.
By way of contract, Barber impressed me throughout, with
his attention to details, his recollection and his effort to be
exacting. I consider Barber a credible witness who’s de-
meanor suggested confidence and assuredeness.
Fiske’s testimony regarding closing the facility,5 rather
than allowing union organization is not contained in his affi-
davit. His recollection was faulty and in my opinion he con-
trived and perverted his testimony, in an effort to undermine
Respondent’s position. I discredit Fiske’s testimony.
Paschen’s hostility toward Respondent was palpable. He
had a history of problems with Vaccarino. Respondent, as the
result of its investigation, determined that Paschen harassed
employees based on their race or sex. Paschen was fired as
a result. I discredit his testimony attributing antiunion re-
marks to Vaccarino and Barber. I am convinced that
Paschen’s testimony was distorted in an effort to characterize
Respondent as an antiunion employer, motivated to weed out
union applicants.
I credit Vaccarino and Barber who denied making state-
ments regarding utilizing the PSI test as an instrument to
eliminate Ogden employees. Vaccarino was a credible wit-
ness. I was impressed with his attention to details. Moreover,
I find him to be specific and unambiguous in his testimony.
I have already discussed Barber’s credibility.
There is a dearth of evidence that the PSI test was utilized
as a tool to eliminate Ogden applicants. In my view, utiliza-
tion of the test for screening applicants was a perfectly legiti-
mate business decision. Evidence reflects that Ogden em-
ployees actually fared better than the outside applicants.
Moreover, the test was implemented systemwide. The
unrefuted evidence is that Respondent desired to correct safe-
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 For example, Richard Waters.
7 Glenn Miller and Billy Allen.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ty and theft problems. In that regard, according to Curtin’s
testimony, it proved successful.
I am convinced by the preponderance of the evidence, that
Barber evaluated employees by first-hand observation. Fur-
thermore, he considered recommendations by supervisors.
These factors, combined with objective tests, gave Barber a
basis to hire or reject an applicant. I conclude that the hiring
process was nondiscriminatory.
Nor can Respondent be held responsible for not hiring in-
dividuals who did not apply, individuals who withdrew their
applications, or people who did not comply with the applica-
tion process,6 including the PSI test.
The decisions Respondent made not to hire employees
who had been terminated by Ogden7 or any other employer,
I find to be nondiscriminatory. Likewise, refusal to hire,
based on poor recommendations, is within Respondent’s
province and not evidence of any discriminatory motivation.
Moreover, in the face of a good recommendation, Re-
spondent, for whatever reason as long as it is nondiscrim-
inatory, is entitled to reject an applicant. Gregg Walker is an
example of an employee who falls within that category.
Respondent’s compliment of employees never comprised a
majority of former Ogden employees. Moreover, Respondent
never received a demand letter from the Union, to recognize
and bargain with it. Accordingly, Respondent was under no
obligation to bargain with the Union over wages, hours, or
working conditions for its employees.
Accordingly, I recommend that the complaint be dismissed
in its entirety.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of he Act.
3. The appropriate unit is:
All full-time and regular part-time dock agents and of-
fice agents employed by Respondent in Respondent’s
Chicago, Illinois area facilities, but excluding guards
and supervisors as defined in the Act, constitutes a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Respondent is not a successor to Ogden.
5. The allegations that Respondent has engaged in conduct
violative of Section 8(a)(1), (3), and (5) of the Act have not
been supported by substantial evidence.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
It is recommended that the complaint be, and is, dismissed
in its entirety.