International Transportation Service, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 2005

344 N.L.R.B. 279 (N.L.R.B. 2005)

INTERNATIONAL TRANSPORTATION SERVICE
344 NLRB No. 22
279
International Transportation Service, Inc. and Inter-
national Longshore and Warehouse Union, Of-
fice Clerical Unit, Marine Clerks Association,
Local 63. Case 21–CA–34968
February 18, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 10, 2003, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.1 The General Counsel filed
limited exceptions and a supporting brief, and the Re-
spondent filed a brief in opposition.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that Respondent International Transportation Ser-
vice, Inc., Long Beach, California, its officers, agents,
successors and assigns, shall take the action set forth in
the Order.
Alan L. Wu, Esq., for the General Counsel.
Matthew T. Miklave, Esq., of New York, New York, and
Stephen M. Uthoff, Esq., Long Beach, California, for the
Respondent.
John L. Fageaux Jr., of Long Beach, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Los Angeles, California, on
June 5–6, 2003. International Longshore and Warehouse Un-
ion, Office Clerical Unit, Marine Clerks Association, Local 63
(the OCU, the Charging Party, or the Union), filed an unfair

1 The Respondent also submitted a letter, dated December 2, 2004,
citing recent case authority. The General Counsel, in a letter dated
December 15, 2004, responded to the Respondent’s cite of additional
authority.
2 Chairman Battista and Member Schaumber note that the judge re-
lied on the Board’s decision in Teamsters Local 115 (Vila-Barr Co.),
157 NLRB 588 (1966), in finding that the picket line activity was pro-
tected. Chairman Battista and Member Schaumber do not pass on the
correctness of the Board’s Vila-Barr decision. In the absence of a
three-member Board majority to overrule Vila-Barr, Chairman Battista
and Member Schaumber apply that precedent and join their colleague
in affirming the judge’s findings that the picketing was protected.
labor practice charge in this case on February 11, 2002.1 Based
on that charge, the Regional Director for Region 21 of the Na-
tional Labor Relations Board (the Board) issued a complaint on
February 10, 2003. The complaint alleges that International
Transportation Service, Inc. (ITS), herein referred to as the
Respondent, the Employer, or ITS, violated Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). Specifically,
it is alleged that the Respondent discharged employee Deanna
Tartaglia because she engaged in union and concerted activi-
ties. Further, it is alleged that the Respondent, through its su-
pervisor, Lawrence L. Bear, violated the Act by informing
Tartaglia of the unlawful reason for her discharge. The Re-
spondent filed a timely answer to the complaint denying the
commission of the alleged unfair labor practices, and raising a
number of affirmative defenses.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based on the record, my consideration of
the briefs filed by counsel for the General Counsel and counsel
for the Respondent, and my observation of the demeanor of the
witnesses,2 I now make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent is a California corporation, with facilities located at
1281 Pier J Avenue, Long Beach, California, where it has been
engaged in business as a container terminal operator and steve-
dore for ships, trains, trucks, and warehouses. Further, I find
that during the 12-month period ending December 31, 2001,
which period is representative of the Respondent’s operations,
the Respondent, in the course and conduct of its business opera-
tions, purchased and received at its Long Beach, California
facilities, goods valued in excess of $50,000 directly from
points located outside the State of California.
Accordingly, I conclude that the Respondent is now, and at
all times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that at
all times material herein, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The facts in this case are, for the most part, undisputed. The
Respondent is located in Long Beach, California, where it op-

1 All dated are in 2002, unless otherwise indicated.
2 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD280
erates a container terminal and moves products, goods and
materials being imported into and exported out of the United
States. The Respondent’s personnel are responsible for loading
and unloading containers (each container holding between 20 to
30 tons) on ships, trucks and trains for ultimate destination
elsewhere. The facility operates 24 hours a day, every day of
the year. The Respondent’s employees process approximately
1000 containers per day, and on average between 1100 and
1600 trucks pass through the facility every day. When contain-
ers are sent via rail, the Respondent’s employees load each
transcontinental train with approximately 200 containers
stacked two high for destinations throughout the country.
The Respondent’s employees have an extensive history of
collective bargaining. Since the Respondent began its opera-
tion in Long Beach, its longshoremen have been represented by
the International Longshore & Warehouse Union (ILWU),
Locals 13 (longshoremen), 63 (marine clerks), and 94 (walking
bosses). The Respondent is a party to contracts with these three
ILWU locals through its membership in the Pacific Maritime
Association (PMA). On a typical day, the Respondent employ-
ees between 200 and 300 employees represented by the local
unions affiliated with the ILWU.3 Further, the Respondent’s
employee mechanics are represented by the International Asso-
ciation of Machinists and Aerospace Workers, District Lodge
94, Local Lodge 1484 (IAM). There are approximately 70
mechanics directly employed by the Respondent.
The OCU represents the Respondent’s office clerical em-
ployees, who are directly employed by ITS. The OCU repre-
sented office clericals perform clerical and paperwork functions
inside the Respondent’s main administration building.4 The
Respondent negotiates contracts directly with the OCU. Laur-
ence Bear, the Respondent’s assistant vice president, has repre-
sented the Respondent in contract negotiations with the OCU
for at least the period covering the last several contracts. Bear
is also the person responsible for representing the Respondent
in grievances filed by the OCU under the terms of the contract.
The most recent collective-bargaining agreement between the
Respondent and the OCU is effective by its terms from July 1,
2001, through June 30, 2004. (R. Exh. 5.)
The Respondent hired Deanna Tartaglia as its payroll and
billing representative in approximately June 1999, and she re-
mained in that position until she was terminated on February 8,
2002. During the entire period of her employment, Tartaglia
was the Respondent’s only payroll and billing representative. It
is undisputed that since contract negotiations in 1995, the OCU
has sought to expand the agreed upon bargaining unit to include
the position of payroll and billing representative. Apparently
whenever the issue was raised, including during the most recent
contract negotiations, the Respondent rejected the proposal on
the basis that the payroll and billing representative was alleg-
edly a supervisory, confidential, and/or managerial position.

3 These employees are procured through the hiring hall operated by
the ILWU pursuant to its contract with the PMA.
4 This should be distinguished from the marine clerks who perform
various clerical and paperwork functions on the dock or at the gates
where containers enter or leave the Respondent’s premises. The marine
clerks are one of the three ILWU locals that are parties to a collective-
bargaining agreement with the PMA.
The recognition clause in the most recent contract excludes,
among others, confidential employees and supervisors. In any
event, the OCU never sought to challenge the Respondent’s
position by filing a contract grievance, a unit clarification peti-
tion, or a representation petition. Although the OCU raised the
issue during bargaining for successive contracts, ultimately the
Union agreed to sign each contract without including the pay-
roll and billing representative in the unit.
In early 2002,5 Steve Schwab, the OCU’s vice president,
telephoned Bear and asked to schedule a meeting between OCU
president John Fageaux, Schwab6 and Bear. A meeting was
held on February 4 with the named individuals, at which time
Fageaux presented Bear with a one-page letter demanding that
the Respondent recognize the OCU as the exclusive bargaining
representative for Deanna Tartaglia. The letter indicated that a
response from ITS was expected within one (1) hour. (R. Exh.
6.) Bear expressed surprise with the turn of events, as during
the most recent contract negotiations the Union had dropped the
matter of representing Tartaglia’s position, after initially seek-
ing to include the position in the bargaining unit. Schwab and
Fageaux indicated that Tartaglia had approached them about
representation about three or four months earlier, and the Un-
ion’s attorney had been working on the matter. The union rep-
resentatives made it clear to Bear that the OCU was now seek-
ing to represent Tartaglia in “ a unit of one.” As Bear indicated
that he did not believe that a one-person unit was appropriate,
the union representatives provided him with an excerpt of a
case that their attorney had furnished them to support a position
that the Union could represent a unit of one. Further, they in-
formed Bear that “time is running out,” meaning that the Re-
spondent only had one hour to recognize the OCU as Tartaglia's
bargaining representative. Bear understood this to mean that if
ITS did not recognize the OCU within the hour, that the Union
would establish a picket line, effectively closing the Respon-
dent down.7
Unable to reach the Respondent’s counsel, Bear asked for
additional time and, ultimately, the union representatives ex-
tended the job action deadline until 11 a.m. the following day,
February 5. Having met with counsel by the designated time,
Bear informed the union representatives that ITS would not
recognize the Union as the representative of Tartaglia in a one-
person unit. One of the OCU representatives indicated to Bear
at that point that they were going to “take you out,” and the
representatives began telling the clerical employees that they
were going out on strike.8

5 All dates are in 2002, unless otherwise indicated.
6 Schwab is an employee of ITS, currently on a leave of absence as
provided for under the terms of the collective-bargaining agreement
between the OCU and the Respondent.
7 It was Bear’s unrebutted testimony that traditionally in the steve-
dore industry on the West Coast, a picket line will immediately cause
the union represented employees to cease work. Allegedly, the em-
ployees will continue to honor the picket line until such time as a court
or arbitrator determines that the picket is improper or illegal.
8 It should be noted that the current collective-bargaining agreement
between the Respondent and the OCU, which was in effect at the time
in question, contains a broad “no strike” clause. See R. Exh. 5, art. VII.
INTERNATIONAL TRANSPORTATION SERVICE 281
Almost immediately, the OCU established a picket line out-
side the Respondent’s main gate. Both union representatives
picketed, as did Tartaglia. While no other employee of the
Respondent engaged in picketing, apparently all of the Respon-
dent’s employees who were represented by any union honored
the picket line and ceased work. The pickets carried pre-
printed picket signs, which read either: “ITS refuses to bargain
in good faith with the ILWU, Local 63, Office Clerical,” or
“Unfair to Labor, ILWU, International Longshoremen and
Warehousemen Union.”
As a result of the picketing, all work at the facility came to a
halt since all ILWU and IAM locals honored the OCU picket
line. Eventually the picketing caused a 1-mile long line of
trucks seeking to enter the ITS facility. Further, a number of
trucks and a transcontinental container train already inside the
facility were unable to leave. Also, two ships loaded with con-
tainers were unable to unload their cargo during the picketing.
Although the picketing only lasted for 3 hours, the Respondent
estimated that it cost approximately $60,000 to $90,000 in lost
revenue and added expenses. Bear testified that in addition to
the immediate cost in money, the picketing caused a significant
loss of confidence in the Respondent among its customers, who
could not understand why the Respondent was unable to move
cargo at a time when the port remained open.
In a effort to have the picket line removed, the Respondent
contacted the PMA, of which the Respondent is a member, and
requested that the PMA arrange for an “expedited arbitration,”
as provided for in the contract between the PMA and the
ILWU. Apparently, the Respondent believed this to constitute
the most expeditious way to remove the picket. In any event,
an arbitration hearing was held at approximately 2 p.m. on
February 5, for the purpose of determining the propriety of the
picket line. The OCU was not a party to the arbitration9 but its
officials, Fageaux and Schwab, were present for the proceed-
ing. The unions that were parties to the arbitration were the
ILWU locals whose members had honored the picket line.
At the conclusion of the proceedings, the arbitrator issued an
oral award in which he ruled that the picket line was not a
“bona fide” picket line and that the Respondent did not have to
pay employees who had honored the picket line. Several days
later, the arbitrator issued a written award. In that award, he
stated the following: “The Office Clerical Unit (OCU) is at-
tempting to expand representation beyond that recognized in
any previous contract negotiation. Rather than attempting a
negotiated settlement, they have used the power of the sympa-
thetic longshore unions to attempt to force the Employer to
accept their bargaining position. The picket line is deemed a
collusive picket line.” (R. Exh. 9.)
Following the issuance of the arbitrator’s oral award on Feb-
ruary 5, Tartaglia went back to work and the picketing ceased.
While the picketing had lasted about 3 hours, some of the
ILWU members who had honored the picket line did not return
to work until the next day. In any event, the Respondent de-
cided to terminate Tartaglia.

9 The OCU was not a party to the arbitration, because it was not a
party to the contract between the PMA and the ILWU.
On February 8, at approximately 5 p.m., Bear and Philip
Feldus,10 the Respondent’s director of operations, went to Tart-
aglia’s office. The purpose of their visit was to terminate Tart-
aglia. There is some dispute regarding the words Bear used
when informing Tartaglia of her termination. According to
Tartaglia, Bear closed the office door and told her they were
there to discuss her termination. She asked why she was being
terminated and Bear allegedly responded, “Well, with the stunt
you pulled on Tuesday, we’re still trying to figure out how
many millions of dollars you cost us and you violated a confi-
dentiality agreement.” Tartaglia testified that she asked Bear to
show her the confidentiality agreement, so she could see what
he was referring to, but he did not. Instead, Bear is alleged to
have merely responded that she discussed “things” with people.
According to Tartaglia, Bear handed her a COBRA benefits
package, her vacation pay and severance pay, and told her that
if she had any questions about these items to talk with Elvina
Morneo, in human resources. Tartaglia claims that Bear next
said that he had brought some boxes for her use, and that she
should get her “shit” and leave. After gathering her belongings,
Bear and Feldus escorted her out of the facility.
Bear’s version of this conversation is somewhat different.
He denies ever cursing in the presence of employees and spe-
cifically denies using the word “shit” in regard to Tartaglia’s
belongings. Further, he denies using the word “stunt.” He
confirmed telling Tartaglia to speak with Elvina Morneo if she
had any questions about personnel matters. However, when
testifying about his conversation with Tartaglia, Bear did not
give a sentence-by-sentence account of what was said. Instead,
he indicated that, “I basically listed those points to her.” By
that reference to “those points,” he apparently meant a number
of reasons for Tartaglia’s termination, which he had given to
counsel a few minutes earlier on direct examination. Those
reasons included, “One, the cost, but more importantly, she was
an at-will employee. She had signed our confidentiality agree-
ment. She had obviously released that information to others
outside the Company.” Further, he said, “We felt that the esti-
mated loss at that time was going to put us into a very serious
problem, because we had to make up cash, and we also had
to—we lost face with our customers and truckers and people
like that, and she was a management supervisor person at that
point in time.”
According to Bear, after hearing that she was going to be
terminated, Tartaglia responded by threatening, “I have an at-
torney and you cannot do that. . . . . I’m going to sue you. I’m

10 In its answer to the complaint, the Respondent admits the supervi-
sory status of Laurence Bear and Philip Feldhus, but denies the agency
status of both men. However, it is clear from its answer that the Re-
spondent is really only concerned with the General Counsel’s use of the
term “at all material times.” As the Respondent contends that it is
uncertain for what specific period the General Counsel is alleging
agency status, it denies that status. Since the Respondent acknowledges
that Bear and Feldhus went to Tartaglia’s office for the purpose of
informed her that she was terminated, there can be no doubt that they
were for at least that purpose acting as agents of the Respondent. Ac-
cordingly, I find that the actions and statements of Bear and Feldhus
toward Tartaglia on February 8 were taken on behalf of the Respondent
and in their capacity as agents of the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD282
going to sue you tomorrow. I’m going to sue you big time.”
As she allegedly had an attorney and was threatening legal
action, Bear contends that he decided to keep his comments
brief. After watching Tartaglia gather her belongings, he and
Feldus escorted her to the parking lot, from which she drove
away.
Bear never testified about the specific words that he used in
giving Tartaglia the reasons why she was being terminated. No
written explanation was ever provided to Tartaglia for her ter-
mination. Also, it is interesting to note that the only other per-
son present at the termination meeting, Philip Feldhus, was
never called as a witness by any party.
While there are variances between the testimony of Bear and
Tartaglia regarding the termination meeting, I am of the view
that they are not significant. I will accept Bear’s contention
that he did not use the words “shit” or “stunt.” He certainly
seemed the type of person who, as a supervisor, would be very
reluctant to curse in the presence of an employee, and I also
found his statement believable that he does not use the collo-
quialism of “stunt.” However, these are superficial matters,
which have little bearing on the substantive matters discussed at
the termination meeting.
I find it important that Tartaglia is able to recall in greater
detail the specifics of the conversation in question. Bear testi-
fied in a rather vague and indirect way about the reasons he
gave for terminating Tartaglia. It is interesting to note that he
has no difficulty in recalling the precise words allegedly used
by Tartaglia in threatening a law suit, but apparently cannot
recall exactly what reasons he gave Tartaglia for her termina-
tion.
Overall, I am of the belief that Tartaglia’s version of the
conversation is more accurate than that of Bear’s, so far as it
concerns the reasons Bear gave Tartaglia for her termination.11
Paramount among the reasons given was Tartaglia’s participa-
tion in the picketing on February 5, which picketing had effec-
tively shut the Respondent’s facility down for three hours, cost-
ing the Respondent a significant amount of money and damag-
ing its reputation among its customers. Even Bear’s testimony,
vague and indirect though it may be, acknowledges the “cash,”
the “cost,” and “we lost face with our customers. . . .” While
Bear indicating also giving Tartaglia other reasons for her ter-
mination including being an at-will employee, disclosing confi-
dential information, and being a supervisor or manager, it is
clear from his testimony that the principal reason he gave Tart-
aglia was her involvement on the picket line. Whether he used
the words “picket line” or not, there was no question about the
meaning of his comments. The incident that he was making
reference to was obviously the picketing and the resulting dam-
age to the Respondent. To that extent, the testimony of both
Bear and Tartaglia is in agreement.
B. The Legal Dispute
While the above facts are not significantly disputed, the par-
ties differ greatly regarding certain legal issues. It is the Re-

11 In resolving this issue, I do not believe that it is necessary at this
time to determine the relative credibility of Bear or Tartaglia. I will be
addressing their credibility at length later in this decision.
spondent’s position that Tartaglia is not protected by the Act
for a number of reasons. To begin with, the Respondent con-
tends that Tartaglia’s picketing did not constitute protected
concerted activity. Allegedly, her actions were taken solely for
her own benefit and not for the purpose of collective bargaining
or for “mutual aid or protection.” As the OCU was seeking to
represent Tartaglia in a one-person unit, it is the Respondent’s
position that Tartaglia’s picketing activity could not possibly be
concerted in nature. According to the Respondent, its position
is supported by the fact that the participants on the picket line
consisted of the two union agents and Tartaglia. None of the
other employees of the Respondent engaged in the picketing
activity.
Another position taken by the Respondent flows from its
contention that in picketing “to compel recognition,” Tart-
aglia’s activity was not protected by the Act. The OCU was
picketing in an effort to force the Respondent to recognize the
Union as the collective-bargaining representative for Tartaglia
in a one-person unit. This, the Respondent had declined to do.
Since the Board has long held that it will not certify a represen-
tative for bargaining purposes in a unit consisting of only one
employee, the Respondent contends that any picketing for that
purpose is unlawful under Section 8(b)(7)(C) of the Act. The
Respondent acknowledges that the Board has found such pick-
eting not to constitute a violation of the Act. However, the
Respondent invites the Board to “reexamine” its precedent.
According to the Respondent, if the picketing itself is unlawful
from inception, then Tartaglia’s participation in that picketing
is not protected activity.
The Respondent further takes the position that Tartaglia’s
picketing activity was not protected by the Act, because she
was not an “employee” within the meaning of the Act. Accord-
ing to the Respondent, during the term of her employment,
Tartaglia’s duties, responsibilities and authority were such that
she was a supervisor, confidential employee, and/or manager.
In which event, according to the Respondent, she could be law-
fully terminated for engaging in picketing activity.
It is significant to note that while Bear testified as to a num-
ber of reasons for terminating Tartaglia, including her participa-
tion on the picket line, the Respondent, in its post hearing brief,
does not really contend that Tartaglia was discharged for any
reason other than her picketing activity. From a careful reading
of its brief, it appears to me that the Respondent has, for all
practical purposes, conceded that it terminated Tartaglia be-
cause she engaged in picketing activity. Of course, the Re-
spondent strongly argues that Tartaglia is not protected by the
Act and, therefore, its termination of her was not a violation of
the law.
On the other hand, the General Counsel takes the position
that Tartaglia’s picket line activities are fully protected by the
Act. In his post hearing brief, counsel for the General Counsel
argues that Tartaglia was engaged in “union activity” in seeking
to be represented for bargaining purposes by the OCU. It is
counsel’s position that union activity is, by its very nature,
always collective activity. Therefore, the fact that the Union
was seeking to represent a one-person unit, and that no other
employees participated in the picketing, does not detract from
INTERNATIONAL TRANSPORTATION SERVICE 283
the collective nature of Tartaglia’s representational/union activ-
ity.
Further, the General Counsel argues that the Respondent
should not be able to raise a Section 8(b)(7)(C) defense in this
case by, in effect, charging the Union with an unfair labor prac-
tice. Counsel points out that the Respondent previously filed
no such charge against the OCU,12 and, in any event, any such
charge would allegedly not affect Tartaglia’s Section 7 right to
picket the Respondent in an effort to secure representation. She
is a separate entity from the Union, and the Union’s actions
cannot negate her rights under the Act. In any event, it is the
General Counsel’s position that the Board law is settled, and
that it is clear that a union does not violate Section 8(b)(7)(C)
of the Act by picketing for recognition in a one-person unit.
Not withstanding the Respondent’s invitation to the Board to
“reexamine” its precedent, the General Counsel argues that the
issue is presently well settled, and, of course, an administrative
law judge must adhere to Board precedent.
Regarding her employment status, the General Counsel con-
tends that Tartaglia was an “employee” as defined in the Act.
Counsel disputes the Respondent’s contention that Tartaglia
was either a supervisor or manager. Further, counsel for the
General Counsel takes the position that even assuming, for
argument sake, that Tartaglia was a confidential employee,
such a person does not lose the protection of the Act when she
engages in protected concerted activity, like picketing.
Finally, counsel for the General Counsel contends that he has
met his evidentiary burden and established that the Respondent
discharged Tartaglia because she engaged in union activity. He
contends that the Respondent has basically conceded that it
discharged Tartaglia because of her activity on the picket line.
However, counsel argues that to the extent the Respondent
offers additional reasons for Tartaglia’s termination, the Re-
spondent has failed to meet its evidentiary burden to establish
that it would have discharged her even in the absence of her
union activity.
C. Tartaglia’s “Employee Status”
The Respondent has alleged at various times that Tartaglia
was either a supervisor, confidential employee, and/or manage-
rial employee and, thus, not protected by the Act. According to
the General Counsel, Tartaglia was an “employee” as defined
in the Act and, accordingly, entitled to the protection of the
Act. It is, therefore, necessary for the undersigned to determine
Tartaglia’s employee status. In doing so, I will note that I did
not find Tartaglia to be a particularly credible witness. I be-
lieve that to some extent she exaggerated and embellished her
testimony to put her cause in the best possible light. Further,
on cross-examination, she was less than cooperative, often
appearing hostile and argumentative. It was obvious from her
testimony that she had embellished her resume in order to se-
cure employment with the Respondent, and also that she had
exaggerated her job duties and responsibilities at ITS in her
yearly self-evaluations. While this may be considered merely

12 No evidence or representation was offered at the hearing to sug-
gest that the Respondent had ever filed with the Board an unfair labor
practice charge against the OCU alleging the picketing on February 5
as a violation of Sec. 8(b)(7)(C) of the Act.
“puffing,” and not of great consequence, more serious is the
Respondent’s allegation that Tartaglia arranged
payment for her brother for work which he did not perform.13
Evidence was offered at the hearing to suggest that on at least
one occasion, Tartaglia altered the payroll records to provide
for payment to her brother for work performed on a date on
which he was not present at the Respondent’s facility. While
Tartaglia denied any knowledge of, or involvement in, this
matter, I found her denials less than persuasive.
However, a witness who is generally incredible may still be
found credible for the purpose of resolving certain specific
disputed issues. While I found Tartaglia’s testimony incredible
as to certain matters, I did, for the most part, believe her testi-
mony regarding her job duties and responsibilities. This testi-
mony was consistent with the other evidence offered, and was
inherently probable. If anything, she tended to over emphasize
her own importance, as was reflected in her yearly self-
evaluations. Tartaglia’s testimony, in combination with other
evidence offered, convinces me that during the term of her
employment with the Respondent, and specifically at the time
of the events in question, she was an “employee” as defined in
the Act.
During the 3 years of her employment with the Respondent,
Tartaglia was classified as the payroll and billing representa-
tive. She was the only person in this classification during the
term of her employment. From the start of her employment in
June 1999, until approximately September 2001, Tartaglia re-
ported directly to Michael Shanks, the Respondent’s vice presi-
dent of corporate planning. Thereafter, until her termination on
February 8, 2002, she reported to Brent Kitagawa, whose im-
mediate supervisor was Philip Feldhus, director of operations.
Tartaglia’s principal duty was to process payroll. She testified
that each morning she collected the “payroll logs” from the
previous day. The payroll log, also known as the “Report Of
Time Worked,” is a standardized form used by the Pacific
Maritime Association (PMA). The log indicates the operation
worked, the shift, the company, and the registration number or
social security number of the worker who worked at the spe-
cific job. (As an example, see R. Exh. 10.) The log also con-
tains the start and stop times of the employees named in the log.
The log generally contained a superintendent’s signature, and
Tartaglia was required to give them to Feldhus for his signa-
ture. She could not process payroll if the log did not have a
superintendent or Feldus’ signature on it. Following the receipt
of the signatures, Tartaglia inputted the data into the payroll
system software, which was named Microsoft Fox Pro.
Her duties also entailed attempting to resolve payroll dis-
putes. With some frequency, she would be contacted by em-
ployees claiming that they had been shorted on the payroll.
Tartaglia testified without contradiction that on those occasions
she would investigate the claim by reviewing the payroll logs
and the dispatch tickets from whichever union hiring hall had
dispatched employees for the job involved. She might confer

13 The evidence established that Dean Tartaglia is Deanna Tart-
aglia’s brother, and that he is employed as a marine clerk who, on occa-
sion, has been referred through the Longshore Union hiring hall to
work at the Respondent’s facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD284
with marine operations as to the number of employees they had
requested be dispatched, with the union dispatch hall, and with
the foreman on the particular job to determine whether the
foreman had inadvertently left a name off the log. In this way
she was able to resolve most disputes and determine whether a
complaining individual should be paid as he was alleging. In
those cases where she determined that a complaining individual
should be paid, Tartaglia was authorized to input the increase
directly into the payroll software, Microsoft Fox Pro, appar-
ently without additional paperwork.
Of course, situations also developed where the wrong worker
had been paid. Again, Tartaglia would conduct an investigation
by reviewing the payroll logs, dispatch tickets, and consulting
with marine operations and the union hall to determine which
individuals had worked, for what period of time, and on what
particular job. To make a correction to a worker’s payroll, she
had to decrease the wrongly paid worker’s payroll and concur-
rently increase the payroll of the correct worker. In order to do
this, she had to submit paperwork on a “decrease sheet,” which
is a PMA form. She was authorized to so, and was required to
sign the decrease sheet.
Additionally, Tartaglia had also been authorized to adjust the
start time for a worker that the union hall dispatched to the
Respondent when the worker’s start time on the payroll log was
too close in time to his dispatch from the hall, making it impos-
sible that the worker could have traveled the distance from the
union hall to the Respondent’s facility in that short a period of
time. According to Tartaglia, her job was to ensure that the
payroll was correct and that ITS did not incur expenses unnec-
essarily. This was her unrebutted testimony and was reflected
in her yearly self-evaluations, although as I have noted, I found
those evaluations to contain a certain amount of “puffing.”
(GC Exhs. 4–6.) It is clear to me that Tartaglia had a somewhat
inflated opinion of her job duties and responsibilities, and she
was in the habit of making herself seem more important than
she really was.
In any event, it should be noted that in processing payroll,
Tartaglia was required to utilize a “payroll code sheet,” which
consists of job codes issued by the PMA. The code sheet dis-
tinguishes between the various categories of employees em-
ployed by PMA members, and the base pay for each category.
It is clear that Tartaglia had no authority to deviate from the
payroll code sheet on her own in processing payroll for the
Respondent. However, she testified about one instance where
Feldus and another manager instructed her to alter the pay of an
employee in order to give him extra compensation. According
to Tartaglia, she never decided on her own to give an employee
extra compensation because he was well liked or a good
worker. It is undisputed that management had never given
Tartaglia any such authority, although as noted above, there is
some evidence that she exceeded her authority and may have
given her brother credit for a job that he did not work.
Another significant function performed by Tartaglia was
preparing the “Vessel Activity Report” (VAR), which deter-
mined the amount of money the Respondent billed its custom-
ers. The VAR contains information showing the number of
containers that were loaded and unloaded, itemized by shipping
company lines. It also contains the vessel name, voyage, the
time it spent at the Respondent’s facility, and any standby time.
According to Tartaglia’s unchallenged testimony, she com-
pleted the VAR by copying information onto the VAR from
several other reports. The raw information was then used by
Microsoft Excel to calculate the total moves necessary to load
or unload the containers. In transferring information from vari-
ous forms onto the VAR, Tartaglia did not alter the information
in any way. After the information has been recorded on the
VAR, Tartaglia was required to have it, and several other
forms, reviewed and initialed by manager Eric Porter. Porter,
or some other manager, would either correct any errors on the
VAR himself, or instruct Tartaglia to do so.
As noted earlier, the Respondent takes the position that Tart-
aglia was a supervisor. The term “supervisor” is defined in
Section 2(11) of the Act as follows:
The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.
It is well established that the enumerated functions in Section
2(11) are to be read in the disjunctive, and the existence of any
of them, regardless of the frequency of their performance, is
sufficient to confer supervisory status. NLRB v. Yeshiva Uni-
versity 444 U.S. 672 (1980); Queen Mary, 317 NLRB 1303
(1995); and Allen Services Co., 314 NLRB 1060 (1994). How-
ever, in my opinion, Tartaglia did not exercise any of the indi-
cia of supervisory authority listed above. There were simply no
employees working under her direction, and she did not have
the authority to interact with employees in the way contem-
plated in Section 2(11) of the Act. While she reviewed em-
ployee complaints concerning alleged shortages in pay, this was
merely a clerical function. Her investigation was limited to
determining whether the employee had worked or not, based on
a review of the documentation and conversations with the em-
ployee, marine operation, the hiring hall, and any foreman in-
volved. Any employee who did not agree with Tartaglia’s de-
termination could file a grievance under the terms of the appli-
cable collective-bargaining agreement, in which process Tart-
aglia had no involvement. Further, while she had been author-
ized to adjust employee starting time to reflect travel time fol-
lowing dispatch, this was a routine calculation made pursuant
to the Respondent’s outstanding instructions. Again, any
grievance filled over this adjustment would not involve Tart-
aglia.
The determining factor as to whether an individual is a su-
pervisor is the exercise of “independent judgment.” The Board
and the courts look to see if the authority exercised is set forth
in detailed orders or regulations issued by the employer or is
truly independent. See NLRB v. Kentucky River Community
Care, 532 U.S. 706 (2001), citing with approval Chevron Ship-
ping Co., 317 NLRB 379, 381 (1995). In the matter before me,
the evidence establishes that Tartaglia’s payroll decisions
merely required her to follow the Respondent’s well-
INTERNATIONAL TRANSPORTATION SERVICE 285
established policies. Her investigation of complaints was rou-
tine in nature and did not require the exercise of independent
judgment. She was responsible to ensure that the payroll was
as accurate as possible, and whether an employee was to be
paid or not was totally dependent on whether the individual
worked the hours claimed. If her investigation established that
the hours were worked, the employee was paid, otherwise he
was not. Such decisionmaking did not require Tartaglia to
exercise true independent judgment.
In fact, I am of the opinion that all of Tartaglia’s payroll and
billing duties were both clerical and routine in nature, not di-
rectly involving the supervision of any other employees.14 The
Respondent as much as acknowledges in its post hearing brief
that Tartaglia did not exercise any of the indicia of supervisory
authority found in Section 2(11) of the Act when it argues in-
stead that Tartaglia exhibited certain “secondary factors,”
which the Board has considered in determining supervisory
status. Allegedly, the Respondent held Tartaglia out to em-
ployees and members of the public as a supervisor by, among
other means, providing her with her own office, giving her an
“R-key,” which gave her access to most of the offices in the
administration building, and by providing her with an identifi-
cation badge identifying her as a member of management.
However, in my view, these are merely superficial, cosmetic
matters, which certainly did not alone confer any supervisory
authority on Tartaglia. These “trappings” are, without any
direct indicia of supervisory authority, totally inadequate to
establish supervisory status.
It is important to recall that as the payroll and billing repre-
sentative, Tartaglia was “one of a kind.” She dealt on a daily
basis with privileged information, such as the earnings of em-
ployees and the amounts the Respondent was billing customers.
In these circumstances, it would seem to be in the Respondent’s
interest to provide Tartaglia with a private office. Having done
so does not demonstrate that she held a position identified with
management or as a supervisor. Tartaglia was an hourly paid
employee. By agreement with the Employer, Tartaglia was
paid for 8 hours a day straight time, and for 1 hour a day over-
time. However, from her testimony it appears that this was a
fairly flexible arrangement, which permitted Tartaglia to occa-
sionally come to work some what late or leave some what
early, as long as she made up the time another day. Similarly,
it appears that she was able to take a short time off during the
workday for personal business without getting prior permission,
so long as she made up the time at a later date. More extended
time off required prior permission from management. This
informal, flexible arrangement was not surprising or unusual
considering that Tartaglia was the only employee performing
her specific duties, and that she worked in the administration
building in close proximity with her immediate supervisors.

14 Toward the end of 2001, Tartaglia was instructed by Feldus to
train a superintendent named Stanley Sudoko in the performance of her
job in the event she was absent from work. Sudoko continued with his
superintendent duties, and it seems very clear that while instructed to
train him in the payroll and billing responsibility, Tartaglia did not have
the authority to, nor did she, exercise any supervisory responsibility
over Sudoko.
Such an arrangement certainly does not demonstrate that she
was a supervisor.
It is the Respondent’s burden to establish that Tartaglia was
a supervisor within the meaning of the Act. The Board has
long held that the burden of establishing that an individual is a
statutory supervisor without the protection of Section 7 is to be
borne by the party asserting such status. The Supreme Court
approved the Board’s evidentiary allocation in its recent para-
mount decision on the subject of supervisory status in NLRB v.
Kentucky River Community Care, 532 U.S. 706, 710–712
(2001). Based on the credible evidence presented, I conclude
that the Respondent has failed to meet this burden. Tartaglia
was not a supervisor as defined in the Act.
In the alternative, the Respondent alleges that Tartaglia was
a managerial employee. Although the Act makes no specific
provision for “managerial employees,” the Board has tradition-
ally excluded this category of worker from the protection of the
Act. See Ford Motor Co., 66 NLRB 1317 (1946); Palace Dry
Cleaning Corp., 75 NLRB 320 (1948). Managerial employees
are excluded from coverage under the Act because their func-
tions and interests are more closely aligned with management
than with unit employees. NLRB v. Bell Aerospace Co., 416
U.S. 267, 286 (1974). In General Dynamics Corp., 213 NLRB
851, 857 (1974), the Board defined managerial employees as
“those who formulate and effectuate management policies by
expressing and making operative the decisions of their em-
ployer, and those who have discretion in the performance of
their jobs independent of their employer’s established policy.”
Also see Bell Aerospace Co., supra at 288. The managerial
exception was further defined by the Supreme Court in NLRB v.
Yeshiva Univ., 444 U.S. 672, 682–683 (1980), which held that,
“[m]anagerial employees must exercise discretion within, or
even independently of, established employer policy and must
be aligned with management.” Further, the Court said that in
order to constitute a managerial employee, a worker must rep-
resent management interests by taking actions that “effectively
control or implement employer policy.”
In arguing that Tartaglia was a managerial employee, the Re-
spondent uses many of the same examples relied on in its at-
tempt to establish supervisory status. However, these argu-
ments continue to fail for the same reasons I previously ex-
pressed. Regarding Tartaglia’s ability to adjust payroll, it is
worth noting that the Respondent, in its posthearing brief, men-
tions the total amount of adjustment as $500,000 in payroll
increases. Such a large sum, the Respondent contends, demon-
strates that she was a managerial employee. In my view, the
amount of money involved does not alter the fact that for each
individual employee involved, Tartaglia made a routine deci-
sion based on the Respondent’s established policies. Again, all
she had to determine was whether the employee had worked the
hours claimed, in which event he was to be paid. Over the term
of her employment, many employees had such disputes regard-
ing their pay, and Tartaglia handled each in essentially the same
routine manner. There was no exercise of true discretion either
inside or outside of the Respondent’s established policies.
The Respondent offers several additional examples of Tart-
aglia’s conduct, which it contends demonstrates managerial
authority. Tartaglia was from time to time directed by her su-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD286
pervisor to attend, as the Respondent’s only representative,
meetings of PMA members. However, Tartaglia’s unrebutted
testimony was that these meetings she was assigned to attend
were nothing more than seminars designed to educate the indi-
vidual members about changes PMA was making in its payroll
system, computer programs, or standard forms. Since she was
the Respondent’s payroll and billing representative, it was cer-
tainly logical that she would attend such meetings. It is signifi-
cant that Tartaglia’s uncontested testimony was that these PMA
meetings had nothing to do with collective-bargaining issues,
and that she never attended any “management meetings” with
the Respondent’s managers and supervisors. There was simply
no evidence offered as would established that Tartaglia was in
some way “aligned” with management.
The second example raised by the Respondent concerned
modifications made to its payroll software program. The Re-
spondent employed an outside contractor to make modifications
to the program, and also to correct flaws that developed from
time to time in the operation of the program. Only Tartaglia
and her supervisor, Mike Shanks, had the authority to order
modifications to the software program and to contract with the
Respondent’s outside contractor for those modifications. Ac-
cording to the Respondent, Shanks and Tartaglia authorized
modifications to the program, which cost the Respondent in
excess of $23,000 in payments to the contractor. (R. Exh. 15.)
However, in my opinion, this certainly does not establish
managerial authority. As the payroll and billing representative,
Tartaglia was the person most familiar with the payroll soft-
ware program and any changes the PMA was making to the
program. That was the principal reason why she attended the
PMA meetings. Who better than Tartaglia to authorize the
private contractor to perform modifications on the program or
to correct its flaws? She worked with the program every day,
and was the person most familiar with it. Tartaglia’s authoriza-
tion of the expenditure of funds for work on the program was
not independent of established employer policy. Rather, it was
routine operating procedure under the Respondent’s established
policy to allow its payroll and billing representative to author-
ize work on its software program.
I believe that the record is very clear that Tartaglia was not a
managerial employee. Apparently the Respondent’s supervi-
sors were equally certain, as in her last two employee evalua-
tions, references were made that she was not a manager. In
Tartaglia’s 2000 evaluation, Mike Shanks wrote under “Man-
agement Skills” at page 4, “NOT APPLICABLE AT THIS
TIME.” (GC Exh. 5.) Similarly, in Tartaglia’s 2001 evalua-
tion, her last supervisor, Brent Kitagawa, wrote under “Man-
agement Skills” at page 5, “N/A.” (GC Exh. 6.) In my view,
nobody was better able to evaluate any managerial duties pos-
sessed by Tartaglia than her immediate supervisors. Obviously,
as far as they were concerned, she exercised no managerial
authority.
I am convinced that regardless of her title, Tartaglia func-
tioned primarily as a “timekeeper,” or “payroll clerk.” The
Board has held that timekeepers are not managerial employees.
In Holly Sugar Corp. 193 NLRB 1024 (1971), the Board de-
termined the status of employees whose duties were in many
respects similar to those of Tartaglia. The employee timekeep-
ers in that case prepared raw data for the company payroll using
foremen’s time records and employee time cards. They con-
sulted with company managers on an “as needed” basis, but
they did not resolve formal “grievances” over rates of pay. In
finding these employees not to be managers, the Board held
that, “[w]hile it is true that the timekeepers make some deci-
sions and exercise some judgments, they do so only within
established limits set by higher management.” Further, the
Board held that, “[t]hey play no part in the formulation or ef-
fectuation of the Employer’s policies.” As in that case, I con-
clude that Tartaglia was not a managerial employee. (Also see
Hansen Co., 293 NLRB 63, 64 (1989), in which the Board
found the signing of time cards to be routine or clerical in na-
ture.)
In its posthearing brief, the Respondent no longer argues
that, in the alternative, Tartaglia was a confidential employee.
However, I will address this issue as the Respondent had previ-
ously taken this position. The reason why the Respondent is no
longer taking this position may be because, on reflection, the
Respondent would be forced to acknowledge that confidential
employees are protected by the Act. In Peavey Co., 249 NLRB
853, fn. 3 (1980), the Board agreed with an administrative law
judge that an employer violated the Act by informing a confi-
dential employee that she should not engage in union activity.
In comparing confidential employees to supervisors, the Board
said, “[c]onfidentials have a much different status in that em-
ployers are not entitled to restrict their protected activities.”
Further, the Board held that, “whether or not Respondent hon-
estly viewed [the discriminatee] as a confidential employee is
of no moment here since [the discriminatee] was entitled to
engage in such activities even if she were a confidential.”
(Case citations omitted)
Traditionally, the Board has used a “labor nexus test” to de-
termine whether a worker is a confidential employee. In BF
Goodrich Co., 115 NLRB 722, 724 (1956), the Board held that,
“. . . only those employees who assist and act in a confidential
capacity to persons who formulate, determine, and effectuate
management policies in the field of labor relations” constitute
confidential employees. Under Board policy, confidential em-
ployees are excluded from a bargaining unit with other employ-
ees. See Ladish Co., 178 NLRB 90 (1969). However, as noted
above, they still enjoy the protection of the Act.
Tartaglia was not a confidential employee under the Board’s
“labor nexus test.” There was no evidence offered as would
establish that she acted in a confidential capacity to persons
who formulated, determined, and effectuated management poli-
cies in the field of labor relations. Laurence Bear testified that
he was the person responsible for representing management in
contract negotiations with the OCU, and also for processing
grievances filed by the Union under the terms of the collective-
bargaining agreement. The human resources department re-
ported directly to Bear. However, Tartaglia’s duties were to-
tally unrelated to collective-bargaining issues, or to processing
grievances under the terms of any of the collective-bargaining
agreements to which the Respondent was a party. Further,
Tartaglia did not report directly to either Bear or the human
resource department (HR), and there was no evidence offered
that she had any direct work related interaction with either Bear
INTERNATIONAL TRANSPORTATION SERVICE 287
or HR. Accordingly, I conclude that Tartaglia was not a confi-
dential employee, although as noted, even assuming such a
status, she enjoyed the Act’s protection.
As is apparent from the above, I have concluded that during
the term of her employment with the Respondent, Tartaglia was
an “employee” as defined in the Act. Regardless of her title as
the payroll and billing “representative,” the evidence demon-
strates that she was really a “clerk,” responsible for certain
specific payroll and billing functions, much as would be a
“timekeeper,” or “payroll clerk.” It is interesting to note that on
at least one occasion during the hearing, Lawrence Bear, the
highest official of the Respondent to testify, referred to Tart-
aglia’s position as the payroll and billing “clerk.”15 This “slip
of the tongue” by Bear was not surprising in view of the fact
that, in my opinion, Tartaglia’s duties appeared largely clerical
or ministerial in nature. Apparently, Bear viewed her in the
same light. In any event, I find that Tartaglia, as an “em-
ployee,” was entitled to the protection of the Act.
D. The Picketing Constituted Protected Concerted Activity
There is no dispute that the OCU picketed the Respondent’s
facility on February 5 in an effort to force the Respondent to
recognize the Union as the collective-bargaining representative
of Deanna Tartaglia in a one-person unit. The picketing lasted
for approximately three hours, during which the only persons
who actually engaged in picketing were Tartaglia and two un-
ion officials. However, numerous employees honored the
picket line and the Respondent was effectively shut down for
that period of time.
It is the Respondent’s position that since Tartaglia was the
only employee actually picketing, and because the Union was
seeking to represent only her, that her actions were not con-
certed as they were intended to benefit only Tartaglia. Accord-
ing to the Respondent, this was sole activity, unprotected by the
Act, for which she could be fired. However, current Board law
holds to the contrary.
As early as 1936, the Board concluded that while the Act
does not permit the certification of a single employee unit, a
single employee may still designate a representative to act for
him. The Board held that “the Act in no way limits that
right . . . in no way limits the protection which the Act other-
wise gives such an employee.” Luckenbach Steamship Co., 2
NLRB 181 (1936). More recently in Electrical Workers Local
596 (Lylloth G. Woodall), 274 NLRB 1348 (1985), the Board
continued to hold that a single employee engaged in union ac-
tivity is protected by the Act, stating as follows:
[A]ny absence of “concertedness” in [the discriminatee’s]
conduct that might be inferred from her status as a sole em-
ployee in the bargaining unit does not remove her union activ-
ity from the protection of the Act. For where union activity is
involved, the protection afforded by Section 7 is absolute and
not contingent on a showing that the victim of coercion had
made or intended to make common cause with other employ-
ees.

15 See Tr. 208, L. 3–5.
The Board obviously considers any union activity to be con-
certed in nature, even where only a single employee is in-
volved. In a recent case the Board continued to take this posi-
tion, reversing an administrative law judge who “failed to rec-
ognize that Section 7 defines both joining and assisting labor
organizations—actions in which a single employee can en-
gage—as concerted activities . . . . Accordingly, by definition,
[the discriminatee’s] conduct was concerted without regard to
the fact that he may have acted alone.” (Internal quotations
omitted.) C.S. Telecom, Inc., 336 NLRB 1193 (2001), citing
and quoting NLRB v. City Disposal Systerms, 465 U.S. 822,
831 (1984).
Even closer to the issue before the undersigned is Mauka,
Inc., 327 NLRB 803, 804 fn. 8 (1999), in which the Board re-
versed an administrative law judge’s finding that the discrimi-
natee was not an unfair labor practice striker because he acted
alone in the strike. The Board held that “[b]ecause [the dis-
criminatee] was engaged in union activity, it is irrelevant that
no other employee joined him in striking.” Also see Carpenter
Local 925, 279 NLRB 1051, 1059 fn. 40 (1986) (citing the
Supreme Court’s decision in NLRB v. City Disposal Systems,
supra.); and Manno Electric, 321 NLRB 278, 281 (1996).
Clearly, the Board has consistently taken the position that an
employee acting alone and engaging in union activity is pro-
tected by the Act. Tartaglia was such an employee when she
participated in picketing activity outside the Respondent’s facil-
ity in order to force the Respondent to recognize the OCU as
her bargaining representative.
It is the Respondent’s position that in picketing for a one-
person unit, which unit the Board could not certify, the Union
was in violation of Section 8(b)(7)(C) of the Act. According to
the Respondent, it therefore follows that Tartaglia’s action in
picketing in support of the Union’s unlawful conduct could not
be protected under the Act. In support of this position, the
Respondent relies on a decision of the Seventh Circuit Court of
Appeals, which held that absent the possibility of a Board elec-
tion in a mixed guard and nonguard unit, recognitional picket-
ing appeared to be proscribed by Section 8(b)(7)(C) of the Act.
Teamsters Local 344 v. NLRB 568 F.2d 12 (7th Cir. (1977). In
the view of the Respondent, this situation is analogous to a
union picketing for recognitional purposes in a one-person unit.
However, the Board has clearly chosen not to follow the
Seventh Circuit’s rational in Teamsters Local 344, as it relates
to one-person conduct. The Board has continued to adhere to
the one-person policy first enunciated in Lickenbach Steamship,
supra, in subsequent decisions. See Teamsters Local 115 (Vila-
Barr Co.), 157 NLRB 588 (1966); Plumbers Local 195 (Neches
Instruments Service), 221 NLRB 1226 (1975); American Radio
Assn. (Watters Marine, Inc.), 258 NLRB 1251 (1981); and
Electrical Workers Local 596 (Lylloth G. Woodall), 274 NLRB
1348 (1985). It is significant to note that the Board’s decision
in Lylloth G. Woodall postdates the decision of the Seventh
Circuit by 8 years.
While the matter before the undersigned is obviously not an
8(b)(7)(C) case against the Union, the Respondent continues to
suggest that the OCU’s picketing on February 5 was a violation
of that Section of the Act. It is, therefore, worth noting that
apparently no such charge was ever filed by the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD288
against the Union. Further, Tartaglia was not the Union. She
was merely an individual employee of the Respondent who
sought to assist the Union’s picketing efforts, which efforts
were intended to force the Respondent to recognize the Union
as her collective-bargaining representative. There has certainly
been no finding of improper conduct on the part of the Union.
However, even assuming, for argument sake, some improper
conduct by the Union, such conduct cannot be imputed to Tart-
aglia. She is not a representative or agent of the Union.
Section 8(b)(7)(C) of the Act prohibits a labor organization
from engaging in recognitional picketing without filing a peti-
tion for an election with the Board within a reasonable period
of time, not to exceed 30 days. It is the Respondent’s position
that as the Board will not conduct an election in a one-person
unit, or certify such a unit, that any picketing for recognition in
a one-person unit is a violation of the Act from the inception of
the picketing. This position is allegedly supported by Team-
sters Local 344, supra. However, as I have already noted, the
Board has specifically chosen not to follow the Seventh Circuit
case, as it relates to a one-person unit, or one-person conduct.
In Vila-Barr, supra, the Board was squarely faced with the
issue of whether a union can violate Section 8(b)(7)(C) of the
Act in the context of picketing for recognition in a one-person
unit. The Board specifically held that where a one-person unit
was involved, a union claiming recognition was “disabled
through no fault of its own from invoking the Board’s election
processes for purposes of resolving the question concerning
representation raised by its picketing.” Under these circum-
stances, the Board decided that it would be “inequitable” to
conclude that the union had violated Section 8(b)(7)(C) by
picketing for recognitional purposes without filing a petition
within a reasonable period of time. The Board found there to
be no violation of the Act.
The Board continued to follow the holding in Vila-Barr,
even after the Seventh Circuit’s decision. In American Radio
Assn. (Watters Marine, Inc.), 258 NLRB 1251, 1257 (1981),
which postdates the Seventh Circuit’s case by four years, the
Board affirmed an administrative law judge who found that the
single employee involved was still protected by the Act, regard-
less of the fact that the Board would neither certify a one-
person unit, nor find an 8(b)(7)(A) violation of the Act. The
judge stressed the similarities between Section 8(b)(7)(A), (B),
and (C) of the Act, and indicated that the single employee in-
volved in the case did not lose the protection which the Act
otherwise gives such an employee who engages in union activ-
ity. Also see Neches Instruments Service, supra at 1227; and
Lylloth G. Woodall, supra at 1351, which postdates the Seventh
Circuit’s case by 8 years.
The Respondent “invites” the Board to change its position,
and follow the Seventh Circuit’s rational in Teamsters Local
344, supra. The Board, of course, can do so if it decides upon
reflection that the Seventh Circuit’s rational is more in confor-
mity with the Act, and the intention of Congress, than the
Board decisions cited above. This is the province of the Board,
not an administrative law judge. I am required to follow Board
precedent, which I intend to do. I find that current Board law is
clear. Tartaglia’s picketing activity on February 5 was lawful
and protected under Vila-Barr. She was a separate entity from
the Union, however, under Board law as it presently exists, the
Union’s picketing of the Respondent for recognitional purposes
in a single person unit would not constitute a violation of Sec-
tion 8(b)(7)(C) of the Act. Vila-Barr. Further, I am of the
belief that even assuming, for the sake of argument, that the
Union’s conduct was for some reason unlawful, it would not
negate Tartaglia’s right to picket. In peacefully picketing for
recognitional purposes, she was certainly engaged in the most
basic form of union activity. The Board has held that “where
union activity is involved, the protection afforded by Section 7
is absolute. . . .” Lylloth G. Woodall, 274 NLRB at 1351.
Therefore, Tartaglia’s picketing activity on February 5 was
protected activity under the Act.
E. Bear’s Statement to Tartaglia on February 8
As noted earlier in the facts section of this decision, there is
some dispute between Tartaglia and Bear as to the specific
words used by Bear when on February 8 he informed Tartaglia
that she was being terminated. For the reasons I previously
expressed, I found Tartaglia’s version of this conversation,
which was more specific than Bear’s, to overall be more credi-
ble. While Bear apparently expressed a number of reasons for
the termination, including cost and the alleged release of confi-
dential information, it is clear from Tartaglia’s testimony that
the principal reason given by Bear was her participation in the
picketing on February 5. Even from Bear’s version, vague and
indirect though his testimony may be, it is obvious that other
reasons allegedly offered for the termination, such as cost, loss
of customers, release of confidential information, and disloyalty
as a manager, all resulted directly from Tartaglia’s picketing
activity. Semantics aside, it is beyond doubt that both Tartaglia
and Bear understood that the reason the Respondent was upset
with Tartaglia was because she had engaged in picketing,
which had set in motion a chain of events that had cost the Re-
spondent a large sum of money and loss of reputation with its
customers. This was the reason she was being fired. Whether
Bear spoke the words he alleges, or those words Tartaglia al-
leges, or a combination of the two, I am convinced that the
words spoken by Bear made it clear to Tartaglia that the princi-
pal reason for her termination was because she had engaged in
picketing activity.
Regardless of the precise words used by Bear, his statement
to Tartaglia during her termination meeting on February 8 was
tantamount to telling her that she was being discharged for
engaging in picketing activity with the Union. Such a state-
ment would tend to interfere with, restrain, and coerce employ-
ees in the exercise of their Section 7 rights. See Arakelian En-
terprises, Inc., 315 NLRB 47, 62 (1994). As noted earlier, I
have concluded that Tartaglia was an employee as defined by
the Act. However, even if at the time of her termination the
Respondent had a good faith belief that Tartaglia was a super-
visor, manager, or confidential employee, it would not change
the coercive nature of Bear’s statement to Tartaglia. The Board
has held that “[a]n employer acts at its peril” when it takes
action designed to chill the exercise of Section 7 rights “by
individuals who may later be found to be under the protection
of the Act.” Shelby Memorial Home, 305 NLRB 910 fn. 2
(1991).
INTERNATIONAL TRANSPORTATION SERVICE 289
Accordingly, based on the above, I conclude that the Re-
spondent, through Lawrence L. Bear, violated Section 8(a)(1)
of the Act on February 8, as alleged in paragraphs 7 and 9 of
the complaint.
F. The Discharge of Tartaglia
I believe that for all practical purposes, the Respondent has
admitted that it discharged Tartaglia on February 8 because she
engaged in picketing activity with the Union on February 5.
However, to the extent that the Respondent, through Bear, of-
fers alternative reasons for her termination, I will address the
parties’ respective burdens as established in Board law.
Section 7 of the Act gives employees the right to engage in
“self-organization, to form, join, or assist labor organizations,
[and] to bargain collectively through representatives of their
own choosing. . . . ” It is axiomatic that an employee who as-
sists a union in peacefully picketing her employer to require
that employer to recognize the union as her collective-
bargaining representative is engaged in Section 7 activity. I
have already found that Tartaglia was such an employee. Ter-
mination of an employee for engaging in picketing activities
violates Section 8(a)(1) and (3) of the Act. Gasko & Meyer,
Inc., 255 NLRB 658 (1981).
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of 8(a)(1) turning on
employer motivation. First, the General Counsel must make a
prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
decision. This showing must be by a preponderance of the
evidence. Then, upon such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The
Board’s Wright Line test was approved by the United States
Supreme Court in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
In the matter before me, I conclude that the General Counsel
has made a prima facie showing that Tartaglia’s picketing ac-
tivity was a motivating factor in the Respondent’s decision to
terminate her. Lawrence Bear admitted that Tartaglia’s picket
line involvement was, at a minimum, a motivating factor in the
Respondent’s discharge of her. In Tracker Marine, L.L.C., 337
NLRB 644 (2002), the Board affirmed the administrative law
judge who evaluated the question of the employer’s motivation
under the framework established in Wright Line. Under that
framework, the General Counsel must establish four elements
by a preponderance of the evidence. First, the General Counsel
must show the existence of activity protected by the Act. Sec-
ond, the General Counsel must prove that the respondent was
aware that the employee had engaged in such activity. Third,
the General Counsel must show that the alleged discriminatee
suffered an adverse employment action. Fourth, the General
Counsel must establish a link, or nexus, between the em-
ployee’s protected activity and the adverse employment action.
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. See also
Kysor Industrial Corp., 309 NLRB 237 (1992). To rebut such
a presumption, the respondent bears the burden of showing that
the same action would have taken place even in the absence of
the protected conduct. See also Mano Electric, Inc., 321 NLRB
278, 280 fn. 12 (1996); and Farmer Bros. Co., 303 NLRB 638,
649 (1991).
As I indicated above, there is no doubt that under current
Board law, Tartarglia was engaged in union activity protected
by the Act when she picketed the Respondent on February 5.
Of course, the facts establish that the Respondent was well
aware of this activity. Throughout the course of the day on
February 5, the Respondent was preoccupied with attempting,
through an expedited arbitration, to have the picketing declared
not bona fide under the terms of the contract between the PMA
and the ILWU, and to have the employees who had honored the
picket line return to work. The Respondent was obviously fully
aware of the integral part Tartaglia had played in the picketing.
After all, without her interest in being represented by the OCU
and her willingness to engage in picketing, there would have
been no picket line established, and the Respondent’s operation
would not have been shut down for the better part of the day on
February 5. Bear indicated as much to Tartaglia when he ter-
minated her three days later, telling her, among other things,
that she had cost the Respondent a large sum of money and
damaged its reputation. Knowledge of Tartaglia’s picketing
activity cannot possibly be in dispute.
There is also no doubt that Tartaglia sustained an adverse
employment action. The Respondent discharged her on Febru-
ary 8 from the job that she had held for approximately 3 years
as payroll and billing representative.
Regarding the question of whether there exists a link or
nexus between Tartaglia’s protected activity and her termina-
tion, I have already indicated that there was such a connection.
I have found that Bear informed Tartaglia that she was being
terminated because of her actions three days earlier in partici-
pating in the picket line established by the OCU to force the
Respondent to recognize the Union as her bargaining represen-
tative. This statement by Bear has been found by the under-
signed to constitute a violation of Section 8(a)(1) of the Act.
In addition to the direct evidence of the Respondent’s animus
exhibited by Bear in his termination statement to Tartaglia,
there is also the matter of “timing.” It is self evident that the
discharge, which occurred only 3 days following Tartaglia’s
picketing activity, was directly related to that activity. The
Board has held that timing may be “persuasive evidence” estab-
lishing unlawful motivation. Limestone Apparel Corp., 255
NLRB 722, 736 (1981). Also see Laidlaw Transit, Inc., 315
NLRB 79, 84 (1994). I am of the view that animus toward
Tartaglia because of her picketing activity can really not, in
good faith, be denied by the Respondent.
The General Counsel, having met the burden of establishing
that the Respondent’s actions were motivated, at least in part,
by animus toward Tartaglia’s protected activity, the burden
now shifts to the Respondent to show that it would have taken
the same action absent the protected conduct. Senior Citizens
Coordinating Council of Riverbay Community, 330 NLRB
1100 (2000); Regal Recycling, Inc., 329 NLRB 355 (1999).
The Respondent must persuade by a preponderance of the evi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD290
dence. Peter Vitalie Co. 310 NLRB 865, 871 (1993). The
Respondent has failed to meet this burden.
As I have said a number of times, I believe that for all practi-
cal purposes, the Respondent has admitted discharging Tart-
aglia because she engaged in picketing activity in conjunction
with the Union in an effort to force the Respondent to recognize
the Union as her bargaining representative. However, to the
extent that the Respondent may be offering alternative reasons
for her discharge, I will address certain other reasons given by
Bear for discharging Tartaglia. According to Bear’s testimony,
the reasons for Tartaglia’s termination included the monetary
cost to the Respondent resulting from having its operation shut
down, the damage to its reputation among its customers, Tart-
aglia’s alleged status as a managerial employee, and her alleged
disclosure of confidential information.
Regarding the monetary cost and damage to its reputation, it
is obvious that these matters were a direct result of the strike
and picketing. As I have already concluded that Tartaglia’s
support for these actions constituted protected union activity,
the Respondent could not legitimately discharge her for the
consequences resulting from that protected activity. Undoubt-
edly, the Respondent was upset with Tartaglia because her
picketing and strike activity had cost the Respondent a lot of
money and loss of “face” with its customers. However, the
Respondent could no more lawfully fire her for these reasons
than it could have because she engaged in the strike and picket-
ing, which caused the Respondent financial loss and damage to
its reputation.
Bear’s other stated reasons for discharging Tartaglia, namely
because she was a managerial employee who disclosed confi-
dential information, are also invalid. Bear used the term “at
will employee” to explain his belief that as an alleged manage-
rial employee, Tartaglia could be terminated for perceived dis-
loyalty. However, as I have noted at length above, Tartaglia
was not a supervisor, manager or confidential employee.
Rather, she was an employee as defined by the Act. Even as-
suming, for argument sake, that she was a confidential em-
ployee, which classification of employee is protected by the
Act, Tartaglia could not lawfully be fired for engaging in union
or protected concerted activity. Further, Bear’s contention that
Tartaglia released confidential information is totally unsup-
ported by the evidence. As a matter of fact, no evidence what
so ever was offered by the Respondent to establish that some
unspecified confidential information was ever released by Tart-
aglia to some unspecified recipient. Apparently, Bear just as-
sumed this to have happened, and the Respondent made no
effort at the hearing to support this assumption.
Based on the above, I am of the belief that to the extent that
Bear offers reasons other than Tartaglia’s strike and picketing
activity for her termination, those other reasons are merely a
pretext. They appear meritless. Accordingly, I conclude the
Respondent has failed to rebut the General Counsel’s prima
facie case by any standard of evidence. It is, therefore, appro-
priate to infer that the Respondent’s true motive was unlawful,
that being because Tartaglia engaged in union and protected
concerted activity. Williams Contracting, Inc., 309 NLRB 433
(1992); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982); Shattuck Denn Mining Corp. v.
NLRB, 326 F.2d 466, 470 (9th Cir. 1966).
In summary, I find and conclude that the General Counsel
has established a prima facie case, and that the Respondent has
failed to rebut that evidence. Accordingly, I find that the Re-
spondent has violated Section 8(a)(1) and (3) of the Act by
discharging Deanna Tartaglia as alleged in paragraphs 6(a) and
(b), and 8 of the complaint.
G. Posthearing Motions
Following the hearing in this case, the parties filed a number
of motions with the undersigned. Dated July 21, 2003, the
Respondent filed a motion to reopen the record, with attach-
ments, and a motion to correct the record. Pursuant to my issu-
ance of an Order to Show Cause dated July 24, 2003, counsel
for the General Counsel filed an opposition to Respondent’s
motion to reopen record dated August 4, 2003. This was fol-
lowed by the Respondent’s reply memo in support of motion to
reopen the record dated August 13, 2003, and then by counsel
for the General Counsel’s motion to strike Respondent’s reply
memo in support of motion to reopen the record dated August
21, 2003. I have reviewed and considered each of the above-
mentioned motions.
In its motion to reopen the record, the Respondent seeks to
reopen the record pursuant to Section 102.35(a)(8) of the
Board’s Rules and Regulations for the purpose of allegedly
presenting “recently discovered evidence.” According to coun-
sel for the Respondent, ITS has uncovered evidence as would
show that Deanna Tartaglia defrauded the Respondent by pay-
ing employees who did not perform services for the Respon-
dent. Counsel alleges that on “at least 38 separate occasions
between December 1999 and January 2002,” Tartaglia engaged
in this fraudulent conduct. Documentation is attached to the
motion, which documentation allegedly supports counsel’s
contentions. It is the Respondent’s position that this “newly
uncovered evidence” is relevant both in evaluating Tartaglia’s
credibility, and also as to whether she is eligible for reinstate-
ment and backpay, assuming I was to order such a remedy.
It is the position of the Respondent that the evidence it seeks
to introduce was discovered only upon complying with a sub-
poena served by counsel for the General Counsel, which sub-
poena required the production of 60 boxes of documents and
materials. An initial review of these documents caused the
Respondent to offer some evidence at the hearing of alleged
fraudulent conduct by Tartaglia. However, upon further review
of the documents following the conclusion of the hearing, the
Respondent allegedly discovered many more examples of this
fraudulent conduct, which the Respondent now seeks to intro-
duce at a reopened hearing. According to the Respondent, this
information constitutes “newly discovered” evidence because
even though the documents were in its possession at the time of
the hearing, these documents were so voluminous that the Re-
spondent could not appreciate their significance until the Gen-
eral Counsel’s subpoena brought the matter to the Respondent’s
attention. A “comprehensive manual review” of the subpoe-
naed documents following the hearing allegedly uncovered a
significant number of these documents containing evidence of
fraud. Counsel contends that this “newly discovered” evidence
INTERNATIONAL TRANSPORTATION SERVICE 291
should now be considered at a reopened hearing, as the Re-
spondent was unaware of its existence at the time of the hear-
ing. See Liquor Industry Bargaining Group, 333 NLRB 1219
(2001); Modern Drop Forge Co., 326 NLRB 1335 fn. 1 (1998).
Counsel for the General Counsel takes the position that the
documents, which the Respondent seeks to have introduced at a
reopened hearing, are not truly “recently discovered evidence.”
I agree. These documents come from the Respondent’s own
records. The Respondent acted at its own peril in producing the
documents subpoenaed by the General Counsel without appar-
ently adequately reviewing said documents before the hearing
concluded. Simply because the documents were voluminous
does not establish that the Respondent could not have ade-
quately reviewed them prior to the conclusion of the hearing.
Having introduced at the hearing some evidence of Tartaglia’s
alleged fraudulent conduct, the Respondent was obviously
aware that such documents were in its possession. At a mini-
mum, the Respondent could have requested that the hearing be
continued to a date certain for the purpose of allowing the Re-
spondent an opportunity to further review its documents for
additional instances of alleged fraudulent conduct. However,
the Respondent made no such motion prior to the conclusion of
the hearing, waiting instead until 6 weeks after the record
closed, at a time when posthearing briefs were due. The Re-
spondent has not established that it acted expeditiously in
bringing this matter to the undersigned’s attention.
In my view, the documents in question do not constitute
newly discovered evidence, as these documents were in the
Respondent’s possession at the time of the hearing, and the
Respondent cannot be said to be “excusably ignorant” of their
existence. Further, I believe that the Respondent has failed to
satisfy the Board’s standard that a party seeking to introduce
evidence as newly discovered must establish that it acted with
“reasonable diligence” to uncover and introduce the evidence in
question. See Fitel/Lucent Technologies, Inc., 326 NLRB 46
fn. 1 (1998), citing Owen Lee Floor Service, 250 NLRB 651 fn.
2 (1980). Therefore, I am declining to reopen the record in this
case.
While I believe that the Respondent has failed to meet the
Board’s standard, even assuming, for the sake of argument, that
it had established the evidence it seeks to introduce as newly
discovered, I would still decline to reopen the record in this
case. In my opinion, it would serve no useful purpose to do so,
and due process would not be served by reopening the record.
The Respondent takes the position in its motion that the prof-
fered evidence is material to the outcome of this case. Alleg-
edly, the evidence would show that Tartaglia exercised supervi-
sory authority, as she had the ability to directly pay employees
without oversight by her superiors. Also, the evidence would
allegedly affect her credibility in all its aspects. Further, a find-
ing that Tartaglia engaged in a pattern and practice of fraudu-
lent conduct would allegedly warrant a finding that she is not
entitled to reinstatement and/or backpay, assuming that I were
otherwise to find a violation of the Act. While the Respondent
does not contended that it fired Tartaglia for this alleged fraud,
as it was unaware of the fraudulent conduct prior to her dis-
charge, it allegedly would have fired her, had it known of her
actions.
Concerning credibility, I have already indicated above that in
general, I did not find Tartaglia to be a credible witness. The
Respondent offered some evidence at the hearing to demon-
strate that Tartaglia authorized payment to her brother for work
that he did not perform. I earlier indicated that I did not credit
her denial. However, a person whose testimony is incredible
for certain matters, may offer credible testimony as to other
matters. Such is the case with Tartaglia. I previously found
that she testified credibly regarding her employment duties,
responsibilities and authority. This testimony was inherently
probable, supported by documentary evidence, including
evaluations from her superiors, and much of it was unrebutted.
Based on her testimony and other evidence, I concluded that
Tartaglia was an “employee” as defined in the Act.
Counsel for the Respondent argues that if the record is re-
opened, he will offer additional evidence of Tartaglia’s alleged
fraudulent conduct, which would establish that she had a pat-
tern and practice of paying wages to individuals who had not
worked and were not entitled to payment. This, counsel con-
tends, establishes that Tartaglia was a manager or supervisor. I
disagree. Clearly, the Respondent had not authorized Tartaglia
to pay individuals who had not worked. After all, it is the Re-
spondent that is alleging said conduct to be fraudulent. Assum-
ing, for the sake of argument, that the alleged conduct actually
occurred, Tartaglia usurped that authority, which the Respon-
dent had obviously never given her. She cannot be a manager
or supervisor as defined in the Act by exercising authority,
which she obtained surreptitiously, and without the consent of
the Employer.
Finally, the Respondent contends that the record should be
reopened to afford it the opportunity to demonstrate that be-
cause it has now become aware of Tartaglia’s alleged numerous
instances of fraud, it should not be required to offer her rein-
statement and backpay, assuming a violation of the Act is
found. Counsel for the Respondent indicated that if given the
opportunity at a reopened hearing, he will offer testimony that
the Respondent would have terminated Tartaglia had it known
of her alleged fraudulent conduct.
I agree that evidence of Tartaglia’s alleged fraudulent con-
duct could affect the matter of reinstatement and backpay, as-
suming the Respondent is able to establish that it would have
terminated her had it known of her actions. However, these are
remedial issues that, at this late stage in the process, could best
be addressed in a compliance proceeding, if such a proceeding
becomes necessary. The Board has provided a respondent with
such an opportunity in the compliance stage of proceedings to
show that asserted misconduct recently discovered would have
provided grounds for termination based on a preexisting, non
discriminatory company policy. See ADS Electric Co., 339
NLRB 1020 fn. 3 (2003), citing Arrow Flint Electric Co., 321
NLRB 1208, 1210 (1996). Thus, it is not necessary to reopen
the record in this matter in order to give the Respondent the
opportunity to argue that reinstatement and backpay are not
appropriate remedies in this case. The Respondent can subse-
quently present such evidence at a compliance proceeding.
Based on the above, I deny the Respondent’s motion to re-
open the record. The documents attached to this motion are not
in evidence and have not been considered by the undersigned in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD292
any way in rendering a decision in this case. As noted above, I
did consider the Respondent’s reply memo in support of its
motion to reopen the record and, therefore, I hereby deny coun-
sel for the General Counsel’s motion to strike Respondent’s
reply memo in support of its motion to reopen the record. Fi-
nally, the Respondent’s motion to correct the transcript, unop-
posed by the General Counsel, is granted.16
CONCLUSIONS OF LAW
1. The Respondent, International Transportation Service,
Inc. (ITS), is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, International Longshore and Warehouse Un-
ion, Office Clerical Unit, Marine Clerks Association, Local 63,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By the following acts and conduct the Respondent has
violated Section 8(a)(1) of the Act:
(a) Informing an employee that she was being discharged be-
cause she engaged in union and protected concerted activity,
specifically picket line activity on behalf of the Union.
4. By the following acts and conduct the Respondent has
violated Section 8(a)(1) and (3) of the Act:
(a) Terminating employee Deanna Tartaglia because she en-
gaged in union and protected concerted activity, specifically
picket line activity on behalf of the Union.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged its em-
ployee Deanna Tartaglia, my recommended order requires the
Respondent to offer her immediate reinstatement to her former
position, displacing if necessary any replacement, or if her posi-
tion no longer exists, to a substantially equivalent position,
without loss of seniority and other privileges. My recom-
mended order further requires the Respondent to make Tart-
aglia whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of her discharge to the date
the Respondent makes a proper offer of reinstatement to her,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The recommended order further requires the Respondent to
expunge from its records any references to the discharge of
Tartaglia, and to provide her with written notice of such ex-
punction, and inform her that the unlawful conduct will not be
used as a basis for further personnel actions against her. Ster-
ling Sugars, Inc., 261 NLRB 472 (1982). Finally, the Respon-
dent shall be required to post a notice that assures the employ-
ees that it will respect their rights under the Act.

16 Certain errors in the transcript have been noted and corrected.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, International Transportation Service, Inc.
(ITS), Long Beach, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Informing its employees that they are being discharged
because they engaged in union or protected concerted activity,
specifically picket line activity on behalf of the Union.
(b) Terminating its employees because they engaged in un-
ion or protected concerted activity, specifically picket line ac-
tivity on behalf of the Union.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Deanna
Tartaglia full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Deanna Tartaglia whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of this
decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Deanna Tart-
aglia, and within 3 days thereafter notify her in writing that this
has been done and that the discharge will not be used against
her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities located at 1281 Pier J Avenue in Long Beach, Califor-
nia, copies of the attached notice marked “Appendix.”18 Copies
of the notice, on forms provided by the Regional Director for
Region 21 after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
INTERNATIONAL TRANSPORTATION SERVICE 293
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 8,
2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything that interferes with these rights.
Specifically:
WE WILL NOT discharge or otherwise discriminate against any
of you for engaging in picket line activity on behalf of the In-
ternational Longshore and Warehouse Union, Office Clerical
Unit, Marine Clerks Association, Local 63 (the Union), or any
other union, or for engaging in any other union or protected
concerted activity.
WE WILL NOT inform you that you are being discharged for
engaging in union or protected concerted activity, specifically
for engaging in picket line activity on behalf of the Union, or
any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Deanna Tartaglia full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Deanna Tartaglia whole for any loss of earn-
ings and other benefits resulting from her discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of Deanna Tartaglia, and WE WILL, within 3 days thereafter,
notify her in writing that this has been done and that the dis-
charge will not be used against her in any way.
INTERNATIONAL TRANSPORTATION SERVICE, INC.