MPG Transport Ltd.

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 489 (N.L.R.B. 1994)

489
315 NLRB No. 62
MPG TRANSPORT LTD.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge found that the Respondent violated Sec. 8(a)(1) by the
threat of Joseph Wadena, the Respondent’s director of automotive
transportation, to employee Roy Rappa to close the plant or to sub-
contract the employees’ work if the employees chose the Union as
their bargaining representative. The Respondent in its brief contends
that during a preelection speech to all employees the Respondent’s
president, Michael Wysocki, repudiated that threat. Although
Wysocki told the employees that the Respondent would not close the
terminal or cancel its order for new delivery trucks, we find that this
statement did not effectively disavow the prior threat under the cri-
teria set forth in Passavant Memorial Area Hospital, 237 NLRB 138
(1978). The repudiation was not timely, but occurred approximately
1 month after the initial threat. Furthermore, it was not ‘‘specific in
nature to the coercive conduct,’’ since Wysocki did not refer to the
initial threat and specifically deny its substance. Id. at 139. Finally,
Wysocki’s statement did not assure employees that in the future the
Respondent would not interfere with the exercise of their Sec. 7
rights by such coercive conduct. Accordingly, we agree with the
judge that Wadena’s threat violated Sec. 8(a)(1) of the Act.
1 This case had been consolidated for hearing and decision with
Case 22–RC–10652, involving objections to the election. Following
the close of the hearing, on January 25, 1994, counsel for the Gen-
eral Counsel moved to sever and remand the representation case to
the Regional Director, on the ground that the Union had requested
that its petition and objections be withdrawn in view of its filing a
new petition in Case 22–RC–10901. On February 3, I granted the
motion, not having received any objection thereto. On February 4,
Respondent filed its opposition to the General Counsel’s motion. On
February 4, I reaffirmed my order, and noted Respondent’s opposi-
tion thereto. I noted that I had limited authority, in hearing this con-
solidated case, as to the representation case aspect thereof. I noted
that Respondent’s request that I deny a petitioner’s right to withdraw
its objections and petition is more properly addressed to the Re-
gional Director and to the Board.
MPG Transport, Ltd. and International Brother-
hood of Teamsters, Local 560, AFL–CIO. Case
22–CA–18609
October 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On July 7, 1994, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions 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 the Respondent, MPG Transport, Ltd, New-
ark, New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Chevella Brown-Maynor, Esq., for the General Counsel.
Paul A. Montalbano, Esq. (Schneider, Goldberger, Cohen,
Finn, Solomon, Leder & Montalbano, Esqs.), of Cranford,
New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon a
charge filed on August 7, 1992, by International Brotherhood
of Teamsters, Local 560, AFL–CIO (the Union) in Case 22–
CA–18609, a complaint was issued against MPG Transport,
Ltd. (Respondent) on January 29, 1993.
The complaint alleges, essentially, that in July 1992 Re-
spondent (a) through its employee agent, induced its employ-
ees to abandon their support for the Union by encouraging
them to form their own committee to request benefits from
Respondent and (b) threatened its employees with the closing
of its facility and with loss of work, in violation of Section
8(a)(1) of the Act. The complaint further alleges that in Sep-
tember 1992 Respondent discriminatorily assigned a long-
distance route to its employee in violation of Section 8(a)(3)
and (1) of the Act.
On November 16, 1993, a hearing was held before me in
Newark, New Jersey.1 Upon the evidence presented in this
proceeding, and my observation of the demeanor of the wit-
nesses and after consideration of the briefs filed by the Gen-
eral Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, having its office and place of
business in Newark, New Jersey, has been engaged in the
interstate transportation of automobiles. During the past year,
Respondent received gross revenues in excess of $50,000
from the transportation of automobiles from New Jersey di-
rectly to points outside New Jersey. Respondent admits and
I find that it is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Respondent also admits, and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
Respondent’s business consists of delivering Volvo auto-
mobiles to dealerships pursuant to a contract with Volvo
Cars of North America. It employs its own employees, and
also contracts with other carriers to deliver the cars. Employ-
ees are paid based upon the mileage of the trip they complete
and the number of times they delivered.
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 One trip is defined as a departure from the terminal and a return
to the terminal, regardless of the number of dealers the driver deliv-
ers to during that run.
3 Rappa could have refused to make the delivery but that would
have constituted insubordination.
Sometime prior to July 1992, Respondent placed an order
for 17 new tractors, which represented a major commitment
toward its growth.
Roy Rappa, having the most seniority of Respondent’s ap-
proximately 20 drivers, began his employment with Respond-
ent in 1991.
Rappa testified that other drivers complained to him about
Respondent’s low payment structure, and said they were in-
terested in being represented by a union. Rappa called the
Union.
On July 9, 1992, the Union’s recording secretary sent the
following letter to Respondent:
I am writing to you on behalf of your employees who
have signed authorization cards for Local 560, IBT, and
who have emerged as leaders in Local 560’s effort to
become the collective bargaining representative of the
employees. Due in large part to the efforts of those em-
ployees, Local 560 will soon file a petition with the
National Labor Relations Board, seeking to have the
NLRB conduct a secret ballot election to determine
whether employees in an appropriate bargaining unit
wish to have Local 560 serve as their collective bar-
gaining representative. Several employees, including
Roy Rappa, have come forward as leaders in the Local
560 organizing campaign.
The letter warned Respondent not to take any adverse ac-
tion against Rappa or against ‘‘the other leaders in the Local
560 organizing campaign.’’
Respondent admits receiving the letter, and posting it in
the drivers’ room.
A. The Alleged Threats
Rappa testified that a few days after the letter was posted,
Joseph Wadena, Respondent’s director of automotive trans-
portation, asked him, ‘‘[W]hat are you doing to me? I ex-
pected to stay in this job the rest of my time. I can’t live
with a union contract. I’ll either close the place down or can-
cel the trucks, or bring in outsiders and do away with [Re-
spondent’s] drivers.’’ Rappa replied that it would take 51
percent to vote for a union, and that he was only one vote.
Wadena admitted having a conversation with Rappa that
day about an assignment, during which he screamed at
Rappa, and ‘‘flipped [his] lid,’’ and was very vocal and very
mad. Later that day, he apologized to Rappa for his conduct.
Specifically, Wadena denied the comment about canceling
the truck order, but did not testify about the alleged threat
to close the terminal.
Michael Wysocki, Respondent’s president, testified that
the truck order was never canceled, or threatened to be can-
celed, and in fact, he increased the number of trucks ordered.
The trucks were delivered and put into service in October
and November 1992.
B. The Alleged Discriminatory Assignment
The complaint alleges that in July 1992, Respondent
discriminatorily assigned a long-distance route to Rappa.
Because employees were paid based upon mileage and the
number of cars delivered, those drivers making the most de-
liveries per day earned the most money. As the most senior
driver, Rappa enjoyed the privilege of requesting the runs he
desired. He preferred local runs, those under 30 miles from
the terminal, because he could earn more money on several
short runs to local dealerships, than on one long-distance de-
livery. Wadena conceded that Rappa desired short runs, and
that Respondent ‘‘understood and agreed with that.’’
Although he sought short runs, Rappa has been assigned
to, and has accepted longer runs, such as to Long Island, a
60-mile trip, and to Poughkeepsie, a 90-mile trip, if those
were the only runs available. When given such an assign-
ment, it has been the practice that he loads the truck with
the cars in the afternoon of the day of the assignment. In
fact, Rappa testified that upon his hire, he was told by
Wadena that he would load the long runs the night before.
He then makes the delivery early the following morning, ar-
riving at the dealership at 8 a.m. Through this preload meth-
od, Rappa was able to make the morning long-distance deliv-
ery and return to the terminal later that day and still com-
plete additional deliveries that day.
Rappa was a highly productive driver, averaging at least
two trips per day, and on some days three or four, and occa-
sionally five trips in 1 day.2
On July 16, he made a short, local delivery and returned
to the terminal at about 11:30 a.m. or 12 noon. Upon his re-
turn, Terminal Manager and Dispatcher Rick O’Connell as-
signed him to make a delivery to Poughkeepsie that after-
noon. Wadena was present when the assignment was made.
Ordinarily such a long run was done as a preload, with the
cars being loaded in the afternoon, and the run made the fol-
lowing morning. However, O’Connell said he wanted the de-
livery made that afternoon. Rappa loaded the vehicles and
made the run to Poughkeepsie, returning at 5:45 p.m. that
day, too late to make any other deliveries. Rappa asked why
he was given the Poughkeepsie run in the afternoon, and not
handled as a preload, with delivery the following morning.
O’Connell and Wadena replied that that was the only run
they had.3 Rappa replied that other, local trips were avail-
able. The delivery orders are kept on a table, and he noticed
a large number of New Jersey orders there. Rappa inquired
about those, and Wadena repeated that the Poughkeepsie run
was the only one available.
Rappa stated that in the past, he has never been given a
long trip to be made in the afternoon of the assignment.
Rather, the trip may have been assigned in the afternoon, but
the truck would be preloaded that afternoon for delivery the
following morning.
The General Counsel’s argument is that Respondent (a)
departed from its existing practice permitting Rappa to pre-
load such long-distance deliveries as the Poughkeepsie run
and (b) withheld local deliveries from Rappa while requiring
him to perform the Poughkeepsie run.
The argument continues that had Rappa been permitted to
perform additional local runs in the afternoon of July 16, he
could have done two or three such deliveries, thereby earning
more money than he earned in the Poughkeepsie run, and in
addition, preloaded the Poughkeepsie run for delivery the
next morning. Thus, the argument is that Respondent unlaw-
fully withheld short runs from Rappa that afternoon, and in-
491MPG TRANSPORT LTD.
4 No management personnel were present. I cannot find that
‘‘Cal,’’ a working manager, who Rappa testified was present, was
a statutory supervisor. There was no evidence as to his supervisory
authority.
stead discriminatorily assigned him to the Poughkeepsie de-
livery.
Rappa conceded that had he been able to make only one
additional local run that afternoon, he would have earned $10
less than he did by making the Poughkeepsie delivery. Ac-
cordingly, Rappa suffered no discrimination if he would have
been assigned to one additional run. However, he argues that
he sometimes makes three or more deliveries in 1 day, and
a third local delivery would have resulted in him earning
more money than he did with the morning local delivery and
the Poughkeepsie run.
The questions thus become (a) whether there were addi-
tional local runs to be made on July 16 and if so, (b) were
those runs unlawfully withheld from him. When the Pough-
keepsie run was assigned, Wadena told him that nothing else
was available. However, Rappa noticed stacks of receipts for
local deliveries waiting to be assigned.
In this regard, Wadena testified that, as a rule, if the re-
ceipts are on the table, the deliveries are ready to be as-
signed. However, in certain cases, receipts are present on the
table, but the deliveries are not ready because they have been
put on ‘‘hold’’ by the shipper.
An analysis of the assignments for July 16 and 17 is there-
fore necessary.
On July 16, Rappa made two trips, one was a local, two-
delivery trip to Hawthorne and Upper Saddle River, and
upon his return to the terminal, was given the Poughkeepsie
run. Wadena testified that that assignment was a day’s work.
On that day, employee Zacconi also made two trips: to
Englewood and Cherry Hill.
Wadena stated that the trips completed by Rappa and
Zacconi that day are about the same in terms of the miles
driven.
The General Counsel and the Union argue that Rappa
should have been assigned the Englewood trip in addition to
Hawthorne and Upper Saddle River, and then given the
Poughkeepsie trip to preload that day, and deliver the next
day, on July 17. Indeed, Wadena testified that such an ar-
rangement was possible and could have been done.
However, Wadena further stated that if that was done,
Zacconi would have had only the Cherry Hill run to make.
Wadena testified that Zacconi could not have made the Cher-
ry Hill and Poughkeepsie deliveries because he could not
have finished both assignments that day. In addition, under
this arrangement, a third driver or an outside contractor
would have had to be called in to do the Poughkeepsie run.
Wadena stated that by splitting the work, each driver re-
ceived two trips that day, rather than Raffa receiving two,
and Zacconi, one.
In addition, Wadena stated that if Respondent rearranged
the two trips so that Poughkeepsie was not done that day,
the eight cars in the Poughkeepsie trip would not have been
delivered that day, and its shipper had the authority to penal-
ize it for not making that delivery.
On July 17, Rappa made deliveries to East Hanover, Eliza-
beth, and Brooklyn, which consisted of three trips. Zacconi
went to Nanuet, Hasbrouck Heights, and a three way trip to
Elizabeth, Red Bank, and Manasquan, a total of three trips.
Other employees that day went on longer trips, to Vermont,
upstate New York, Massachusetts, and on runs which origi-
nated from Baltimore and Boston, and two employees did
not work at all.
C. Actions of the Alleged Employee Agent
The complaint alleges that employee William Slack, acting
as agent of the Respondent, induced the employees to aban-
don their support for the Union by encouraging them to form
their own committee to request benefits from Respondent.
There was no evidence that William Slack is an employee
of Respondent. There was testimony about employee Charlie
Slack, and the case was litigated on that basis.
Rappa testified that in mid-July, Slack told him that
Wadena wanted the employees to have a meeting at which
they would decide what to demand from Respondent in order
to avoid unionization. Slack told Rappa that Respondent
would pay for the meeting room at the Holiday Inn North
(Holiday Inn) in Newark.
On July 25, Slack conducted a 1-hour meeeting, at which
five employees were present, including Rappa.4 Slack an-
nounced that the Respondent ‘‘set up’’ the meeting so that
the employees could determine what they wanted to present
to Respondent to keep the Union out. Slack suggested that
employees would vote against the Union if Respondent of-
fered them a certain sum of money. He said that Respondent
wanted to know what the workers wanted to keep the Union
out. The workers discussed the formation of a committee to
learn what demands the drivers wished to make, which
would be presented to Respondent. The employees agreed to
ask for a raise of 4 cents per mile.
William Gabriele, Respondent’s director of quality
assuarance, testified that employee John Glenn told him that
he wanted to have a drivers’ meeting, in order to ‘‘poll’’
them, learn what direction they wanted to go; get some
things straight; and to learn where they stand. Gabriele as-
sumed that these topics related to the union campaign which
was then active. Gabriele did not give Glenn any instructions
as to the purpose or content of the meeting.
Glenn asked Gabriele if Gabriele would rent a meeting
room at the Holiday Inn for the meeting. Glenn asked him
to make the arrangements because Glenn was on the road
and could not attend to the details.
Gabriele called the Holiday Inn and reserved a room with
his company credit card. The contract prepared by the Holi-
day Inn and sent to Gabriele at Respondent’s office, listed
the representative as John Glenn, and the organization as
MPG Transport, and bore Gabriele’s name and credit card
number. A meeting planning guide prepard by the Holiday
Inn listed John Glenn’s name, stated that the terms were cash
upon arrival, and also noted Gabriele’s name and credit card
number.
Gabriele testified that the cost of the room was not
charged to his credit card, and that he was not responsible
for the charges or the meeting room. Holiday Inn documents
do not show who paid for the room or the method of pay-
ment.
Gabriele stated that he made these arrangements as a cour-
tesy to Glenn. This was the first time that Gabriele had used
his credit card to reserve a meeting room for a driver.
Shortly thereafter, employee Slack called Gabriele and
made the same request. Gabriele told him that he had already
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
arranged for a room, and told Slack that he must pay cash
for it as the room was simply being held by Gabriele,
through his credit card.
Gabriele testified that 1 week after the meeting, Glenn
briefly described the meeting, but gave no details.
Analysis and Discussion
The Alleged Threats
A few days after Respondent received the letter informing
it that its employees were interested in joining the Union,
and that the Union would be filing a petition with the Board
to represent them, Rappa had a conversation with Manager
Wadena.
Rappa credibly testified in detail as to the nature of the
discussion, specifically that Wadena told him that he could
not live with a union contract, and that he would either close
the terminal, cancel the new truck order, or contract out the
work that Respondent’s employees were performing.
In contrast, Wadena could not remember what he told
Rappa during this discussion. He did deny threatening to
cancel the truck order, but conceded screaming at Rappa and
being very vocal and angry, prompting an apology to Rappa
later that day.
I credit Rappa, and find that Wadena’s statements con-
stitute an unlawful threat to close, and a threat that employ-
ees would lose their jobs through subcontracting of their
work. Equitable Resources Energy Co., 307 NLRB 730, 731
(1992).
I credit president Wysocki’s testimony that the new truck
order was not cancelled, and in fact was increased. However,
that Respondent did not carry out its threat to cancel the
order is not decisive ‘‘for the Board, in determining whether
such a threat is unlawful, looks to whether the threat has a
reasonable tendency to restrain or coerce employees in the
exercise of their Section 7 rights, not to whether the threat
has been carried out.’’ Alaska Pulp Corp., 296 NLRB 1260,
1262 (1989).
Wadena’s remarks to Raffa, coming on the heels of notifi-
cation that the Raffa was the leader of the Union’s attempt
to organize Respondent, clearly had the effect of restraiing
and coercing Raffa and other employees from exercising
their Section 7 right to seek representation by the Union. In-
deed, Raffa’s response to the remarks, in attempting to mini-
mize his role by sayinging that he was only one vote, and
that the Union needed 51 percent to win, demonstrate the co-
ercive nature of Wadena’s comments.
I accordingly find that Wadena’s remarks violation Section
8(a)(1) of the Act as alleged.
The Alleged Discrimination
The complaint alleges that in July 1992 Respondent
discriminatorily assigned a long-distance route to Rappa.
Rappa made the initial contact with the Union at his co-
workers’ request. In the letter sent to Respondent by the
Union, he was identified as a ‘‘leader’’ in the Union’s orga-
nizational effort. Thus, knowledge of Rappa’s union activi-
ties is clear and undisputed.
Animus toward the Union and toward Rappa has also been
proven. Shortly after Respondent received the letter, its di-
rector of automotive transportation, Joseph Wadena, focused
his attention upon Rappa, asking him ‘‘what are you doing
to me? I expected to stay in this job the rest of my time.’’
Thus, Wadena correctly attributed the Union’s efforts to
Rappa and accused him of affecting his job tenure.
As set forth above, I have found that Respondent violated
the Act through Wadena’s threats to Rappa, in the same con-
versation in which he said that he could not live with a union
contract and would close the terminal, and cancel the new
truck order or subcontract the employees’ work.
The question next becomes whether the assignment at
issue constituted discrimination. Within about 1 week after
the conversation with Wadena, on July 16, Rappa received
the assignment from Terminal Manager O’Connell with
Wadena present. Rappa made a local run in the morning of
July 16, and then was given a Poughkeepsie assignment in
the late morning. Contrary to past practice which permitted
Rappa to preload the autos for delivery the following day,
he was asked to deliver them the same day, July 16. The
General Counsel argues that this assignment constituted dis-
crimination because by requiring that the delivery be made
that day, Rappa was deprived of making other, local deliv-
eries that day.
Rappa conceded that if he made only one additional run
that day, a total of two runs on July 16, he would have
earned $10 less than he did by making the Poughkeepsie de-
livery. Accordingly, he earned more by making the
Poughkeepside delivery. However, the General Counsel con-
tends that, as Rappa was a very productive driver, he could
have made three, four, or even five deliveries that day.
Respondent argues that there is no proof that other, local
deliveries were available on July 16. It points to the testi-
mony of Rappa that Wadena said that the Poughkeepsie run
was the only assignment then available.
However, Rappa testified that the table was covered with
orders for local deliveries to which he could have been as-
signed. In fact, Wadena conceded that Rappa could have
been given the Englewood trip which was done by Zacconi
that day, and then given the Poughkeepsie trip to preload for
delivery the next day.
Accordingly, a second trip, the Englewood delivery, was
available on July 16. As to Respondent’s argument that if
this had been done, Zacconi would have had only one deliv-
ery, to Cherry Hill, is beside the point, since Raffa, as the
most senior employee, was given preference in assignments,
and routinely made three deliveries per day. Respondent’s
further argument that a failure to make the Poughkeepsie de-
livery on July 16 could have resulted in penalites did not
seem to be a consideration in the past, when preloading, and
not delivery, was done on the day of the assignment to the
driver.
If Rappa made only two local deliveries that day, to Haw-
thorne-Upper Saddle River, and to Englewood he would have
earned less than he had when he made the Hawthorne-Upper
Saddle River and Poughkeepsie deliveries. Accordingly, the
General Counsel argues that Rappa should have been as-
signed three local deliveries that day. I do not credit
Wadena’s testimony that no other local deliveries were avail-
able since he readily testified that Englewood was available
and could have been assigned to Rappa.
In addition to Englewood, the Cherry Hill run could also
have been assigned to Rappa, making three local deliveries
that day. Although this would have resulted in no assignment
to Zacconi, this would appear to conform to past practice in-
493MPG TRANSPORT LTD.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
asmuch as Rappa has been given preference in assignments
and his desire for local assignments has been honored. Fur-
ther, there appear to have been local runs the following day,
July 17, which were made by Rappa and Zacconi, and which
may have been available on July 16.
I therefore find and conclude that, inasmuch as additional
local deliveries were available on July 16, combined with the
fact that Respondent departed from its past practice permit-
ting Raffa to preload long runs such as the Poughkeepsie
run, Respondent (a) discriminatorily withheld the Englewood
run from Raffa, (b) required him to make the Poughkeepsie
run that day, and (c) refused to permit him to preload that
run, all of which resulted in a loss of pay to him.
I accordingly find that the General Counsel has made a
prima facie showing that the union activity of Raffa was a
motivating factor in Respondent’s decision to require him to
make the Poughkeepsie run on July 16. Wright Line, 251
NLRB 1083 (1980).
Based upon my discussion of Respondent’s defenses, set
forth above, I conclude that Respondent has not dem-
onstrated that it would have required Raffa to make the
Poughkeepsie run on July 16 in the absence of his union ac-
tivities. Wright Line, supra.
The Alleged Action of the Alleged Agent
The complaint alleges that Respondent through its agent
Slack, induced its employees to abandon their support for the
Union by encouraging them to form their own committee to
request benefits from Respondent.
‘‘The test for agency is whether, under all the cir-
cumstances, an employee would reasonably believe that the
alleged agent was reflecting company policy and speaking
for management.’’ Stalwart Assn., 310 NLRB 1046, 1055
(1993).
A question which must be answered in the affirmative in
order to find an employee to be an agent is whether the em-
ployer has placed the alleged agent in a position—in the po-
sition of a conduit—where employees could reasonably be-
lieve that he speaks in behalf of management. Three Sisters
Sportswear Co., 312 NLRB 853, 865 (1993); Juniper Indus-
tries, 311 NLRB 109, 110 (1993); Virginia Mfg. Co., 310
NLRB 1261, 1266 (1993).
I have credited Rappa’s testimony that Slack told him that
Wadena wanted the employees to have a meeting to decide
what demands they should make of Respondent in order to
keep the Union out. Slack was further quoted as having said
that Respondent ‘‘set up’’ the meeting. Slack did not testify.
However, statements of an alleged agent do not constitute
evidence of agency status. Virginia Mfg., supra.
There is no evidence that Slack had in the past conveyed
messages to employees from management, Virginia Mfg.,
supra, or that he supervised or corrected the work of other
employees. Three Sisters, supra, or had more authority than
other employees and was a leadman, Stalwart, supra.
The only evidence which would establish that Respondent
placed him in a position where employees could believe that
he spoke in behalf of management, was the way in which the
meeting was arranged. Respondent’s official, Gabriele re-
served the meeting room for Slack. There was no evidence
that Respondent paid for the room. In fact, the hotel’s con-
firmation notes that although the room was reserved with
Gabriele’s credit card, cash was to be the method of pay-
ment. Indeed, Gabriele testified that he told Slack that Slack
was responsible for the cash payment for the room. Although
this was the first time that Gabriele had resered a room for
a driver, he gave uncontradicted testimony that he did so at
the employee’s request.
Based upon the above, particularly that the General Coun-
sel has not proven that Respondent placed Slack in a position
where employees could reasonably believe that he spoke for
management, I find and conclude that Slack is not an agent
of Respondent, and therefore no violation has been proven
concerning the meeting at the Holiday Inn.
CONCLUSIONS OF LAW
1. The Respondent, MPG Transport Ltd., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Brotherhood of Teamsters, Local 560,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By threatening its employees with closure of its facility,
and by threating its employees with loss of work, Respond-
ent violated Section 8(a)(1) of the Act.
4. By discriminatorily assigning its employee Roy Rappa
to a long-distance route, Respondent violated Section 8(a)(3)
and (1) of the Act.
5. Respondent has not violated the Act in any other re-
spect as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unlawful
conduct under the Act, I will recommend that it cease and
desist therefrom, and take certain affirmative action which is
necessary to effectuate the policies of the Act.
Having found that Roy Rappa was discriminatorily as-
signed a long-distance route on July 16, 1992, thereby pre-
venting him from making additional deliveries, I shall rec-
ommend that Respondent be ordered to make him whole for
any loss which resulted from that assignment. The amounts
to be paid to him shall be computed in the manner prescribed
in Florida Steel Corp., 231 NLRB 651 (1977), and New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, MPG Transport Ltd., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with closure of its facility
and with loss of work.
(b) Discriminatorily assigning its employees long-distance
routes.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Roy Rappa for any loss of earnings and
other benefits suffered as a result of its discriminatory as-
signment to him on July 16, 1992, of a long-distance route,
in the manner set forth in the remedy section of this deci-
sion.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Newark, New Jersey facility, copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
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, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten our employees with closure of our
facility of with loss of work.
WE WILL NOT discriminatorily assign our employees long-
distance routes.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL make whole Roy Rappa for any loss of earnings
and other benefits suffered as a result of our discriminatory
assignment to him on July 16, 1992, of a long-distance route.
MPG TRANSPORT LTD.