Goodyear Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 674 (N.L.R.B. 1993)

674
312 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s finding that no unlawful refusal to bar-
gain over effects has occurred, we note that the Union must act with
due diligence to preserve its request to bargain. Here, where there
was discussion but no agreement on a future date to engage in ef-
fects bargaining, prudence dictates that the Union follow up on its
demand. The Union’s subsequent silence indicates a lack of due dili-
gence. See, e.g., Golden Bay Freight Lines, 267 NLRB 1073, 1080
(1983).
1 The caption has been amended to reflect both Goodyear’s and
Ryder System, Inc.’s correct names.
The Goodyear Tire & Rubber Company-Beaumont
Chemical Plant and Transportation Unlimited,
Inc. and The Goodyear Tire & Rubber Com-
pany-Beaumont Chemical Plant; Transpor-
tation Unlimited, Inc.; and Ryder Truck Rent-
al, Inc., Wholly-Owned Subsidiaries of Ryder
System, Inc. and Teamsters, Chauffeurs, Ware-
housemen, Industrial and Allied Workers Help-
ers Local Union No. 920, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO.
Cases 16–CA–14820 and 16–CA–14838
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 10, 1993, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Charging Party filed exceptions and a supporting brief,
and Respondent Transportation Unlimited filed an an-
swering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions1 and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
came on for hearing before me in Port Arthur, Texas, on Jan-
uary 22, 1992, and continuing for 14 hearing days until the
General Counsel and the Charging Party completed their
cases-in-chief on April 9, 1992. When they rested, all Re-
spondents orally moved to dismiss the fourth amended con-
solidated complaint, principally on the ground that the Gen-
eral Counsel had failed to make out a prima facie case, al-
though at least one respondent also argued that a portion of
the complaint is barred by Section 10(b) of the Act, the 6-
month statute of limitations. I advised the parties that it
seemed likely that the Respondents’ assertions were borne
out by the record, but that it was too large to permit ruling
at the hearing. Even so, I observed, the state of the evidence
was such that the motions deserved serious and thoughtful
consideration. Accordingly, I adjourned the hearing pending
the filing of such written motions, setting a schedule for both
their filing and for the responses of the General Counsel and
the Charging Party.
Respondents’ motions were filed on June 15, 1992, and
the General Counsel’s and the Charging Party’s responses
were filed on August 27, 1992. The General Counsel’s re-
sponse encompassed a motion to receive additional evidence;
it also referred to a document contained in a prehearing mo-
tion, found in the formal file, but which had not been offered
or received in evidence. Subsequently, the Ryder Respond-
ents filed a motion to strike those portions of counsel for the
General Counsel’s response which seek to expand the record
which he made at the hearing. Counsel for the General
Counsel filed an opposition; the Ryder Respondents followed
with a second motion to strike. These will all be dealt with
in this decision.
I. BACKGROUND AND ISSUES
The operative complaint in this matter (the fourth amended
consolidated version) asserts that all the Respondents are
joint employers for purposes of the Act. The Respondents
deny that contention. Indeed, Respondents’ vigorous defense
on the point began with a pretrial summary judgment pro-
ceeding seeking a declaration that they were not joint em-
ployers. In support of that contention they offered affidavits,
copies of contracts, and other materials; the General Counsel
countered with affidavits and legal argument.
In my Order denying the Motions for Summary Judgment
I observed the evidentiary differences were not particularly
great and that on full hearings the Board has found similar
evidence offered by the General Counsel to be wanting inso-
far as the final burden of persuasion was concerned. None-
theless, because there were some discrepancies regarding the
claims of supervision, scheduling, and hiring which could not
be resolved in favor of Respondents without a hearing, I de-
nied the motions. After 14 days of trial, however, it has be-
come apparent that counsel for the General Counsel’s evi-
dence on those issues is less than compelling. Indeed, his
legal argument leaves much to be desired as well, for he has
even cited some overruled authority in support of his posi-
tion.
The factual background is not in significant dispute. The
Goodyear Tire & Rubber Company (Goodyear)1 is alleged to
be the principal employer. It operates a chemical plant in
Beaumont, Texas, where it ships and receives products by
truck. Prior to 1985 it operated a fleet of chemical tank
trucks which it had leased. It directly employed the drivers
who drove those vehicles. The primary chemical being
hauled is isoprene, a chemical component of synthetic rub-
ber. That chemical is hazardous and highly flammable.
Under the rules and regulations of the State of Texas as ad-
ministered by the Texas Railroad Commission, Respondent’s
hauling of that product was permitted only under a permit
known as a ‘‘private carriage’’ operation. A private carriage
permit is to be distinguished, among other things, from the
permits granted to common carriers.
Goodyear reached a business decision, sometime in 1985,
to change the method of its operation pending a conversion
675GOODYEAR TIRE & RUBBER CO.
2 Ryder System, Inc. is a charged party, but is named in the com-
plaint only as the parent of RDR and Ryder Truck. It sees itself as
a respondent, for there is no evidence that the Regional Director has
dismissed it from the proceeding.
3 According to Goodyear’s Jim Beverly, its Beaumont transpor-
tation manager, he had been instructed by corporate headquarters to
seek bids from common carriers shortly after the Texas Railroad
Commission had approved the appropriate tariff. He obtained bids
from three such companies: United DSI, Chemical Leaman Truck
Lines, and Coastal Truck Lines.
to hauling by a common carrier. As the first step in that di-
rection, it determined to substitute leased drivers for its own
employees. In addition it also determined that it would be
appropriate to rid itself of the direct responsibility for vehicle
dispatching. Accordingly, it entered into an agreement with
Respondent Ryder Distribution Resources (RDR) to run what
amounted to a truck terminal within the plant. RDR is a sub-
sidiary of Ryder System, Inc.,2 as is a sister company, Re-
spondent Ryder Truck Rental, Inc. (Ryder Truck). Goodyear
already had an ongoing business relationship with Ryder
Truck, for that was the entity from which it leased the tank
vehicles. Ryder Truck also operates a maintenance yard in
Beaumont located about 2 miles from the Goodyear plant.
The evidence shows RDR was initially expected to pro-
vide the leased drivers to operate the trucks as well as to dis-
patch them. To do that, however, RDR needed to have per-
mission from the Texas Railroad Commission to perform the
intrastate isoprene hauls which Goodyear’s private carriage
operation entailed. Because RDR was unable to obtain per-
mission from the Texas Railroad Commission to do so,
Goodyear contracted with another driver leasing company
which did have permission, Respondent Transportation Un-
limited, Inc. (TU). These three Respondents are unrelated to
one another, except for their Goodyear-Beaumont connection.
In the summer of 1985, RDR hired as its manager Good-
year’s dispatcher Bill Navarre. He was, of course, familiar
with the Goodyear plant and its driving needs.
In August 1985, Navarre, together with TU Vice President
Dennis Negrey as well as some Ryder Truck personnel, con-
ducted interviews at a Beaumont hotel in order to hire the
drivers to be leased to Goodyear. I think it is fair to say that
at this stage, Goodyear, TU, and RDR all held the belief that
TU’s presence at the plant would be short-lived. Indeed,
there is evidence that the drivers who were hired were told
that they would shortly become ‘‘Ryder’’ employees. At that
time a Ryder subsidiary began seeking state authority to op-
erate intrastate.
Nonetheless, the new hires all filled out TU application
forms and were placed on the TU payroll.
Eventually, on July 7, 1986, the Texas Railroad Commis-
sion denied the Ryder subsidiary’s application to perform
intrastate leased driving services. In the early part of that
year, TU, in place as the lessor, had begun taking steps to
provide greater control over its operation than it previously
had. Before that time Negrey appeared to be in charge of the
drivers but communicated with them only on an uncertain
basis from his office in Cleveland, Ohio. However, beginning
in early 1986, TU placed a regional manager in the Dallas
area, Jack Painter. In addition, Negrey, at the drivers’ re-
quest, had earlier published a set of drivers’ rules on TU let-
terhead which he posted at the Goodyear dispatch office,
now occupied by RDR and its dispatchers. It also had pro-
vided the drivers with telephone pagers and a toll-free tele-
phone number by which they could immediately get in touch
with Negrey and later, Painter. In 1990 Jerry Parrish replaced
Painter as TU’s regional manager.
The actual dispatching continued to be performed from the
Goodyear plant, but by RDR. Navarre not only assumed
management of the RDR dispatching operation, he was rather
quickly asked to serve as an RDR district manager. His du-
ties for that firm were expanded well beyond the confines of
the Goodyear plant. Accordingly, he was often absent per-
forming duties at other locations where RDR had contracts
with other customers. He had already hired a clerical staff
who did the actual dispatching. With his new duties pressing
him, he had to hire an assistant. The assistant appears to
have been primarily involved in the day-to-day operations of
the dispatching office. Over the 5 plus years during which
RDR operated that office, Navarre had a succession of assist-
ants including David Bienvenu and Harold Flanary. At any
given time there were about four dispatchers on the staff. As
the office operated 24 hours per day, at least one dispatcher
was always on duty.
The Charging Party, Teamsters Local 920 (the Union) did
not appear on the scene until April 19, 1990, when it filed
a petition for an election of the TU drivers based at the
Goodyear plant. A stipulation for consent election was
signed, approved by the Regional Director, and an election
was held on June 6 and 7. The Union won in an
unremarkable election and on June 18, 1990, was certified as
the collective-bargaining representative of TU’s drivers based
at the Goodyear plant. Even though Union Official Sergio
Ponce was aware in general terms of the relationship be-
tween the three companies, he chose to seek certification
only of the TU employees and did not contend during the
representation proceeding that the certification should also
run to either Goodyear or Ryder.
After the certification, TU’s Negrey and Ponce, accom-
panied by a small committee of drivers, met to engage in
collective bargaining. Neither Goodyear nor Ryder sent any
representative to participate in the collective-bargaining ne-
gotiations.
At a negotiation meeting on October 16, 1990, TU’s
Negrey informed Ponce that he had heard a rumor that Unit-
ed DSI, a common carrier, had given a bid to Goodyear to
haul the isoprene at Beaumont.3 A little over a month later,
Goodyear gave TU the formal 30-day notice of termination
which the business contract required. As a result, on Decem-
ber 16, 1990, TU’s contractual obligation to provide drivers
for the Goodyear isoprene runs ended and approximately 30
of its drivers were laid off. The only drivers remaining were
three who were assigned to perform an intrastate bulk rubber
haul between Goodyear-Beaumont and a Kelly-Springfield
tire plant in Tyler, Texas. That route was controlled by a
separate leasing agreement between Goodyear and TU.
It is undisputed that TU negotiated with the Union with
respect to which drivers would be retained to perform the re-
cently begun Tyler bulk rubber run and that an agreement
has been reached and has been followed.
Due to the cancellation of the TU chemical contract, the
RDR dispatching operation also became severely curtailed.
All its dispatchers were laid off and shortly thereafter
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The General Counsel called Goodyear’s transportation manager;
RDR’s regional manager, Bill Navarre; and TU’s most recent re-
gional manager, Jerry Parrish. As yet uncalled are Goodyear cor-
porate officials; TU’s vice president, Dennis Negrey; its first re-
gional manager, Jack Painter; and RDR’s David Bienvenu and Har-
old Flanary, both of whom were Navarre’s assistants.
5 At this point it is fair to observe that the General Counsel has
adduced absolutely no evidence that Ryder Truck, the lessor of the
vehicles, played anything but a bit role in this entire scenario. The
only activity in which Ryder Truck personnel appear to have been
involved is conducting driver tests to determine whether TU person-
nel could capably operate the equipment. These tests are required by
Department of Transportation regulations. Certainly there is no evi-
dence that Ryder Truck officials had any day-to-day dealings with
the TU drivers, aside from the fact that the tractors were stored at
the Ryder Truck yard when not on the road.
Navarre left in January 1991. Only his assistant, Harold
Flanary, remained. Sometime early in 1991 he was trans-
ferred to an RDR office in Houston, about 100 miles to the
west, where he dispatched the rubber run drivers.
It is against the foregoing background that the Regional
Director issued the fourth amended consolidated complaint.
In general, the complaint asserts that Goodyear, TU, RDR,
Ryder Truck, and, by implication, Ryder System, Inc., are
joint employers. It further asserts that Goodyear’s decision to
terminate the TU leasing arrangement was motivated by anti-
union considerations and that the discharge of the chemical
drivers was unlawful as breaching Section 8(a)(3) and (1) of
the Act. Similarly, it asserts that the RDR dispatchers also
lost their jobs as a result of that discriminatory action and
they, too, were discharged in violation of Section 8(a)(3) and
(1) of the Act. Independent of the layoff, the complaint con-
tends that one of the rubber run drivers, Lisa Hebert, was un-
lawfully discharged in late November because of her union
activities.
It also alleges that Respondents Goodyear and TU
breached the good-faith collective-bargaining obligation by
not bargaining over the decision to terminate the chemical
haul, by not bargaining over the effects of that shutdown, by
failing to provide certain information to the Union to enable
it to engage in meaningful collective bargaining and that they
supposedly made some prohibited unilateral changes in
working conditions. Finally, the complaint alleges certain
independent 8(a)(1) violations occurred, mostly threats and
interrogations. Without detailing them here, I observe that all
but two of the supposed interrogations or threats were uttered
by RDR personnel, either Navarre or Flanary. There is abso-
lutely no evidence, nor any allegation thereof that any offi-
cial of Goodyear committed similar acts. There are two alle-
gations that TU’s Parrish made remarks in July 1990, well
after the election, giving employees the impression that their
union activities were under surveillance. The evidence in
support of the allegations against Parrish, as will be seen, is
too weak to be credited.
Because counsel for the General Counsel called as wit-
nesses not only rank-and-file employees but also some man-
agers from all three companies, including Navarre, the evi-
dence is fairly complete on all fronts,4 even though no Re-
spondent has yet presented evidence other than through
cross-examination. I am, therefore, able to make credibility
findings at this stage and I observe that much of the testi-
mony given by rank-and-file employees on these subjects is
either confused, self-contradictory, recanted, totally improb-
able, or credibly denied by the manager in question.
Beyond that, it should be observed that the record is ut-
terly devoid of evidence that either TU or RDR had any
input into Goodyear’s decision to terminate the TU chemical
haul. Furthermore, the evidence shows only that Goodyear’s
termination of the TU operation deprived both TU and RDR
of the opportunity to continue to profit from the arrangement.
Both were victims of a business decision made by Goodyear.
Because the record is virtually devoid of evidence that ei-
ther Goodyear or TU harbors animus against the Union, the
General Counsel argues that the remarks made by RDR man-
agers must be imputed to Goodyear, because in his view, all
are joint employers. However, if the General Counsel has
failed to prove that RDR played any role in Goodyear’s deci-
sion to switch from TU to United DSI, any animus RDR
may have displayed becomes meaningless. Similarly, if the
General Counsel has failed to show that a joint employer re-
lationship existed, then the 8(a)(3) cases involving the chemi-
cal driver layoff and the dispatcher layoff fail in their en-
tirety. Indeed, the allegation against Goodyear that it unlaw-
fully refused to provide bargaining information to the Union
also falls.
In that event, only TU’s discharge of Hebert, TU’s sup-
posed unilateral changes in working conditions, and RDR’s
8(a)(1) conduct would remain. Indeed, RDR’s 10(b) defense
would come into play with respect to cer- tain allegations of
the complaint which occurred, on their face, more than 6
months before the filing of the first charge against RDR,
Case 16–CA–14901,5 on February 8, 1991.
II. THE BOARD’S TEST FOR JOINT EMPLOYER STATUS
A. Applicable Law
Prior to 1982 when the United States Court of Appeals for
the Third Circuit decided NLRB v. Browning-Ferris Indus-
tries, 691 F.2d 1117, the Board’s analysis of what constituted
a joint employer relationship was somewhat more amorphous
than it is today. After that decision, however, the Board de-
cided to adopt the Third Circuit’s rule and did so in TLI,
Inc., 271 NLRB 798 (1984). The test is, as I noted during
the summary judgment stage of these proceedings: Where
two (or more) separate entities share or codetermine those
matters governing the essential terms and conditions of em-
ployment, they are to be considered joint employers for the
purposes of the Act. In Laerco Transportation, 269 NLRB
324 (1984), the Board, referring to the Browning-Ferris test,
defined the essential terms and conditions of employment as
those involving such matters as hiring, firing, disciplining,
supervision, and direction of employees.
Furthermore, the Board has held that the appropriate time
frame for the analysis of whether employers are to be consid-
ered joint for purposes of the Act is that period surrounding
the unfair labor practices. Yoon Maintenance Co., 292 NLRB
1159 (1989), affd. sub nom. Texas World Service Co. v.
NLRB, 928 F.2d 1426, 1432 (5th Cir. 1991); also Clinton’s
Ditch Cooperative v. NLRB, 778 F.2d 132, 138 (2d Cir.
1985). Therefore, to the extent that counsel for the General
Counsel relies on incidents which occurred during the first
years of the Goodyear-TU contract, they cannot be regarded
677GOODYEAR TIRE & RUBBER CO.
6 In pertinent part the clause reads:
[The factory] at all times will solely and exclusively be respon-
sible for maintaining operational control, direction and super-
vision of said drivers, such control, direction, and supervision,
including, but not being limited to, scheduling and dispatching
the drivers, routing instructions, loading and unloading proce-
dures and all others relating to the day-to-day private carriage
operation of [the factory].
7 As an exemplar, see driver Christopher Morgan’s August 23,
1985 application for group health insurance. TU Exh. 45. It is a TU
form, not an insurance company form.
as particularly significant to the relationship as it existed in
1990.
In addition, the Board has now become more cautious in
its acceptance of so-called control evidence either mandated
by contract or mandated by Government regulation. Prior to
its decision in TLI, Inc., supra, the Board had been inconsist-
ent in the manner in which it had handled such evidence. On
the one hand, cases such as Portage Transfer Co., 204
NLRB 787 (1973), and Teamsters Local 814 (Santini Bros.),
223 NLRB 752 (1976), had held that Government regulations
(e.g., those of the Interstate Commerce Commission and the
Department of Transportation) mandating companies to exer-
cise control over safety checks, driver health and qualifica-
tions, applications, road tests, and maintenance or driving
logs were not evidence of a joint employer relationship. On
the other, in cases such as Robbins Motor Transportation,
225 NLRB 761 (1975); Mitchell Bros. Truck Lines, 249
NLRB 476 (1980); and Redieks Interstate, 255 NLRB 1073
(1980), the Board had utilized Government regulations which
mandated such control as evidence of a joint employer rela-
tionship.
When faced with the decision of the United States Court
of Appeals for the District of Columbia Circuit in Seafarers’
Local 777 v. NLRB, 603 F.2d 862 (1978), the Board began
to reconsider the efficacy of that type of evidence. See Air
Transit, 271 NLRB 1108 (1984), and Don Bass Trucking
Co., 275 NLRB 1172 (1985). Those cases applied the Local
777 rationale to find that independent contractors were not
employees, for the control which their putative employer ex-
ercised was mandated by Government regulations. Based on
evidence of that nature, the respondent could not be charac-
terized as their employer.
In 1986, in Container Transit, 281 NLRB 1039 (1986), the
Board overuled Robbins, Mitchell Bros., and Redieks ‘‘[T]o
the extent that they may indicate the control stemming from
governmental regulations is the determinative factor in the
assessment of independent contractors versus employee sta-
tus.’’ Supra at 1039 fn. 4. Similarly, see Precision Bulk
Transport, 279 NLRB 437 (1986).
B. The Operational Control Clause
Even before those Government regulation cases were over-
ruled, however, the Board had directly faced the operational
control clause of a lease arrangement which is identical to
the one found here. Again, applying it to a joint employer
situation, it found the clause was not evidence of actual con-
trol because it did not meaningfully affect the factors set
forth in Laerco, supra, i.e. hiring, firing, disciplining, daily
supervision, and direction. See TLI, Inc., supra at 798. With
those principles in mind, I turn to the evidence presented by
counsel for the General Counsel.
The so-called operational control clause found in the
agreement between Goodyear and TU is virtually identical to
that discussed in detail in TLI, Inc., supra. Indeed the Gen-
eral Counsel acknowledges that fact at page 52 of his brief.
Compare TU Exhibit 3 with the same clause in TLI, Inc.,
271 NLRB 798 at 803.6 Likewise, see the clause in Osco
Drug, 294 NLRB 779 (1979). In both cases, the Board held
that the presence of the operational control clause, in and of
itself, was not evidence of joint employer status. Instead, the
Board determined it was more appropriate to look to the ac-
tual handling of day-to-day business.
Thus, as a matter of law, I conclude that the operational
control clause set forth in the contract between Goodyear and
TU, standing by itself, is not evidence that Goodyear is a
joint employer with TU of the drivers in question. The Gen-
eral Counsel asserts, however, that the insertion of RDR as
the entity which performed the dispatching somehow changes
the calculus. Rather than more closely connecting TU to
Goodyear, it more likely further distances the two. If, as in
TLI, Inc., the factory did its own dispatching, and yet the
Board found the clause not to be evidence of joint employer
status, the insertion of a contractual dispatcher does not make
TU and Goodyear any closer. At best, assuming a contract
dispatcher is the factory’s delegee, they remain the same dis-
tance apart; at worst they are further apart than the factory
and the transportation company were in TLI, Inc. Accord-
ingly, the General Counsel’s attempt to distinguish the case
is unsuccessful.
C. Wage and Fringe Benefit Matters
It is certainly true that an appendix to the Goodyear-TU
contract sets forth the wage reimbursement schedules under
which Goodyear paid TU for the cost of labor which TU
provided. These figures varied from year to year as the con-
tract was renegotiated on an annual basis. It also sets forth
a margin. In generic terms, this is nothing more than a
‘‘cost-plus’’ contract, i.e., one in which the party providing
services is reimbursed based on his actual cost of those serv-
ices plus a prearranged profit.
The contract determines the formula by which the drivers
are to be paid, i.e., a mileage rate while actually on the road
plus a demurrage rate for waiting time. Furthermore, it ap-
pears that one of RDR’s duties as the contract dispatcher,
was to perform timekeeping services for those drivers. Thus,
TU based its wage payments on information which was pro-
vided to RDR by each driver, which it confirmed and then
transmitted to TU’s Cleveland headquarters for payment.
RDR also served as a repository for drivers’ logs and other
records mandated by the Department of Transportation and
the Railroad Commission.
The contract does not clearly require TU to provide the
drivers with fringe benefits. In 1985, when the drivers were
first hired, they had been told that they would shortly be
converted to RDR employees and would be given Ryder uni-
forms and be provided with Ryder fringe benefits. Even so,
TU took steps before they began to work to cover these driv-
ers with health insurance7 through an insurance provider with
whom it normally dealt, Diversified Services, Inc. Beginning
in late 1985 all of the drivers became eligible for TU-pro-
vided health insurance.
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The General Counsel sought to demonstrate, through the testi-
mony of driver-witnesses, that they believed the IRA payments were
made by Goodyear. However, as these witnesses had no competency
to know, the testimony was not received.
9 Navarre had refused, saying it would be paid only if TU okayed
it.
It seems unlikely that there was any confusion about who
provided the insurance. One driver made a claim under that
policy for his spouse’s illness. Although the plan provided
for family coverage, it did not instantly cover preexisting
health conditions. When the insurance company denied the
claim because it was a preexisting condition, the driver
sought the assistance of TU’s Negrey to try to persuade the
insurance company to reimburse the medical bill. The driver
acknowledged that Negrey had attempted to do so but had
failed. He did not seek assistance from Goodyear or RDR,
no doubt because he knew they were not involved.
In 1989, after some carping by some of the drivers, TU
created for each of them a retirement savings account known
as an ‘‘individual retirement account’’ or IRA. It made pay-
ments directly into those accounts created for each driver.8
From the documentation, it appears that the IRA payment,
like the health insurance premiums, were paid by TU from
the gross profit portion of its receipts from Goodyear.
Driver Charles Zerengue testified that once in 1990, he ex-
perienced a problem receiving holiday pay. Although he
complained regularly to RDR officials such as Navarre,9 the
problem was not resolved until he went to the TU official
in charge of the operation at the time, Parrish, who referred
him to Negrey. Negrey eventually approved it.
Although it does appear that the contract sets forth the
wage reimbursement, and one might argue, as the General
Counsel does, that this constitutes the ‘‘codetermination’’ of
a wage, I do not believe that that characterization is what the
Board or the courts had in mind when using the phrase
‘‘share and codetermine’’ essential terms such as wages. A
contractual agreement, between two companies, utilizing
cost-plus concepts, is not the type of arrangement which ei-
ther Browning-Ferris or TLI, Inc. was discussing. If they
were, all cost-plus agreements would become joint employer
relationships. Neither the courts nor the Board has ever ex-
pressed such an intention. Indeed, cost-plus contracts are
common. Such an interpretation would significantly disrupt
thousands of such agreements. Moreover, it is quite clear that
TU had sole control over at least two aspects of the employ-
ees’ remuneration, health insurance, and retirement.
I conclude, therefore, that the factor of wages and fringe
benefits does not provide the General Counsel with persua-
sive evidence of a joint employer relationship.
D. Hiring—August 1985
Counsel for the General Counsel called eight drivers who
testified about the manner in which they were hired in Au-
gust 1985. Some testified conclusionarily that they had been
hired by Ryder and/or Goodyear, ignoring TU altogether. At
least one driver tried to claim, without foundation, that a
Goodyear vice president was present during the process. Oth-
ers were aware of and recognized that their hiring by TU
was a temporary arrangement while ‘‘Ryder’’ obtained intra-
state hauling authority. Drivers Read, Cain, Zerengue, Rains,
and Brown all gave testimony which demonstrates that they
knew they were being hired by TU as an interim arrange-
ment pending their being transferred to Ryder. Still others
acknowledged that TU was their direct employer. For exam-
ple, Read, Fontenot, Cain, Zerengue, Rains, and Brown all
testified that they knew TU was their employer.
The last cited testimony does not seem particularly re-
markable considering the fact that each of them filled out TU
job application forms and TU paid for their physical exami-
nations. This does not mean that RDR and/or Ryder Truck
were not involved in the hiring process. Clearly they were.
Many of the applicants were interviewed by Navarre or an-
other RDR official. However, driver Hoke testified Navarre
did not do the actual hiring, TU did. Only one driver, Mor-
gan, claims that Goodyear was involved at all. He said a
Goodyear vice president from Akron, Ohio, was present. He
was unable accurately to give that individual’s name; he did
not know the person and could give no positive identifica-
tion. Frankly, his evidence has no foundation whatsoever. In
view of the fact that Morgan stands alone and the fact that
the General Counsel was unable to lay a foundation regard-
ing the nature of his knowledge, Morgan’s testimony must
be discounted altogether.
Furthermore, none of the drivers knew exactly how their
applications were processed after they turned them in. It ap-
pears that at least one TU official, Negrey, was on the scene
at the time of the hiring. It also seems likely that it was not
particularly difficult for Negrey or any person familiar with
the requirements which this type of driver must meet, to de-
cide which applicants should be hired.
After a preliminary determination was made to hire each
of these individuals, they were all sent to the Ryder Truck
yard where they were given a driver’s test by a Ryder Truck
safety official to determine whether they met the Department
of Transportation competence requirements. Aside from that
involvement, Ryder Truck seems to have had no other role
in the hiring process.
Although one could speculate regarding what might have
happened had a particular driver failed the driver’s test, there
is no evidence that occurred. Even had a driver failed such
a test, it seems likely that the failure would be based on
standards set not by Goodyear, TU, or Ryder Truck, but by
the Department of Transportation. Thus, if an applicant failed
to meet those standards, it would not be due to any inde-
pendent decision made by Ryder Truck.
Moreover, the General Counsel has not shown what
weight the interviews were given in the decision-making
process with respect to who actually was chosen. Specifi-
cally, all the witnesses testified they were interviewed by a
person whom they thought to be either a Ryder individual
(and of course they could not distinguish between any of the
Ryder entities) or a TU person. The one thing about which
they were fairly certain was that no Goodyear representative
interviewed them. Nonetheless, the General Counsel has not
shown what role the interviews themselves played in the hir-
ing process. Principally, he has not shown that the Ryder
interviewers did anything other than to perform a personnel
assistant’s clerical role, to take information and determine
that the applications had been filled out properly.
Although one might conclude that it was Ryder who had
the sole input on the decision, that is only speculation. Even
so, because it is a given that the individuals being hired were
believed destined to become Ryder employees when the fore-
679GOODYEAR TIRE & RUBBER CO.
10 Hebert testified that she did not actually fill out her TU applica-
tion form and related documents until 3 months after she had gone
to work. She claims somebody backdated the documents which were
received in evidence. Nonetheless, all those documents are TU docu-
ments.
11 Mancil did testify that she overheard half of a telephone con-
versation between Navarre and Parrish and that Navarre insisted that
Hebert be terminated despite Parrish’s supposed preference to only
suspend her. She claims Navarre insisted on the termination and that
therefore Navarre in fact terminated Hebert. Her testimony cannot be
credited on the point. She only heard half the conversation and has
no direct knowledge of what Parrish wanted to do. If Parrish and
Navarre were discussing Hebert’s circumstances, she had no way of
knowing what Parrish had to say. Moreover, Navarre denies that ver-
sion.
12 The Ryder respondents have moved that portion of the General
Counsel’s brief referring to Yates be stricken as being outside the
record. Although not evidence, I observe that its physical location
Continued
seen TU involvement ended, it would be no surprise if RDR
had some involvement in the process. Certainly, the drivers
were going to be driving Ryder Truck leased vehicles at the
very least. On the other hand, one cannot successfully assert
that TU had no role. The applicants were completing TU pa-
perwork, not Ryder’s. Without proof to the contrary, one
must presume the decision-making authority rested with TU,
which had Negrey on the scene overseeing the entire process.
In the post-1985 hires, RDR’s role in hiring diminished.
E. Hiring After 1985
The General Counsel called five drivers as witnesses who
were hired after it became clear that RDR was not going to
get authority from the State of Texas to operate intrastate.
These were Ozio, who was hired in March 1986; Lincoln
who was hired in 1987; and Coney, Sonnier, and Hebert all
of whom were hired in 1990.
On direct, Ozio testified he was hired by Navarre to go
to work for Ryder in about March 1986. However, on cross-
examination he acknowledged that he knew he was going to
work for TU because he had learned from his brother-in-law,
also a TU driver, that TU was hiring drivers for the chemical
runs. Navarre, who interviewed Ozio, recommended that TU
not hire him. Negrey hired him anyway.
On direct, Lincoln testified that he thought he was being
hired by Ryder, but admits within a week he was aware that
his actual employer was TU. He subsequently advised others
that his employer was TU and has never suggested it was
RDR. The other entities whom he told his employer was TU
include the unemployment insurance office and other em-
ployers with whom he sought employment. He worked for
TU for over 2 years and was well aware that his employer
was TU, not RDR.
Coney testified that he was hired to work for RDR by
Navarre, his interviewer. However, he quickly agreed that he
had no knowledge regarding TU’s decision-making proce-
dures.
Sonnier testified that Navarre hired him to work for Ryder,
but he also said on cross-examination that he knew from a
friend, who had told him to apply for the job, that TU was
the employer. Below it will be seen he was actually em-
ployed by both entities.
Lisa Hebert was hired as a chemical driver on February
15, 1990. She said she was interviewed by Navarre who told
her to go to work the next day. She also acknowledges that
on the day she reported for work she knew she was working
for TU, not Ryder. She said Navarre laid her off in April,
but TU’s Negrey recalled her in June.
All five of these individuals filled out TU job application
forms,10 took physicals paid for by TU, and were carried on
the TU payroll as being covered by the TU health insurance
and the TU IRA plan (if they had been employed long
enough to meet the IRA eligibility rules).
F. The Termination of Employees
There is not really a great deal of evidence with respect
to employee termination except for the December 16, 1990
layoff of the chemical drivers. That of course was mechani-
cally accomplished by TU. The letters of termination are all
signed by TU officials and there is no suggestion that Good-
year or RDR officials were in any way involved in the me-
chanics.
Except for that instance, the only other discharge is that
of Hebert on November 29, a few days after Goodyear had
officially notified TU that its contract was being canceled.
Her discharge is alleged to be a violation of Section 8(a)(3)
and (1) of the Act. It will be discussed in greater detail
below. Nonetheless, it is significant to note that she was dis-
charged immediately after admitting falsifying her Depart-
ment of Transportation driver’s log. The falsification came to
the attention of RDR dispatcher Tammy Mancil. Mancil re-
ported the falsification to TU Regional Manager Jerry Parrish
who investigated the circumstances and made the decision to
discharge her. All the termination documentation came from
him. There is no suggestion that Goodyear had anything
whatsoever to do with it. RDR’s only involvement seems to
have been dispatcher Mancil’s report to Parrish. Mancil her-
self is also alleged to be a victim of Section 8(a)(3) of the
Act and is clearly a statutory employee employed by RDR,
not TU or Goodyear.
Thus, there is no evidence that RDR management played
any significant role in triggering Parrish’s investigation. Par-
rish obtained, by telefax, copies of Hebert’s log from Mancil.
Furthermore, it is accurate to say that Parrish later made a
mild joke to Navarre about his decision to discharge her.
Nonetheless, there is no evidence whatsoever that RDR
played any role in the discharge except to report a trans-
gression of the Department of Transportation hours and log-
ging rules.11
The General Counsel also seeks to have me consider,
posthearing, a letter dealing with Goodyear’s role in the ter-
mination of a TU driver named Bobbie Yates. The letter,
dated November 16, 1989, is signed by TU’s then regional
manager, Painter. First, the letter is in the record only as part
of the formal file (G.C. Exh. 1(xxx), Tab C., p. 6). It was
offered in support of an argument made in a pretrial sum-
mary judgment motion (although it is not clear why it was
included since the remainder of that subexhibit deals with
Ryder’s attempts to obtain intrastate hauling authority). The
letter was not referred to or offered at all during the hearing.
Accordingly, although it may technically be a part of the
record, it is not evidence.12 There is no showing why the
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is most obscure. It is found as the sixth page in the third (of 15)
lengthy exhibits to Goodyear’s prehearing Motion for Summary
Judgment. Thus, although served on all parties at that stage, it was
not part of the hearing. Indeed, because the Board’s traditional prac-
tice is to provide only an index to the formal documents to non-
Board parties at the outset of the hearing, those parties must engage
in collating those documents separately for their use. Normally that
is unnecessary because only the operative documents, the complaint
and the answer, are of significance. In this instance, however, there
are 104 formal exhibits (many with attachments) and RDR is well
within its rights to complain that the Yates letter is outside its view.
It is not in evidence and is buried in uncollated and inoperative pa-
perwork.
13 TU’s drivers were divided into an ‘‘A Team’’ and a ‘‘B Team’’
for scheduling purposes.
General Counsel failed to adduce it or otherwise deal with
it during the course of the hearing. Had counsel for the Gen-
eral Counsel wished to rely on such a letter for the purpose
of proving his case, no doubt he would have offered it dur-
ing his case-in-chief. Therefore, I hesitate to consider the let-
ter because no respondent has had the opportunity to deal
with it. The fact that it was offered for the limited purpose
of supporting a prehearing motion does not make it evidence
for the purpose of this motion, necessarily based on the
record as actually made.
Nonetheless, the matter remains somewhat ambiguous. It
would appear from the face of the letter that the individual
in question had had an accident while driving a chemical
truck, probably carrying isoprene. Isoprene is at least a haz-
ardous, if not ultrahazardous, material. See the Department of
Transportation regulation, 49 C.F.R. § 172.101 which classi-
fies it as a ‘‘flammable liquid.’’
Given the fact that the State of Texas up to that time had
not permitted Goodyear to cause that material to be trans-
ported by common carrier due to the hazardous nature of the
cargo, it is clear that Goodyear, as a private carrier, had an
obligation under state law to rid itself of drivers whose be-
havior and record risked the safety of the public. Texas tort
law holds that liability for an accident with that material is
nondelegable (see Greyhound Van Lines v. Bellamy, 502
S.W. 2d 586 (Tex. Civ. App. 1973)); indeed, nondelegability
is imposed as a condition of holding the private carriage per-
mit to operate on Texas highways. Therefore, if Goodyear
asked for the discharge of an individual such as Yates be-
cause of her dangerous driving, it would not be because it
was attempting to control the day-to-day conduct of the driv-
er, but to eliminate what it reasonably deemed an unaccept-
able hazard which under state law it was liable.
Because liability, at least until late 1990, could not be
shifted to a third party, Goodyear’s apprehension over its po-
tential liability is appropriate. It is consistent with the oper-
ational control clause of the lease agreement. That is, be-
cause the operational control clause is designed to force con-
tractual compliance with the Texas law on liability, the exer-
cise of rights under that clause is simple compliance with
Texas law on matters of liability, nothing more. Therefore,
it cannot be used as controlling evidence that a joint em-
ployer relationship existed.
Accordingly, even if I were to receive the document re-
garding Yates, it would not constitute evidence of anything
other than exercise of the operational control clause, some-
thing which the Board has already held not to be of signifi-
cant weight in determining joint employer status under the
Act. It certainly does not demonstrate day-to-day control
over this particular driver. As previously noted, this docu-
ment is not in evidence and there has been no testimony
about it. Therefore, my observations here are to some extent
without the benefit of argument; nonetheless, I decline to
consider it. To that extent, the motion to strike is granted.
G. Discipline, Including Warnings, Reprimands,
and Suspensions
The General Counsel’s strongest witness with respect to
supposed disciplinary proceedings levied against a TU chem-
ical driver by either RDR or Goodyear is Alvin Ozio. Ozio
says he was hired in March 1986 although his job application
with TU shows it to have been on May 21, 1986. Ozio de-
scribed five incidents which the General Counsel asserts con-
stitute discipline by companies other than TU.
The first incident occurred sometime shortly after Ozio’s
hire. He says Navarre gave him a reprimand for speeding
within the confines of the Goodyear chemical plant. He
claims Navarre had observed him exceeding the plant’s
speed limit and told him, ‘‘I am giving you a warning, a
verbal warning.’’ Nothing further was ever said about the in-
cident and there is no record of it. Navarre has no recollec-
tion of the incident at all. At best this incident can only be
seen as a routine admonishment that safety rules be adhered
to within the plant. It is obvious that a chemical plant of this
type requires everyone to be constantly aware of and avoid
safety hazards.
The second incident appears to have occurred sometime in
early 1987. Ozio says he attended a safety meeting at the Ra-
mada Inn in Beaumont; the meeting was conducted only by
Navarre and no TU or Goodyear personnel were present. The
drivers who attended were the 12 drivers from the so–ca–lled
‘‘A Team.’’13 After some general business and safety mat-
ters, Ozio says Navarre began ‘‘passing out written state-
ments for reprimand.’’ When he got to Ozio, Navarre sup-
posedly put a statement in front of him saying that he had
been seen speeding over the San Jacinto River Bridge in ex-
cess of 60 miles an hour on a specific date. Simultaneously,
he testified Navarre told him he was getting ‘‘three days
off.’’ Ozio argued the point asserting that he had not been
at the location on the date in question and challenged
Navarre’s proof. He says Navarre told him to shut up unless
he wanted a week off. Accordingly the discussion ended.
Aside from Ozio’s testimony, there is no evidence that any
of this occurred. Ozio said he did not save the written warn-
ing. Moreover, the General Counsel has offered no support-
ing proof that Ozio actually was suspended for 3 days. The
missing documentation is very curious. It allegedly shows
that Navarre, an RDR supervisor, directly disciplined a TU
employee. Ozio’s explanation that he discarded the document
seems most unlikely. However, if he did so, the General
Counsel would have been aware that an essential document
was missing and would have made an effort to show that
Ozio actually lost 3 days’ work by demanding production of
the appropriate records, either personnel or payroll. He did
not do so.
The next incident which Ozio described seems to have oc-
curred in 1989, but his recollection is vague. He could only
say that he thinks it occurred during the third year of his em-
681GOODYEAR TIRE & RUBBER CO.
14 I do not rely, at this time, on TU Exhs. 7 and 8 which are not
yet in evidence. They assertedly show two 1988 reprimands issued
to Ozio by TU’s Painter regarding both incidents. Ozio would not
acknowledge having received them and at this stage of the case they
have not yet been authenticated and have therefore not been offered.
Nonetheless, Ozio’s refusal to acknowledge the two letters seemed
insincere. They bore his address (except for an incorrect zip code)
and his contentiousness on the point seemed artificial. He did ac-
knowledge receiving TU Exh. 9, also mailed to his address with the
incorrect zip code, in which TU’s Parrish discussed a workman’s
compensation and health insurance claim which Ozio had made
under the TU health plan.
15 The meeting involved the layoff of drivers from an operation
known as ‘‘Wall Street.’’ The record does not show exactly who the
Wall Street drivers were, but it is apparent that they were being dis-
patched regularly by RDR from Beaumont. I infer that they were di-
rectly employed by RDR.
ployment. While driving through another chemical plant,
Ozio had a minor accident in which he blew a trailer tire and
dented a fender. He reported it to a dispatcher at Goodyear
who told him to get the tire repaired and return to the office.
After doing so he says Navarre called him to the office and
asked about the incident. When Ozio described it to him, he
says Navarre told him he was suspended for a week without
pay. He first testified that he was suspended for 7 days but
on cross-examination he says he was taken out of service for
only 3 days.
The fourth incident occurred on the highway near a Shell
Chemical plant at Deer Park, Texas. Ozio thinks it occurred
sometime during the first part of 1989. A member of the
public claimed Ozio had run him off the road and called the
Goodyear plant to complain. When Ozio arrived at the plant
and parked his truck he went to the dispatch office. He was
asked by dispatcher Mary Ellen Melonson if he had had an
incident with a car. Ozio says she was on the telephone at
the time with Navarre. When she advised the person on the
telephone that Ozio had acknowledged having had an inci-
dent, she told Ozio, ‘‘Bill told me to get you to the other
side of the gate until further notice.’’
Believing he was being terminated, he declined to follow
that direction saying he was going to see Jim Beverly, Good-
year’s director of transportation. He says Mary Ellen relayed
that message to ‘‘Bill’’ on the other end of the phone. Then
he said Mary Ellen told him ‘‘No, the old man is going to
tear [you] up, tell him not to go down there.’’ Ozio would
not accept that caution and went to see Beverly anyway. He
says he explained to Beverly what had happened and that it
had occurred on his second load of the day. He says Beverly
told him to get back on the road and pull his third load. He
did so. Ozio says nothing further was ever said about the en-
tire incident, not the accident itself or his supposed disobe-
dience of Navarre’s direct order not to go to Beverly.
Navarre did not recall either the accident incident or the
incident in which the dispatcher told Ozio to get outside the
gate.14
The last incident about which Ozio testified was a written
reprimand he supposedly got from an RDR safety man, John
Vadis, sometime during mid-1990. He says it concerned his
having followed a flatbed truck too closely. Ozio says Vadis
told him that the reprimand was to be put into his permanent
file, and gave it to David (Bienvenu). Although Ozio was
given a copy of the reprimand he did not produce it. He says
Bienvenu later removed it from his file.
Frankly, it is unclear into which file Vadis would have
placed such a document. Permanent employee files are main-
tained by TU in Cleveland. RDR maintained only licenses,
certifications, inspection reports, time records, and logs at the
Goodyear dispatch office. Furthermore, Navarre credibly tes-
tified that Vadis, as a safety man, had no authority to dis-
cipline TU drivers; indeed, it is not clear that as a safety man
he was a supervisor or had the authority to discipline even
RDR employees.
On the whole, I find myself in agreement with all three
Respondents that Ozio’s testimony is either exaggerated or
deliberately incomplete. Certainly the absence of supporting
documentation, even though it supposedly existed, does not
assist the General Counsel here. Furthermore, both prob-
ability and demeanor favor disbelieving Ozio on critical
points. Finally, as will be seen, Ozio seems starkly alone in
his description of these matters. Thus, even if he were cred-
ited, given the fact that they occurred over a 4-1/2 year pe-
riod, they are so infrequent and have occurred under such
ambiguous circumstances as to be accorded little signifi-
cance.
The next individual whom the General Counsel contends
was suspended by RDR is Robert Brown. Brown had been
hired in 1985 as an isoprene driver. He quit in July 1989.
He testified that he was suspended on two occasions, the first
in January 1987 and the second sometime in June 1989.
On the first occasion he said RDR’s Navarre telephoned
him and told him not to come to work because he had been
suspended for improper and unsafe driving, i.e., tailgating,
blowing his horn, and blowing kisses. Brown denied the mis-
conduct. He says Navarre told him that ‘‘Goodyear’’ was
upset and wanted him fired. He says Navarre told him he
had talked ‘‘them’’ into giving him a week off instead.
Brown also says Navarre told him he knew some of the con-
duct, i.e., blowing kisses, was totally out of Brown’s char-
acter. However, by letter dated January 8, TU’s Negrey sus-
pended Brown for 3 days. The letter states, ‘‘We have been
advised by our customer The Goodyear Tire & Rubber Com-
pany that a young lady reported that the truck you were as-
signed to drive on January 1, 1987 was reportedly tailgating
her car . . . . She further reported to the Goodyear manage-
ment people that the driver (which was positively identified
as you) was making hand gestures and blowing the air
horn.’’ Brown wrote Negrey back on January 29 denying the
incident in its entirety and complaining that Negrey had
taken the word of a stranger over ‘‘your own employee.’’
The second suspension in June 1989 was directly handled
by TU’s Jack Painter. This followed an argument which had
occurred a few days previously between Brown and RDR’s
Bienvenu. Brown had accused Bienvenu of improperly rotat-
ing loads among the TU drivers. Brown believed he had a
low load count and was entitled to some additional runs.
Moreover, he believed Bienvenu was showing favoritism to
a boyfriend of one of the dispatchers. He went down to a
local hotel where Bienvenu was having a meeting.15 Brown
admits calling Bienvenu ‘‘a few wild words’’ and agrees he
would not deny having been abusive to Bienvenu.
On June 15, 1989, TU’s Painter wrote Brown a letter say-
ing, ‘‘We have been advised by our customer, Goodyear Tire
and Rubber Company, that you were involved in a serious
incident on June 9, 1989. You used abusive and threatening
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 All the trucks driven by TU drivers were marked with the
Goodyear logo, including the legally required references to Goodyear
as the holder of the permit.
17 Brown is a 6-foot 2-inch man and weighs over 220 pounds.
Bienvenu is of much smaller stature.
18 It should be noted here that although Zerengue gave two affida-
vits to the Board agent who investigated the case, he never described
the incident prior to the hearing.
language to your supervisor. Confrontation is not the best
way to resolve problems, especially in public places.’’ Paint-
er went on to suspend Brown for 3 workdays and warned
him that additional incidents of that nature could result in
further disciplinary action ‘‘up to and including discharge.’’
Neither of these incidents demonstrates that Goodyear or
RDR had any decisional input into the discipline which TU
meted out. It is apparent in both cases that the actual deci-
sion was made by a TU official, although in the first, com-
munication of the decision came from the RDR dispatching
office.
In the first incident, there is absolutely no evidence that
Goodyear decided anything. It is true that the member of the
public complained directly to Goodyear about the incident on
the highway.16 However, at best all Goodyear did was to re-
port the incident either to TU or to RDR. It is not clear
where the Goodyear report initially went. Furthermore, al-
though Brown asserts that he had heard Goodyear’s Beverly
was the individual who was angry with him, he does not ac-
tually know that. Brown never discussed it with Beverly. His
information is based on hearsay from other drivers. Brown
does describe a conversation with Navarre which is at best
unclear with respect to who was deciding what. He says
Navarre told him he was being suspended for a week, rather
than being discharged as ‘‘Goodyear’’ had requested. He
claims that Navarre told him that he, Navarre, had decided
to reduce the discharge to a week’s suspension. However, the
TU documentation, signed by Negrey, differs significantly.
Negrey’s letter suspended Brown for only 3 days, not a
week.
When Brown chose to complain about the discipline, be-
lieving it to have been based on misinformation, he went
straight to TU’s Negrey, saying nothing about what Navarre
had supposedly said and nothing about Goodyear. It is appar-
ent that he well knew the decision had been made by
Negrey, not by anybody else. Furthermore, he was seeking
redress from Negrey.
In the second incident, it is obvious that the decision was
made by TU’s Painter and not by Bienvenu or Navarre.
Moreover, in reviewing Painter’s letter it is obvious that
Bienvenu was most upset over the confrontation, and be-
lieved himself to have been in physical danger.17 Taking
Painter’s letter at its word, it appears that Bienvenu initially
reported the confrontation to someone at Goodyear who in
turn relayed it to TU. It is evidence only that Goodyear re-
layed Bienvenu’s complaint to Painter who acted on it. There
is no evidence that Goodyear actually made a decision. It is
true that Painter’s letter refers to Bienvenu as Brown’s ‘‘su-
pervisor,’’ but in the overview that reference seems to be in-
significant. If Bienvenu had truly been Brown’s supervisor
he would have taken action himself or through Navarre and
not bothered to have reported the matter to someone else.
In conclusion, there is no evidence that Goodyear or RDR
played any decisional role in suspending Brown on either oc-
casion. It is true that they reported facts to TU’s manage-
ment, but the documentation clearly shows that the decisions
were made by TU management officials.
The next driver to whom the General Counsel points is
Charles Zerengue. Zerengue suffered two suspensions. The
first occurred in early 1987 after he made a serious error by
failing to check his documentation against the product which
was loaded onto his tank trailer. He had been sent to a ven-
dor to pick up a load of a product known as ‘‘Stream 11’’
but failed to notice that the vendor had loaded isoprene in-
stead. At some point, not clear in the record, the isoprene be-
came mixed with Stream 11. Whether that occurred in the
tank of the truck or at a storage tank at the Beaumont facility
is unclear to me. Nonetheless, the error was regarded as sig-
nificant. Zerengue downplays his responsibility in the matter
saying he wasn’t the one who loaded the truck. However, it
is undisputed that it is the driver’s responsibility to check the
paperwork which the dispatcher gives him and to make cer-
tain that the proper product is loaded in accordance with the
order.
After he returned home, he received a telephone call from
RDR’s Bienvenu. Zerengue says Bienvenu told him that
Goodyear’s Beverly had suspended Zerengue ‘‘until further
notice.’’ Bienvenu told him that the contaminated load had
cost Goodyear ‘‘a bunch of money to clean up.’’
As soon as Bienvenu hung up, Zerengue called TU’s
Negrey in Cleveland. He had to wait a while for Negrey to
return the call. When he did, Zerengue says he asked Negrey
what the heck was going on; he says Negrey asked him to
tell him what had happened. Zerengue then described in fac-
tual detail how the load had become contaminated, explain-
ing to Negrey that he believed it was the vendor’s error, not
his. He told Negrey that he hadn’t been home more than 45
minutes when Bienvenu called him to tell him that Beverly
had put him on suspension until further notice. Zerengue said
Negrey told him he would look into it and call him back.
He says that several days later, after calling Bienvenu to
find out what was happening, Negrey called him. Negrey
told Zerengue that he had some good news and some bad
news. Zerengue says Negrey said, ‘‘The good news is, Mr.
Beverly said that you got your job back.’’ The bad news is,
‘‘He give you [sic] a two week suspension.’’ The two then
went through the entire incident in detail with Zerengue con-
tinuing to assert that he hadn’t been fairly treated. Negrey
suggested that he just forget about it and go on. Eventually
Zerengue did exactly that.
By letter dated June 10, 1987, Negrey put the suspension
in writing. His letter states:
We have been advised by our customer, The Goodyear
Tire & Rubber Company, that you were involved in a
serious incident on May 30, 1987, whereby you were
scheduled to pick up a product ‘‘Stream 11.’’ Instead
you picked up ‘‘Isopreme’’ [sic] and consequently the
product was contaminated and ruined at a substantial
loss. We have gone over the procedures about review-
ing paperwork and have no other alternative at this
point but to suspend you for six working days. The sus-
pension will commence at the discretion of dispatch
upon receipt of the copy of this letter.
A copy of that letter was sent to RDR’s Navarre.18
683GOODYEAR TIRE & RUBBER CO.
19 Zerengue also described two verbal reprimands. He said the first
was given him in February 1989 by RDR’s Bienvenu for supposedly
failing to perform a posttrip inspection. Assuming that occurred, it
is quite clear that Bienvenu would have been enforcing a TU work
rule. See Rule 1.5(5). In the incident, Zerengue’s failure to perform
that inspection resulted in an unroadworthy truck being assigned to
perform a run. Fortunately, the subsequent driver noticed the defect.
The second incident involved both TU’s Painter and RDR’s Navarre
sometime in April 1990. Both summoned Zerengue into a private
room where, Zerengue says, Navarre reprimanded him for failing to
timely complete his runs. The fact that Navarre did the speaking is
of little significance, for undoubtedly Navarre was speaking with
Painter’s approval. In any event, it is not clear that either of these
incidents constituted discipline. The first may have, the second prob-
ably did not. Neither was reduced to writing and both can be seen
as reminders rather than discipline.
The second suspension occurred during the spring of 1989.
He had had a minor accident in the Goodyear yard and had
filed an accident report. The next day when he reported for
work, an RDR dispatcher relayed the message that he was
to call Jack Painter. When he did so, Painter told him he was
being suspended for 3 days because of the accident.
The General Counsel argues that the decision must have
been at the behest of RDR because Painter had not discussed
the accident with Zerengue before suspending him. The Gen-
eral Counsel clearly overstates the circumstances because
Painter undoubtedly knew what Zerengue’s factual descrip-
tion was through Zerengue’s own accident report. It is rea-
sonable to assume that after Zerengue filed the report with
the dispatch office it was communicated to Painter.
Later, in July 1990 Zerengue was seen by a dispatcher
going through papers on Navarre’s desk. The matter was re-
ported to Parrish who on July 6 had a telephone conversation
with Zerengue in which he asked Zerengue’s version of the
facts. On July 19, Parrish wrote Zerengue a letter saying
‘‘We have been advised by our customer, Goodyear Tire and
Rubber Company, that you were involved in an incident on
the evening shift of July 4, 1990. You reportedly came into
work snidely and bitterly complaining about the previous
week’s payroll. The dispatcher on duty was unable to answer
your questions regarding same, and you were told to ask Bill
[Navarre] about it the following day. At this time you began
looking in several file cabinet drawers, and on Meri’s desk
you were looking at the payroll printout.’’ The letter con-
cluded by admonishing him, in somewhat vague terms, that
such conduct was unprofessional and that he was to avoid it
in the future. It ended with the statement that the letter was
to be considered a ‘‘verbal warning.’’
It it quite apparent that the discipline described in the last
two incidents was meted out solely by a TU official, first
Painter then Parrish. There is no realistic hint that the deci-
sion-making process included RDR or Goodyear. The 1987
incident is somewhat suspect for a number of reasons, in-
cluding Zerengue’s credibility in other areas of his testimony.
With respect to his description of the incident itself, the ref-
erence to Beverly’s involvement is entirely second hand. It
occurred almost 4 years before Zerengue made any effort to
describe it. In addition it is clear that Zerengue was exercised
about what he regarded as the unfairness of it all and he
strongly believed, accordingly to his version, that Beverly
had made the decision. He complained mildly to Negrey
about its unfairness, yet he never spoke to Beverly about the
unjustness of it all.
In addition, Zerengue gave some factually disbelievable
testimony with respect to his perception about who employed
him. For example, he claimed it took him about a year after
his hire before he realized he was a TU driver rather than
a Goodyear or Ryder driver. He attempted to persuade me
that he had never received a copy of the TU drivers’ rules,
implying that the rules needed to be given to him personally
before he would acknowledge their existence. In fact, they
had been posted at the dispatch office in November 1985.
Furthermore, he actually acknowledged receiving his own
personal copy by his signature dated December 17, 1986. He
weakly covered by saying he didn’t recall signing for it. In
addition, he said that he thought the rules were RDR’s, not
TU’s. The evidence shows however that they are headed
with the TU logo; other evidence shows they were actually
drafted by Negrey.
My impression of Zerengue is that his testimony is not to
be trusted. He has clearly come to understand that for the
complaint to succeed all three Respondents must be shown
to have control over his circumstances. In this regard it is
very easy for him to have fabricated Beverly’s supposed in-
volvement in a 1987 incident. Because of its age, no one’s
contrary recollection would be any better than his, and his
would stand a reasonably good chance of being credited. Un-
fortunately, his failure to confront Beverly over the matter,
together with more clear facts as found in the subsequent in-
cidents, and his own lack of credibility undermine acceptance
of his recollection of the 1987 incident. Thus, to the extent
that the complaint relies on Zerengue, it fails.19
The General Counsel also relies on the testimony of driver
Christopher Morgan. The first is more of an anecdote rather
than a reprimand but it illustrates the kind of authority which
Beverly exercised over the Goodyear transportation oper-
ation. Sometime in 1988 Morgan was about to leave the
plant with a load. His truck was parked on the scale and was
being checked by security. At that point Beverly came to
him and asked if he was driving that particular truck. When
Morgan replied that he was, Beverly told him ‘‘Well, you
tell Bill Navarre that I am not paying for them [RDR] to run
Bridgestone tires on that darn truck, and you don’t bring that
truck back to the plant without getting those tires changed.’’
Obviously, Beverly did not want a Goodyear Tire and Rub-
ber truck to be seen running on tires manufactured by a com-
petitor.
Morgan said he regards the incident as a reprimand; clear-
ly it was not. It does show that Beverly maintained an over-
sight over the trucking operation. This is consistent with both
his job and with the equipment lease between Goodyear and
Ryder Truck.
The second incident occurred about a year later, sometime
in 1989. This time it was at the Ryder Truck yard, approxi-
mately 2 miles from the plant. Beverly came to Morgan say-
ing he had received a telephone report that one of the tank
trucks had run a stop sign. Beverly apparently believed Mor-
gan had been the driver. In fact it had been another driver,
Buddy Surrette, whose truck was also parked in the yard. In
any event, Beverly told Morgan that he would ‘‘not tolerate
these trucks being operated in that fashion; that people had
called and said that the driver had not even tried to slow
down for that stop sign, and . . . Goodyear would not stand
for it and he wouldn’t stand for it and the name of Goodyear
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 He also claims Navarre gave similar tickets to other drivers.
However, his knowledge here is second hand.
21 Drivers were paid on a mileage basis except for waiting time,
which was calculated on a hourly basis.
would not be abused by reckless driving in that fashion.’’
Eventually Beverly was directed to the driver who had actu-
ally run the stop sign.
There is no evidence that either Morgan or Surrette re-
ceived any actual discipline for the incident. Certainly the
comments would not qualify as discipline under the TU work
rules. At best it was the admonishment of a concerned cus-
tomer that dangerous conduct not occur while operating the
trucks loaded with hazardous material. Again, this falls with-
in the operational control authority of the contract as well as
attempting to reduce the risk of liability under state law.
Similarly, Beverly twice told driver Lisa Hebert to wear
safety glasses while on Goodyear’s loading docks. The safety
glasses rule was uniformly enforced throughout the plant and
applied to everyone no matter who employed them. It is true
that on the second occasion Beverly told Hebert that there
would be ‘‘no third time.’’ The General Counsel argues that
his assertion is evidence that he would discharge her; actu-
ally, the statement is ambiguous. It could easily mean that
Beverly would not allow her on the premises without safety
glasses, the standard response for breaching the rule. Hebert
complied and obtained safety glasses. There is no written
record of either incident and it is not clear that they con-
stituted discipline. It seems more likely that it was simply a
dressing down to get her to follow the safety rules.
Driver Jonathan Rains said sometime in 1987 Navarre
gave him a so-called speeding ticket for speeding on the
interstate highway.20 These tickets are nothing more than re-
minders that drivers are to follow safe practices while on the
highways. They certainly are not discipline in any real sense
of the word; they are simply attention getting devices. They
are no different than an oral reminder that safe practices are
to be followed while driving these vehicles on the highway.
Despite Rains’ assertion as discussed in the previous foot-
note, there is no evidence regarding the extent to which this
device was used. It seems to have been used principally at
safety meetings. Safety meetings, of course, normally have
no disciplinary features. They are conducted for the purpose
of reminding employees to perform their jobs in a safe man-
ner and to alert them to risks which may be arising and
which can be avoided. They are often conducted by non-
supervisors. Indeed, RDR had safety men on its staff, includ-
ing John Vadis, who has not been shown to have been a su-
pervisor. Even when that function is performed by a super-
visor, assuming Navarre or one of his assistants such as
Bienvenu or Flanary did it, it was in the context of edu-
cation, not discipline.
On July 7, 1987, Negrey issued a written warning to
chemical driver John Read, if not others as well. The warn-
ing stated, ‘‘We have been advised by our customer, Good-
year Tire & Rubber Company that on July 1, 1987 you were
delayed along with several other Transportation Unlimited
drivers at your delivery at Shell Oil for 4–5 hours. Not one
of the drivers, including yourself called in to dispatch to ad-
vise them of the delay. This is contrary to policy as pre-
scribed in the work rules. You are to call when delayed be-
yond normal delivery time. Please consider this letter a writ-
ten warning, as future incidents of this nature could result in
further disciplinary action.’’
It can be seen from these incidents that TU was in control
of its drivers by 1987, if not much earlier. It was overseeing
and disciplining its drivers in the manner which it thought
appropriate. Moreover, there is no evidence that RDR or
Goodyear was doing anything other than informing TU man-
agement of various occurrences. Certainly there is no signifi-
cant evidence that either RDR or Goodyear was participating
in the decision-making process.
H. The Transfer and Interchange of Employees
Counsel for the General Counsel asserts that the employer
for whom the drivers worked became blurred in certain cir-
cumstances. For example, he points to a practice whereby on
occasion a TU driver served as a relief dispatcher. In addi-
tion he maintains that sometime in 1990, after the creation
of the so-called rubber runs, some employees switched em-
ployers.
With respect to the first, Navarre reports that over the 5-
year period of time of the RDR-Goodyear dispatching con-
tract, RDR normally employed approximately four dispatch-
ers in addition to its managers. He says that occasionally,
due to the work schedules of the dispatchers, it was nec-
essary to find someone to fill in. The most junior chemical
driver was George Vickery Jr.; he was asked on an infre-
quent basis to perform that task. Called by the General
Counsel, Navarre’s memory was not clear on the point, yet
he agreed that Vickery may have served as a relief dispatcher
for as much as 3 months sometime during 1989. Even so,
the record is unclear regarding what that meant. Did it mean
that Vickery was available to fill in for a 3-month period;
did he do it a few times per week for that period, or did he
serve full time for those months? Because he was ‘‘relief,’’
his duties during that time span are most unclear. It is the
General Counsel’s responsibility, when proving an issue, to
do more than create an ambiguity in order to prevail; equivo-
cal hearing records are insufficient to qualify as proof of a
salient fact. More is required.
In addition, driver John Read testified that he occasionally
served as a relief dispatcher. Both Navarre and Read agree
that when serving as dispatchers the drivers’ paychecks con-
tinued to come from TU. Read says that the rate of pay was
the same as the demurrage pay he received as a driver, i.e.,
the hourly pay drivers received while waiting.21
In March 1990, the Goodyear plant began shipping bulk
rubber to a factory in Lawton, Oklahoma. As this was an
interstate run, and as RDR had authority to run interstate, it
contracted with Goodyear to provide leased drivers for that
run. The individuals who drove that route are not a part of
this case. A short time later, apparently in April, a second
bulk rubber run was added. This route was between Beau-
mont and the Kelly-Springfield tire plant in Tyler, Texas, an
intrastate run. Goodyear and TU agreed that TU would pro-
vide leased drivers for that run. Neither bulk rubber run in-
volved the hauling of chemicals; instead the vehicles used
are standard semitrailers, not tankers. Moreover, it is clear
that the TU rubber run drivers were paid at a lesser mileage
and demurrage rate than its chemical drivers.
In any event, the bulk rubber haul involved the loading of
the trailers. Trailers were jockeyed from a storage yard to a
685GOODYEAR TIRE & RUBBER CO.
22 Eventually Coney became unhappy with that run sometime in
June and began seeking a return to the isoprene haul. As noted the
mileage rate and the demurrage rate on that route were less.
dock at the Goodyear plant where they were loaded by
Goodyear warehouse personnel. Confusingly, the drivers here
called the trailer shuffling ‘‘loading.’’ When they refer to
‘‘loading’’ they are really talking about trailer spotting and
movement to and from the dock, a job more accurately de-
scribed as ‘‘hostling.’’ For the most part, Goodyear employ-
ees both loaded and hostled the Tyler-bound rubber trailers.
They seem to have also done both for the RDR Lawton-
bound trailers. However, because of the limited hours of ac-
cess at the Beaumont plant Navarre said it was impossible
to schedule the hostling of those trucks by the over-the-road
drivers. He says: ‘‘In agreement with them . . . [TU’s] Den-
nis Negrey, Jack—Mr. Parrish, if the TU drivers wanted to
make a little extra money . . . they were familiar with the
plant, and they were allowed to load (hostle) these trailers,
move them in and out of the plant.’’ He agreed that TU actu-
ally paid them for loading even Lawton-bound trailers, say-
ing that a bookkeeping arrangement was made whereby
Goodyear reimbursed TU for the hours which those TU driv-
ers spent performing loading [hostling] functions. Similarly,
an identical bookkeeping arrangement was made to reim-
burse TU for the wage payments made to its drivers who
served as fill-in dispatchers.
It should be observed that the frequency of TU drivers
hostling Lawton-bound trucks has not been demonstrated in
the record. Moreover, it is clear that TU’s management, i.e.,
Negrey and Parrish, were specifically involved in the deci-
sion to permit its drivers to do it. Finally, according to
Navarre, hostling these trailers was regarded as ‘‘extra
work’’ or a way for a TU driver to earn additional money.
It has not been shown to have been mandatory.
This bookkeeping arrangement is consistent with the way
driver David Coney was treated on one occasion. Coney was
a TU driver working on the Tyler rubber run. He testified
that sometime in the first part of April 1990, he was ‘‘as-
signed’’ to make a couple of rubber hauls to Lawton by
Navarre. He also said that Navarre told him that he would
be paid for those runs by ‘‘Ryder’’ (RDR). However, he had
difficulty getting a paycheck from RDR. After complaining
that he hadn’t been paid, he eventually received checks from
TU to cover that work.
I do not think it takes a great deal of expertise to conclude
that because Coney was not a regular RDR employee, and
had not filled out any RDR employment application forms
that RDR had no way of paying him as an employee, for he
was not on their payroll. Even so, Navarre knew RDR owed
Coney for those runs and undoubtedly arranged for a reim-
bursement from RDR through TU. It appears to me that this
is significant evidence showing that Navarre had no authority
to ‘‘transfer’’ employees from TU to Ryder and back.
Moreover, Navarre testified that when the Lawton run was
created, several TU employees applied for that run. He says
they were asked to fill out RDR application forms, take new
physicals, take a new driving test, and were eventually hired
as RDR employees.
The General Counsel also asserts that Navarre had trans-
ferred Coney, who had been hired as a TU isoprene driver,
to the Tyler rubber run in April, citing to a portion in the
record where Coney so testified. However, Coney had earlier
explained that Navarre had come to him in April and asked
him to run two rubber loads to Tyler and that Coney had
agreed to do so. It should be noted here that Coney had been
hired only a month before, at a time when the Tyler rubber
run had not yet begun, but was under consideration. He was
TU’s most junior driver at that location.
Thus, it looks as if, despite his testimony, Coney was
hired for the rubber run. Furthermore, even if he was not,
Navarre’s so-called request that he take the rubber run and
his agreeing to do so would not qualify as an ‘‘assignment’’
as the General Counsel wishes to use that term. Coney’s own
testimony suggests that he liked it and was happy to stay
with it after he had volunteered to take it.22
In the same reference to the record, counsel for the Gen-
eral Counsel asserts that Navarre had also transferred Hebert
to the rubber run. The record at that reference point does not
refer to Hebert in any way. Hebert will be discussed in more
detail below.
In reviewing the evidence of interchange and transfer, I
am impressed with the lack of regularity which has been
shown. Each circumstance, ‘‘relief’’ dispatcher and tem-
porary work ‘‘assignments’’ appear to have been on an ad
hoc basis, aimed at filling an immediate, transitory need. I
am also impressed by the uncertainty of it all. The testimony
is vague and unsettled. Therefore, I find it to be of little
value in the overall scheme of things as described by the
General Counsel’s case.
I. Daily Supervision and Employee Direction
Prior to the driver leasing arrangement commenced in Sep-
tember 1985, the tank drivers which had until then been di-
rectly employed by Goodyear were assigned runs by Good-
year dispatchers. The head of that office at that time was
Navarre. The record does not demonstrate exactly what
Navarre did at that time except to assign runs to drivers
based on the needs of the plant. Then, as later, Goodyear
plant engineers would advise the dispatching office of the
plant’s needs and runs would be assigned. The record does
not show what, if any, independent judgment Navarre was
permitted to use prior to the TU takeover.
Navarre testified that RDR approached him during the
1985 negotiation stages and asked him if he would agree to
be in charge of the Goodyear dispatch point. He did so, and
there appears to have been a short hiatus between the time
he left Goodyear and the time he went on duty with RDR.
There is no evidence that Goodyear asked RDR to hire him.
In any event, several months later, RDR began operating
the dispatch office. TU immediately imposed on it a driver
rotation system. This obligated Navarre, or his dispatchers, to
select drivers for runs based on the order set forth in the list.
This, of course, was subject to some changes, specifically to
comply with those Department of Transportation rules which
limited drivers to a maximum number of hours per week. In
addition, there were personal matters such scheduled days
off, vacations, and absences for illness and other normal
scheduling matters. I think it is fair to say that the TU sys-
tem was not initially put in place. It took several months to
become well established. It was not until after several drivers
complained that the work was not being distributed fairly
that Negrey took steps to enforce use of the list.
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 In this regard, depending on the nature of the violation, the De-
partment of Transportation could administratively fine TU the Texas
Railroad Commission could revoke TU’s operating authority, and the
offending driver himself could be subject to criminal sanctions for
falsification of his logs.
In fact, there is some anecdotal evidence regarding a dis-
agreement between Painter and Navarre regarding the factors
to be utilized in making driver assignments. Eventually, and
certainly by the end of 1986, TU’s driver assignment policies
had become well established. That is not to say that the driv-
ers were totally satisfied. There continued to be driver com-
plaints and accusations of favoritism. However, these were
directed at contentions that some dispatchers were favoring
specific drivers and seem to have been on a personal basis,
not an institutional one. Negrey and Painter were occasion-
ally called in to straighten these matters out.
On daily matters the drivers were not subject to anybody’s
direct supervision. All were experienced chemical tank truck
drivers and all had been highly trained and were knowledge-
able about safety rules, logging requirements and were gen-
erally aware of the runs they were to make. While on the
highway they were responsible for their own conduct. It is
true that they were to keep in touch with the dispatch office
with respect to delays which they encountered so that the of-
fice could make adjustments where necessary.
During the first months of the leased driver arrangement,
the drivers did not seem to have a TU official with whom
to consult. That, of course, was during the period where TU,
RDR, and Goodyear all believed that RDR would shortly as-
sume responsibility for the direct employment of those driv-
ers. Even before RDR’s failure to obtain the authority to
make intrastate hauls, TU realized that its arrangement was
becoming more or less permanent. Accordingly, early on it
began supplying its drivers with toll-free telephone numbers
and pagers so they could contact TU management as nec-
essary. Although the record is not definitive on the point, it
appears that sometime in early 1986, TU established a Texas
office near Dallas and manned it with a regional manager,
Jack Painter. Painter was responsible not only for the Good-
year account but for other accounts as well. The record does
not clearly establish what geographic territory was covered
from the Texas office, but it seems to have been extensive.
It is true that a small number of drivers claim not to have
known about the toll-free numbers or the paging system, but
their ignorance appears to be due to their own neglect or else
they lack credibility on the point. Most knew about and used
the two systems. Thus, if a driver deemed it necessary to
seek guidance from TU, he could easily reach Negrey and,
later Painter, within a short time. Even so, some of their
communications probably went first to the RDR dispatchers.
The intrastate runs with which they were concerned were not
particularly long; indeed, it was common for a driver to
make as many as three runs per day from the Beaumont
plant. They often saw the dispatchers, so speaking with them
was a natural thing to do.
As all three Respondents have observed, the drivers’ daily
routines and procedures were closely governed by Federal
and state regulation. Their number of hours per week were
limited by regulation, as were the imposition of logging re-
quirements, safety inspections, safety procedures, and high-
way behavior.
Thus, on a day-to-day basis, there was virtually no hands-
on supervision. I agree that TU ‘‘relied’’ on Navarre and his
staff for information and to carry out the task of assigning
drivers to particular runs, the latter based on the TU-formu-
lated rotation list. Connected to that, of course, is the task
of timekeeping for payroll purposes. In addition, because
Goodyear held the state-assigned status of ‘‘private carriage
operator’’ it was obligated to maintain certain driver records
such as licenses, physical examination records, and driver
test results. Consequently, RDR served as Goodyear’s collec-
tor and repository of that sort of information. All of these
tasks, following established routines, are regarded as non-
supervisory and the Board has so held. Helms Motor Ex-
press, 107 NLRB 132, 134 (1953); Overnite Transportation,
128 NLRB 723, 724 (1960) (city and local dispatchers); Nor-
folk, Baltimore & Carolina Lines, 175 NLRB 209, 210
(1969); Browning-Ferris, Inc., 275 NLRB 292 (1985). These
functions are mostly clerical.
Even assuming that Navarre was a statutory supervisor, his
supervisory authority extended only to his own staff; it did
not actually extend to the TU drivers. I recognize that many
of the TU drivers regarded him as their supervisor, and in
a nonlegal sense he was. He was the head of the dispatch
office and it was through that office that the work assign-
ments were transmitted. Furthermore, he had some oversight,
although not exclusive, over safety matters. That oversight,
however, was endemic within the plant. There was no one
within that plant who did not have the responsibility to pre-
vent accidents. That duty extended from employee to em-
ployee, from manager to manager, and from company to
company. Therefore, the fact that Navarre participated in
safety matters or made safety-related admonishments is only
part of the general atmosphere found in this, and most,
chemical plants. It did not imbue him with supervisory au-
thority over the TU drivers. I conclude therefore that daily
supervision was virtually nonexistent, for it was unnecessary.
To the extent that first-line independent judgment was re-
quired, it was exercised by Painter, or later by Parrish, from
Dallas.
In fact, Parrish testified that he routinely visited Beaumont
and other customers in the course of his duties. He did not
arrive in Dallas until June 1990. Even so, one of his early
instructions was to tell drivers that they were not to operate
‘‘illegally.’’ By that he meant, and the drivers testified, they
understood that they were to adhere strictly to the Depart-
ment of Transportation hours limitations. In emphasis, he in-
structed the drivers to notify him in the event anybody from
RDR asked them to run ‘‘illegally.’’ He reminded those driv-
ers that if they did, it was an offense for which they would
be discharged.23 Parrish’s oral admonishment here was sim-
ply the enforcement of one of TU’s standing drivers rules,
first published in November 1985. Each driver had a copy
of those rules; another had been posted for years in the dis-
patch office.
These procedures were not difficult to understand or fol-
low. Daily supervision, as that term is defined in the Act was
not necessary. All of the chemical drivers were experienced
and knew their jobs. The same can be said later when the
rubber run began. The principal difference between the two
runs, in terms of responsibility, was that the rubber run did
not involve the hauling of flammable liquid. In circumstances
where the driver deviated from the routine, the departure nor-
687GOODYEAR TIRE & RUBBER CO.
24 Goodyear, as noted in sec. I, accomplished the recordkeeping
through its contract dispatcher, RDR.
25 In addition to the schedule A covering the chemical isoprene
drivers, sometime in the early spring of 1990, a similar document,
schedule B, was created covering the drivers to be assigned on the
Kelly-Springfield (Tyler, Texas) rubber haul. By that time schedule
A had bumped the isoprene drivers to an hourly rate for demurrage
to $10.60 per hour. The rubber run drivers’ rate was less, $10 per
hour. As with the chemical drivers, the bulk of their wage came not
from the hourly rate, but from the number of miles they drove. The
hourly rate covered waiting time only.
mally came to RDR’s attention, but it was not RDR which
made any independent decision to take corrective measures.
Its occasional admonishments regarding a driver’s short-
comings did not amount to the exercise of independent judg-
ment, only the application of TU’s established rules and poli-
cies.
J. The Business Arrangement Between Goodyear
and TU
On August 29, 1985, officials of TU and Goodyear exe-
cuted the basic agreement under which they operated from
September 1, 1985, through December 16, 1990. The agree-
ment appears to have been drafted by TU, for the references
to Goodyear are through fill-in blanks. All references to TU
are typed out in the original format. Characterizing Goodyear
as the ‘‘private carrier’’ and itself as the ‘‘Lessor,’’ the
agreement provided that TU was to furnish Goodyear with
drivers to operate vehicles owned or leased by Goodyear. It
requires TU to furnish drivers who possess the qualifications
mandated by the Federal Highway Administration, the De-
partment of Transportation and any other Federal or state
regulatory agency having jurisdiction over the drivers. It in-
sists that evidence of those qualifications be available to the
‘‘Private Carrier’’ at all times.
It also sets forth that TU shall be the employer of such
drivers and that it will pay the drivers and make the proper
income tax and social security payroll deductions, pay unem-
ployment and disability insurance as required by Federal and
state (including local) laws, provide Workers’ Compensation
insurance for the drivers as required by state law as well as
paying the premium therefor, file with the appropriate Gov-
ernmental agencies or authorities all returns and reports re-
quired in connection with those payments, and demonstrating
to Goodyear, via a certificate of insurance from the insurance
carrier, that the Workers’ Compensation insurance had been
provided.
The contract also mandates that TU submit a weekly in-
voice covering the payroll for each driver it provided and
that Goodyear promptly pay it in accordance with the rates
set forth in Schedule A, an attachment.
The basic agreement further provides that Goodyear is to
prepare and keep all work records, hours of work, physical
examination results, and Federal Highway Administration-re-
quired documents on file. It directs Goodyear, as a private
carrier, to maintain and retain drivers’ logs and inspection
and vehicle condition reports as they may be required by ei-
ther the Federal Highway Administration or the State.24 The
operational control clause, quoted supra, follows.
The operational control clause also includes language
which delegates which of the two entities has responsibility
in the event that a labor union organizes the leased drivers.
It states:
Lessor [TU] agrees that as the employer of the driv-
ers furnished to Private Carrier [Goodyear], Lessor shall
assume the sole obligation of dealing with any labor or-
ganization representing or claiming to represent such
drivers. Lessor further agrees to defend and indemnify
and hold Private Carrier harmless against any griev-
ances arising under a labor contract filed by a driver
furnished to Private Carrier by Lessor or such drivers’
collective bargaining agent and arising out of the em-
ployment relationship between Lessor and such drivers
or any collective bargaining agreement then in effect
between Lessor and such collective bargaining agent,
provided, however, that it is Lessor and not the Private
Carrier who committed, instituted or directed the act
which gave rise to the grievance.
It goes on to say that in the event that the private carrier
Goodyear committed an act which caused the violation of the
collective-bargaining agreement then it would indemnify TU.
Another provision states that TU will not be held liable to
Goodyear in the event that it is unable to furnish drivers be-
cause of ‘‘strikes, lockout, or any other contingency beyond
[its] control.’’ Finally, it contains a clause permitting either
party to cancel the contract on a 30-day written notice.
Attached to the agreement was a so-called schedule A.
That schedule, couched in terms which were written by TU,
not Goodyear, sets forth the drivers’ wages, both the hourly
demurrage rate and the mileage rate, vacation eligibility
rules, paid holidays, and the cost of health insurance. That
portion concluded with the statement that ‘‘All wages and
fringe benefits will be reviewed on a yearly basis.’’ It is fol-
lowed by a weekly service charge for each employee to-
gether with notations regarding the amount of (or the formula
to be used for) state and Federal taxes and insurance pay-
ments. The last paragraph of schedule A states: ‘‘All payroll
costs, cost of driver physicals and abstracts, are charged back
to you [Goodyear] at the same cost we [TU] pay, not subject
to service charges. Service charges apply to the gross payroll
amount only. Driver expenses will also be charged back to
you [Goodyear] on a dollar for dollar basis.’’
The schedule A which is in evidence was the one in effect
in 1985. There is evidence at various places in the record
that subsequent Schedule As were negotiated and placed in
effect.25 That is consistent with the annual renegotiation
which the quotation describes. However, none of the more
recent Schedule As have actually been offered or received in
evidence.
Nonetheless, using the 1985 version as a guideline, it is
apparent that it is a document principally drawn by TU to
describe the payroll reimbursement which Goodyear was ob-
ligated to pay under the driver lease contract. It is, at its
most basic, a ‘‘cost-plus’’ contract, i.e., a contract under
which a customer provides payment for services rendered by
the seller based on the actual out-of-pocket cost incurred plus
a gross profit.
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 To the extent that Ponce and Cain testified that Negrey said he
had to get Goodyear’s ‘‘approval’’ for a wage increase, that testi-
mony is discounted. It is obviously an attempt to characterize
Negrey’s statement rather than to recount it.
K. Evidence of Goodyear’s (Non)Involvement in
Collective Bargaining
As previously noted, subsequent to the Charging Party’s
certification as the exclusive collective-bargaining agent after
the NLRB-conducted election on June 6–7, 1990, five collec-
tive-bargaining sessions were conducted. Representing the
Union were Business Agent Sergio Ponce and a few drivers
including Zerengue and Cain. TU was represented by Negrey
and Parrish.
Zerengue says that he recalls another TU official being
present on one occasion but can’t remember who it was. Nei-
ther Goodyear nor RDR was represented at any negotiation
meeting.
Ponce and the two drivers readily agree that negotiations
went reasonably well with respect to nonmonetary matters
and that except for wage issues a final contract was quite
close, even though the parties had only five meetings.
As recounted earlier, the Union had asked for an increase
in both the mileage and hourly rates. In October, in reply to
the Union’s demand for increased wages, Negrey told Ponce
that he was concerned that if he agreed to a wage increase
which was higher than Goodyear was willing to pay, TU
might lose the contract altogether. He did say that he would
consult with Goodyear to see what ‘‘perimeter’’ (Zerengue’s
word) which Goodyear might be able to provide.26
However, even as that type of conversation was occurring,
United DSI had obtained hauling authority as a common car-
rier to transport isoprene intrastate. The Texas Railroad Com-
mission in September or October had granted United DSI a
tariff for that purpose. Word of that grant came to Negrey’s
attention somewhat informally from a Goodyear official.
Negrey immediately advised Ponce during one of the nego-
tiation meetings.
On a factual basis, therefore, I do not find any evidence
that Goodyear actually participated in the collective-bargain-
ing process. At best, given the cost-plus nature of the busi-
ness arrangement between Goodyear and TU, Negrey’s state-
ment that he needed to discuss with Goodyear the amounts
of remuneration increases to which Goodyear might agree, is
nothing more than discussing the reality that one could price
oneself out of the market if one was not careful. He was well
aware that other leasing companies could also provide the
same services which TU sold. He also knew that schedule
A was about to be reconsidered at the first of the year. He
thought there was some likelihood that Goodyear would
agree to paying a higher amount in remuneration. What he
didn’t know was how far Goodyear would go. He needed to
determine what the market would bear before he could re-
spond intelligently to the Union’s demand. That is quite dif-
ferent from Goodyear ‘‘controlling’’ the wage levels.
L. The Effect of the Board’s Certification
On April 19, 1990, as previously noted, the Union filed
its petition for a representation election. It named as the em-
ployer only TU. Subsequently, TU and the Union entered
into a Stipulation for Certification on Consent Election. That
document was approved by the Regional Director and the
election was conducted on June 6–7, 1990. No objections
were filed and on June 18, 1990, a Certification of Rep-
resentative was issued in favor of the Union, running only
to TU’s employees, as per the stipulated agreement for an
election.
All three Respondents argue that they may rely on the Re-
gional Director’s ‘‘finding’’ that the employer for the pur-
poses of this case is only TU. Both RDR and TU argue that
Board and court rulings have held that employers may rely
on unappealed Regional decisions in representation case mat-
ters. They also argue that if the matter could have been
raised in the representation process but was not, then it may
not be considered in the subsequent complaint case. In this
regard, they cite such cases as Shannon & Luchs, 166 NLRB
1009 (1967); Maxwell Co. v. NLRB, 414 F.2d 477 (6th Cir.
1969); Transportation Enterprises v. NLRB, 630 F.2d 421
(5th Cir. 1980); and International House v. NLRB, 676 F.2d
906 (2d Cir. 1982).
In general it can be said that the cases on which they rely
do not quite stand for the proposition which they propose:
i.e., that both the Union and the Board are bound by what
the parties consent to during a representation election. It may
well be they are bound if the matter has truly been litigated,
particularly an issue such as unit description. However, unit
description is not the issue here, but whether Goodyear and
RDR can rely on what they regard as a Regional Director-
approved legal conclusion that TU was the sole employer.
The cases on which they rely are distinguishable in many
ways and I do not regard myself bound by them.
The fact that the Regional Director adopted the TU-Team-
sters stipulation in that regard is of little significance. The
adoption is mainly a matter of efficient processing of rep-
resentation petitions. It is only common sense that if the par-
ties to a representation proceeding are satisfied with their
agreement and if it does not clearly breach any important
policy of the Act, then the Regional Director, too, will be
satisfied. That is not to say that he might not reach a dif-
ferent conclusion if the matter is actually litigated. Of course,
the stipulation for certification precluded the litigation of any
issue such as joint employer.
However, I must agree that the Union’s decision to name
TU as the employer in the representation case is due some
weight. Teamsters Representative Ponce testified that he was
aware of the relationship between/among the three employ-
ers. He knew that RDR was the dispatcher and he knew
Goodyear was the factory. He further knew that TU was a
lessor of drivers. Despite his knowledge, he nonetheless
chose to name only TU as the employer whose employees
his union sought to represent. That seems to me to be an ad-
mission worth some weight.
Another fact which I find to be of importance is that the
Union never contended that a joint employer relationship ex-
isted until it learned from TU that TU’s contract with Good-
year was being canceled. Late timing such as this has been
considered to be a factor mitigating in favor of finding that
no joint employer relationship existed. See for example
Southern California Gas Co., 302 NLRB 456, 461–462
(1991), and United States Steel Corp., 270 NLRB 1318
(1984).
On balance, I conclude that because the Union knew at the
time it entered into the Stipulation for Consent Election that
TU was the lessor of drivers and also was aware of the prob-
689GOODYEAR TIRE & RUBBER CO.
27 If that were not so, then the certification would have no bounds.
Such a lack of limitation, coupled with an extension such as is
sought here, has resulted in a finding of a deprivation of due process
from a putative joint employer. Alaska Roughnecks & Drillers Assn.
v. NLRB, 555 F.2d 732, 735 (9th Cir. 1977). Cf. Hughes Aircraft
Co., 308 NLRB 82 (1992).
able relationship between TU and Goodyear, and Goodyear
and RDR, it made a deliberate decision, comparable to a
waiver, that the only employer with whom it intended to bar-
gain was TU.27 Furthermore, its belated contention that those
two companies were joint employers with TU is another fac-
tor which mitigates in favor of finding that no joint employer
relationship existed.
M. Conclusions with Respect to the Joint
Employer Issue
I conclude, based on the foregoing evidence, that the Gen-
eral Counsel has failed to establish that Goodyear or RDR
was, during 1990, a joint employer with TU of the over-the-
road drivers hauling either isoprene or crude rubber. First,
and playing a significant role, is the fact that none of the em-
ployees reasonably held the opinion that they were employed
by Goodyear. It is true that one of the motivations for their
seeking union representation was their perceived inability to
deal effectively with RDR, which, given its role as Good-
year’s contract dispatcher might be deemed Goodyear’s sur-
rogate.
Even so, by 1990 all of the employees knew or should
have known that their employer was TU. They had filled out
job application forms for TU, had been paid by TU on TU
paychecks, were receiving fringe benefits arranged for by TU
including health insurance and an individual retirement ac-
count, added in 1989. They also knew that significant per-
sonnel matters were always processed by Negrey, Painter, or
later Parrish. These matters included difficulties the drivers
experienced with proper wage payments, health insurance
claims, and resolving the perceived unfair dispatches of
which some of the RDR dispatchers were supposedly guilty.
The only incident in a 5-year period to which the General
Counsel points involving Goodyear is Ozio’s claim that after
a dispatcher, acting on Navarre’s direction, ordered him out-
side the fence, Goodyear’s Beverly countermanded the in-
struction. That contention is both stale and stands in isola-
tion, if believed.
Although the drivers discussed their supposed confusion
with Teamsters Business Agent Ponce, and Ponce was fully
aware of the various roles each of the three putative joint
employers played, he chose to file an election petition with
the Board naming only TU as the Employer. Furthermore,
while the Board was processing that petition, the Union dealt
not with RDR and not with Goodyear, but with TU. Indeed,
the Stipulation for Consent Election is signed by a TU offi-
cial. Therefore, the Union bargained collectively only with
TU, never asking Goodyear or RDR to share any responsibil-
ity.
I recognize that some of the employees during the hearing
testified that their employer was ‘‘Goodyear’’ and they ap-
pear now strongly to hold that opinion. Nonetheless, during
the time when the initial charges were pending against TU,
each of those employees told the Board agent who inves-
tigated the case that their employer was indeed TU. They
made no contention that they were also employed by Good-
year or RDR. It was not until the Charging Party decided to
pursue a joint employer theory, when it filed the subsequent
charges, that the same employees changed their tune and as-
serted that they were now employed by Goodyear or
‘‘Ryder.’’ Indeed, RDR is an entity none of them really rec-
ognizes; they regard all the Ryder System, Inc. subsidiaries
as ‘‘Ryder.’’
Yet, the evidence shows none of the employees really be-
lieves that RDR or any of the Ryder subsidiaries is his or
her employer. They all acknowledge that Ryder serves as a
contract dispatcher for the Goodyear plant. They are also
aware that Ryder was unable to resolve payroll and fringe-
benefit discrepancies. Thus, none of them reasonably held
the belief that RDR was one of their employers. If so, RDR
would have been able to resolve some of these matters. In
fact, it was RDR’s very lack of response to them that drove
them to seek union representation. In essence, the petition
was a call to wake up TU to the problems those employees
were perceiving.
The foregoing, of course, is an analysis of the drivers’
subjective beliefs. Those beliefs clearly lead to the conclu-
sion that they knew they were employed by TU, not by RDR
and not by Goodyear. They knew from the beginning they
were leased drivers employed by a leasing company.
Nonetheless, there is objective evidence as well dem-
onstrating the lack of a joint employer relationship. Again,
I point first to the evidence of whose name was on the pay-
checks, who was responsible for fringe benefits, and who ac-
tually resolved payroll discrepancies—always TU. Beyond
that, however, are the factors set forth in TLI, Inc. and
Laerco, both supra. Laerco describes the significant factors
as hiring, firing, discipline, and supervision. In the factual
section above I have already discussed the fact that the post-
1985 hiring decisions were all made by TU. It is true that
on occasion RDR’s Navarre attempted to influence the TU
decision on hiring. He also attempted to influence the deci-
sions on firing. His recommendations, however, were often
ignored.
With respect to the August 1985 hiring, although there is
testimony from several drivers that Ryder was doing the hir-
ing, at least one driver, Hoke, testified that Navarre did not
do the hiring but TU did. It is true that TU and Ryder both
interviewed individuals at that time, and Ryder Truck was
later asked to road-test the applicants. Even so, TU paid for
the physical examinations and for the test certifications.
Nonetheless, as discussed earlier, the 1985 hires have little
to do with the 1990 circumstances. By 1986, the new hires
knew that TU was doing the hiring. Ozio testified that al-
though he was interviewed by Navarre for the job, he knew
TU was doing the actual hiring. Moreover, it appears that
Navarre recommended against hiring Ozio but the TU hier-
archy decided to ignore the recommendation. Later, drivers
Hebert, Sonnier, and Lincoln all testified they knew almost
from the outset that TU was their direct employer. In fact
Lincoln, in subsequent matters, listed TU as his employer
when he applied for unemployment compensation and ap-
plied for jobs with succeeding employers.
With respect to discharges, there were very few except for
the final layoffs. The only one of significance is Hebert and,
as will be seen infra, she had a somewhat mixed experience.
She disingenuously claims to have been hired by Navarre in
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 It is true that Mancil believes Navarre terminated Hebert in No-
vember 1990, but she is clearly mistaken. In fact it was her report
to Parrish which triggered his investigation resulting in his decision
to terminate Hebert.
29 I think it is likely that on occasion Navarre allowed himself to
appear as if he were the drivers’ supervisor. The fact that he did so
does not mean that he was doing it with the authority of TU or with
the authority of anybody other than himself. Once he and Painter
had an argument about who had responsibility over those drivers.
This resulted in correspondence from Negrey advising Navarre to
follow the dispatching preference list which Negrey had prepared. I
think Navarre had some difficulty accepting that admonishment, par-
ticularly because he had been responsible for the drivers during his
tenure as the Goodyear supervisor prior to 1985. It was a duty which
he, for personality reasons, could not easily give up. His self-ap-
pointment in this regard does not demonstrate that he had real au-
thority on day-to-day matters. All he could really do was to report
to TU and allow a TU official, usually Negrey or Painter, and later,
Parrish, to make whatever decision was appropriate. As can be seen,
he attempted to make recommendations along with his reports. Even
so, these recommendations were not always followed. He did not
have independent authority over these drivers. His entire job was cir-
cumscribed by TU rules and dispatching preferences. To the extent
that he deviated from those, he was acting outside the scope of his
authority.
30 The General Counsel has adduced no evidence whatsoever about
United DSI except that it is a common carrier.
February 1990, but concedes that she knew by the next day
that her employer was TU. She also says that Navarre laid
her off in April 1990 as a chemical driver. It is undisputed
that she was recalled by TU’s Negrey and continued to work
for TU until her discharge on November 29. At that time it
was TU’s Parrish who discharged her. She also asserts that
it was Navarre who transferred her from the chemical haul
to the rubber haul.
In viewing her testimony, it became clear to me that
Hebert’s ability to discern what was happening and accu-
rately to describe events is limited. For example, she is abso-
lutely convinced that Beverly threatened to discharge her
over the safety glasses’ incidents. There is no doubt in my
mind that Beverly intended to enforce the safety glasses rule
which was plantwide, but there is no reason to conclude his
statement that there would ‘‘not be a third time’’ necessarily
meant discharge. It could easily have referred to something
less severe. Her testimony must be viewed with care, not
only because she dissembles, but because she has a tendency
to overinterpret matters based on insufficient evidence.
Turning to the incidents of discipline, it is quite clear that
all of the written documentation implementing a disciplinary
action was taken by TU officials. There are numerous dis-
ciplinary letters in evidence; none is from RDR or Goodyear.
Nor is there evidence that these letters are simply rubber
stamps of decisions made by others. For example, RDR’s
Bienvenu wanted to fire Brown, but TU declined. Indeed,
RDR dispatchers Tammy Mancil and Donna Bossette both
testified that, consistent with the testimony of TU’s Parrish
and RDR’s Navarre, RDR did the dispatching and kept the
records, but that TU was the one which meted out discipline.
Parrish says no Goodyear official has ever discussed a TU
driver with him during his tenure.28
Finally, the day-to-day supervision in this particular fact
pattern is of little significance. As previously noted, these
drivers are all trained and experienced and know their work.
Furthermore, the very nature of their duty, over-the-road
driving, does not lend itself to hands-on supervision. To the
extent that their conduct may have come to the attention of
either RDR or Goodyear, the information was simply passed
on to TU which took whatever steps was necessary to correct
a shortcoming.29
I conclude that counsel for the General Counsel has failed
to establish by credible evidence his contention that Good-
year and/or RDR jointly employed the drivers with TU. TLI,
Inc., supra; Lee Hospital, 300 NLRB 947 (1990); Southern
California Gas Co., supra; Clinton’s Ditch Cooperative v.
NLRB, 778 F.2d 132, 138, 140 (2d Cir. 1985); NLRB v.
Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Group Discharges
The General Counsel has alleged that Respondents have
committed unfair labor practices violating Section 8(a)(3)
and (1) of the Act when TU terminated all the chemical haul
drivers on December 16, 1990. He also contends that they
all violated Section 8(a)(3) and (1) of the Act on December,
16, 1990, when all the RDR dispatchers were also termi-
nated.
In this regard, counsel for the General Counsel elicited
evidence on both sides of the question. He adduced testi-
mony and documentary evidence from some adverse wit-
nesses and offered similar testimony from employee wit-
nesses. In many respects, counsel for the General Counsel
proved Respondent’s defense; in other respects he under-
mined his own evidence.
First, it is clear from the testimony of Goodyear’s Beverly
that Goodyear has for years been attempting to locate a com-
mon carrier which had a permit from the Texas Railroad
Commission to haul isoprene on intrastate runs. Such carriers
were not available in 1985 when it chose to begin leasing
drivers. Its arrangement with TU, the leasing company, was
terminable on a 30-day notice. Obviously if a common car-
rier could be found, Goodyear wanted to be able to quickly
substitute it for TU.
In 1990, the Texas Railroad Commission finally granted
such a tariff. One of the companies obtaining that tariff was
United DSI, which insofar as is shown in this record, is unre-
lated to any of the respondents.30
Although TU’s Negrey had heard rumors that the Good-
year-TU agreement was in jeopardy, it was not until he re-
ceived a letter dated November 21, 1990, from a Goodyear
vice president in Akron, Ohio, that he officially learned
about the situation. That letter, referring to the August 29,
1985 lease agreement, stated in part: ‘‘Because we have de-
termined to abandon this private carriage operation and will
be able to obtain the services of an intrastate common carrier
[to haul isoprene] at a substantial savings over our total cost
as a private carrier, we will no longer require your [TU’s]
services under the agreement.’’ It went on to propose that the
agreement be terminated effective December 30, 1990.
On November 26, 1990, Negrey wrote Teamsters Business
Representative Sergio Ponce a letter which I quote in its en-
tirety:
We have been advised by our customer, Goodyear
Tire & Rubber that they are terminating our agreement
691GOODYEAR TIRE & RUBBER CO.
31 All three dispatchers describe conversations with Navarre in
which he told them to refrain from union activity, that the drivers
wanted TU-employed dispatchers, that the drivers were ‘‘out to get
them,’’ that they were to follow the rules and write the drivers up
for infractions and such matters. The upshot of much of this testi-
mony is that, if believed, Navarre was pitting the dispatchers against
the drivers. It should be observed here, that there is also evidence
that some drivers believed the dispatchers were ‘‘out to get them’’
and were not following the appropriate dispatching rules. Very little
of this testimony has anything to do with the issues to be decided
in this case.
to provide them with leased drivers effective December
30, 1990. This applies only to the chemical operation
at their Beaumont, Texas facility. Our attorney left a
message for you on 11–20–90 and I left a message on
11–26–90 to advise you of this occurrence. We would
like to schedule a meeting to discuss the terminated
agreement and shutdown of our operation as well as to
continue the negotiations for the employees assigned to
the rubber side of the Goodyear Beaumont facility.
It has long been held that there are five principal elements
which constitute a prima facie case insofar as Section 8(a)(3)
and (1) are concerned. The first is that the employees alleged
to have been unlawfully discharged must have been engaged
in union or protected activities or that the employer believed
them to have been so engaged. The second is that the em-
ployer knew about those union or protected activities. Third,
there must be evidence that the employer harbored animus
against those individuals because of these activities. Fourth,
the employer must do something to either sever or weaken
the employment relationship. Finally, the act of employment
severance must usually be connected to the union activity in
terms of timing.
All parties concede that the first two elements are present,
i.e., that the employees engaged in union activity and that the
employer knew it. In fact, all of that is part of the public
record, for the Board has conducted a representation election
in which all the employees voted for representation by the
Charging Party. Furthermore, the Board has certified the
Union as the 9(a) exclusive collective-bargaining representa-
tive of those employees. It may also be said that the em-
ployer has severed the employment relationship. However,
the most important of the five elements, animus, is missing
entirely in the cases against Goodyear and TU. Furthermore,
the last, timing, is inconclusive at best, for the General
Counsel’s purposes. At worst it undermines his case.
I shall begin with evidence of animus. First, although I
have previously found that Goodyear was not a joint em-
ployer with TU, there is no evidence of animus on Good-
year’s part whatsoever. Not a single Goodyear official has
even been accused of acts evidencing animus. Second, there
is no credible evidence of animus on TU’s part, either. Al-
though TU’s Negrey was accused of one remark constituting
two alleged violations of 8(a)(1) conduct, as will be dis-
cussed in subsection F, infra, the conduct was not coercive.
Indeed, the incident is pretty well removed in terms of time
from both the cancellation of the leasing contract and
Hebert’s discharge, occurring more than 4 months earlier,
and triggered by employee Zerengue’s misfeasance. Even
Union Representative Sergio Ponce agrees that during the
collective-bargaining negotiations which he conducted with
Negrey that the parties were nearly at a collective-bargaining
contract when Goodyear canceled the leasing agreement.
It is true there is some evidence that RDR’s Navarre and
Flanary made remarks during the election campaign which
may be construed as antiunion. These will be dealt with in
more detail below. However, it is clear that the preelection
remarks attributed to Navarre were aimed not at TU drivers,
but at RDR’s own dispatchers. In essence, these remarks, if
credited, were designed to prevent the dispatchers from seek-
ing union representation. Later, in December, after both
Goodyear’s notice of cancellation and TU’s notification that
December 16 would be the last day of work, Flanary is al-
leged to have sarcastically advised the drivers that the reason
for their termination was because they had chosen the Union.
For the purpose of the 8(a)(3) analysis, I shall assume that
Navarre and Flanary made the remarks. The problem with
their statements is that neither of them spoke for TU or even
for Goodyear. Furthermore, there is no showing that these re-
marks were anything other than their own opinion. Certainly
there is no demonstration that they had first-hand knowledge
of how Goodyear’s decision came to be made. It was obvi-
ously a decision in which neither of them took part and
whatever opinion they may have held cannot prove the actual
motive. Beyond that, of course, I have already decided that
RDR was not a joint employer of TU and whatever animus
RDR may have harbored is not imputable to TU. Cf. Dr.
Phillip Megdal, D.D.S., 267 NLRB 82 (1983); Frascona
Buick, 266 NLRB 636, 646 (1983); Kimball Tire, 240 NLRB
343, 344 (1979).
With the departure of those 30 or so drivers, RDR’s need
for a staff of dispatchers also evaporated. In truth, counsel
for the General Counsel has adduced very little evidence
with respect to the details of the dispatchers’ termination
from employment. Only three dispatchers testified, Tammy
Mancil, Donna Bossette, and Joyce Bacon. Of those three,
Bossette had been employed the longest, having been hired
in 1988; Mancil was hired in March 1990, and Bacon in July
1990. It appears that all the dispatchers were terminated si-
multaneously with the drivers on December 16, 1990, al-
though one, Katrina Broussard, may have been hired by
United DSI.
According to Bacon, there was very little notice to the dis-
patchers that they were being laid off. Both Bacon and
Mancil recount conversations with their supervisor, Bill
Navarre, to the effect that they would not have lost their jobs
had the Union not become the drivers’ collective-bargaining
representative. In addition, all three recount statements made
by Navarre after the election that ‘‘Goodyear’’ did not want
a union telling them how to run their transportation depart-
ment. None of the dispatchers quotes Navarre as attributing
similar statements to any Goodyear official.31
At best, the General Counsel has adduced evidence that
RDR officials both feared that the dispatchers might also
seek union representation and subsequently blamed the TU
drivers for the loss of everyone’s jobs when they elected the
Union. At the same time, the General Counsel has failed to
adduce evidence that the dispatchers engaged in any union
activity or were believed to have engaged in any union activ-
ity.
Furthermore, the timing of the discharge, rather than en-
hancing the General Counsel’s case, undermines it. The deci-
sion to terminate the TU contract was made by Goodyear,
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 With the advent of a common carrier such as United DSI, the
paperwork associated with a private carriage operation no longer
needed to be compiled. Thus, even RDR’s timekeeping functions
were no longer needed.
33 It is true that driver Christopher Morgan testified that RDR’s
Flanary told him on December 12, 1990, that he would be paid the
$10.60 an hour rate. Morgan acknowledges that never occurred and
ultimately he learned that the rubber run rate was only $10. He also
says that in making the change from isoprene to crude rubber, he
was obligated to give up another hour of uncompensated waiting
time. I think it is clear that Morgan believes it to be so, but given
the fact that the rubber run is quite different in that it takes 4 or
more hours to go from Beaumont to Tyler, as opposed to the short
isoprene hauls in and around Beaumont, that he really cannot say
with accuracy what the actual practice was. He is the only driver
who gave any testimony on the point, and he lacked competency to
know the actual circumstances. Moreover, Flanary apparently did not
realize he was making a mistake. He may not have known what ar-
rangements the Union and TU had made.
34 The quoted language is a stipulation of fact.
not TU. And, Goodyear’s decision was a direct response to
the creation of a state tariff. That being the case, TU had no
choice in the matter. It is true that the decision occurred just
as a collective-bargaining agreement was coming to fruition,
but when Goodyear advised TU that it would no longer re-
quire TU’s chemical hauling services, TU had no place to go
except to announce the termination of the chemical drivers.
The ripple effect which the cancellation of that agreement
caused is quite obvious: if Goodyear no longer needed leased
drivers, it likewise no longer needed contract dispatchers and
clericals to perform those functions.32
It is clear, therefore, that counsel for the General Counsel
has failed to prove the elements of an 8(a)(3) and (1) case
with respect to the discharge of either the isoprene drivers
or the dispatchers. Instead, he has demonstrated, from his
own evidence, that their discharges were solely connected to
Goodyear’s decision to cancel the TU leasing agreement as
its long-term plan to convert to a common carrier came to
fruition. Accordingly, there is insufficient evidence to require
any respondent to defend the matter. These allegations may
be dismissed.
B. Alleged Unilateral Changes
The complaint alleges that on December 16, 1990, ‘‘Re-
spondent’’ without notice to the Union unilaterally changed
the ‘‘wages’’ of four named drivers by reducing their hourly
rate from $10.60 per hour to $10 per hour. In addition, it al-
leges that it increased the ‘‘noncompensable waiting time’’
of those same employees from 1 hour per trip to 2 hours per
trip.
With respect to the first contention, it should be noted that
the hourly rate is the tail on this dog. The bulk of the driv-
ers’ remuneration came from the mileage rate. The hourly
rate applied only to nondriving time, i.e., time spent waiting
at one destination or another.
The evidence shows that the waiting time hourly rate for
isoprene drivers was $10.60 an hour. The evidence also
shows that at all times the drivers assigned to the rubber run
received somewhat less, $10 per hour. The four drivers in
question suffered both a reduction in mileage rate and in
waiting time when, on December 16, they found themselves
the only drivers employed by TU at the Beaumont plant. All
four, pursuant to negotiations between TU and the Union,
were assigned the remaining work, the Tyler rubber run.
As rubber run drivers they received the rubber run rates,
i.e., $10 per hour waiting time as well as the applicable mile-
age rate. It is true that these individuals’ ‘‘rate’’ was re-
duced; however, this wage reduction was not due to a change
in policy, but to a negotiated change in the job classification
they were to perform. Clearly, rubber run drivers and chemi-
cal haul drivers were different job classifications and had
been so from the outset of the rubber run. Thus, the General
Counsel has failed to demonstrate that the change in rate
which affected these drivers was the result of the unilateral
change in wages, hours, and working conditions. It was in-
stead the result of these drivers being switched from one job
classification to another. Proof of the 8(a)(5) and (1) allega-
tion regarding this purported unilateral change is entirely
lacking.
The second allegation, that noncompensable waiting time
was to be increased from 1 hour to 2 hours, likewise fails.
The complaint alleges that this occurred on December 16,
1990. In fact, the General Counsel has adduced no evidence
whatsoever that any change in noncompensable waiting time
occurred on or after that date. If there was, it was only as
a result of chemical drivers being transferred to the rubber
run. The principal evidence which the General Counsel ad-
duced on the point seems to have occurred in April 1990,
shortly before the employees sought union representation. In-
deed, it was during a meeting with drivers to discuss this
proposed change that the drivers announced their intention to
seek representation by the Union. When that announcement
was made, TU’s Painter advised that the matter would be put
in abeyance and left until the representation issues were re-
solved. No changes were ever made. Again, the General
Counsel’s proof on the point simply fails.33
C. The Alleged Refusal to Bargain Over the Effects of
the Shutdown of the Isoprene Haul
As noted, by letter of November 26, 1990, TU’s Negrey
advised Teamsters Representative Ponce that Goodyear had
terminated the lease agreement effective December 30. In
that letter he offered ‘‘to schedule a meeting to discuss the
terminated agreement and shutdown of our operation as well
as to continue to negotiate for the employees assigned to the
rubber side of the Goodyear/Beaumont facility.’’ The
Union’s attorney, G. William Baab, replied by telefax on De-
cember 11, proposing that the parties meet for those purposes
on December 17, 1990. That date was apparently acceptable,
but a few days before that date TU’s attorney, Sanford
Gross, telephoned Baab to advise that because unfair labor
practice charges had been filed and meetings had been sched-
uled (apparently with a Board agent) for the purposes of con-
ducting the investigation, that he could not meet on Decem-
ber 17. As a result of that conversation Baab and Gross
‘‘agreed that the parties would not need to bargain on De-
cember 17. There was no arrangement nor agreement con-
cerning further negotiations.’’34
As alluded to earlier, Ponce and Negrey did reach an
agreement with respect to which employees would be as-
signed to the rubber run after December 16, agreeing that the
four most senior drivers would be retained for the rubber
693GOODYEAR TIRE & RUBBER CO.
35 Three of these four were known to be union adherents.
36 Mancil’s possession of many of RDR’s records is most unusual.
When the office was being closed, they were put in her car and she
took them home. Mancil was subsequently selected by counsel for
the General Counsel to be his representative witness as an exception
to the sequestration rule. She, of course, is also an alleged
discriminatee.
run. Those individuals were Morgan, Fontenot, G. L. Vickery
Sr., and P. J. Permenter.35
There is no evidence that the Union ever sought to re-
schedule the meeting over the effects of the shutdown. The
duty to demand such bargaining always rests with the union.
Accordingly, because the Union did not pursue its demand
to bargain over effects after its agreement to postpone the
December 17, 1990 meeting no unlawful refusal to bargain
over effects has occurred.
D. The Information Requests
As previously found, the General Counsel has failed to
prove that Goodyear, RDR, and TU are joint employers of
the drivers in question. That finding necessarily undercuts
those allegations in the complaint that Goodyear and RDR
failed to supply certain information to the Union. In cir-
cumstances where Goodyear and RDR were not joint em-
ployers of the employees in question, they were not under
any obligation imposed by the Act to provide information to
a union representing the employees of another. Furthermore,
the Act requires that the information being sought be relevent
to either the collective-bargaining or representational proc-
esses. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); NLRB
v. Acme Industrial Co., 385 U.S. 432 (1967). I shall nonethe-
less attempt to detail the evidence involving all three re-
spondents.
With respect to Goodyear, the complaint alleges and
Goodyear admits that by a letter dated November 15, 1990,
the Union requested Goodyear to provide information con-
cerning ‘‘all current and expired contracts, written agree-
ments, memoranda of understanding, and related documents
between Respondent Goodyear and Respondent [TU] and be-
tween Respondent Goodyear and Respondent Ryder Truck
Rental, Inc.’’ By letter dated November 16, Goodyear’s plant
manager, S. K. Gartside, replied that the agreements and con-
tracts which it had with its vendors were proprietary and
confidential; he declined to provide the information.
First, I observe that the request insofar as it related to ma-
terial from Ryder Truck is a non sequitur in this proceeding.
Although Ryder Truck has been named as a Respondent,
there is absolutely no evidence whatsoever that Ryder Truck
has been involved in the day-to-day operation of vehicles by
these drivers. It is true that Ryder Truck is the lessor of the
vehicles which the TU drivers operated. It also maintained
those vehicles under its agreement with Goodyear. However,
the Union’s request for information regarding Ryder Truck’s
relationship to Goodyear does not meet the test of relevance
and is well outside the Union’s legitimate scope of interest.
Insofar as it seeks business agreements between Goodyear
and TU, that information was available on request from TU,
the employer to whom the Union’s certification ran. Good-
year, as a separate employer, had no obligation to provide
that information.
The Union’s demands with respect to RDR are only a little
different. Again, the complaint alleges that by letter dated
January 15, 1991, the Union asked RDR to provide informa-
tion concerning ‘‘current and expired contracts, written
agreements, memoranda of understanding and related docu-
ments between RDR and TU and between RDR and Good-
year.’’ A subsequent allegation alleges that by another letter
also dated January 15, 1991, the Union asked RDR to pro-
vide information concerning logs and other documents and
records reflecting the dispatch of TU’s drivers from June 18,
1990, to January 15, 1991, in Beaumont. Similarly, a third
allegation asserts that in a letter dated January 18, 1991, the
Union asked RDR to provide information concerning pay-
ment records from Goodyear to RDR, to Ryder Truck and
Ryder System from January 1, 1989, to December 31, 1990.
The Ryder respondents in their answers, admit receiving
the letters in question. However, they denied the remaining
allegations. The General Counsel has adduced no evidence
whatsoever regarding what their actual response was, if any.
Moreover, neither the General Counsel nor the Union has
made any showing that the Union needed this information
for the purpose of collective bargaining. Their relevance to
the issue has not clearly been shown. Assuming that the ma-
terial is relevant, the entire matter is doomed because none
of the Ryder respondents is an employer of the employees
in question. Moreover, the evidence shows that RDR, which
may have been the initial collector of some of this informa-
tion, transmitted it either to Goodyear or to TU. Some of
those transmittals were during the course of the business re-
lationship; others occurred in December when RDR shut
down the Beaumont dispatching office and transferred its dis-
patching operations to Houston. In addition, the evidence
also shows that RDR no longer had many of the files be-
cause they had been taken by one of its dispatchers, Tammy
Mancil.36
As far as TU is concerned, the complaint alleges that it
has committed several acts which supposedly violate Section
8(a)(5) and (1). The first is a contention, paragraph 12, that
TU since October 27 has refused to bargain with the Union
concerning Goodyear’s decision to terminate the contract
covering the isoprene-hauling operation. Little needs to be
said about this allegation. I have previously found that the
General Counsel has failed to prove Goodyear to be a joint
employer with TU. Because the allegation assumes that the
two are joint employers, it fails, for there is no way that one
employer can bargain with the Union over the business deci-
sions of an unrelated business entity.
Assuming, however, that it can be read as an allegation
that TU failed to bargain over its own decision to terminate
the isoprene hauling operation, the complaint still fails. The
Supreme Court has held in First National Maintenance Corp.
v. NLRB, 452 U.S. 666 (1981), that such decisions, affecting
the fundamental course and direction of a business is not a
mandatory bargaining subject. Thus, although it may be fair-
ly said that Goodyear made TU’s decision for it by canceling
the leasing contract, TU had to decide what to do with the
direction of its business when the contract was canceled. It
made the only decision open to it, to terminate the Beaumont
isoprene hauling operation. That was a fundamental change
in the course and direction of the business within the mean-
ing of First National Maintenance Corp. Accordingly, the
complaint fails to allege a violation of the Act.
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 Union Business Manager Ponce’s January 15 and 18, 1991 let-
ters to RDR, TU, and Goodyear were not offered in evidence at the
hearing before the General Counsel rested. In his opposition to the
motions to dismiss, counsel for the General Counsel has appended
those letters and the responses thereto to his opposition and moved
their receipt. RDR has opposed their receipt on the grounds that they
were not offered at the hearing prior to the General Counsel’s having
rested. Based on the opposition, I decline to receive them even
though I am aware that there are certain circumstances where the
General Counsel may supplement even his case-in-chief at the rebut-
tal stage. See Associated Milk Producers, 259 NLRB 1033 (1982).
Assuming that case is applicable, the fact is that even if received,
they would not change the analysis, for there is no showing that the
material sought is relevant to the collective-bargaining process. TU
has not contended that it was unable to pay the economic demands
of the Union; it only contended that the rug was pulled out from
under it when Goodyear canceled the agreement. Thus, the business
relationship and the income derived therefrom is of no concern to
the Union’s bargaining stance. It is therefore not producible as part
of the duty to bargain in good faith.
Next, the complaint alleges that TU failed to supply the
Union with information regarding Goodyear’s decision to ter-
minate the leasing agreement. Specifically it asserts on Octo-
ber 18 and November 8, 1990, the Union asked for the infor-
mation in question. The evidence shows, however, that
Negrey in fact did give the Union the information it had, i.e.,
that there was a rumor in progress which suggested that
Goodyear was going to replace TU with a common carrier.
TU was not officially notified of the decision until Good-
year’s letter of November 21, well after the October 18 and
November 8 requests. Thus, TU had nothing solid to give to
the Union until it received the November 21 notice. Negrey
advised the Union of this development by his letter of No-
vember 26, 1990, having failed to reach Ponce earlier by
telephone. Accordingly, because there was nothing to provide
to the Union at the time of the demands, and as the informa-
tion it received shortly thereafter was promptly passed on, no
violation has occurred. Cf. Litton Microwave Cooking Prod-
ucts, 300 NLRB 324, 334–336 (1990).
The following allegation is that on November 15 the
Union requested TU to provide information concerning ‘‘all
current and expired contracts, written agreements, memo-
randa of understanding and related documents between TU
and Goodyear and Ryder Truck.’’ As we have already seen,
there is no business relationship between TU and Ryder
Truck (nor is there any business relationship between TU and
RDR). Thus, there were no TU-Ryder agreements to provide,
assuming they met the test of relevance, something which
has not clearly been shown. Accordingly, that portion of the
allegation is without merit.
With respect to the business agreements between TU and
Goodyear, it does appear that TU did not provide the infor-
mation at that point. However, it is also true that the Union
admitted that it already had in its possession copies of the
contracts which had been found by driver Morgan and turned
over to the Union before bargaining even began. It therefore
had the information in its possession and, assuming that the
Union wanted to verify its currency, it has not made a show-
ing that TU’s lack of response in any way prejudiced its abil-
ity to bargain. Teamsters Representative Ponce admits he al-
ready knew the contract was of a ‘‘cost-plus’’ nature. In that
circumstance, TU’s lack of response was essentially harm-
less.
I note that their relevance has not clearly been shown. The
demands were made after the Union began filing charges.
Therefore, if the demands were simply an effort to discover
evidence for the purpose of litigation, they are not produc-
ible. WXON-TV, 289 NLRB 614, 617–618 (1989). I also ob-
serve that TU has not ever claimed an inability to pay any
wage demands made by the Union. It only informed the
Union that it needed to find out what its customer, Goodyear,
was willing to pay before it responded to the Union. There-
fore, its obligation to provided financial data has not been
triggered. Nielsen Lithographing Co., 305 NLRB 697 (1991);
Concrete Pipe & Products Corp., 305 NLRB 152 (1991);
Burruss Transfer, 307 NLRB 226 (1992).
And, to the extent that the information sought was for the
purpose of bargaining over the decision to shut down, since
TU had no duty to bargain over that decision, it had no obli-
gation to provide contracts describing the business relation-
ship with its customer, Goodyear. BC Industries, 307 NLRB
1275 (1992).
Finally, the complaint, paragraph 14(f), asserts that by let-
ter dated January 18, 1991, the Union requested TU to pro-
vide information concerning records of payments received by
TU from Goodyear for a 2-year period beginning January 1,
1989, pursuant to the contract. First, it is not clear that busi-
ness payments between two businesses are relevant either to
collective bargaining or to the Union’s duty as bargaining
representative. Certainly the General Counsel has failed to
demonstrate the relevance of the entire period. Assuming that
it is relevant, however, the General Counsel adduced no evi-
dence whatsoever on the subject. All three Respondents de-
nied that such a letter had been sent and the General Counsel
has failed to put such a letter in evidence, much less TU’s
response.
In conclusion, the General Counsel has failed to make out
any violations of Section 8(a)(5) and (1) with respect to re-
fusals to provide information, a refusal to bargain over a de-
cision to cease doing business, and the allegation that TU
failed to bargain over the effects of the shutdown.37
E. Lisa Hebert
The General Counsel alleges that Lisa Hebert, a rubber
haul driver, was discharged on November 29, 1990, because
of her union activities. TU has moved to dismiss the allega-
tions on the grounds that the General Counsel has failed to
prove the elements of an 8(a)(3) and (1) violation.
The General Counsel’s case consists principally of the tes-
timony of driver Charles Sonnier in which he described con-
versations he had with RDR’s Navarre. There are two curi-
ous aspects about the proof. The first is the timing of the in-
cident. It will be recalled that Goodyear had given notice to
TU that its leasing arrangement would be canceled at the end
of December. That notice had been issued on November 21,
only 8 days before Hebert was actually discharged. Thus, TU
knew that Hebert, as a junior driver, would probably lose her
job by the end of the year, if not before, but so would all
the other incumbent rubber drivers and most of the chemical
drivers.
That raises the question of why there would be any neces-
sity to discharge an individual because of his or her union
activities when the entire operation was about to end. What
gain was there, from an antiunion point of view, to dismiss
her in advance of everyone else?
695GOODYEAR TIRE & RUBBER CO.
38 The Department of Transportation regulations, of course, require
the logging of compensated nondriving time. Sonnier claims Navarre
told him he was not to log that time. Navarre had been called to
testify earlier by the General Counsel as an adverse witness but was
not asked questions about logging. As noted earlier, Navarre did say
that the drivers who spotted the trailers were performing a job usu-
ally carried out by Goodyear employees. TU drivers were asked to
perform that task only when Goodyear did not have the manpower
to do it. He regarded it as ‘‘extra’’ work, i.e., an opportunity for an
employee to voluntarily supplement his income.
39 Sonnier’s testimony here makes little sense. The loss of the
Lawton route wouldn’t have affected Kelly-Springfield’s require-
ments in Tyler, needs which governed that run. Therefore I do not
credit his attribution to Flanary for such a reason.
The second aspect is the nature of Sonnier’s testimony
itself. As will be seen, it describes a convoluted plot sup-
posedly advanced to him by Flanary to get rid of both Hebert
and her fellow rubber haul driver David Coney. Curiously,
the plot only ‘‘trapped’’ Hebert, not Coney. What the Gen-
eral Counsel does not explain very well is what motive TU
had to go along with Flanary’s plan. As we have seen, there
is no evidence of union animus on the part of TU. In fact,
the opposite may be said to be true. It regularly hired em-
ployees with a union background, including Hebert. Another
question which Sonnier’s plot generates is why Flanary
would go to the trouble of setting up Hebert and/or Coney?
RDR did not employ these individuals; it only dispatched
them. As the facts are described below, it will be seen that
neither of these two questions has a satisfactory answer. In-
deed, Sonnier and Hebert both suffer from serious, unrefuted,
credibility shortcomings.
Sonnier presented himself as both a confused and some-
what embittered individual. He suffers from dyslexia and is
unable to read. He possesses the limited ability to copy nu-
merals. He says he learned of the job through a friend who
worked as an RDR leased driver on the Beaumont-Lawton
interstate run. His testimony is somewhat confused regarding
for whom he worked and when he began. He testified that
he filled out a Ryder application and subsequently discovered
that he was in reality working for TU. However, the evi-
dence shows that he actually worked for both companies.
According to Navarre, he hired Sonnier to drive RDR’s
Lawton rubber run and he did so for 3 to 4 months. At some
point, he recommended to Parrish that Parrish hire Sonnier
for the Tyler run. It appears both from Navarre and from
Sonnier that he then split his time between each company.
He acknowledges receiving paychecks from both. Moreover,
he confesses to keeping two sets of logs, one for TU and one
for RDR, a clear breach of Department of Transportation and
Texas Railroad Commission rules. This procedure, of course,
enabled him to drive far more hours than he was legally enti-
tled and to maximize his income. As he said, his dyslexic
condition limited his abilities in some respects and he was
better off driving fixed runs to specific destinations and back.
Such jobs, according to him, are hard to find.
He says he first met Parrish while at the Tyler plant. Par-
rish introduced himself as his ‘‘boss,’’ but Sonnier would not
accept that assertion, contending that his only bosses were
Navarre and Flanary. During that meeting, Parrish gave him
a job application form to fill out. When Sonnier told him that
he had dyslexia, Parrish offered to help him. Sonnier de-
clined saying he would take it to his girlfriend for her assist-
ance. He eventually did so. Sonnier contended on direct that
during the conversation he told Parrish he was falsifying his
logs with respect to the time he was spending at Beaumont
spotting trailers for loading.38 He asserts Parrish told him it
was okay to do it as long as it was okay with Navarre and
as long as he didn’t get caught. Parrish denies he ever said
such a thing to anybody. It is worth noting that Sonnier
failed to include any references to his log falsification in his
prehearing affidavit. He says he remembered it shortly before
the hearing.
In addition, Sonnier says that at one point Parrish asked
him what he thought about the Union and whether he
thought the employees would vote the Union in or not. The
conversation, of course, implies that it occurred prior to the
NLRB election which was conducted on June 6 and 7. His
testimony on the point must be disbelieved, because there is
no evidence that Parrish had replaced Painter when the elec-
tion was held. The evidence shows that Parrish did not be-
come regional manager for TU until about a week after the
election. Furthermore, even under Sonnier’s version, he did
not fill out an application for TU until much later. He met
Parrish for the first time in Tyler. Sonnier cannot have it
both ways and it appears to me that he is either confused or
very inventive. Frankly, I think it is a little of both.
After becoming a TU rubber haul driver, Sonnier drove
that run until sometime in early November.
He agrees that at all times he opposed union representa-
tion. Apparently he believed that the Union’s presence would
somehow reduce his opportunity to earn a living because of
his dyslexia. It is also likely he was against the Union be-
cause he thought it would result in a more equitable distribu-
tion of the work which would deprive him of the opportunity
to earn money through his system of dual log keeping. What-
ever the reason, he contends that Navarre and Flanary, some-
time before the election, asked him if he would help them
find out what the Union’s ‘‘demands’’ would be.
Later Sonnier had another conversation which he describes
as occurring 2 days after the election in the Goodyear cafe-
teria. He says he opined to Flanary that he would likely lose
his job because of the Union’s presence. Flanary supposedly
replied that he would not lose his job if he didn’t join the
Union.
Finally, Sonnier says, in November, Flanary told him he
was being laid off by TU because of the loss of the Lawton
run (by RDR).39 He professes that Flanary told him he
would take care of him. He says Flanary told him that both
Hebert and Coney were ‘‘pushing the Union’’ and he would
set them up to be fired or laid off and then rehire Sonnier.
Sonnier says Flanary told him not to worry, that he would
be back to work in a short time. He says someone then gave
him a TU layoff slip.
With respect to Hebert and Coney supposedly ‘‘pushing’’
the Union, Hebert herself gives somewhat ambiguous testi-
mony. She says that sometime in August, in order to main-
tain union solidarity, she had solicited a returning driver,
Mike Howell, to sign an authorization card. She says she did
that in the dispatch office in the plain view of both Navarre
and Flanary. She concedes, however, that neither said any-
thing about it and the entire incident seems to have been
unremarkable.
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 I find that to be a peculiar excuse. Hebert’s seniority, even if
her personnel file was somehow empty, would never be in question.
The payroll records clearly show when TU began to pay her; her
seniority was easily provable.
41 The data sheet is a log supplement. It is designed to inform TU
of the current driving eligibility status of a driver at the time of hire.
It would include driving hours during the previous week so that one
may determine how quickly a driver could be assigned a load. She
wrote on that document that she had not worked for 5 of the pre-
vious 7 days and wrote that on the first 2 days of that week she
had worked for 4-1/2 hours each day. She claims that when she
filled out the document in June she was able to remember that was
her status as of February 15. I do not credit her on the point.
42 Hebert says the documents which she presented for use on the
I-9, her Texas driver’s license and her social security card were
photocopied by TU. It may be true that Painter did not complete his
portion of the I-9 form until after the INS deadline, but nonetheless
there is nothing irregular about his signature and his date. Clearly,
the document on its face evidences its existence during the month
of February.
Sonnier, eager to get back to work, said nothing to Hebert
or anyone else about Flanary’s apparent plot to rid himself
of both Hebert and Coney. On November 29, Parrish did fire
Hebert for falsifying her log on a run she made between
Beaumont and Tyler on November 19–20. Shortly thereafter,
Sonnier was recalled to the Beaumont-Tyler rubber run. This
time, however, he was asked to perform that task from Hous-
ton. I find that situation did not last very long as he was al-
most immediately the victim of the general layoff of Decem-
ber 16 and the reassignment of the four senior drivers from
the chemical runs. Those four were assigned to run rubber
as a result of the Union’s agreement with TU.
Sonnier admits to being bitter over this situation and be-
lieves Flanary reneged on his ‘‘promise’’ to take care of him
as a dyslexic person. He thinks his treatment was morally
wrong and seems to hold a grudge against anyone who might
be deemed his employer. He does not distinguish between
RDR and TU in this respect. It appears that this situation has
led him to now be more angry with the employers then he
had previously been fearful of the Union.
In any event, Hebert testified that she believed she had
been set up for discharge. Her union activities, however,
were well known, open, and had been singularly ignored.
Even her job application showed that her most recent 6 years
of employment had been through the Union’s hiring hall.
She had been hired on February 15, 1990, and initially as-
signed to chemical hauls. She testified that she did not fill
out a job application until several months had passed. She
then said the job application form and the connected docu-
mentation were all backdated to February 15.
She worked as a TU chemical hauler from February 15
through April 15, when, during a meeting between herself,
TU’s Painter and Navarre, she was given a layoff for lack
of work. She asserts it was Navarre who told her she was
being laid off, pointedly ignoring Painter’s presence.
Nonetheless, she says Navarre told her that she would
probably be recalled shortly because they were contemplating
reducing the demurrage rate and he expected some of the
drivers to quit. It didn’t happen right away and on April 26
she learned from fellow driver Aubrey Cain that the drivers
had gone to seek representation by the Charging Party. That
induced her to call Negrey in Cleveland to complain that she
hadn’t been called back as she believed she had been prom-
ised. She also told Negrey that the drivers were seeking
union representation. He said he would check into it. Shortly
thereafter Negrey telephoned her and told her to talk to the
dispatch office as she was being recalled. She did and was
immediately returned to work.
The Union sent TU two letters, the first dated April 18,
1990, and the second June 7, 1990. Each advised TU who
its organizers were. The April letter did not contain Hebert’s
name, but the June 7 letter did; not only did it list her, it
listed 15 other drivers, including Earnest Hebert, her hus-
band.
Clearly, by the time she asked Mike Howell in August to
sign an authorization card, her union participation was old
news.
However, her testimony about the backdating of her job
application and related forms seems to carry with it the sug-
gestion that TU had hired her without knowing about her
union background. Under her scenario, she did not tell TU
anything about her union sympathies until well after she had
been hired. Another testimonial motive may have been to
demonstrate that there was confusion as to who her actual
employer was, enhancing the argument that she was em-
ployed by both RDR and TU. She even believes that her
April 15 layoff was motivated by her union membership. Yet
there is nothing to support that belief.
Although she contends the documentation was backdated,
the documents themselves, as well as her own testimony,
belie it. She says at some point, perhaps as late as June,
Flanary and a clerical named Mary sat her down at a table
at the Ryder Truck yard in order ‘‘to update’’ her personnel
file. She says it was at that time that she filled out all of
the hiring paperwork and they directed her to backdate the
documents to February 15, 1990. She says the excuse they
used was so she would not lose her seniority.40 She says she
filled out her job application form for TU (on a TU form),
an acknowledgement that she had received a copy of TU’s
driving rules and regulations, an I-9 form (required by the
Immigration and Naturalization Service), a form entitled
‘‘Notice to Drivers and Driver’s Certification of Non-Motor
Carrier Compensated Work,’’ and finally, a TU form entitled
‘‘Data Sheet for Temporary Employees, Casuals and New
Hires.’’ All of the documents are filled out in pencil, as was
the one document which she admits filling out on February
15, the W-4 form, which does not bear a date. Neither does
the data sheet for new hires.41 Because of her use of pencil
on all of these hiring documents, I conclude they were all
filled out at the same time and that it was on the date shown,
February 15, 1990. With respect to the I-9, I note that TU
Official Jack Painter certified that he had seen the supporting
documentation. His certification is in ink and he dated it
February 28.42
I am compelled to conclude, based on the discrepancy be-
tween Hebert’s testimony and the documentation, that she
has not told the truth here. Apparently she wishes me to be-
lieve that TU regularly counsels and condones the falsifica-
tion of paperwork. That, of course, becomes significant when
we look at the reasons which Parrish later gave her for her
discharge.
It is undisputed that Hebert knew TU’s rule that discharge
was the appropriate discipline for falsification of logs and
other paperwork. See driver’s rule 2.16 which provides that
the only available discipline for that particular offense was
697GOODYEAR TIRE & RUBBER CO.
discharge. Second, she acknowledged, in an affidavit given
during the investigation (but would not do so readily before
me) that during an August 1990 safety meeting, Parrish ad-
vised her and the three other rubber run haulers that they
would be subject to discharge if they falsified their logs. Fur-
thermore, he urged them to call him in the event that any
RDR dispatcher or supervisor asked them to run illegally so
he could step in to prevent it.
In mid-November, according to Hebert, Flanary did ex-
actly that. She says he told her that on the days preceding
Thanksgiving all the rubber run drivers would be expected
to run back-to-back loads to Tyler so the Kelly-Springfield
plant there would have sufficient crude rubber on hand im-
mediately after Thanksgiving.
She testified:
And I asked him. I said, what do you mean, back-
to-back? And he said, you know, back-to-back. And I
said, well, how do you expect me to do that, Harold,
because it—I have run out of hours. And he said, well,
you will have to doctor your logs. You do know how
to doctor your logs; all truck drivers know how to doc-
tor their logs. And I said, what do you mean? And he
said, you know what I mean. He said, if you won’t do
it, I will find someone else who will.
She said that she feared for her job so she decided that she
had better do it. As a result, on November 20–21 she ran two
round trips to Tyler without taking an 8-hour break as re-
quired by both the Department of Transportation and the
Texas Railroad Commission. In addition, she falsified her log
to show that she had taken such a break. She did so, she
says, because she believed fellow rubber run driver and
friend David Coney had done so ahead of her. In fact, how-
ever, Coney had taken an 8-hour break and had run legally
that day. There is nothing to suggest that Hebert could not
have done likewise.
When she returned, RDR dispatcher Tammy Mancil imme-
diately became aware of what she had done. Mancil, on her
own, reported the incident to Parrish at his office in the Dal-
las area. Parrish then proceeded to investigate the matter.
Mancil faxed Parrish copies of Hebert’s logsheets together
with the checkin and checkout times at Beaumont. He later
compared these with the checkin and checkout times at the
Tyler plant and concluded Hebert had falsified her logs.
Parrish called her on November 29. During that conversa-
tion she admitted she had falsified the log and had run ille-
gally. He thereupon advised her that she was terminated. She
asserted that others had done so, citing her mistaken belief
that Coney had run also illegally. Parrish advised her that she
should be concerned with what she had done, not with what
others had supposedly done.
For reasons not clear to me, Parrish drafted and sent two
separate letters to Hebert on November 29. In one he simply
advised her that she was being discharged for breach of work
rule 2.16, the rule against falsifying work records and logs.
In the second he detailed the evidence which he had uncov-
ered, describing the actual departure and arrival times, noting
that she had not taken the 8-hour break.
Parrish also telefaxed a copy of at least one of those letters
to the RDR dispatch office. On the transmittal sheet accom-
panying the message he wrote the word ‘‘Enjoy!’’ I conclude
that he knew the RDR officials would not be unhappy to see
Hebert depart.
In analyzing the foregoing facts, I find that the General
Counsel has not only failed to prove all of the elements of
a violation of Section 8(a)(3) and (1), he proved TU’s de-
fense. First, there is no credible evidence that TU harbored
any union animus. Moreover, it seems that TU maintains hir-
ing policies which do not concern themselves with whether
an employee was likely to have been a union member. In-
deed, Hebert had worked almost 6 years through the Union’s
hiring hall and the hiring officials knew it, whether they
were TU officials or RDR officials. In April they put her
back to work knowing that union organizing was underway.
Later, they did not concern themselves when the Union an-
nounced her as one of the union organizers.
Her union activities appeared to have been absolutely
minimal, soliciting one card from employee Mike Howell in
August in plain view of the two RDR managers. They said
nothing to her at the time and there is no evidence that the
incident was ever reported to Parrish. The timing of her dis-
charge is not connected to any union activity on her part nor
any union activity on the part of any other employee. At that
time, TU was in the process of negotiating a collective-bar-
gaining contract and that process seemed to be going
smoothly. She was not a part of the negotiating team nor was
she any more visible than the majority of the drivers who
had voted for the Union.
The only nexus to her discharge is her admitted falsifica-
tion of the log on November 20–21. In a sense, not only was
it an offense for which she knew she would be discharged,
it was also an act of insubordination. She had been told in
August that she was to report to Parrish any effort to force
her to drive illegally. Instead of calling Parrish to get a clari-
fication of Flanary’s request, she chose to commit the driving
violation and to falsify the records to cover it up. Even if
Flanary was baiting for Hebert, as Sonnier contends, there is
nothing which prevented her from either reporting the matter
to Parrish and getting a clarification or doing what Coney
did, take the 8-hour break between runs. The choice of run-
ning illegally was hers, not anyone else’s. Similarly, the de-
cision to falsify the logs was hers, not anyone else’s.
The only evidence which really supports the General
Counsel is that given by Sonnier who testified that Flanary
had told him that Hebert and Coney were ‘‘pushing the
Union’’ and he would find a way to get rid of them so that
Sonnier could be put back to work. Sonnier, however, is not
a credible witness. Both he and Hebert are prone to exces-
sive exaggeration, if not downright prevarication. The entire
scenario which Sonnier described is so unlikely that it is sus-
picious on its face. When that is added to his confusion and
bitterness, his story must be rejected.
Finally, again assuming that Flanary was attempting to
trap her, there is nothing to suggest that Parrish knew that
was the case. Flanary did not report the incident to Parrish.
The undisputed testimony is that Mancil did it on her own.
In fact, Navarre was off ill during that period of time and
Flanary had not come to work either. Thus, if those individ-
uals were seeking to engineer her discharge for an illegal
purpose, there is no evidence that Parrish was aware of it.
He made his decision based on facts which he found during
his investigation. Under company rules he was left with no
choice but to discharge her.
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982)
Thus, applying the Wright Line43 analysis, even if the
General Counsel had made out a prima facie case that the
discharge was for an illegal reason, the General Counsel also
demonstrated that the discharge would have occurred absent
any illegal purpose.
In conclusion, I find that the elements of animus and tim-
ing are missing. Indeed, the element of union activity, al-
though present, is somewhat stale. Finally, with respect to a
lack of animus, I note that the Board has held in Sun Coast
Foods, 273 NLRB 1642, 1644 (1985), that an affirmative
showing that an employer lacks animus against the union
constitutes a good defense. The General Counsel’s own evi-
dence establishes that TU had no animus. Accordingly, I
conclude that Respondents’ motion to dismiss with respect to
Hebert should be granted.
F. Independent 8(a)(1) Allegations
At the outset, I express my agreement with counsel for the
Ryder respondents that ‘‘the procedural history of this case
has been mazy series of charges, amended charges, second
amended charges and amended complaints, winding around
time frames and respondents, to the ultimate destination of
21-page amended consolidated complaint naming five re-
spondents as joint employers and alleging numerous viola-
tions of Section 8(a)(1), (3) and (5) of the Act.’’ The first
charge, Case 16–CA–14820, was filed on November 20,
1990, solely against Goodyear. This occurred during the
course of collective bargaining between TU and the Union,
shortly before Goodyear officially notified TU that the leas-
ing contract would not be renewed, during the rumor stage.
The charge alleged that Goodyear had committed a violation
of Section 8(a)(5) and (1) of the Act by engaging in conduct
constituting a refusal to bargain. The second charge, Case
16–CA–14838, was filed on December 7, 1990. In it the
Union asserted that TU and Goodyear were joint employers
who had committed violations of 8(a)(3) and (5). The 8(a)(3)
allegation dealt with TU’s recent announcement that the
chemical drivers would be laid off on December 16. The
Section 8(a)(5) portion accused both these Respondents of
refusing to bargain by declining to provide the Union with
certain information concerning the proposed termination of
the chemical hauling operation. On December 27, the Union
amended the first charge, Case 16–CA–14820, by adding TU
to the initial refusal-to-bargain charge against Goodyear.
None of those charges assert that any Respondent had
committed any independent act in breach of Section 8(a)(1).
Indeed, the initial complaint in Case 16–CA–14820, issued
on January 4, 1991, alleged only that Goodyear and TU were
joint employers which had breached the good-faith bargain-
ing obligation.
It was not until it filed the charge in Case 16–CA–14901,
on February 8, 1991, that the Union contended that RDR was
involved at all. Again, however, it contended only that TU,
Goodyear, and RDR were joint employers who had breached
Section 8(a)(3) and (5) of the Act relating to the layoff of
the chemical drivers. It does contain some vague language
which might have been construed as independent 8(a)(1) ac-
tivity, but that language was ultimately deleted in the first
amendment of March 28.
In the meantime, on March 6 the Union filed a second
amended charge in Case 16–CA–14838 alleging that TU and
Goodyear as joint employers had unlawfully discharged the
chemical drivers, refused to bargain over the decision to ter-
minate them and had failed to bargain over the effects of the
termination. That was promptly followed by the second con-
solidated amended complaint on March 12, 1991, consolidat-
ing Cases 16–CA–14820 and 16–CA–14838.
Additional amendments and new charges continued to be
filed, but it was not until the second amended charge was
filed in Case 16–CA–14994 on May 22, 1991, that any con-
tention was made that any Respondent had committed an
independent violation of Section 8(a)(1). In that amended
charge the Union contended that RDR’s Flanary had made
an unlawful threat sometime during the first week in Decem-
ber 1990. Also pending at that time was Case 16–CA–15045,
originally filed on May 13, 1991. On June 18, 1991, that
charge was amended and contains, for the first time, a list
of 8(a)(1) allegations. They accuse RDR’s Navarre of inde-
pendent 8(a)(1) allegations beginning more than a year pre-
viously, May 28, 1990, and continuing through November
1990. It also contained an allegation that TU’s Parrish had
committed two independent acts violating Section 8(a)(1) on
July 6, 1990.
The fourth amended consolidated complaint picks up some
of these allegations. Respondent RDR has moved to dismiss
most of them on the grounds that they are barred by Section
10(b) of the Act as having been alleged to have been com-
mitted long before the 6-month statute of limitations began
to run.
The General Counsel does not address very well the 10(b)
issues, asserting only that the 8(a)(1) allegations first alleged
in May 1991, are somehow connected to the original case
filed on November 20, 1990 against Goodyear or the second
case, Case 16–CA–14838, filed on December 7, 1990,
against Goodyear and TU. Neither of those charges however
alleged that RDR was in any way involved. Nonetheless, the
complaint asserts that it was RDR’s Navarre and Flanary
who committed the bulk of these independent violations. The
General Counsel’s argument here necessarily depends on a
finding that a joint employer relationship existed and service
on one of the joint employers is service on all.
Even if a joint employer relationship had existed, and I
have earlier found that it did not, neither of those first two
unfair labor practice charges contended that any manager had
committed independent violations of Section 8(a)(1). The
principal thrust of those two charges is that Goodyear and
TU breached the good-faith bargaining obligation in some re-
spect. The second dealt with the mass layoff of the chemical
drivers, an alleged violation of Section 8(a)(3). Although it
is certainly true that independent 8(a)(1) violations can be
used to assist in the proof of an 8(a)(3) violation, the Board,
in Nickles Bakery of Indiana, 296 NLRB 927 (1989), held:
‘‘[W]e can find no sufficient basis in law or policy for con-
tinuing to exempt 8(a)(1) complaint allegations from the re-
quirements of the traditional ‘closely related’ test. On the
contrary, we believe that a uniform requirement in all 8(a)
cases that a complaint allegation be factually related to the
allegation in the underlying charge would end the disparity
currently existing in our case law and promote important
statutory policies.’’ It went on to say that it would no longer
permit the boilerplate ‘‘other acts’’ language found in the
699GOODYEAR TIRE & RUBBER CO.
44 Complaint pars. 7(B)(2)(b), (4), (5), (6), (7), (8), (9), and (10).
charge forms to be sufficient to sustain a complaint allega-
tion under the specificity requirement of Board Rule
102.12(d).
Clearly the Nickles rule has application here. First, the
fourth amended consolidated complaint alleges that RDR’s
Navarre committed acts violating Section 8(a)(1) on May 21,
1990. Specifically, paragraphs 7(B)(1), (2)(a), and (3) assert
that RDR unlawfully interrogated employees, solicited em-
ployees to spy on other employees, and threatened employees
with discharge for reasons prohibited by the Act. The charge
in Case 16–CA–14820 filed on November 20, 1990, alleging
only a technical refusal to bargain against Goodyear would
never rely on such evidence for proof of that fact, assuming
that the correct employer had been named. The second
charge, Case 16–CA–14838, originally filed on December 7
against TU and Goodyear, does make an 8(a)(3) allegation.
Counting 6 months backwards from that date, one discovers
that Navarre’s supposed activity on May 28 is about a week
outside the reach of Section 10(b). That is not to say that the
conduct might not be received as background evidence for
animus, but clearly it is on its face outside the reach of the
Act for 10(c) remedy purposes.
It was not until February 8, 1991, that the Union filed any
charge against RDR. Counting 6 months backwards from that
date, the 6-month period for a timely charge begins on Au-
gust 8, 1990. Using that date as the cutoff it is apparent that
Navarre’s alleged misconduct occurring on June 13 and 23
are barred. Indeed, that charge, Case 16–CA–14901, contains
no independent allegations of Section 8(a)(1) and would rely
on those allegations to support the 8(a)(3) conduct alleged in
the second amended consolidated complaint dated April 9,
1991. In that complaint the General Counsel for the first time
alleged that the November 29 termination of Lisa Hebert was
unlawful as well as the December 16 layoff of the chemical
drivers.
Strangely, the General Counsel’s proof relates to incidents
directed not at the chemical drivers and not at Hebert, but
at nonunit employees, the RDR dispatchers. In that cir-
cumstance, I do not see how the ‘‘closely related nexus’’ re-
quired by Nickles Bakery has been met. It cannot be over-
emphasized that Navarre, although a statutory supervisor, did
not have supervisory authority over any of these drivers. In-
deed, the Board has recently held in Crenulated Co., 308
NLRB 1216 (1992), that in order to be a statutory super-
visor, an individual must exercise supervisory authority
‘‘over the employees of the employer at issue,’’ not over the
employees of some other employer. Thus, Navarre’s remarks
to his own dispatchers would not fit within the nexus re-
quirement insofar as TU’s November 29 discharge of Hebert
or its December 16 discharge of the other chemical drivers
is concerned. That, of course, leaves open the question
whether the remarks made to the RDR dispatchers would
met the nexus test.
Before answering that question, it is important to look to
the evidence which counsel for the General Counsel actually
adduced. The allegations may be grouped by allegation
date—June 13 and 23, 1990.44 In general, these paragraphs
assert that Navarre directed remarks to dispatchers Bossette,
Mancil, and Bacon. Specifically, those individuals testified
that Navarre asked them to spy on employee union activity;
threatened them with discharge if they revealed that they
were spying; threatened, somewhat vaguely, to impose more
onerous working conditions on drivers because they had se-
lected the Union; that the dispatchers had to play by his rules
or be discharged; that the dispatchers were to deny the use
of the telephones to the drivers and if they didn’t comply,
the dispatchers would be subject to discharge; and a vague
threat of reprisal directed at Sonnier in late June.
As can be seen none of this was related to any union ac-
tivity by or on behalf of the dispatchers. At best Navarre was
seeking to obtain information about the activities of the driv-
ers; at least some of his threats to discharge dispatchers if
they didn’t play by his rules could be regarded as aimed at
their subsequent discharge.
The evidence in support of that contention, however, came
up in a conversation between Bossette and Navarre in which
they were discussing drivers’ complaints regarding alleged
dispatcher favoritism. She says Navarre told her the Union
was out to ‘‘hurt’’ the dispatchers (apparently because they
represented the drivers’ interests, not those of the dispatch-
ers) but he would not allow the Union to do that, at least
as long as the dispatchers played by ‘‘his rules.’’ If they did
not, they would be subject to discharge.
I agree that the remark carries with it the threat of a dis-
charge but do not see how the threat was in any way unlaw-
ful. Indeed, earlier in her testimony Bossette says Navarre
told her that eventually the Union would issue a handbook
(apparently a collective-bargaining contract) which would
likely govern dispatch rules and the dispatchers would have
to learn it. Those appear to be the ‘‘rules’’ to which he was
referring.
The entire matter seems to be relatively benign; certainly
the allegations dealing with spying, even if credited, would
have nothing to do with any subsequent discharge in Decem-
ber. I observe that the General Counsel has not even con-
tended that the dispatchers were discharged as a reprisal for
anybody’s union activities, only that they were the incidental
victims connected to the supposedly unlawful discharge of
the drivers. Thus, I do not see any nexus which these inde-
pendent 8(a)(1) allegations have to the 8(a)(3) and (5)
charges then on file. Accordingly, these allegations must be
dismissed as being outside the scope of Section 10(b) of the
Act.
Also occurring within the same time period, according to
paragraphs 7(C)(1) and (2) of the fourth amended consoli-
dated complaint (based on the June 18, 1991 amended
charge) are two contentions that TU’s Parrish violated the
Act on July 6, 1990, by creating the impression of surveil-
lance and threatening to discharge an employee because of
the employee’s union activity. Even though this allegation is
facially untimely, the evidence in its support also fails, even
as background evidence of animus.
According to driver Charles Zerengue, on or about July 5,
1990, he got a message to call Parrish. He finally reached
him on July 6. Zerengue says Parrish asked him about a re-
port he had just received accusing Zerengue of going through
Navarre’s files and paperwork on Navarre’s desk. Zerengue
denied doing that, but explained that he was at Navarre’s
desk attempting to find some information relating to a sup-
posed paycheck shortage, saying the dispatcher had been un-
able to help him. He says Parrish told him he had also heard
that Zerengue had refused to take a sample of the product
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 See Consolidated Edison Co., 280 NLRB 338, 339 (1986),
which held that an employer has the right to investigate apparent ef-
forts of an employee to disrupt the work of other employees. Also,
Washington Adventist Hospital, 291 NLRB 95, 103 (1988); and BJ’s
Wholesale Club, 297 NLRB 611, 616 (1990) (management may tell
a prounion employee to stop threatening employees about their union
stances).
46 It should be observed here that there is no evidence any of these
three were actually union stewards.
he had hauled to the lab, observing that Zerengue seemed to
be some sort of troublemaker.
The conversation then turned to a letter which Zerengue
says Parrish told him he had obtained. Zerengue says Parrish
told him he had received a letter in the mail which Zerengue
had supposedly signed telling the union drivers not to associ-
ate with or talk to any nonunion drivers on the job. Zerengue
denied being involved in any such letter and asked for a
copy. He says Parrish told him it was not necessary to give
him a copy but that if he found out Zerengue had actually
written such a letter he would ‘‘personally fly down there
and escort you out of the plant.’’
The General Counsel asserts the incident constitutes both
the unlawful creation of the impression of surveillance and
an unlawful threat to inhibit Zerengue’s union activity.
First, I observe that the entire conversation seems very un-
likely. If one credits Zerengue that he never wrote such a let-
ter, there would be no impetus for Parrish or anyone to ac-
cuse him of having done so. Second, if the letter is as
Zerengue says, then it would not constitute a protected act.
It is improper for an employee to direct other employees to
ostracize, shun, or refuse to talk to other employees because
of their nonunion status. That in and of itself is disruptive
of the production process and is a matter with which an em-
ployer has a direct concern, for it is a severe burden on em-
ployee discipline, morale, and productivity. In essence, it is
a direction by one employee to others to hamper or impair
production.45 It is conduct which is not protected by the Act.
Not being protected by the Act, it is not unlawful for an
employer to inject itself into that circumstance and it does
not create the unlawful impression of surveillance when it
does so, for there is no protected conduct involved. Simi-
larly, the threat to discharge an employee for such conduct
is perfectly proper, again because the conduct is unprotected.
Therefore, the General Counsel’s proof here falls far short of
8(a)(1) activity by Parrish. It certainly does not have the rea-
sonable tendency, in the totality of the circumstances, to in-
timidate an employee from exercising his Section 7 rights.
Moreover, this conversation would have no bearing on
proving unlawful the discharges of Hebert or the chemical
driving crew some 5 months later. Hebert’s discharge is al-
leged to be the result of plotting by RDR personnel and the
chemical driving staff’s discharge to be the result of Good-
year’s supposed unlawful decision. There is no way that a
claim of ‘‘creating the impression of surveillance’’ of prob-
ably unprotected conduct would assist in the proof of animus
with respect to those two alleged 8(a)(3) violations. Thus,
because the Union did not specifically designate this July 6,
1990 telephone conversation in a unfair labor practice charge
until the second amended charge in Case 16–CA–15045 was
filed on June 18, 1991, it, like the previously discussed dis-
missals with respect to RDR’s supposed conduct, must be
dismissed on 10(b) grounds. But even if not, the merits are
unimpressive. There is no suggestion that the conduct was in
anyway coercive of the right to engage in lawful Section 7
activity. It was only aimed at the unprotected act of causing
disharmony in the bargaining unit.
There remain for consideration three allegations involving
Navarre and two involving Flanary. Complaint paragraphs
7B(11), (12), and (13); 7A(1) and (2). Taking them chrono-
logically, the allegations involving Navarre precede those in-
volving Flanary. Thus, paragraph 7B(11) asserts that between
September and December 1990, Navarre told employees that
Goodyear would not stand for a union in the plant and would
not allow the Union to tell it how to run its transportation
department. The General Counsel relies on the testimony of
three individuals, Bossette, Bacon, and Sonnier to prove this
allegation. Sonnier’s testimony relates to a conversation
which occurred about a week after the election, sometime in
mid-June. It, therefore, is outside the scope of Section 10(b)
of the Act.
Bacon testified that a few weeks after she was hired in
early July, Navarre told her in Mancil’s and Broussard’s
presence that the drivers had voted for the Union and that
Goodyear was not going to stand for the Union coming in
and telling them how to run their transportation department.
He also said, ‘‘It just wasn’t going to be.’’ As with Sonnier’s
testimony, the incident is well outside the 10(b) period, hav-
ing occurred in July 1990.
Bossette testified that sometime in October she had a con-
versation with Navarre in the dispatch office. Also present,
but not clearly involved in the conversation, was a Goodyear
‘‘operator’’ (a rank-and-file employee who loads tanker
trucks). She remembers Navarre saying the ‘‘drivers were
stupid for voting in a union, that they didn’t have sense
enough to be in a union and that Goodyear was not going
to stand for a union in a nonunion plant.’’ He also said that
the drivers who had voted against the Union as well as the
dispatchers were all going to have to suffer for the Union;
that they would all be out of a job because of it.
Whether the conduct is barred by Section 10(b), it also
lacks merit. The Board has held a nearly identical remark to
be uncoercive and not unlawful. See Mountaineer Petroleum,
301 NLRB 801 (1991). There the Board did not find the re-
mark to suggest that the employer would not recognize a
union because it was the lawful expression of an opinion.
Likewise, Navarre’s remarks are also in the context of an
opinion. Here his conjecture is directed at what Goodyear
might do, something neither RDR nor TU could control. Be-
cause they had no control, his remarks must be regarded as
uncoercive.
Paragraph 7B(12) alleges that in November 1990, Navarre
created the impression of surveillance by listing the names
of unit employees according to their alleged union pref-
erence. In support of that allegation counsel for the General
Counsel cites dispatcher Bacon’s testimony that in Novem-
ber, or possibly before that, she observed Navarre making
notations on a computer printout. She says he marked which
of the drivers had voted for and which of the drivers had
voted against the Union in the June election. At the same
time he showed her the list, he told her that the principal
troublemakers were the ‘‘union stewards,’’ Rains, Zerengue,
and Aubrey Cain.46
701GOODYEAR TIRE & RUBBER CO.
As noted, the election had been in June, well before Bacon
had even been hired. Assuming she is accurate, that the inci-
dent which she described occurred in November, there seems
to have been no reason for it. The Union had been certified
as the representative of TU’s employees and the rumor re-
garding the substitution of a common carrier was in high
gear. Depending on the date in November, it may well be
that Goodyear had already advised TU (and RDR as well)
that TU’s agreement was being canceled. Thus, the likeli-
hood that Navarre would be listing employees by union pref-
erences is virtually nil. Furthermore, the allegation itself as-
serts that his conduct constituted the creation of the impres-
sion of surveillance. Yet, his remarks were directed not at the
individuals who were engaged in union activity, the drivers,
but at one of his own dispatchers. Even if he said the three
drivers were union activists, I fail to see how the remark is
coercive. RDR dispatchers such as Bacon were not engaging
in any union activity nor was there any reason for Navarre
to be attempting to interdict her in doing so.
If Bacon actually observed the incident much earlier, say
in July shortly after she arrived, a more probable date, the
matter would be barred by Section 10(b). Accordingly, be-
cause I doubt it occurred and I do not see that this could
have had a coercive effect or because it is barred by Section
10(b), this allegation should be dismissed.
Paragraph section 7B(13) asserts that in late November
Navarre threatened employees with discharge because the
unit employees had selected the Union as their collective-bar-
gaining representative. Again, we have the testimony of three
dispatchers, Bossette, Mancil, and Bacon. At this point it
should be noted that Goodyear had clearly given TU (and
RDR) notice of the cancelation. The Union was aware of it
as well. It is not necessary to detail the testimony of each
of these three individuals. Suffice it to say that they all testi-
fied Navarre told them the reason that the layoff had been
announced was because the drivers had selected the Union
as their representative. Similarly, in support of complaint
paragraph 7A(1), drivers Morgan and Rains testified that
RDR’s Flanary had told them that they had made the
‘‘wrong decision’’ and had voted the wrong way. In
Flanary’s opinion he would rather have had his job than the
Union.
In context, it is clear that even if the remarks were made
they were simply the expression of Navarre’s and Flanary’s
assessment of why the layoffs were coming. Of course, nei-
ther of them was involved in the decision-making process;
all they knew was that everyone’s job, including theirs, was
in severe jeopardy. In fact, Navarre lost his shortly after his
drivers and dispatchers did. Only Flanary managed to sur-
vive. Thus, the evidence clearly shows that these remarks are
the angry reactions of individuals seeking an explanation for
why their jobs had been lost. It is accurate to observe that
one could look at the statements, standing alone, and say
they are not couched as opinions, but as fact. Nonetheless,
in context that is clearly not the case. They cannot reason-
ably be regarded as coercive in the totality of the cir-
cumstances. The General Counsel has failed to make out a
violation here.
Finally, complaint paragraph 7A(2) asserts that in January,
during a telephone conversation, Flanary threatened a driver
with discharge because the drivers had selected the Union as
their collective-bargaining representative. In support, the
General Counsel cites driver Jonathan Rains’ testimony.
Rains had previously been an isoprene driver and had been
transferred to the rubber run as one of the four most senior
drivers when the chemical operation was shut down. In fact,
he was really driving to Tyler from Houston as the dispatch-
ing operation had been transferred to that location. He says
that sometime in January he had called Flanary after having
reached Tyler to let him know he was returning. He says
Flanary asked him how well he knew the Beaumont drivers
on the rubber route. He said he knew them very well; he had
worked with them for 5 years. Rains says Flanary then told
him, ‘‘You better go over there and talk to them and tell
them to hold their union activity down over there, or we will
be back in shape to lose [this account] . . . wind up losing
this account over the union activity.’’
Again, we have an RDR person making a remark to a TU
driver which is apparently coercive. In essence it is a direc-
tion to Rains to ask his fellow drivers to cease their union
activity. The principal problem with it is Flanary is not
Rains’ supervisor. In fact, it is not clear that he is a statutory
supervisor at all; more likely he had become a rank-and-file
dispatcher, for his supervisees had been discharged in Beau-
mont in December and he had been forced to move to Hous-
ton. Based on the doctrine of Crenulated Co., supra, it seems
unlikely that at this point Flanary was a statutory supervisor.
First, he was not Rains’ supervisor and, second, it is not
clear that he had anybody at all to supervise, not even RDR
employees. See Browning-Ferris, Inc., 275 NLRB 292 fn. 5,
(1985).
Accordingly, all of the allegations found in paragraph 7
are either barred by Section 10(b) of the Act or are not sup-
ported by the evidence. Under the circumstances, I am un-
able to find that the General Counsel has established suffi-
cient evidence to warrant requiring any Respondent to defend
them.
Conclusions
Based on the foregoing, I conclude that the General Coun-
sel has failed to demonstrate a prima facie case with respect
to the entire complaint. First, there is no evidence that Ryder
Truck or Ryder System, Inc. was involved in this case what-
soever. Those respondents should be dismissed without fur-
ther ado. Second, the General Counsel has failed to establish
a prima facie case that Goodyear and/or RDR were joint em-
ployers with TU of the chemical haul drivers. Counsel for
the General Counsel has failed to establish that Goodyear or
RDR shared and codetermined the essential terms and condi-
tions of employment of these drivers. In fact, he has shown
the contrary, that the essential terms and conditions such as
hiring, firing, wages, fringe benefits, and discipline were ulti-
mately in the hands of TU.
Third, the General Counsel has failed to demonstrate that
any party has failed to bargain in good faith over any manda-
tory subject of bargaining. Clearly, neither Goodyear nor
RDR had any duty to bargain with the Union. Furthermore,
TU had no duty to bargain over the decision to go out of
business. See First National Maintenance Corp. v. NLRB,
450 U.S. 666 (1981). Nor does it appear that the Union ever
pursued, after the postponement, its demand that TU bargain
over the effects of the chemical haul shutdown. Even so, the
evidence demonstrates that the TU did bargain over some ef-
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 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
National 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.’’
48 A request for review of this order may be filed pursuant to Sec.
102.27 of the Board’s Rules and Regulations.
fects, i.e., which employees would be retained on the rubber
run. And, there is no suggestion that TU did not unlawfully
refuse to supply material which the Union had requested. Ei-
ther the Union already had it or the material was not avail-
able to TU at the time and the Union knew it.
Fourth, the General Counsel has not established that the
December 16 layoff of the chemical drivers was motivated
by antiunion considerations; instead the only evidence in the
record is that it was the result of Goodyear’s decision to can-
cel the leased drivers’ arrangement with TU in favor of sub-
stituting a common carrier. This scenario is consistent with
the plan which Goodyear had conceived in 1985 and which
finally came to fruition at the end of 1990. Fifth, counsel for
the General Counsel failed to establish a prima facie case
with respect to the discharge of Lisa Hebert, for significant
elements of the violation are absent. Instead, he has dem-
onstrated that Hebert’s discharge followed immediately on
the heels of her falsifying her logbook, an offense for which
discharge was the only penalty under TU’s rules. Sixth, the
General Counsel failed to establish a violation with respect
to all of the allegations alleging Section 8(a)(1). Either they
are barred by Section 10(b) or the evidence is too vague and
insufficient to warrant the entry of a Board order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended47
ORDER
It is ordered that the matter be dismissed.48
IT IS FURTHER ORDERED that any pending motions incon-
sistent with this order of dismissal are denied.