Georgia Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1989

296 N.L.R.B. 552 (N.L.R.B. 1989)

552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brown Transport Corp ., a Georgia Corporation and
Deborah King and Odell Neals and Highway
Drivers, Dockmen, Spotters , Rampmen, Meat
Packing House and Allied Products Drivers and
Helpers, Office Workers and Miscellaneous
Employees Union Local 710, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO'
Drivers Mutual Association, Inc. and Highway Driv-
ers, Dockmen, Spotters, Rampmen, Meat Pack-
ing House and Allied Products Drivers and
Helpers, Office, Workers and Miscellaneous
Employees Union Local 710, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO.
Cases 13-CA-24653, 13-CA-24913, 13-CA-
24692, 13-CA-24712, 13-CA-24738, 13-CA-
25301, 13-CA-25841, 13-CB-10820, and 13-
CB-10941
September 18, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On September 19, 1988, Administrative Law
Judge Walter J. Alprin issued the attached deci-
sion . Respondent Brown Transport Corp. (Brown),
Respondent Drivers Mutual Association, Inc.
(Drivers Mutual), and the General Counsel filed
exceptions and supporting briefs, and Brown and
the General Counsel filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings,2 and
conclusions as modified, and to adopt the recom-
mended Order as modified and set out in full
below. 3
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change
2 The Respondents have excepted to some of the judge's credibility
findings . The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
s The judge recommended a narrow cease -and-desist order requiring
Brown to cease and desist from violating the Act "in any like or related
manner ." However , as urged in the General Counsel 's exceptions, we
find that Brown 's misconduct in this case , which violated Sec. 8(a)(I),
(2), (3), and (4) of the Act, is sufficiently egregious and widespread so as
to demonstrate a general disregard for employees ' rights and to warrant
issuance of a broad cease -and-desist order. Accordingly, we shall substi-
tute the broad injunctive language requiring this Respondent to cease and
desist from violating the Act "in any other manner" for the provision
recommended by the judge . See H,ckmott Foods, 242 NLRB 1357 (1979)
Drivers Mutual represents drivers, dockmen, and
other employees of Brown Transport at approxi-
mately 80 motor carrier terminals located through-
out the United States. On July 2, 1984,4 Brown
opened a new terminal in Chicago, Illinois, and ex-
tended recognition to Drivers Mutual as the repre-
sentative of the terminal's drivers and dockmen.
Shortly thereafter, the Respondents applied terms
and conditions of the master collective-bargaining
agreement to drivers and dockmen employed at the
Chicago terminal. For the reasons the judge sets
forth in his decision, we agree with his findings
that the Chicago employees did not constitute an
accretion to the overall unit; that Brown's grant of
recognition and application of the contract to Chi-
cago employees, and Drivers Mutual's acceptance
of Brown's assistance,5 respectively, violated Sec-
tion 8(a)(1) and (2) and Section 8(b)(1)(A) of the
Act; and that the appropriate remedy includes
withdrawal of recognition, nullification of the con-
tract as it was applied to Chicago employees, and
joint and several responsibility for initiation fees
and other moneys Chicago employees paid to
Drivers Mutual.
In their exceptions, however, the Respondents
contend that the judge did not adequately address
evidence that a majority of drivers and dockmen at
the Chicago terminal voluntarily signed cards au-
thorizing Drivers Mutual to represent them, and
that Chicago employees consequently were accret-
ed into the overall bargaining unit based on their
freely expressed desire for representation . We dis-
agree. Although the judge made no specific finding
that the authorization cards were tainted by the
Respondents' coercive conduct, he concluded that
Brown repeatedly offered unlawful assistance to
Drivers Mutual, which in turn unlawfully used the
assistance to solicit membership. The judge fully
details the coercive circumstances surrounding the
card solicitations, and we need not recount them
here except to note that Brown informed job appli-
cants, inter alia, that Chicago terminal employees
would be represented by Drivers Mutual and affili-
ation with any other union would not be tolerated;
that Brown introduced employees to Drivers
Mutual representatives on company time and prem-
ises, where many of the cards were signed; that
Drivers Mutual representatives soliciting member-
ship reiterated to employees that Drivers Mutual
4 All dates are in 1984 unless otherwise indicated.
S Although the judge implicitly found that application of the contract
was unlawful and recommended that the parties be ordered to cease and
desist from giving effect to it , he did not make an explicit finding We
find that Brown and Drivers Mutual violated Sec. 8(a)(2) and (1) and
Sec 8(b)(1)(A), respectively, by entering into, maintaining , and enforcing
the collective-bargaining agreement for the employees at the Chicago ter-
minal
296 NLRB No. 75
BROWN TRANSPORT CORP.
was the incumbent union ; and that the solicitations
occurred in a context of interrogations6 and threats
of reprisal .7 Accordingly , we find that the cards do
not constitute reliable evidence of employee senti-
ment , and adopt the judge 's conclusion that Driv-
ers Mutual never represented an uncoerced majori-
ty of Chicago employees.
We also agree with the judge that Brown discri-
minatorily discharged employees George Witzell
and James Phillips, and discriminatorily failed to
recall employee Robert Ronald .8 However , in find-
ing that Ronald was not recalled to work because
of his union activity , we do so for the following
reasons . Ronald was a casual employee who
worked as a dockman 37 to 45 hours per week. As
a casual employee , Ronald had no set schedule and
was told on a day-to-day basis whether work was
available . In July 1985 , Ronald attended a meeting
conducted by representatives of Drivers Mutual.
After learning that the Union had not proposed a
wage increase for dockmen , Ronald stated that he
could earn as much working in a "union barn" for
6 Member Cracraft agrees that under all the circumstances the interro-
gations would reasonably tend to restrain , coerce , or interfere with rights
guaranteed by the Act In so finding, however , she does not rely on
Sunnyvale Medical Clinic , 277 NLRB 1217 (1985).
7 The judge found that Drivers Mutual coercively solicited authoriza-
tion cards and reflected that finding in his Conclusions of Law and rec-
ommended Order, but he inadvertently failed to include this finding in
the notice . The attached notice corrects this oversight.
8 In his Conclusions of Law the judge inadvertently found that
Brown 's discharges of Witzell and Ronald violated Sec. 8 (a)(1), (3), and
(4) of the Act However , the complaint alleged only Sec 8 (a)(1) and (3)
violations and the judge's analysis was limited to those allegations We
therefore omit the judge 's 8(a)(4) finding as it pertains to Witzell and
Ronald.
We agree with the judge that employee Phillips was discharged in vio-
lation of Sec 8(a)(I), (3), and (4), but we correct his inadvertent omission
of the 8(a)(4) finding in his analysis In adopting the judge 's finding that
Phillips was unlawfully discharged , we note especially that Brown's ter-
minal manager , Steven Gonyou , indicated as early as November 1984
that he knew Phillips had previously worked for Overnite Transportation
Company and that Gonyou 's informant had told him Phillips was "trou-
ble " Gonyou also indicated then that Phillips ' prior involvement with a
union at Overnite might cause him to be fired . Brown chose to ignore the
evidence that Phillips had lied on his application form (by omitting his
employment with Overnite ) until after Phillips had voluntarily come for-
ward to supply the General Counsel with evidence supporting an amend-
ment to the complaint against the Respondent and testified in support of
that amendment . Because the General Counsel has proven that Phillips'
union connections and his testimony in a Board proceeding were motivat-
ing factors in his discharge, and because we agree with the judge that
Brown 's stated reasons for discharging Phillips were pretextual , it follows
that Brown has not made out an affirmative defense under Wright Line,
251 NLRB 1083 ( 1980).
The General Counsel contends that the judge inadvertently neglected
to include interest in his recommended make -whole remedy for the dis-
criminatees . Although he does include interest in the proposed notice, it
is unclear from the section of his decision entitled "The Remedy" wheth-
er the backpay award includes interest We therefore clarify the judge's
proposed remedy by awarding backpay to the discriminatees with interest
to be computed in the manner prescribed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987). In this connection we note also that the judge
included interest in his recommended Orders for reimbursement of initi-
ation fees , assessments, and other moneys paid to Drivers Mutual, but
failed to include interest in the notices . Accordingly , the attached notices
correct this omission.
553
2 days as he could in a week working for Brown.
Subsequently , Ronald worked only 1 day a week
for 2 weeks,9 and less senior casual employees re-
ceived considerably more work . In the ensuing
week , Ronald 's name was removed from the casual
employee list.
The judge found that Brown 's failure to assign
available work to Ronald and its removal of his
name from the roster of available employees was
contrary to company policy . He further relied on
the testimony of two employees who stated that
Michael Tallaksen, the pickup and delivery and
safety supervisor , told them that Ronald 's "union
barn" remark had come to the attention of Brown's
management and that was why he was no longer
employed by Brown . Although the judge specifi-
cally found that Tallaksen was not a statutory su-
pervisor, he observed that Tallaksen was an em-
ployee who had frequent and intimate contact with
management . Contrary to the judge , we conclude
that Tallaksen was a supervisor when he told em-
ployees that Brown refused to recall Ronald be-
cause of Ronald's "union barn" comment and that
because of Tallaksen 's supervisory status, Tallak-
sen's remarks are attributable to Brown.1 ° Tallak-
sen's statement is consistent with the judge 's find-
ings that Brown's failure to recall Ronald was not
work related , and that its asserted reasons for not
assigning work to him were specious . We therefore
agree with the judge that Brown discontinued
Ronald 's employment because of his union activity
in violation of Section 8(a)(3) and (1).
ORDER
The National Labor Relations Board orders that
8 As the Respondents point out, the judge erroneously found that Ron-
ald's meeting with Drivers Mutual occurred sometime prior to May 1985,
and that his last work assignment was in the week following the meeting.
Although the record does not disclose precisely when the meeting was
held, Ronald estimated that it took place in early July. His attendance
records establish that he worked regularly until July 22, after which he
was recalled only once, on July 29 Our revision of the judge's chronolo-
gy does not affect our determination that Brown's failure to recall
Ronald was discriminatory.
10 In his analysis of Tallaksen's authority, the judge found that Tallak-
sen interviewed job applicants but was not the only interviewer, and that
he made recommendations based on the interviews Tallaksen testified, in
a sworn affidavit, that he had described his duties as including "safety
matters and the hiring of personnel " He was the only person to inter-
view employee Odell Neals, and following Neals' interview and road
test , which Tallaksen himself administered, he recommended to Terminal
Manager Gonyou that Neals should be hired Shortly thereafter, Tallak-
sen telephoned Neals and told him to report to work Tallaksen was also
the only company representative to interview applicant Ronald. Follow-
ing the interview, Tallaksen telephoned Ronald and told him he could
begin work as a casual At the least, it is clear that Tallaksen effectively
recommended both hires, and unlike unit employees, Tallaksen did not
punch a timeclock, received a salary rather than a hourly wage, and held
a supervisory job title. We therefore find that he is a supervisor within
the meaning of Sec 2(11) of the Act.
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Respondent Brown Transport Corp ., a Geor-
gia Corporation , Atlanta , Georgia , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Recognizing and bargaining with Drivers
Mutual Association , Inc. as the collective-bargain-
ing representative of Respondent Brown 's Chicago,
Illinois terminal employees , unless and until the
labor organization has been certified by the Nation-
al Labor Relations Board as the exclusive bargain-
ing representative of any such employees in an ap-
propriate bargaining unit.
(b) Giving effect to a collective -bargaining
agreement with Drivers Mutual Association, Inc.
with respect to the Chicago , Illinois terminal em-
ployees referred to above , and any modifications,
extensions , renewals, or supplements that may have
been applied to those employees, provided that
nothing in this Order shall require the withdrawal
or elimination of any wage increases or other bene-
fits, terms, and conditions of employment that may
have been established pursuant to the performance
of the contract.
(c) Assisting Drivers Mutual Association , Inc. to
become the representative of Chicago terminal em-
ployees, including making facilities available for
Drivers Mutual representatives to solicit member-
ship , or telling applicants and employees that Driv-
ers Mutual represents Chicago terminal employees
or that they would have 90 days in which to join
that Union.
(d) Coercively interrogating applicants and em-
ployees about their union support or activities.
(e) Threatening employees with discharge and
with termination of Brown 's trucking operations if
they supported a union other than Drivers Mutual.
(f) Creating the impression of surveillance, or en-
gaging in surveillance by asking employees to
report their own or other employees ' union activi-
ties.
(g) Discharging , failing to recall , or otherwise
discriminating against employees because they have
testified in any Board proceeding, have been
named in any unfair labor practice charges or com-
plaints , or because they support or oppose any
labor organization.
(h) In any other 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 neces-
sary to effectuate the policies of the Act.
(a) With Drivers Mutual Association, Inc., joint-
ly and severally reimburse all former and present
employees employed at its terminal at Chicago, Illi-
nois, for all initiation fees, dues, and other moneys,
if any, paid by or withheld from them in the
manner set forth in the remedy section of the
judge 's decision.
(b) Offer George Witzel , James Phillips, and
Robert Ronald immediate and full reinstatement to
their former positions or, if such positions no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights
or privileges previously enjoyed , and make them
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 judge 's decision with interest to be comput-
ed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
(c) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Chicago, Illinois facility copies of
the attached notices marked "Appendix A" and
"Appendix B."11 Copies of Appendix A, on forms
provided by the Regional Director for Region 13,
after being signed by the Respondent 's authorized
representative and - copies of Appendix B, after
being signed by Drivers Mutual 's representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that the
notices are not altered , defaced , or covered by any
other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. Respondent Drivers Mutual Association, Inc.,
Atlanta, Georgia , its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Accepting recognition from Brown Transport
Corp., a Georgia Corporation , as the bargaining
representative of Chicago, Illinois terminal employ-
ees, when Drivers Mutual does not represent an
" If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
BROWN TRANSPORT CORP.
uncoerced majority of those employees in any ap-
propriate bargaining unit.
(b) Acting as the exclusive collective -bargaining
representative of the Chicago , Illinois terminal em-
ployees referred to above, unless and until Drivers
Mutual has been certified by the National Labor
Relations Board as the exclusive bargaining repre-
sentative of any such employees in an appropriate
bargaining unit.
(c) Giving effect to a collective -bargaining
agreement with Brown Transport Corp . with re-
spect to the Chicago, Illinois terminal employees,
and any modifications , extensions , renewals, or sup-
plements that may have applied to those employ-
ees, provided that nothing in this Order shall re-
quire the withdrawal or elimination of any wage
increases or other benefits , terms, and conditions of
employment that may have been established pursu-
ant to the performance of the contract.
(d) Accepting unlawful assistance and support
from Brown Transport Corp . in soliciting union
membership, including using Brown Transport fa-
cilities for solicitation meetings.
(e) Coercively soliciting membership by telling
employees that Drivers Mutual already represented
them and that they had to sign union membership
applications.
(f) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) With Brown Transport Corp ., jointly and
severally reimburse all former and present employ-
ees employed at Brown Transport 's Chicago, Illi-
nois terminal for all initiation fees, dues, and other
moneys , if any , paid by or withheld from them in
the manner set forth in the remedy section of the
judge 's decision.
(b) Post at its offices and meeting halls at Chica-
go, Illinois, copies of the attached notice marked
"Appendix B."12 Copies of the notice , on forms
provided by the Regional Director for Region 13,
after being signed by the Respondent's authorized
representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered , defaced, or covered by any other material.
Additional copies of Appendix B shall be signed by
an authorized representative of the Respondent and
furnished to the Regional Director for posting by
' 2 See fn . 11. above
555
Brown Transport Corp. in accordance with the
Order directed to it above.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT recognize and bargain with Driv-
ers Mutual Association , Inc. as the collective-bar-
gaining representative of our Chicago terminal em-
ployees unless and until that Union has been certi-
fied by the National Labor Relations Board as the
representative of any such employees.
WE WILL NOT give effect to, or in any way en-
force, the collective-bargaining agreement purport-
ing to cover such employees at a time when Driv-
ers Mutual does not represent an uncoerced majori-
ty of employees in an appropriate bargaining unit,
provided however that this will not require the
withdrawal or elimination of any wage increases or
other benefits , terms, and conditions of employ-
ment established by the agreement.
WE WILL NOT assist Drivers Mutual to become
the representative of our Chicago terminal employ-
ees, including making our facilities available for
Drivers Mutual representatives to solicit member-
ship , or telling applicants and employees that Driv-
ers Mutual represents Chicago terminal employees
or that they would have 90 days in which to join
that union.
WE WILL NOT coercively interrogate applicants
and employees about their union support or activi-
ties.
WE WILL NOT threaten employees with dis-
charge , and with termination of our operations, if
they supported a union other than Drivers Mutual.
WE WILL NOT create the impression of surveil-
lance, or engage in surveillance by asking employ-
ees to report their own or other employees' union
activities.
WE WILL NOT discharge , fail to recall, or other-
wise discriminate against employees because they
testified in any Board proceeding , were named in
any unfair labor practice charges or complaints, or
because they support or oppose any labor organiza-
tion.
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 offer George Witzel , James Phillips,
and Robert Ronald immediate and full reinstate-
ment to their former jobs or, if their jobs no longer
exist , to substantially equivalent positions , without
prejudice to seniority or any other rights or privi-
leges previously enjoyed , and WE WILL pay each
of these employees for any earnings and other ben-
efits they lost as a result of our discrimination
against them , less any net interim earnings , plus in-
terest.
WE WILL notify George Witzel , James Phillips,
and Robert Ronald that we have removed from
our files any reference to their discharges and that
the discharges will not be used against them in any
way.
WE WILL, jointly and severally with Drivers
Mutual Association , Inc., reimburse all former and
present Chicago , Illinois terminal employees for all
initiation fees, dues, and other moneys, plus inter-
est, paid by them or withheld from them.
BROWN TRANSPORT CORP ., A GEOR-
GIA CORPORATION
WE WILL NOT coercively solicit membership by
telling employees that we already represent them
and that they have to sign membership applica-
tions.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, jointly and severally with Brown
Transport Corp ., reimburse all former and present
Chicago, Illinois terminal employees for all initi-
ation fees , dues, and other moneys , if any , with in-
terest , paid by them or withheld from them for ini-
tiation fees, dues, or other payments to Drivers
Mutual Association, Inc.
DRIVERS MUTUAL ASSOCIATION, INC.
Sheryl Steinberg, Esq., for the General Counsel.
Jack Oswald, Esq. and J. Lewis Sapp, Esq., of Chicago, Il-
linois, and Atlanta, Georgia, respectively , for Re-
spondent Brown Transport Corp.
Nolan Harmon, Esq. and Karsten Bicknese, Esq., of Atlan-
ta, Georgia, for Respondent Drivers Mutual Associa-
tion, Inc.
Reed Lee, Esq. (Asher, Pavalon, Gittler, Greenfield and
Segal, Ltd.), of Chicago, Illinois, for the Charging
Party Teamsters , Local 710.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT accept recognition from Brown
Transport Corp ., a Georgia Corporation, as the ex-
clusive representative of its Chicago , Illinois termi-
nal employees , or otherwise act as their collective-
bargaining representative , unless and until we have
been certified as such representative by the Nation-
al Labor Relations Board.
WE WILL NOT give effect to, or in any way en-
force , the collective-bargaining agreement with
Brown Transport Corp. purporting to cover such
employees at a time when we do not represent an
uncoerced majority of employees in any appropri-
ate bargaining unit , provided however that this will
not require the withdrawal or elimination of any
wage increases or other benefits , terms, and condi-
tions of employment established by the agreement.
WE WILL NOT accept unlawful assistance and
support from Brown Transport Corp . in soliciting
union membership, including using Brown Trans-
port Corp . facilities for solicitation meetings.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. On
charges filed and complaints issued as indicated in Ap-
pendix C [omitted from publication], General Counsel al-
leges that Respondents Brown Transportation Corp., a
Georgia Corporation (Brown) and/or Respondent Driv-
ers Mutual Association , Inc. (Drivers) engaged in the fol-
lowing unfair labor practices, made unlawful by the indi-
cated sections of the National Labor Relations Act (the
Act).
1. By Brown , in violation of Section 8(a)(1):
a. Interrogating employees regarding union activities,
sympathies , and/or membership.
b. Threatening that if employees did not support Driv-
ers, or did support another union, or if prior employment
was by a union carrier, not to employ or to discharge
the employees , or to cease operations.
c. Inducing employees to engage in surveillance
and/or creating the impression of surveillance, by re-
questing a report if contacted by another union.
d. Interfering with Board process by offer of transfer
or early vacation , or to stay at another 's residence to
avoid Board subpoena.
2. By Brown, in violation of Section 8(a)(1), (3), and
(4):
a. Discriminatorily terminating the employment of
Witzel , Ronald , and Phillips.
3. By Brown and Drivers, in violation of Sections
8(a)(1) and (2) and 8(b)(1)(A), by:
BROWN TRANSPORT CORP.
a. Executing a bargaining agreement for a minority of
uncoerced employees.
b. Offering, and accepting , recognition as bargaining
agent of a minority of uncoerced employees.
c. Coercively soliciting membership in Drivers Mutual.
A hearing was held before me at Chicago, Illinois, and
Atlanta, Georgia, covering 31 days between July 15,
1985, and July 2, 1986. After several extensions , briefs
were thereafter filed by General Counsel, counsel for
each of the Respondents, and counsel for Charging Party
Union.
On the entire record of the case, and particularly on
my observation of the witnesses and their demeanors, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND BACKGROUND
Brown is a motor common carrier with principal of-
fices at Atlanta, Georgia . It employs approximately 3000
persons at over 80 terminals located at points throughout
the country . It admits that it is, and I find it to be, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Drivers has for approximately the past 20 years been
the certified bargaining agent of a unit at each of
Brown 's terminals , consisting of over-the-road intercity
drivers, city pickup and delivery drivers, dockmen, war-
ehousemen , mechanics ' helpers, and garage servicemen.
Drivers Mutual represents only employees of Brown,
and it is the only union representing this unit of Brown
employees . With offices in Atlanta separate from Brown,
Drivers Mutual has its own officers and employees,
meets expenses from membership dues, employs inde-
pendent counsel , and negotiates contracts or riders for
unit employees at individual terminals . It admits it is and
I find it to be a labor organization within the meaning of
Section 2(5) of the Act.
Though not directly in evidence as part of the record,
General Counsel 's argument draws upon the public
knowledge of Brown 's prior participation in Board pro-
ceedings , referred to as Brown 1, 140 NLRB 954 (1963),
and Brown II, 239 NLRB 711 (1978). These two deci-
sions demonstrate Brown , particularly through the ac-
tions of its president , Isaac Hemmings , as having violated
the Act by engaging in such unlawful labor practices as
soliciting , threatening , and coercing drivers to prevent
them from joining the Teamsters Union , and as soliciting,
encouraging , and coercing them to form their own labor
organization or to join an independent "committee."
Brown II also found that Drivers had acted in concert
with Brown in coercive solicitation , and to have violated
its duty of fair representation by failing to arbitrate on
behalf of a unit member because of his active Teamsters
support.
A. Opening the Chicago Terminal
1. Reasons for opening
A motor carrier cannot have a terminal at each and
every point it serves within its authorized territory. Ship-
ments of less than truckload (LTL) size from a point
557
may be picked up there for transportation directly or, as
in the usual case, indirectly toward destination . If indi-
rectly, it is brought to the terminal from which pickup
service originated , offloaded , and reloaded with other
LTL shipments going in the same direction . The same
method , in reverse, is utilized for final delivery of the
shipments to points in the vicinity of the delivering ter-
minal . The drivers operating the longer distances be-
tween terminals are referred as "over -the-road" drivers,
while those making local trips originating from and re-
turning to a single terminal may be referred to as "local
drivers," "city drivers," or "peddle run drivers."
At times the carrier providing the over -the-road long
haul will not have a convenient terminal for the origina-
tion or termination by the peddle run drivers . In such
cases, the long -haul carrier will contract with a local ter-
minal for these services.
Brown did not have a Chicago terminal , but operated
through contract with a subsidiary , whose drivers were
represented by the Teamsters . In early 19841 Brown de-
cided to open its own terminal to serve the Chicago
area. An alleged antiunion basis for doing so is herein-
after described . In March , Brown hired Steven Gonyou
as the terminal manager , and gave him orientation and
training at Atlanta headquarters and at other Brown ter-
minals . Gonyou hired his direct staff, William Pollard as
operations manager, Robert Saillez as dispatcher, and
Robert Hausner and Michael Sobieski as dock supervi-
sors.
2. Hiring procedures
No attempt was made to staff the Chicago terminal
with transfer of any employees from other terminals. In-
stead , flyers were distributed locally and advertisements
placed in local newspapers , announcing job interviews to
be held at a local motel toward the end of May. Brown's
personnel manager , Glenn McCravey, came from Atlan-
ta to conduct the interviews , assisted by Gonyou and his
assistants , Pollard and Hausner, who were initially
briefed by Gonyou and then given further instructions
by McCravey. McCravey specifically told Pollard and
Hausner what questions to ask , what information to
obtain from applicants , and how to respond to appli-
cants' questions . Approximately 100 applicants appeared
the first day, but only 40 to 50 application forms were
distributed, to those having at least 12 months' driving
experience, a minimum standard stated by McCravey.
Brown expected to hire about 20 city drivers for Chica-
go. The application forms, obtained by Brown from a na-
tional transportation trade association and used by
Brown for hiring throughout its system for a long period
of time, included the question "Labor Union Affiliation
(the Union and Local)."
McCravey returned to Atlanta, and interviewing by
Pollard , Hausner, and , on occasion , by Gonyou contin-
ued for 3 to 4 additional days. A number of those inter-
viewed were contacted by Atlanta or Chicago personnel
and directed to return to the motel for second inter-
views, conducted over 3 days by McCravey, Pollard,
' All dates are in 1984 unless otherwise indicated.
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hausner, and Gonyou . Sidney McMain , polygraph oper-
ator from Atlanta, frequently used by Brown over an ex-
tensive period , also participated though not authorized to
do polygraphy in Illinois.
Applicants were told that Drivers Mutual represented
Brown 's employees at all terminals and that they would
have 90 days in which to join Drivers Mutual if em-
ployed . One driver alleged that he was also told that em-
ployees would not be represented by either the Team-
sters or by the Chicago Independant Union . The appli-
cants were then asked questions including the following:
By McCravey , whether applicants belonged to a union
or were Teamsters , and how the applicant would feel
working for a nonunion company; by Gonyou , whether
they belonged to a Teamsters Union , and how they
would feel about working without a union.
In administering the 15 polygraph tests he gave,
McMain asked questions , contrary to Illinois statutes, re-
garding union membership and preferance . As to all
questions on which he felt a polygraph reading was not
satisfactory , including questions involving unions,
McMain would go back to the questions until all re-
sponses were clarified.
During the interview process Gonyou and/or Hausner
allegedly told drivers, prior to having received approval
by Atlanta personnel , that they would be hired. This was
denied by McCravey , who testified that he discussed all
the drivers he was considering with Gonyou , but that
the decisions were made by the Atlanta personnel de-
partment , which checked applicants' state motor vehicle
records.
Immediately before, and after the terminal opened on
July 2, additional drivers and dockmen were required.
These were interviewed at the Chicago terminal by
Gonyou, Pollard , and/or Hausner . Brown 's Atlanta per-
sonnel department was said to have been involved in the
hiring process by checking the applicants ' state motor
vehicle records . Brown did hire drivers who had been
Teamsters members and/or worked for employees deal-
ing with the Teamsters.
3. Orientation of new employees at Atlanta
During the period of 3 weeks before the Chicago ter-
minal opened , drivers were sent to Atlanta in three sepa-
rate groups for orientation and to drive vehicles from the
Atlanta terminal to and for the use of the Chicago termi-
nal. Dockmen were never required to go to such an ori-
entation at or training by personnel from Atlanta, nor
were those drivers hired immediately prior to or after
the Chicago terminal opening.
The first group of drivers sent to Atlanta consisted of
eight men. They were told by William Parsley, then vice
president/operations , that Drivers Mutual represented all
of Brown 's drivers , and allegedly though denied by Pars-
ley, that Brown had had union problems at other termi-
nals which it closed in order to avoid representation by
anyone other than Drivers Mutual , and that they would
do so again at any terminal, including Chicago, if em-
ployees became affiliated with Teamsters or any union
other than Drivers Mutual.
The first group of drivers were introduced by Brown's
management to representatives of Drivers Mutual, who
took them to dinner, told them that Drivers Mutual rep-
resented Brown 's drivers and dockmen at all terminals
and would cover such employees at the Chicago termi-
nal, and that the new employees had to sign union au-
thorization cards before leaving Atlanta . The eight were
told to elect from among themselves a committeeman to
represent Chicago terminal employees , and they elected
Frank Scaglione . When the second group of drivers
came to Atlanta, Parsley allegedly made similar state-
ments to them , they were introduced to representatives
of Drivers Mutual who took them to lunch , made similar
statements to them , and had them sign union authoriza-
tions but told them that Scaglione had already been
elected their committeeman . The third group of drivers
did not remain in Atlanta as long as the first two, due to
the approaching opening date of the Chicago terminal,
and did not meet with representatives of Drivers Mutual
until opening day, as hereinafter discussed.
4. Opening day contacts
On the Chicago terminal' s opening day, July 2, those
drivers who had not met with representatives of Drivers
Mutual in Atlanta were, after clocking in and reporting
to dispatcher Saillez, told to attend a meeting being held
on Brown premises , during working hours, by Dan
Howard, an officer of Drivers Mutual . The drivers to
attend the meeting were those in the third group to visit
Atlanta, and those hired immediately prior to opening
who had not been needed to drive equipment from the
Atlanta to the Chicago terminal and who had not been
sent to Atlanta.
Howard made the following statements at that meet-
ing: that Drivers Mutual represented all of Brown 's driv-
ers and dockmen , and that new employees at new termi-
nals were automatically also represented by Drivers
Mutual ; that the first two groups of drivers to go to At-
lanta had already joined and that it was customary for
employees to join the Union. Cards were then distributed
for the other drivers to sign.
Dockmen, none of whom had previously joined Driv-
ers Mutual , were also directed by their supervisor after
clocking in to attend such a meeting with Howard,
where similar statements were made and dockmen exe-
cuted union authorization cards for Drivers Mutual.
B. Terminal Operations
Interterminal freight was routed in and out of Chicago
by Atlanta. The following describes intraterminal oper-
ations within the Chicago terminal area.
Gonyou was responsible for day-to-day operations, set-
ting policy, establishing work rules , city routes from the
terminal, job classifications , vacations and leave sched-
ules, and hiring and firing of new personnel subject to
motor vehicle board record checks done by Atlanta, and
based on interviews by other Chicago supervisors.
Gonyou met with drivers or their committeeman for the
first attempts at grievance settlement , but continuation of
a grievance , through the committeeman and Drivers
Mutual, would have to be processed at Atlanta , though
there is no evidence of such ever having taken place.
BROWN TRANSPORT CORP.
Brown 's regional manager at Detroit is responsible for
Chicago and 18 other terminals . He does not regularly
visit the terminal , nor do Atlanta personnel . The local
terminal arranges hiring , scheduling , and replacing local
employees , and Brown employees from other terminals
are never utilized . In only one instance did an employee
of the Chicago terminal transfer to another terminal, that
in Florida and not within the same region , and only after
having committed an act which called for discharge. The
local terminal schedules and arranges safety meetings,
performs 90 to 95 percent of vehicle repairs, and ar-
ranges all accident investigations and spot checks of
driver performance . The Atlanta safety manager visits
once each year.
As the Chicago terminal operations manager , Pollard
exercises, inter alia, the following authority : he solicits
and interviews prospective employees , schedules current
employees , determines number and identity of casual em-
ployees to work, assigns drivers to runs of specified loca-
tion , time, and duration , and authorizes leave, sicktime,
and overtime . He is identified to employees by the gener-
al manager as a supervisor , is considered by employees
to be a supervisor, and executes various documents as a
supervisor . As the only individual to interview some em-
ployees prior to their being hired, he obviously either
hired them or successfully recommended their hiring.
For purposes of the Act, Pollard is supervisor.2
As the Chicago terminal dispatcher, Robert Saillez ex-
ercises, inter alia, the following authority : he approves
timecard modifications, sick leave, personal days off and
time off for injuries, determines whether drivers who
report by phone that they will be late should work that
day at all , obtains replacements from among "extra" un-
assigned drivers , and reschedules assignments to other
routes . For purposes of the Act, Saillez is supervisor.3
Originally hired as a driver on October 8, Michael
Tallaksen was given additional authority as P & D
(pickup and delivery) and safety supervisor. As such he
had, inter alia, the following authority : to interview pro-
spective employees and for some, but not all , to make
recommendations as one but not the only interviewer,
and to conduct safety investigations . For purposes of the
Act, Tallaksen is not a supervisor.
Operational control of the following matters, among
others, was exercised by local personnel at the Chicago
terminal : starting times, numbers of drivers and dock-
men, regular and modified temporary and permanent
routings, work rules supplementing or supplanting sys-
temwide rules , scheduling and selecting safety meeting
topics, recommending employee hirings exclusive of state
motor vehicle record checks, firing employees, assigning
and approving overtime and leave time . Interterminal
routings , billings, and paperwork was generated system-
wide by the Atlanta office, which also controls labor re-
lations with Drivers Mutual and with employee griev-
ances except for initial settlement attempts at local termi-
nals. The Atlanta office is 700 miles from the Chicago
Y Atomco Carburator Co, 275 NLRB 1, 3 (1985).
8 Hillside Bus Corp ., 262 NLRB 1254 , 1270 (1984), Spring Valley Farms,
272 NLRB 1323 . 1330 (1984), and Serendippity-Un-Ltd, 263 NLRB 768,
771 fn. 4 (1982)
559
terminal , and the closest two other terminals are respec-
tively 150 and 90 miles distant . What regional supervi-
sion exists is through Detroit , 266 miles distant, which
oversees 18 additional terminals . With one exception,
there has been no interchange of an employee between
any other terminal and Chicago, and the one exception
was transfer of a disciplined driver to a terminal outside
the region.
C. Other Management/Employee Contacts
Various other employees made allegations of interro-
gation regarding union status, history, and attitudes at
times other than initial employment , and of surveillance.
Former employee Odell Neals testified that P & D Su-
pervisor Tallaksen , who is not a supervisor for purposes
of the Act, questioned him regarding a specific union
contact, specifically asked if he was "signing papers" for
the Union, and discussed the matter in his presence with
Terminal Manager Gonyou , who is a supervisor, after
warning Neals to stay away from "those guys," referring
to Local 710 personnel.
Alleged discriminatee Phillips testified that Terminal
Operations Manager Pollard , a supervisor, asked him in
an afterwork social conversation at the local bar, who he
knew in the Teamsters , and whether he had signed a
card for the Teamsters. The conversation was not
denied . He also testified that at another afterhours, a
social meeting at the local bar , Terminal Manager
Gonyou, a supervisor, asked if he had attended any
Local 710 meetings , who was present at such meetings,
how he had heard about the meetings , and whether such
meetings were "successful ." Shortly afterward, he was
asked by Tallaksen, not a supervisor, in Tallaksen's
office , about union meetings . George Witzel , another al-
leged discriminatee , testified that while a probationary
employee he was questioned at the workplace , by Termi-
nal Manager Gonyou, as to what the Local 710 repre-
sentative, with whom the employee had just met, had
wanted.
All the drivers were told by Terminal Manager
Gonyou that he had reports of drivers being followed,
stopped, and talked to by representatives of Local 710,
and that any time this happened Brown wanted to know
about it. Drivers were also told the same thing by Ter-
minal Dispatcher Saillez, who also told driver Berg-
stresser that if stopped he should talk to Local 710 repre-
sentatives so that he could report the contents of the
conversation to Brown.
D. Discharge of Witzel
Brown requires new employees to complete a 90-day
probationary period, after which they become permanent
employees unless the terminal manager requests dis-
charge. Witzel was one of the original drivers hired, and
a member of the second group of employees to go to At-
lanta . He testified that while in Atlanta he had asked
Parsley whether employees would have a union and that
Parsley responded that if any employee was affiliated
with the Teamsters or any other union they would, as
per company policy, immediately be fired . Parsley
denied such statement. Approximately July 11, Witzel
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and another driver, Laxner , stopped for lunch at a hot
dog stand, where they were approached by Wade, an or-
ganizer for Local 710. After their conversation, Witzel
and Laxner returned to the terminal . Gonyou learned of
the contact from Laxner , and allegedly told Witzel that
since Drivers Mutual was a union representing all em-
ployees, he would be fired if he attempted to contact or
become affiliated with Local 710, a statement denied by
Gonyou. However, Witzel thereafter discussed Local
710 with other drivers.
On September 7, Witzel returned to the terminal and
was told to see Gonyou. Gonyou, in the presence of Pol-
lard and of Regional Manager Rollinson , told Witzel that
he had not satisfactorily completed his probation period
and was being terminated . In response to Witzel's ques-
tion , Gonyou allegedly gave as reason that Witzel was
terminated because of his abusive language and of his
"outside contacts," which statement was denied by
Gonyou . Phillips, another alleged discriminatee, testified
that he later asked Saillez the reason for the termination
of Witzel, and that Saillez stated it was because Witzel
was attempting to organize for the Teamsters.
Witzel's record as a driver was good , and he was
awarded a pay increase after two -thirds of his probation-
ary period. Gonyou testified that he based his decision to
terminate Witzel on alleged complaints from Saillez that
Witzel used abusive language and challenged Saillez' au-
thority before other employees . Witzel also had a con-
frontation with Scaglione over the position of commit-
teeman for Drivers Mutual , leading to what was at the
hearing very evident personal animosity between them,
but there is no evidence that this was transmitted to
Gonyou.
E. Failure to Reemploy Ronald
Robert Ronald applied for employment at Brown
sometime during February 1985. On March 8, 1985, he
was told by Tallaksen to come in and talk about his ap-
plication, and when he did so was told by Tallaksen, ac-
cording to Ronald 's contested testimony , to falsify the
application so as not to show prior employment by union
carriers, for Tallaksen otherwise would not be permitted
to hire him. Ronald was told to report that night for
work as a casual dockman, which he did. He was then
told to report for the same work on Sunday , which he
also did. He thereafter worked for about 4 months from
37 to 45 hours per week, being advised at the end of the
work shift, or by phone, when next to report for work.
Casuals were called to work on the basis of seniority.
His work was satisfactory, and when the more senior
casual dockmen were made permanent was told that he
also would become permanent at the next vacancy.
Some time prior to May 1985 , representatives of Driv-
ers Mutual were at Brown and Ronald asked about a
proposed wage increase for dockmen . After Ronald was
told that there were no such proposal, Ronald loudly
commented that he could earn as much in 2 days at a
"union barn" as he could in a week at Brown . The fol-
lowing week Ronald was called to work for only 1 day
each week, and for 11 hours on that day. Thereafter,
Brown never recalled him to work.
Ronald testified that he phoned in to ask for work 3
days per week, but Pollard denied this. Gonyou testified
that Ronald was not recalled for additional work because
business was slow and he was not needed . In fact, how-
ever , less senior casual dockmen had been assigned more
worktime than Ronald when Ronald was only given one
11-hour day per week, and were working when Ronald
was not working at all. Gonyou also testified that pursu-
ant to Brown 's policy, after Ronald had not been called
to perform casual work for 1 week his name was deleted
from the list of casuals . Examination of rosters showed
that this was not Brown 's policy at all. Two dockmen,
employed by Brown at the time of the hearing , appear-
ing under General Counsel 's subpoena , testified that Tal-
laksen told each of them that Ronald 's statement about
more money at a union shop had "gotten back" to the
"front office" and that such was the reason for his no
longer working at Brown . Tallaksen did not deny
making such a statement.
F. Contacts With and Discharge of Phillips
Phillips began work as a driver when the terminal
opened on July 2, and was one of the drivers not sent to
Atlanta.
Gonyou invited Phillips to the local bar one evening
after work in November , while Phillips was still in his
probationary period , and in a social atmosphere told
Phillips he had received information that Phillips had
been "in some trouble" with a former trucking company
employer . Phillips admitted that this was so in response
to a question, that he had been involved there with a
union. Phillips testified that Gonyou told him to keep a
low profile because he would be fired if Respondent
Brown learned this . In January 1985, Phillips attended a
Local 710 meeting and shortly thereafter , while talking
to Gonyou in his office , was asked if the meeting had
been successful , and was told that if Parsley found out
about Local 710 organizing that he would "close the
doors." In another conversation with Pollard, in the
same local bar , Phillips was asked by Gonyou whether
he had any affiliation with the Teamsters , and the identi-
ty of those persons he knew with the Teamsters and
whether we had signed a Teamsters' "card ." Gonyou
denied these statements.
Prior to the start of this hearing Phillips met with Re-
spondent's counsel for a discussion of the statement
which Phillips had given the General Counsel . Phillips
testified that he was thereafter phoned by Tallaksen, was
told that Respondent 's counsel was not happy about the
conversation , and that it would be better for Phillips to
"be a company man." Phillips was subpoenaed to appear
on July 17, 1985 , but failed to do so . He later testified he
had learned that he was to be subpoenaed , and that Tal-
laksen had offered to help him avoid service by (1) ar-
ranging for his vacation to be moved forward a week,
which was done, (2) to assign him to an out-of-town run,
(3) to transfer him anywhere outside of Chicago in
Brown's system , or (4) to permit Phillips to live at his
home rather than his own . Tallaksen denied making
these offers or in any manner seeking to help Phillips
evade Board process.
BROWN TRANSPORT CORP.
The subpoena was served and, as noted above, Phillips
did not appear . Arrangements were later made for him
to testify on December 15, 1985 , at which time he an-
swered all questions on direct examination , but on cross-
examination refused to answer questions regarding his
former employment with another trucking company,
claiming protection against self-incrimination . He was ad-
vised by the administrative law judge as to the bounds of
such protection , was permitted to consult with counsel
for Respondent Drivers Mutual , and, on his continued
refusal to testify, was excused until January 27, 1986,
when he continued in his refusal.
Phillips telephoned counsel for General Counsel, and a
meeting at Phillips ' home was scheduled shortly thereaf-
ter, on February 23, 1986 . At that time Phillips first ad-
vised the Board of and gave General Counsel a sworn
statement regarding the meeting with Respondent's
counsel , the statement by Tallaksen regarding that meet-
ing, and Tallaksen 's alleged statements regarding evasion
of Board process , referred to above . On March 26, 1986,
Phillips was called to testify and General Counsel moved
to amend the complaint to include the matters in Phillips'
affidavit . The motion to amend was denied , Phillips gave
his testimony over objection as an offer of proof, Re-
spondents declined to cross-examine , and the hearing was
recessed pending special appeal by General Counsel of
the rejected amendment.
While the special appeal was pending, on April 3,
1986, Phillips ' employment was terminated by Brown, as
described below , and an additional charge thereon was
filed with the Board . On April 16, 1986, the hearing was
continued , with Phillips being cross-examined by Re-
spondents on his prior testimony , and admitting that his
prior refusal to answer questions regarding prior employ-
ment was based not on fear of self-incrimination but on
fear of being discharged because of false statements on
his job application . On April 22, 1986, the Board issued a
complaint on Phillips ' discharge, and on July 1, 1986,
motion by counsel for General Counsel to further amend
the complaint to consider the new charge was granted.
Phillips testified as follows : On April 3, 1986, he was
told to return to the terminal and did so shortly after 3
p.m. He was told that Gonyou wanted to see him and
was escorted to Gonyou 's office, where McCravey was
also present . McCravey told Phillips that he had made
misstatments to the employer by reason of which his
bond , a requirement for employment , was no good.
McCravey gave Phillips the option of resigning, in
which case he would be given a letter of recommenda-
tion, or of not resigning , in which case he would be ter-
minated . Phillips chose the latter, and was terminated
and escorted off the premises.
McCravey testified that Phillips had been terminated
because of dishonesty , or lying, in that Phillips' work ap-
plication did not report his prior employment by another
motor carrier, nor his having suffered a "work related
injury" in that employment, nor a prior criminal convic-
tion , nor adverse items on his state motor vehicle
records . The actual application is not a part of the record,
and it is highly questionable whether any evidence of al-
leged dishonesty or lying on the document should be
considered . In any event, "dishonesty" or "lying" are
561
not stated as grounds for termination by Brown 's rules or
freight handling manual except as to theft of merchan-
dise . Neither insurance nor bonding carriers were con-
tacted by Brown as to the effect of the alleged dishones-
ty or lying, or as to whether Phillips could still be
bonded . The alleged "conviction" related to being
placed on probation , resulting in a serious question for
counsel and layman alike as to whether such act consti-
tutes "conviction ." The alleged "on-the-job injury" con-
sisted of inhaling toxic fumes, which Phillips did not
consider an "injury" related to his work as a driver.
Damage claims which were not charged by the employ-
er to his responsibility were not considered by Phillps to
have been reportable on the application . Traffic tickets
issued him were to be discharged by the traffic court
after supervision , and thus also considered by Phillips as
not remaining on his record or reportable 10 years later.
All of these charges were not developed by Brown as
reasons for discharge , but were developed by Brown's
counsel to discredit his testimony , were not developed
until after Phillips had testified adversely to Brown, and
were apparently not verified by Brown , whose employ-
ees after prompting by counsel refused cross-examination
on the issue based on attorney -client privilege.
McCravey also testified that the alleged false state-
ments on a drivers' employment record were contrary to
Department of Transportation regulation , which state-
ment he was, however , unable to substantiate . McCra-
vey's testimony on this point was contrary to his prior
testimony regarding the supervision of hiring by Brown's
Atlanta terminal through its efforts in verifying state
motor vehicle records . Since such efforts were not made
in all cases it appears that Brown 's Atlanta terminal
might not have contributed to the hiring process at Chi-
cago.
Brown presented records of five drivers allegedly ter-
minated for falsifying employment applications. Of these,
two had been terminated after Phillips; one was terminat-
ed because the falsification was that he did not report
that his brother was also employed by Brown , which has
a strict "no relatives" employment policy ; one was termi-
nated during his probationary period ; and the last was
terminated after being charged with several accidents in
addition to the alleged falsification . Further, a Brown
employee discovered to have falsified an employment ap-
plication is, by Brown policy , given an opportunity to
explain his action and not fired if he has an excuse, while
Phillips was not given this opportunity. Finally, two of
Brown 's employee witnesses testified that they had falsi-
fied their applications , but so far as is known , they were
not terminated.
11. ADDITIONAL FACTS AND DISCUSSION
A. Claim of Accretion and Attendant Violations
Drivers Mutual and Brown were charged with violat-
ing the Act by executing a bargaining agreement for a
minority of uncoerced employees , by offering and ac-
cepting recognition as bargaining agent of a minority of
uncoerced employees , and by coercively soliciting and
aiding in the solicitation of members . All these charges
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
must be considered in the light of whether the opening
of the Chicago terminal constituted a proper accretion
authorizing the already recognized union to act as sole
bargaining agent.
As defined in Safeway Stores, 256 NLRB 918, 924
(1981), an accretion is "the addition of a relatively small
group of employees to an existing unit where these addi-
tional employees share a sufficient community of interest
with the unit employees and have no separate identity. The
additional employees are then properly governed by the
unit 's choice of bargaining representatives ." (Emphasis
added .) The issue is thus narrowed to whether the Chi-
cago terminal employees share a sufficient community of
interest with the unit, and have no separate identity.
The Board will generally consider the following fac-
tors : ( 1) The degree of actual interchange of employees,
of which here there has been virtually none; (2) the day-
to-day supervision of employees , which is in this matter
entirely at the new unit; (3) the geographic proximity of
units, which here is lacking ; (4) the integration of oper-
ations, which here does exist to some extent ; (5) the simi-
larity of working conditions , which here exists as to all
local drivers and warehousemen , but not as to long-haul
drivers ; (6) the number of employees to be acquired,
which is here small compared to the existing overall op-
eration ; (7) the collective-bargaining history, which is
here known only to the extent of the Brown I and Brown
II decisions ; and (8) the common control over labor rela-
tions, which is here minimal . Safeway Stores, 276 NLRB
944 (1985 ); Save-it Discount Foods, 263 NLRB 689 ( 1982);
Westwood Import Co., 251 NLRB 1213, 1229 (1980). The
burden of proving accretion is generally on Respondents,
Towne Ford Sales, 270 NLRB 311 (1984), and the Board
"will not , under the guise of accretion , compel a group
of employees , who may constitute a separate appropriate
unit, to be included in all overall unit without allowing
those employees the opportunity to expressing their pref-
erence in a secret election ." Melbet Jewelry Co., 180
NLRB 107, 110 (1969).
Substantial supervisory and operational control has
here been vested in local supervisors and specifically in
the local terminal manager . The starting times for city
drivers and dockmen are established by the local termi-
nal manager who, with local supervisors , determines the
number of drivers and dockmen who are to begin work
at each start time . The local terminal manager is respon-
sible for establishing routes and for making permanent
route modifications . Local supervisory personnel , specifi-
cally the dispatcher , may independently modify routes
on a temporary basis . The local terminal manager estab-
lishes the manpower requirements and is responsible for
ensuring that the local terminal is properly manned. The
local terminal manager has the power to establish supple-
menting and supplanting work rules at the facility and
has done so . The terminal manager is also responsible for
holding the periodic safety meeting requried by Atlanta
personnel , for scheduling such meetings at his own dis-
cretion , and for ensuring not only that topics required by
Atlanta are covered in such meetings but also that any
subject of local concern which he feels should be ad-
dressed at such meeting is covered . The local terminal
manager also approves vacations , evaluates employees
and is responsible for all training . Local supervisory per-
sonnel make shift, job and route assignments , assign
overtime when it is worked , and grant time off. All of
the above functions are accomplished without input from
Atlanta . After the completion of the initial job inter-
views, new job applications are made directly to Chica-
go, and applicants are interviewed by local supervisors
and undergo local preemployment testing and physicals.
With respect to hiring, employees have started to work
at Chicago before their papers have reached Atlanta and
clearly before Atlanta has had any time to review or
take any other action with respect to such application.
One driver without the 12 months of experience required
by Atlanta policies was hired by the local terminal man-
ager . The "processing" by Atlanta , is said to consist of
performing a check on a newly hired driver's motor ve-
hicle record (MVR) to ascertain that he has correctly
represented such record on his application , but in several
instances this obviously was not done. Although deci-
sions about terminations and hiring are technically sub-
jects to Atlanta approval , as a practical matter such au-
thority rests with the local terminal manager since he
supplies the information upon which Atlanta makes such
decisions. Atlanta personnel do not perform independent
investigations into termination recommendations . Visits
from Atlanta personnel are rare.
Since the record establishes that immediate supervision
and day-to-day concerns of employees at the new unit
are separate and autonomous from those of employees at
other terminals in Respondent Brown's operation, this
separate supervision and the independence of its manager
weigh heavily against a finding of accretion . The auton-
omy which exists in Chicago's daily operation is not
erased merely because such operation is passively over-
seen by central corporate personnel in Atlanta.
Although it is undisputed that all negotiations for the
nationwide contract and the wage riders occur in Atlan-
ta, these contracts contain numerous riders establishing
wages at each local terminal . It is clear that the extent of
common control of labor relations is insufficient to
negate the separate community of interest of the employ-
ees at Chicago.
Another factor to be considered is the geographical
separation between Chicago and other of Respondent
Brown's terminals including Atlanta. As the evidence in
the record illustrates, the closest terminal to Chicago is
in Milwaukee, Wisconsin, over 90 miles distant. The
second closest is the local terminal located in Indianapo-
lis, Indiana, which is in excess of 150 miles distant.
Lastly, the Atlanta , Georgia headquarters and terminal is
located approximatley 700 miles from the Chicago termi-
nal.
These geographical distances also underscore another
factor which is of importance in this analysis: the fact
that the Chicago terminal operates independently of
other facilities operated by Respondent Brown with re-
spect to operational interchange . As the record clearly il-
lustrates, none of the routes operated by city drivers
overlap routes originating from any other facility. The
only instance of interchange of unit personnel at Chicago
involved the transfer of one driver from Chicago to the
BROWN TRANSPORT CORP.
Tampa terminal . Such transfer occurred only afer the
driver had been discovered carrying unauthorized pas-
sengers in his truck, a work rule infraction warranting
automatic termination . There is no evidence of any tem-
porary interchange of employees between terminals,
something made extremely difficult by the geographic
distances involved. Given this minimal percentage of
interchange and the fact that the one instance of such
interchange involved an employee transferring away
from Chicago, the lack of interchange weighs heavily
against a finding of accretion.
In considering the integration of Respondent Brown's
operations , we note that the type of equipment utilized in
its business , the skills possessed by employees, the work-
ing conditions , and the fringe benefits are similar
throughout the entire system . However, two things are
important to note. The first is that the repair work per-
formed on the equipment assigned to the facility is, for
the most part, performed locally on the premises of the
facility. Second, although Respondent Brown 's freight
handling operation is integrated nationwide and the
freight moves throughout the entire system , the integra-
tion involves only paperwork and the movement of the
freight itself and engenders minimal contact between unit
employees and employees working at other terminals .
B. Threats
Threats of plant closing should employees engage in
union or other protected and concerted activities clearly
constitute violations of Section 8(a)(1) of the Act. Gissel
Packing Co. v. NLRB, 395 U.S. 575 (1969); Nissen Foods
(USA) Co., 272 NLRB 371, 379 (1984).
The issue of witness credibility is paramount to this
and the other nonaccretion aspects of this proceeding.
Employee witnesses can generally be expected to testify
in a manner which favors their continued employment
and livelihood , and thus the credibility of witnesses still
employed by Respondent which might adversely effect
their continued employment should be given greater
weight . Durango Boot, 274 NLRB 361, 368 (1980); Geor-
gia Rug Mill, 131 NLRB 1305 fn. 2 (1961). Thus, particu-
lar attention should be paid to the testimony of witnesses
Rathunde , Bergstresser , Weitendorf, Smith, and, for the
testimonial periods while still employed , Phillips.4
In terms of the allegations of threats, Rathunde 's testi-
mony that Parsley told a group of drivers in Atlanta that
Brown had had trouble with the Teamsters Union and
had and would close a terminal rather than "go union,"
and that Terminal Manager Gonyou and other Brown
representatives had made similar statements , is more
plausable than are the denials by Parsley, Gonyou et al.
Though of lesser weight, the testimony of former em-
ployee Bachman and alleged discriminatee Witzel con-
firmed Parsley 's statements in this regard . Former em-
ployee Quinn confirmed such a statement by Gonyou.
Former employees Neals and Ronald , who is also an al-
leged discrimnatee , also testified that during interroga-
tion, dealt with below, there was an implied threat by
4 Particular aspects of the weight to be given to this witness are con-
sidered in the portion of this initial decision dealing with Phillips' dis-
charge
563
Tallaksen of discharge for union membership or prefer-
ance.5 Alleged discriminatee Phillips' testimony, while
still employed , confirmed Parsley's threats delivered in
Atlanta, and that Tallaksen made an implied threat of
discharge because, as a "man on the fence" he had better
cooperate more to the liking of Brown 's counsel and "be
a company man." Phillips also testified that Gonyou had
expressed displeasure with Phillips and Bergstresser, and
threatened that they would be discharged for their "be-
trayal" after the proceeding had concluded.
Threats of plant closure if employees engage in union
or other protected concerted activities have long been
ruled to constitute violations of Section 8(a)(1) of the
Act6 as have threats of unspecified reprisals or dis-
charge.7 Under the testimony credited above, there is no
doubt that Respondent did, in numerous instances, vio-
late Section 8(a)(1) of the Act by uttering threats to em-
ployees contrary to their rights to engage in union or
other protected concerted activities.
C. Interrogations
In determining the issue of unlawful interrogations,
greatest credibility must also be given to the statements
of witnesses employed by Respondent at the time of
their testimony.
Rathunde testified that during his initial interview ses-
sion he talked to McCravey, Respondnet's personnel
manager, who asked if he belonged to "the Union," and
how he would feel working for a nonunion employer.
He was asked the same questions in a second interview,
by Terminal Manager Gonyou, and still another time by
McMain , during the polygraph testing. He also stated
that he heard McCravey ask other applicants the same
questions . Phillips, testifying while still employed by Re-
spondent , stated that during his first interview, with Pol-
lard, he was asked whether he was a Teamsters member.
Discrimnatee Witzel's testimony confirmed such ques-
tioning.
In addition to the prehiring interrogation , there was
the undenied testimony that Gonyou had asked alleged
discriminatee Witzel what Local 710 had wanted when
he lunched with Wade. Alleged discriminatee Phillips
testified to a conversation at the local bar with Pollard in
which he was asked whether he had any affiliation with
the Teamsters, whether he had signed a "card," and
what the Teamsters might do if he turned his back on
them ; and, by Gonyou in another conversation at the
local bar, who had been at a union meeting and what
had transpired.
The Board considers interrogations of employees to be
violative of Section 8(a)(1) of the Act where, " in all of
the circumstances ," it reasonably tends to restrain,
coerce or interfere with rights guaranteed by the Act8 in
See E. 1. du Pont & Co, 257 NLRB 139 , 140 (1981).
Gissel Packing Co. Y NLRB, supra; Nissen Foods (USA) Co, supra
7 E I du Pont & Co, supra , Enterprise Products Co., 265 NLRB 544,
548 (1982 ), Offshore Shipbuilding, 274 NLRB 539 ( 1985), American Medi-
cal Transport, 272 NLRB 285 , 292 (1984), Genwal Coal Co, 275 NLRB
528, 545-546 (1985)
8 Rossmore House, 269 NLRB 1176 (1984)
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
view of the totality of the circumstances, without ignor-
ing the realities of the workplace and the history of hos-
tility toward, threats to, or discharge of union support-
ers.9 The "balancing test" discussed in Raytheon Co., 279
NLRB 245 (1986), included the status of the party inter-
rogated and the location and initiator of the interroga-
tion . As job applicants, these individuals interrogated
were particularly vulnerable to restraint and coercion,
though interviewed on neutral ground and whether or
not later hired .' 0 Considering that in addition to such
prehiring coercions, posthiring interrogations took place
at the instigation of supervisors , though at the local
"hangout" rather than at the workplace itself, were
equally restraining and coercive , and violative of the
Act. The continued use of a local hangout , rather than a
management office, can give that informal location the
imprimatur of official function , and management should
not be permitted to evade the consequences of interroga-
tion merely by changing its location without changing its
clear message.
D. Surveillance
The issue of surveillance in this matter is one of intru-
sive demands by Respondent that employees' report at-
tempted contracts by Teamsters Local 710. Drivers
Bergstresser and Rathunde , while still employed by
Brown , testified that they were told by Saillez and by
Gonyou respectively to phone in or otherwise bring it to
Brown 's attention if they were spoken to, followed, har-
rassed, bothered, or stopped by Local 710 representa-
tives, and Terminal Manager Gonyou made a general an-
nouncement of such requirement in the driver 's lounge.
Brown argues that such requests were lawful , based on
the fact that these were bonded drivers and driving
trucks containing freight for which Brown was responsi-
ble. There is, however, no evidence other than a lunch-
time meeting with two drivers that representatives of
Local 710 ever contacted, much less interfered with,
Brown 's drivers . Rather, it was obvious at the hearing
that Brown's attitude toward Local 710 was virtually
paranoid , including protectively "circling the wagons" at
the local terminal in the fear that a radiator puncture
caused by a pebble being thrown up from the roadway
was actually a pistol shot seriously endangering Brown's
equipment . Brown also always made a clear distinction
between its own "non-union" shop where employees
were represented by Drivers Mutual , and a shop where
employees were represented by a "union ," defined as any
labor organization other than Drivers Mutual.
While an employer may lawfully request employees to
report to management what they perceive to be threats
by union organizers or others similar requests to report
harassment or other pressures constitutes an unlawful at-
tempt to discourage permissible union activity." When
those requests are extended to mere attempts to con-
verse, and particularly in view of the other actions by
Brown to maintain what it considered a nonunion atmos-
phere in which employees were represented by Respond-
9 Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
10 Quality Drywall Co, 245 NLRB 617 (1981)
II Arya Engineering Corp, 256 NLRB 1083, 1093 (1981)
ent Drivers Mutual , they clearly constituted a violation
of Section 8(a)(1) of the Act.
E. Interference with Board Process
The evidence relative to the alleged interference with
Board process results in a direct crediblity conflict be-
tween the testimony of Tallaksen and of Phillips . Neither
of these witnesses have been shown to have or been
credited as having complete credibility, which however
does not prove, ipso facto, that all of their respective tes-
timony should be disregarded.
Phillips' testimony on this point was given while he
was still employed by Brown , but at a time by which he
must have recognized his other testimony might result in
retribution. It appears particularly improbable that Tal-
laksen , or anyone at Brown, would attempt to interfere
only with Board process calling testimony by Phillips
alone, either prior to or during this lengthy proceeding.
Other witnesses, known to Brown, could have and did
give testimony more damaging than that of Phillips, and
even though they may have been considered by Brown
to be more principled or less willing to accept unlawful
suggestions than Phillips , no attempt by or on behalf of
Brown apparently was made to interfere with their testi-
mony.
While Phillips' testimony on other points, supported
by or supporting situations testified to by other wit-
nesses, can be granted preferential credibility, I must
conclude, based on my observation of the witnesses and
the improbability of the testimony, that there was no at-
tempt by Brown to interfere with the service of process
on Phillips.
F. Witzel's Discharge
General Counsel , bearing the burden of proof, has
shown that Witzel enjoyed an employment record free of
any objective blemish, and in fact enhanced by having
been granted a pay increase when two-thirds through his
probationary period. Witzel, however, had had the infa-
mous "hot-dog stand" lunch at which the Local 710 rep-
resentative had approached and spoken with him. I
credit Witzel's testimony that Gonyou was made aware
by fellow driver Laxner of this contact, particularly in
view of Brown's specific "request" that drivers notify
management should any attempt be made by Local 710
representatives to speak to them.
The only ground stated for the discharge was that
Saillez had complained to Gonyou of Witzel 's "abusive
language" and challenging of authority . This was the tes-
timony of Gonyou , not of Saillez , and there were no ex-
amples cited of such language or challenge, or of any
employee being disciplined in any manner for such an of-
fense throughout the entire Brown system. Given the to-
tality of Brown 's union animus it is obvious that Brown's
discharge of Witzel was to immunize itself against possi-
ble unionization at Chicago, and was in violation of Sec-
tions 8(a)(1) and (3) of the Act.
G. Phillips' Discharge
General Counsel has here proven that Phillips was dis-
charged only after having changed his behavior from
BROWN TRANSPORT CORP. 565
having avoided testifying against Brown to cooperating
with General Counsel in providing testimony. The infor-
mation assembled by Brown's counsel to discredit Phil-
lips' adverse testimony was allegedly the basis for his dis-
charge.
However, "dishonesty" or "lying" are not grounds uti-
lized by Brown for discharge except as applied to
freight, not the case here . "Insurance" and "bonding"
companies were not contacted , and it is not at all shown
that they would have raised objection to the false state-
ments on the application. The "on-the-job injury," traffic
tickets, and "damage" are subject to interpretation. The
issue of what constitutes a "conviction" has been
brought to the Supreme Court several times, and a lay-
man's interpretation might reasonably contradict that of
counsel for Respondent . It is also highly indicative that
only three Brown employees , throughout their entire
system , had been terminated for making false statements
on the job application, prior to Phillips' discharge, that
two of the three had other serious grounds for termina-
tion and the last was still in his probationary period.
It is clear that each and all of the grounds posited by
Brown for Phillips ' discharge were pretextual , and that
the discharge was in violation of Section 8(a)(3) and (1)
of the Act.
(c) Brown and Drivers Mutual by coercively soliciting
employees to join Drivers Mutual.
4. Respondent Brown has violated Section 8(a)(1) of
the Act as follows:
(a) By interrogating employees regarding union mem-
bership, activities , and sympathies.
(b) By threatening not to employ , to terminate em-
ployment, and not to continue employment at the loca-
tion if job applicants or employees did not support Re-
spondent Drivers Mutual or supported a labor organiza-
tion other than Respondent Drivers Mutual.
(c) By inducing employees to engage in surveillance
and creating the impression of surveillance.
5. Respondent Brown has violated Section 8(a)(1), (3),
and (4) of the Act, by discriminatorily discharging em-
ployees Witzell and Phillips, and discriminatorily failing
to recall employee Ronald.
6. The aforementioned unfair labor practices effect
commerce within the meaning of Section 2(6) and (7) of
the Act.
7. Except as specifically found herein , Respondents en-
gaged in no other unlawful conduct.
THE REMEDY
H. Failure to Recall Ronald
The testimony reveals that Ronald was effectively
denied the opportunity to work as a casual employee,
and to become a permanent employee at the next vacan-
cy as promised, and that this was done immediately fol-
lowing his making a public comment constituting an in-
citement of fellow workers to unionize . Tallaksen,
though not a supervisor, is an employee having more fre-
quent and intimate contact with management, and he
told other employees that Ronald was not recalled be-
cause those comments had "gotten back to the front
office."
General Counsel has satisfied his burden of proof. The
reasons put forth by Brown for not having recalled
Ronald are shown to be patently specious , pretext put
forth to hide the truth . Brown obviously discontinued
Ronald 's employment because of his prounion remarks,
in violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Brown is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Respondent Drivers Mutual is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondents Brown and Drivers Mutual have vio-
lated Sections 8(a)(1) and (2) and 8(b)(1)(A) of the Act
respectively as follows:
(a) Brown by giving , and Drivers Mutual by accepting
recognition when both Respondents knew that Drivers
Mutual did not represent an uncoerced majority of em-
ployees.
(b) Brown by giving , and Drivers Mutual by accepting
recognition prematurely at a new facility where there
was no accretion.
Having found that Respondents engaged in certain
unfair labor practices, I will recommend that they be or-
dered to cease and desist therefrom and to take other ac-
tions designed to effectuate the purposes and policies of
the Act.
Having found that Respondents Brown and Drivers
Mutual unlawfully respectively granted and accepted
recognition as bargaining representative of an uncoerced
majority of employees at the local terminal at Chicago,
Illinois, I will further recommend taht Respondent
Brown be required as to the employees at its terminal at
Chicago, Illinois, to withhold recognition from Respond-
ent Drivers Mutual, and to cease giving effect to any
collective-bargaining agreement between the parties as to
said terminal until such time as said Respondent Drivers
Mutual shall have been certified by the Board as the ex-
clusive bargaining representative of the employees in
question . I shall further recommend that Respondent
Drivers Mutual cease and desist from acting as the col-
lective-bargaining representative of Respondent Brown's
employees at the terminal at Chicago , Illinois . However,
nothing in this Order shall authorize or require the with-
drawal or elimination of any wage increase , or other
benefits , terms, or conditions of employment which may
have been established pursuant to the performance of
that agreement . I shall further recommend that both Re-
spondents jointly and severally reimburse all present and
former Brown employees at the terminal at Chicago, Illi-
nois for all initiation fees, dues, or other moneys exacted
from them by or on behalf of Respondent Drivers
Mutual pursuant to any dues-checkoff provision of any
collective-bargaining contract , or otherwise , together
with interest thereon computed in accordance with F. W.
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Woolworth Co., 90 NLRB 289 (1950), and New Horizons
for the Retarded, 283 NLRB 1173 ( 1987).12
I shall further recommend that Respondent Brown be
ordered to offer George Witzel , James Phillips, and
Robert Ronald immedaite and full reinstatement or recall
to their former jobs or, if such jobs no longer exist, to
substantially equivalent positions without prejudice to
their seniority and other rights and privileges, and to
make them whole for any loss of earning they may have
suffered by reason of the discrimination against them by
payment to them of a sum of money equal to that which
they normally would have earned from the date of their
discharge , or failure to recall , to the date of a bona fide
offer of reinstatement , less net interim earnings during
IS In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest on
amounts accrued prior to January 1 , 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977).
such period. Backpay shall be computed on a quarterly
basis as prescribed above. Moreover, consistent with the
Board's decision in Sterling Sugars, 261 NLRB 472
(1982), I shall recommend that Respondent be required
to expunge from its records any references to the unlaw-
ful discharge and failure to recall of these employees,
and provide written notice to them of such action, and
inform them that Respondent's unlawful conduct will not
be used as a basis for future disciplinary action against
them.
Counsel for General Counsel has also requested a visi-
tatorial clause authorizing the Board to engage in discov-
ery under the Federal Rules of Civil Procedure. The
Board has been extremely disinclined to grant such relief.
Though there is an extended history of Respondent
Brown's union animus over the last 15 years I will not
recommend a change in Board policy, secure in the
knowledge that appeal will be made to the Board on
other issues as well.
[Recommended Order omitted from publication.]