MSK Cargo/King Express

National Labor Relations Board - Board Decisions

Nov 8, 2006

348 N.L.R.B. 1096 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 73
1096
M. Mogul Enterprises, Inc. d/b/a MSK Cargo/King
Express and Teamsters Local Union 657 affili-
ated with International Brotherhood of Team-
sters. Case 16–CA–24374
November 8, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On June 16, 2006, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2
and to adopt the recommended Order as modified and set
forth in full below.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, M. Mogul Enterprises, Inc. d/b/a MSK
Cargo/King Express, Harlingen, Texas, its officers,
agents, successors, and assigns, shall

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Chairman Battista agrees with his colleagues that the Respondent
violated Sec. 8(a)(3) and (1) by refusing to hire the nine named dis-
criminatees in order to avoid a successor collective-bargaining obliga-
tion. In finding that the Respondent’s refusals to hire were motivated
in part by a desire to avoid a bargaining obligation, Chairman Battista
relies solely on credited testimony that the Respondent’s owner John
Gunn, its General Manager Glynn Smith, and its manager, Anthony
Soto, made several statements evidencing animus to DHL’s Manager
Hugo Moya, Act Fast Supervisor Omar Juarez, and former Act Fast
employee Margarito Garcia.
Chairman Battista further agrees with his colleagues that the Re-
spondent violated Sec. 8(a)(5) and (1) by failing to recognize and bar-
gain with the Union. In so doing, he notes that the Respondent did not
argue that there can be no violation because the Union did not request
bargaining. Thus, he does not pass on the validity of precedent argua-
bly holding that there can be a violation even absent a union demand
for bargaining. See Smith & Johnson Construction Co., 324 NLRB
970, 970 (1997).
3 We shall modify the judge’s recommended Order to conform to our
standard remedial language, to reflect the violations found, and to re-
flect that the Respondent has already hired employees Jose Muniz and
Javier Torres. We shall also substitute a new notice to conform to the
Order as modified.
1. Cease and desist from
(a) Discriminatorily refusing to hire employees in or-
der to avoid a successor collective-bargaining obligation.
(b) Failing and refusing to recognize and bargain with
Teamsters Local Union 657 affiliated with the Interna-
tional Brotherhood of Teamsters (the Union) as the ex-
clusive collective-bargaining representative of the em-
ployees in the following unit:
INCLUDED: All delivery drivers employed by
M. Mogul Enterprises, Inc. d/b/a MSK Cargo/King
Express at its facility at 3302 Heritage Way in Har-
lingen, Texas.
EXCLUDED: All other employees, including of-
fice employees, guards, managers, and supervisors
as defined in the National Labor Relations Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Ernesto Aguilar, Rolando Galvan, Michael Guzman,
Elizandro Martinez, Edgar Rangel, Tomas Vasquez, and
Gilbert Villegas instatement to the positions for which
they applied or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their seniority
or any other rights or privileges.
(b) Make whole, with interest, Ernesto Aguilar, Ro-
lando Galvan, Michael Guzman, Elizandro Martinez,
Jose Muniz, Edgar Rangel, Javier Torres, Tomas
Vasquez, and Gilbert Villegas for any loss of earnings
and other benefits they have suffered as a result of the
unlawful discrimination against them, in the manner set
forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusals to
hire the above-named discriminatees and, within 3 days
thereafter, notify them in writing that this has been done
and that the unlawful actions will not be used against
them in any way.
(d) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the
appropriate unit described above concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
MSK CARGO/KING EXPRESS 1097
cords and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
the facility in Harlingen, Texas, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to its 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 Re-
spondent has gone out of business or the facility involved
in these proceedings has been closed, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by the Respondent at any time since July 2005.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discriminate against you by refusing to
hire you to avoid a successor collective-bargaining obli-
gation.

4 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.”
WE WILL NOT fail or refuse to recognize and bargain
with Teamsters Local Union 657 affiliated with the In-
ternational Brotherhood of Teamsters (the Union) as the
exclusive collective-bargaining representative of the em-
ployees in the following unit:
INCLUDED: All delivery drivers employed by
M. Mogul Enterprises, Inc. d/b/a MSK Cargo/King
Express at its facility at 3302 Heritage Way in Har-
lingen, Texas.
EXCLUDED: All other employees, including of-
fice employees, guards, managers, and supervisors
as defined in the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, 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 Ernesto Aguilar, Rolando Galvan, Michael
Guzman, Elizandro Martinez, Edgar Rangel, Tomas
Vasquez, and Gilbert Villegas instatement to the posi-
tions for which they applied or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice
to their seniority or any other rights or privileges.
WE WILL make whole, with interest, Ernesto Aguilar,
Rolando Galvan, Michael Guzman, Elizandro Martinez,
Jose Muniz, Edgar Rangel, Javier Torres, Tomas
Vasquez, and Gilbert Villegas for any loss of earnings
and other benefits they have suffered as a result of the
unlawful discrimination against them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire the above-named discriminatees and,
WE WILL within 3 days thereafter, notify them in writing
that we have done this and that we will not use our
unlawful actions against them in any way.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the employees in
the appropriate unit described above concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
M. MOGUL ENTERPRISES, INC. D/B/A MSK
CARGO/KING EXPRESS
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1098
Jamal M. Allen, Esq., for the General Counsel.
Stephen C. Key, Esq. and Mica Pardon, Esq., for the Respon-
dent.
Pablo V. Cruz, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me in Harlingen, Texas, on February 6
and 7, 2006, pursuant to a complaint issued by the Regional
Director of Region 16 of the National Labor Relations Board
(the Board) on November 30, 2005. The complaint alleges that
M. Mogul Enterprises, Inc. d/b/a MSK Cargo/King Express
(the Respondent or MSK) violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act). The complaint
is based on charges brought by Teamsters Local Union 657
affiliated with International Brotherhood of Teamsters (the
Charging Party or the Union). The complaint is joined by the
answer of Respondent wherein it denies the commission of any
violations of the Act.
Upon consideration of the testimony of the witnesses, the
exhibits received at the hearing and the positions of the parties
as contended at the hearing and as set out in their briefs, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits, and I find that at
all times material that Respondent has been a Texas corporation
and an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and has been engaged in
the pick up and delivery of packages as a contract courier ser-
vice for DHL Express (DHL), that during the past 12 months,
Respondent, in conducting its business operations within the
State of Texas, derived gross revenues in excess of $50,000 for
the transportation of freight in interstate commerce pursuant to
contracts with the common carrier DHL, a nationally known
entity which is directly engaged in interstate commerce and
operates between the various States of the United States.
On July 5, 2005,1 Respondent commenced operations at a
DHL facility located at 3302 Heritage Way, Harlingen, Texas
(the HRL Station), the only facility involved herein pursuant to
a cartage agreement with DHL executed the same day. Pursu-
ant to this agreement, Respondent picked up and delivered
freight in the McAllen, Texas area. Prior to July 5, another
courier service company, Act Fast Delivery of Corpus Christi,
Inc. (Act Fast), provided similar courier services while operat-
ing out of the HRL Station pursuant to a cartage agreement
similar in most respects to that entered into by Respondent.
However, Act Fast picked up and delivered freight in the Har-
lingen area as well as the McAllen area.
On April 13, 2005, the Union had been certified as the exclu-
sive collective-bargaining representative of a unit of employees
of Act Fast, described as follows:

1 All dates are in 2005, unless otherwise stated.
INCLUDED: All delivery drivers employed by Act
Fast Delivery of Corpus Christi, Inc. at its facility at 3302
Heritage Way in Harlingen, Texas.
EXCLUDED: All other employees, including office
employees, guards, managers, and supervisors as defined
in the National Labor Relations Act.
A unit of Respondent’s employees described in this manner
constitutes a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
Upon termination of Act Fast’s cartage agreement, DHL di-
vided the area serviced out of the HRL Station into two sepa-
rate areas: The Harlingen area and the McAllen area and bid
them out separately. Respondent MSK was awarded the con-
tract for the McAllen area and another courier service company
(Third Garage) was awarded the contract for the Harlingen
area, both of which have operated out of the HRL Station since
July 5, 2005. Other than the geographical modification brought
about by the separation of the McAllen and Harlingen con-
tracts, upon commencing operations at the HRL Station, Re-
spondent’s operations were similar, in most respects, to those of
Act Fast. Specifically, Respondent’s employees work similar
hours, under similar working conditions, driving generally
similar freight along generally similar routes as compared to the
employees who worked for Act Fast out of the HRL Station.
Respondent concedes it is aware wages paid by Respondent are
generally typical for the industry. At no time did Respondent
acquire any equipment, supplies, trucks, goodwill, or any other
assets or liabilities of Act Fast nor did Respondent enter into
any agreements to do so, or otherwise, with Act Fast.
The following former employees and/or supervisors of Act
Fast applied for jobs with Respondent:
Juarez, Omar Torres, Javier
Lopez, Jesus Aguilar, Ernesto
Avalos, Juan Guzman, Michael
Gonzalez, Guadalupe Martinez, Elizandro
Lopez, Carlos Vasquez, Tomas
Barrera, Jose Rangel, Edgar
Sierra, Rosalinda Muniz, Jose
Guerra, Ramiro Villarreal, Roberto
Mata, Juan Villegas, Gilberto
Ramirez, Lorenzo Torres, Nelson
Respondent hired the following former Act Fast employees to
fill the following respective positions:
Avalos, Juan Supervisor
Barrera, Jose Courier
Gonzalez, Guadalupe Courier
Guerra, Ramiro Courier
Juarez, Omar Supervisor
Lopez, Carlos Courier
Lopez, Jesus Courier
Mata, Juan Courier
Quezada, Felipe Supervisor
Ramirez, Lorenzo Courier
Sierra, Rosalinda Courier
Muniz, Jose Courier
MSK CARGO/KING EXPRESS 1099
Torres, Javier Courier
Torres, Nelson Courier
At all material times the following individuals held the posi-
tions set forth opposite their respective names and have been
supervisors for Respondent within the meaning of Section
2(11) of the Act and agents of Respondent within the meaning
of Section 2(13) of the Act:
John Gunn Owner
Glynn Smith General Manager
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case involves the alleged refusal by a successor em-
ployer to hire the employees of the predecessor employer in
order to evade the successor employer’s obligation to recognize
and bargain with a newly certified union by refusing to employ
the work force in which a majority of the predecessor’s em-
ployees had selected the Union thus giving rise to an 8(a)(1)
and (3) violation for discriminating against the employees be-
cause of their support for the Union and an 8(a)(1) and (5) vio-
lation by refusing to recognize and bargain with the Union.
DHL Express (DHL) is a cartage and ground delivery service
which maintains stations in a large part of the country and con-
tracts with individual contractors who perform the cartage and
delivery service for it. DHL operates a station in Harlingen,
Texas, which is divided into two fleets of individual routes to
perform this work. They are the Harlingen fleet which provides
delivery service in the Harlingen, Texas area (HRL) and the
McAllen fleet which provides delivery service in the McAllen,
Texas area (MFE). Act Fast Delivery of Corpus Christi, Texas
(Act Fast), contracted with DHL from March 4, 2004, to July 2,
2005, to provide cartage services at DHL’s station at Harlingen,
Texas. Act Fast employed approximately 28 couriers/drivers at
the Harlingen station which were operated as two fleets, HRL
and MFE.
The Union commenced organizing the courier/drivers em-
ployed by Act Fast at the Harlingen facility in January 2005,
and the Board held an election on April 5, 2005, which the
Union won by a vote of 23 to 4. On April 13, 2005, the Board
certified the Union as the exclusive collective-bargaining repre-
sentative of the Act Fast employees in the aforesaid appropriate
unit:
INCLUDED: All delivery drivers employed by the
employer at its facility at 3302 Heritage Way in Harlingen,
Texas.
EXCLUDED: All other employees, including office
employees, guards, managers, and supervisors as defined
in the National Labor Relations Act.
After the election, Act Fast notified DHL of its intent to ter-
minate their agreement because they were losing money from
the relationship. As noted above under their contractual rela-
tionship DHL’s operations were divided into two separate op-
erations, one for the McAllen, Texas area fleet (MFE) and one
for the Harlingen, Texas area fleet (HRL). After receiving the
notice of termination from Act Fast, DHL decided to solicit
separate bids for the HRL and MFE operations. Respondent
bid on both contracts and on or about June 9, was awarded the
MFE contract. “Third Garage” another bidder was awarded the
HRL contract. The HRL operation consisted of 11 routes and
the MFE operation consisted of 16 to 17 routes. Act Fast had
employed 17 to 18 drivers in the MFE operation. There had
been several contractor changes in the past and the courier em-
ployees had undergone several transitions wherein the new
contractor had met with them and hired the entire complement
of employees at that time and the employees had continued to
service their same assigned routes. However, in the instant
case the Respondent followed a different pattern. Act Fast
decided to notify its supervisors of its decision to terminate the
contractual relationship with DHL 2 to 3 weeks prior to the
actual termination of its operations at the Harlingen facility but
not to inform its courier/driver employees until the week of the
termination of its operations because of a fear that the employ-
ees would quit or somehow react in a negative manner so as to
interrupt service. Act Fast area manager, David Maldonado,
testified he was not given a specific reason by his superiors.
General manager and director of Respondent’s operations,
Glynn Smith, testified that on June 13, he had asked Facility
Manager Hugo Moya if they would be able to approach the
drivers but that Act Fast had told Moya they were not going to
announce the transition to their employees until July 1. Some-
time after this, he asked Moya if he could get him a copy of the
Excelsior list but did not receive it. Moya requested this of
Maldonado but was unable to obtain it. Act Fast Chief Opera-
tions Officer Larry Sleeper testified he denied the request to
obtain a list of the employees who had voted in the election
Whereas Act Fast served between 27 to 28 routes in the com-
bined MFE and HRL area, 11 were HRL routes and 16 to 17
were MFE routes. Act Fast employed 17 to 18 drivers to per-
form the work in the MFE fleet. In the past 5 years there had
been four different contractors serving DHL’s Harlingen facil-
ity. Accordingly most of the courier/drivers had experienced
the prior changes of contractors who met with the employees
and hired them all at that time with them filling out an applica-
tion at or near the time of hire and the employees retained the
same routes with the new contractor. As it turned out this did
not happen with the assumption of the contract by MSK. Act
Fast did not notify its employees of the impending termination
of its contract with DHL until the final week of its operations
when its Area Manager David Maldonado on Tuesday, June 28,
told the employees of the loss of their jobs and told them there
were applications on the counter in the front part of the facility
for the new contractors. Two to 3 weeks prior to this
Maldonado had notified its three supervisors of the change and
told them not to disclose it to the drivers. DHL’s Harlingen
Station manager, Hugo Moya, testified he had arranged the
June 28 meeting on behalf of Third Garage Owner John Ray
who wanted to talk to the drivers on behalf of Third Garage.
Ray spoke to the employees after Maldonado, and told them he
looked forward to working with them. Respondent declined an
offer by Moya to meet with the drivers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1100
After receiving notification that the MFE contract had been
awarded to it, MSK advertised in a local newspaper for courier
positions and did not identify itself in the advertisements,
which ran from Monday, June 13, through Sunday, June 19.
On Saturday, June 11, Glynn Smith, Respondent’s director of
operations, e-mailed DHL Station Manager Moya concerning
the advertisement and stated, “The ad simply asks interested
applicants to come in to your station and submit an application.
If you wouldn’t mind, could you make a few copies and hand
them out at your counter, then collect the completed packets
and hold them for either me or John Gunn (one of Respondent’s
owners). One or both of us will be in next week to run the
background and MVR (Motor Vehicle) checks and schedule
interviews.” Smith also sent an electronic copy of Respon-
dent’s employment application. Although Respondent’s appli-
cations were placed at the front counter desk, the Act Fast em-
ployees were largely oblivious of the coming change in con-
tractors. The employees were not normally in the front part of
the facility where the applications were placed but rather used
other entrances and exits. During the week of June 13 to 17,
Smith and Gunn arrived at the Harlingen facility and Smith
asked Station Manager Moya for the Excelsior list which had
been used for the union election. Moya testified he did not
know what was contained in the Excelsior list. However, he
attempted to comply with the request and contacted Act Fast
Area Manager Maldonado and asked for a list of the outcome
of the vote including the identities of who had voted for and
against the Union for Gunn. This request was forwarded to Act
Fast’s regional manager, Patrick Woods, and then to Act Fast’s
executive vice president and chief operating officer, Larry
Sleeper, who directed that the request should not be complied
with.
Moya testified further that Gunn and Smith asked him if he
knew which employees had not voted for the Union, and that he
told them that brothers Jesse and Carlos Lopez had not done so.
Gunn then commented he valued “company loyal employees.”
Moya also testified that he asked Gunn if he was going to give
the employment applications to the employees and that Gunn
replied, “f[uck] them” and answered in the negative and said
that it was the employees’ problem if they did not read the
newspaper. I credit Moya’s testimony as set out above. It is
undisputed that the presence of Gunn and Smith during the
week was open and not concealed. However, it is also undis-
puted that the interviews were conducted after the typical time
for the unit employees to leave on their routes and that the em-
ployees did not generally return to the facility until late in the
day after completion of their routes. Although the Respondent
appears to have had only limited interest in contacting and re-
taining the unit employees, it actively recruited Act Fast’s three
supervisory employees including Omar Juarez, its assistant
manager. Further, Juarez testified that Gunn and Smith told
him to only give applications to the “new employees” who had
not been there at the time of the election and not to anyone else.
Following these instructions by Respondent’s management,
Juarez gave Respondent’s applications to Act Fast employees
Jose Barrera, Ramiro Guerra, Juan Jose Mata, Lorenzo Rami-
rez, Rosalinda Sierra, and Guadalupe Gonzales, all new em-
ployees with the exception of Lorenzo Ramirez. Juarez carried
out this mission by contacting the favored employees near the
end of their shifts and telling them to meet him in his office
where he gave them a packet containing the applications and
told them not to open it until they were home. Juarez also told
the employees not to discuss this with anyone. However, Rosa-
linda Sierra discussed this with coemployee Edgar Rangel and
Lorenzo Ramirez showed the application to the leading proun-
ion leader at the time, Gilberto Villegas and to employee Eli-
zandro Martinez. Juarez also gave employee applications to
Supervisors Felipe Quezada and Juan Avalos and they and
Juarez were employed by Respondent. As noted above the
interviews of applicants who had responded to the newspaper
advertisements were generally conducted following the depar-
ture of the drivers from the facility to deliver their packages.
However, some of the employees became aware of the distribu-
tion of the applications by the presence of Respondent’s man-
agement on the premises during the workweek commencing on
June 20, and as a result of the disclosure to other employees by
employees Sierra and Ramirez that they had been given the
Respondent’s applications. In addition, Respondent began to
train the employees it had hired from outside the current bar-
gaining unit. On a Friday in June Respondent sent Juarez and
Quezado to a La Quinta Inn in Harlingen, Texas, to assist in the
training. In addition to the surreptitious distribution of applica-
tions to the favored new employees and those deemed “loyal”
to Respondent as well as the recruitment of the supervisors,
Respondent also stymied other employees’ efforts to obtain an
application. Driver Tomas Vasquez testified that he requested
an application from Smith and was told there was not any
available. He did not receive an application until June 28.
Thus not only were the existing employees bypassed in the
distribution of the applications but their efforts to obtain an
application were rebuffed.
On Tuesday, June 28, at the meeting arranged by Moya in
response to Third Garage Owner John Ray who wanted to talk
to the new employees, the Act Fast employees were officially
notified of the change in contractors. Although Moya asked
Gunn and Smith whether they wished to speak to the employ-
ees, they declined. At that meeting Act Fast Area Manager
David Maldonado informed the employees that Act Fast was
terminating its contract with DHL and that Respondent was
taking over the MFE route and Third Garage was taking over
the HRL route. Maldonado told the employees that there were
applications available at the front desk. Following
Maldonado’s announcement, Third Garage Owner John Ray
spoke and told the employees he was looking forward to work-
ing with them. Respondent’s management did not attend the
meeting although Gunn was present in the facility. Roland
Galvin turned in his completed application on the evening of
June 28. Javier Torres, Ernesto Agiular, Michael Guzman,
Elizandro Martinez, and Tomas Vasquez turned in their appli-
cations on that day also. Moreover, new employee Sierra and
employee Lorenzo Ramirez who had both previously received
their applications from Juarez under covert circumstances,
waited to turn them in until June 28. Edgar Rangel turned his
application in on June 29. Jose Muniz turned his application in
on June 30. Gilberto Villegas turned his application in on July
1.
MSK CARGO/KING EXPRESS 1101
Act Fast’s final day of operation under the contract was July
1. As usual the Harlingen facility was closed on Sunday and
also on Monday for the Fourth of July holiday. When the em-
ployees arrived at the facility at their normal starting time of
6:30 a.m. on Tuesday, July 5, they observed border patrol and
airport police officers there. The employees were not allowed
to enter the facility by the employee entrance near the docks but
were required to use the main entrance in the front where the
officers were stationed. Upon their admission to the building
the employees were met by Gunn or Smith and were asked to
give their names and then asked if they were transfers and then
asked if they worked for Act Fast. When they answered this
inquiry in the affirmative, they were told they no longer had a
job. They began to picket the facility less than a week thereaf-
ter and the picket continued up to and including the day of the
hearing in this case.
Respondent hired 21 drivers for the MFE operation on July
5. Eight of them had been employed by Act Fast. Six of the
eight were the “new” employees to whom Juarez had covertly
given the applications. Additionally, brothers Jesse and Carlos
Lopez were hired as were Act Fast Manager Omar Juarez and
Supervisors Felipe Quezada and Juan Avalos. As a result of
the inexperience of the employees hired through the newspaper
ads, it was necessary to train them on the routes. This was done
at a local hotel by eight to nine managers transferred from other
facilities of the Respondent during the first couple of weeks of
the takeover and on 1 day by Juarez and Supervisor Felipe
Casada. The General Counsel contends that Respondent’s op-
erations were less efficient than those of its predecessor Act
Fast as Respondent employed 21 drivers for MFE whereas Act
Fast had employed 17 to 18 drivers and that Respondent had a
greater reliance on “hot shot” deliveries than Act Fast had. A
“hot shot” occurs when the courier contractor is unable to de-
liver its freight and contracts this delivery to another courier.
The General Counsel also contends that Respondent experi-
enced a great deal of employee turnover as 10 of the 21 drivers
initially hired were no longer employed as of the date of the
hearing. Juarez testified that many of these employees had told
him they were quitting as a result of too many hours, low pay,
and the stress of the job. Moreover since July 5, Respondent
has had to hire 21 additional couriers, three of whom were for-
mer Act Fast employees including two of the discriminatees in
this case. The General Counsel contends that these employees
were not hired until Respondent had exhausted every effort to
obtain their replacement off the street. Respondent hired
Muniz on August 4, and he was immediately sent to his former
route. Prior to hiring Muniz, Respondent had attempted to fill
this route with two to three employees who were not able to
handle the work. Additionally, Javier Torres was hired on Au-
gust 12, 2005, and Nelson Torres was hired on August 15,
2005. Javier Torres was also immediately assigned to his for-
mer route which Respondent was also unable to fill with two to
three prior outside couriers.
The General Counsel also contends that Respondent contin-
ues to monitor and discriminate against the former Act Fast
employees. He bases this on the unrebutted testimony of for-
mer Act Fast employee Margarito Garcia who testified that in
August 2005, about a month after the July 5 transition, he at-
tempted to file an application for employment with Respondent
and talked to Anthony Soto who was then Respondent’s man-
ager at the Harlingen facility. Garcia had worked on the route
taken over by Third Garage. Garcia was interviewed by Soto
who inquired about his previous experience. Garcia told Soto
that he had worked on the HRL routes. Soto then asked him if
he was one of the “guys that were outside, causing trouble” by
picketing the facility. Garcia denied being involved in the
picketing. Garcia testified further that Soto later told him he
could not hire him because his name was “on some paper” and
because of the Union. Soto also told him that he had talked to
his “boss” about hiring him and his boss said no because Garcia
was one of the former Act Fast drivers and that he had been
instructed to watch out for them. I credit the above testimony
of Garcia which was unrebutted as Soto was not called to tes-
tify. These unfair labor practices testified to by Garcia are not
alleged in the complaint and are time barred by Section 10(b) of
the Act. However, they are proof of Respondent’s animus in
this case.
Contentions of the Parties
The General Counsel’s Position
General Counsel contends that Respondent violated Section
8(a)(3) on July 5, by refusing to hire applicants Edgar Rangel,
Jose Muniz, Javier Torres, Elizandra Martinez, Tomas
Vasquez, Michael Guzman, Roland Galvon, Ernesto Aguilar,
and Gilbert Villegas to avoid having to recognize and bargain
with the Union. The General Counsel contends that “[t]o effec-
tuate this plan, Respondent covertly distributed applications to
the employees known to be either antagonistic to the Union or
having little affiliation with the Union; trained employees it
hired off the streets at a local hotel in order to further conceal
its covert hiring scheme; refused to provide an employment
application to a discriminatee; and told a former Act Fast em-
ployee it would not hire him because of the Union and because
his name was on a list.”
The General Counsel contends that Respondent’s asserted
reasons for failing to hire the discriminatees are pretextual and
that its allegations that it was duped by former DHL Station
Manager Hugo Moya are not credible as Respondent continued
to refuse to hire the discriminatees even after Moya resigned
from his position as station manager. The General Counsel also
contends that Respondent’s failure to adhere to tradition by
hiring the entire predecessor complement was clearly pretextual
as it hired all of the former managers but not the former drivers.
The Board assesses refusal to hire cases in successor situa-
tions on the following basis:
[T]here are several factors which the Board has considered in
analyzing the lawfulness of the alleged successor’s motive;
expressions of union animus; absence of a convincing ration-
ale for the failure to hire the predecessor’s employees; incon-
sistent hiring practices or overt acts or conduct demonstrating
a discriminatory motive; and evidence supporting a reason-
able inference that the new owner conducted its hiring in a
manner precluding the predecessor’s employees from being
hired in a majority of the new owner’s overall work force.
[Galloway School Lines, 321 NLRB 1422, 1423–1424
(1996).]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1102
The General Counsel contends that several of the factors
identified by the Board in the Galloway School Lines case are
present in the instant case as follows:
1. Respondent has animus against the Union.
In support of this factor the General Counsel relies on the
testimony of former DHL Station Manager Hugo Moya relating
the statements of Glynn Smith and John Gunn. Moya testified
that in reference to the unionized employees Gunn said, “Fuck
them” and that Gunn and Smith requested that Moya identify
the names of the employees who did not vote for the Union and
Gunn told Moya that he appreciated, “loyal company employ-
ees” an apparent euphemism for those employees who did not
align themselves with the Union. Moya, who is a third-party
witness with no stake in the outcome of this case, testified that
the statements were made in his presence prior to hiring activ-
ity. Respondent’s ongoing hostility toward the Union is also
established by the unrebutted testimony of Margarito Garcia
that Respondent’s onsite manager, Anthony Soto, interrogated
him by asking if he was one of the employees causing trouble
by picketing the facility. Soto also told Garcia his boss had told
him to look out for the former Act Fast employees and that he
could not hire him because of the Union. Respondent’s failure
to call Soto, a witness in its control and whose testimony would
normally be presumed to favor Respondent leaves Garcia’s
testimony unrefuted and his testimony should be taken as true.
Both Moya’s and Garcia’s testimony established the Respon-
dent’s hostility and animus against labor unions and/or pro-
tected concerted activity.
2. Respondent has failed to provide a convincing rationale
for the failure to hire the discriminatees.
The General Counsel contends that Respondent’s failure to
provide a convincing rationale for its failure to hire the dis-
criminatees is in sharp contrast to multiple witnesses who testi-
fied at trial that during previous transitions from one contractor
to another, the successor contractor simply hired the entire
complement of existing employees. Smith testified he did not
hire the existing complement of employees because the station
was a poor performer. However, Respondent did hire the entire
Act Fast management team that was ultimately responsible for
any alleged deficiencies. Moreover, Smith concedes the Har-
lingen station is still not profitable. The labor cost incurred as a
result of employee turnover is undoubtedly a contributing fac-
tor in the unprofitable performance of the facility. Since July 5,
Respondent has hired 42 drivers, 21 or 50 percent of whom are
no longer employed at the facility. The credible and uncontra-
dicted testimony of Omar Juarez establishes that most of the
turnover is a direct result of the hiring of an inexperienced
workforce who quit because of long hours and little pay.
3. Respondent engaged in inconsistent hiring practices or
overt acts or conduct demonstrating a discriminatory motive.
The General Counsel contends that Respondent engaged in a
disparate application process to exclude the unionized employ-
ees. It sought to obtain a copy of the Excelsior list from Act
Fast. After its failure to obtain the list, it implemented a
scheme to hire employees it perceived as being adverse to the
Union or having little if any affiliation with the Union. It di-
rected Juarez to covertly give applications to the “new employ-
ees” who were not employed at the time of the election. All
nine of the discriminatees were employed at the time of the
election but only one (Lorenzo Ramirez) of the six “new em-
ployees” to whom Juarez covertly gave an application was
employed at the time of the April 5 union election. Accord-
ingly, they were not “tainted” by the union campaign. In addi-
tion, Respondent hired Carlos and Jesus Lopez whom Moya
had told Respondent had voted against the Union.
The General Counsel also contends that as credibly testified
to by Moya, Respondent displayed no interest in hiring or
speaking to the remaining employees. On June 15 or 16, dis-
criminatee Tomas Vasquez spoke to John Gunn as he was
walking along the warehouse floor. Vasquez, who had learned
from a friend that Act Fast had closed its operation in Houston,
Texas, introduced himself to Gunn, told him he was a “strong
driver” and would be more than happy to work for him. Gunn
did not invite Vasquez to apply and did not reveal to Vasquez
that he was the new contractor taking over the MFE route. On
or about June 24, Vasquez approached Smith and asked if he
had an employment application and Smith said no. Smith and
Gunn’s dismissive attitudes are consistent with Moya’s testi-
mony that they had no interest in meeting with the Act Fast
employees. Further, Area Manager Maldonado testified that
during the month of June he was present every week from
Monday to Tuesday and during this time he met Gunn and that
Gunn never asked him about the work performance of the em-
ployees nor did he ask to speak with the employees. Third
Garage Owner John Ray did speak to HRL employees on June
28, after Maldonado spoke, whereas no one from Respondent
addressed the employees despite the fact that based on the
credible testimony of Edgar Rangel and Rolondo Galvan, Gunn
was present at the facility on June 28. On the evening of June
28, Felipe Quezada directed Galvan to the office Respondent
was using. Galvan introduced himself to several of Respon-
dent’s managers in the office and handed them his application.
Discriminatee Edgar Rangel was present when Galvan handed
his application in and Rangel recognized Gunn to whom
Galvan handed his application. Rangel and Galvan were not
selected for an interview. However, Gunn met with and inter-
viewed Lorenzo Ramirez on June 29, and Rosalinda Sierra on
June 30, although they had not turned their applications in until
June 28, the same day as six of the discriminatees in this case
who were not chosen for an interview because they were not
identified by Juarez as being “new employees.”
4. Respondent conducted hiring in a manner to preclude a
majority of the predecessor’s employees from being hired.
The General Counsel further contends that in addition to the
evidence of Respondent’s animus toward the Union, inconsis-
tent hiring process and overt acts of discrimination, the evi-
dence showed that Respondent planned and executed a dis-
criminatory hiring scheme with the intended and actual effect
of discriminating against the Act Fast employees identified as
union supporters. Evidence of the scheme is supported by both
the testimony of witnesses (including third party witnesses
Hugo Moya and Omar Juarez) and Respondent’s own records:
General Counsel notes that under similar circumstances the
Board has repeatedly held that an employer that purposely re-
fuses to hire its predecessor’s employees in order to evade
MSK CARGO/KING EXPRESS 1103
having to recognize the Union violates the Act. See Karl
Kallmann d/b/a Love’s Barbeque, 245 NLRB 78 (1979) (Re-
spondent’s unlawful scheme to evade hiring predecessor em-
ployees included advertisements for positions in local news-
papers and interviewing applicants at local motel); Galloway
School Lines, 321 NLRB 1422, 1424 (1996) (New hiring
process was specifically developed in response to fact that
predecessor employees would be applying); Pace Industries,
320 NLRB 661 (1996) (High standards of pre-employment
screening applied to exclude former employees from em-
ployment so as to avoid recognizing union); Waterbury Hotel
Management LLC, 333 NLRB 484 (2001) (Respondent
unlawfully refused to hire employees of predecessor em-
ployer). . . . Hiring a limited number of the Act Fast employ-
ees does not foreclose a finding that Respondent had violated
the Act. See Daufuskie Island Club & Resort, 328 NLRB 415
(1999) (Respondent that purposely hired only 48.5% of the
predecessor employees violated the Act).
The General Counsel contends that the Respondent is a suc-
cessor as there is substantial continuity between the operations
of the Respondent and its predecessor. Under the successorship
doctrine, if a union represented the predecessor’s employees
who comprise a majority of the successor’s work force, the
union has a rebuttable presumption of majority status despite
the change to a successor employer and the successor employer
has an obligation to bargain with the Union. Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27 (1987). The presumption of ma-
jority status attaches if there is “substantial continuity” between
the predecessor’s business and that of the new employer, and if
the new employer has hired a “substantial and representative
complement” of its work force, a majority of which consists of
the predecessor’s employees. Prime Service v. NLRB, 266 F.3d
1233 (D.C. Cir. 2001). A successor employer does not have an
obligation to hire any of the work force employed by the prede-
cessor but cannot refuse to do so solely because they are union
members or to avoid recognizing the union. Howard Johnson
v. Detroit Joint Board, 417 U.S. 249 (1874), and NLRB v.
Burns Security Services, 406 U.S. 272 (1972); Ah Chu Co., 259
NLRB 177, 183 (1981). The refusal to hire the predecessor’s
employees violates Section 8(a)(5) as well as Section 8(a)(3).
Ah Chu Co., supra; New Breed Leasing Corp., 317 NLRB 1011
(1995). Had the Respondent hired all of the employees of the
predecessor, the union would have maintained its majority
status and the successor would have been obligated to recog-
nize and bargain with the union. Therefore such employers are
successors where there is both continuity of the workforce and
continuity of the operations. In the instant case there is conti-
nuity of the work force as there is a presumption that the un-
ion’s status would have continued. NLRB v. Foodway of El
Paso, 496 F.2d 117 (5th Cir. 1974); Sierra Realty, 317 NLRB
832, 835 (1995), enf. denied 82 F.3d 494 (D.C. Cir. 1996).
Where a successor engages in a discriminatory refusal to hire,
the Board will infer that all former employees would have been
retained absent the unlawful discrimination. See Love’s Barbe-
que, supra at 82. Therefore continuity of the work force is
presumed. But for the discriminatory hiring scheme, the Re-
spondent would have hired all of the predecessor employees,
including the discriminatees, thus establishing a majority for
the Union. Respondent hired 21 couriers on July 5. Eight of
these 21 couriers were the Lopez brothers and the 6 employees
who were covertly given applications, who were formerly em-
ployed by Act Fast. Assuming Respondent hired the 9 dis-
criminatees in addition to the 8 other Act Fast employees this
would have constituted a majority of 17 out of 21 of the courier
employees.
With respect to the continuity of operations the General
Counsel contends there is also a substantial continuity in the
business operations as Respondent utilizes the same facility as
the predecessor, hired the same onsite managers, who were
employed by Act Fast; and the courier drivers’ jobs and routes
are the same with no hiatus or disruption in the operations and
Respondent has the same body of customers as the predecessor.
The only difference is that whereas Act Fast employed a single
bargaining unit for, both the McAllen and Harlingen routes, the
routes have now been divided between Third Garage and the
Respondent. However, the Board has repeatedly held that the
change in the “scope” of the operations is immaterial to finding
a successor. Canteen Co., 317 NLRB 1052, 1069 (1995);
Bronz Health Plan, 326 NLRB 810, 812 (1998), enfd. 203 F.3d
51 (D.C. Cir. 1999); Lincoln Park Zoological Society, 322
NLRB 263, 265 (1996); enfd. 116 F.3d 216 (7th Cir. 1997);
School Bus Services, 312 NLRB 1, 1 (1993); Al Chu Co., supra
at 182, NLRB v. Simon Bartelo Group, 241 F.3d 207, 212–213
(2d Cir. 2001).
The General Counsel further contends that although the Un-
ion in this case has never made a demand for bargaining, no
bargaining demand was necessary as the Respondent’s failure
and refusal to hire the discriminatees rendered any request for
bargaining futile. Smith & Johnson Construction Co., 324
NLRB 970, 970 (1997); Triple A. Services, 321 NLRB 873,
877 fn. 7 (1996); Precision Industries, 320 NLRB 661, 711
(1996).
The General Counsel’s Credibility Arguments
The General Counsel contends that the testimony of Respon-
dent’s witnesses Juan Avalos, Jesus Lopez, and Glynn Smith
was not credible. Avalos is currently employed as a supervisor
by Respondent and was formerly employed by Act Fast as a
supervisor. Avalos testified that at some date in June, Hugo
Moya told him “he would take care of it” in an apparent refer-
ence to the Union because the couriers were chanting “long live
the Union” and “Union number one” in the warehouse. The
General Counsel contends that the entire episode is not credible
and shows how far Respondent will go to show there was a
coercive atmosphere concerning discussions of the Union dur-
ing Moya’s tenure as the facility’s station manager. The Gen-
eral Counsel also contends that Avalos’ testimony that he had
no prior knowledge that Act Fast was terminating its contract
with DHL is not credible as neither David Maldonado nor Act
Fast has anything to lose in this case. Moreover, Avalos’ em-
ployment application date is June 17, and the other Act Fast
supervisors’ applications are dated just 1 day prior.
With respect to the credibility of Jesus Lopez who testified
he had not spoken to any of his former managers or supervisors
about his nonsupport of the Union while employed by Act Fast,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1104
and specifically denied telling Maldonado that he was not a
union supporter, Maldonado and Moya both credibly testified
that Lopez told them of his nonsupport of the Union.
Maldonado testified Lopez “stated to me several times that he
didn’t want to be in the union . . . he didn’t feel that he should
vote if he didn’t want to.” The General Counsel also noted that
Lopez is the highest compensated driver in Respondent’s em-
ploy at the Harlingen, Texas facility. The General Counsel
further notes that Lopez has been involved in personal confron-
tations “whether real or imagined” with the Union and its sup-
porters. In one instance a letter was placed in his van while he
was employed by Act Fast which stated, “[J]oin the union
bitch, or we will fuck you up.” In a more recent instance while
he was employed by Respondent, Lopez testified he was threat-
ened by a union supporter at a gas station. The General Coun-
sel contends that the foregoing “could certainly provide the
incentive behind his attempt to deny his well-known opposition
to the Union and color his testimony.”
With respect to Respondent’s General Manager Glynn
Smith, the General Counsel contends that his testimony con-
flicts with Respondent’s previous assertions to the Region and
also with its own documentary evidence. Smith was present in
the courtroom during the hearing as Respondent’s designated
representative as a motion for sequestration of the witnesses
had been granted. In its statement of position filed with the
Region, Respondent stated, “Both Omar Juarez and Felipe Qu-
ezada categorically deny that they covertly distributed any ap-
plications to any Act Fast employees and [Respondent] has no
reason to doubt their veracity.” At the hearing Smith asserted
in his testimony that he had only at the hearing, learned that
Moya and Juarez had conceived and implemented a plan to
covertly distribute employment applications to “new employ-
ees.” At the time of the trial Juarez was no longer employed by
Respondent and Smith then asserted that Juarez did covertly
distribute applications but without any instructions from Re-
spondent to do so. This assertion by Smith in his testimony
was made after the credible testimony of Juarez, Moya,
Lorenzo Ramirez, and Rosalinda Sierra. In its statement of
position Respondent asserted, “The Union’s allegation of cov-
ert distribution is simply not credible. Between June 13 and
June 25, ten former Act Fast employees had submitted applica-
tions for employment with King [Respondent].” Respondent
further stated in its position statement, that all of the former Act
Fast employees who applied when there was a job opening
were hired. Respondent asserts in its position statement that
“[b]y this time (June 26), Smith had 23 qualified applicants, all
with suitable delivery experience and successful background
checks, who had agreed to terms and conditions of employment
offered by [Respondent]. Thus [Respondent] discontinued the
application process . . . all 10 of the Act Fast employees who
had submitted applications by that date were extended an of-
fer.” During the investigation of this case, Respondent alleged
that Smith had made hiring decisions on all 10 of the former
Act Fast employees who were hired on or before June 26, be-
cause they had submitted applications prior to June 26. These
10 individuals had employment applications dated from June
16 to 25. In contrast, the discriminatees’ employment applica-
tions were dated on or after June 28. In support of this position,
Respondent created Respondent’s Exhibit 14 which lists the
employment applications submitted by the former Act Fast
employees in chronological order. The applications received
prior to June 28, are shaded in gray and a box next to those
names states in bold red ink, “June 26, 2005 All Positions
Filled.” However, at trial Smith heard the testimony of two of
the Act Fast employees initially hired by Respondent, Lorenzo
Ramirez and Rosalinda Sierra that although their employment
applications were dated June 24 and 25, that they did not turn
them in until the following week on June 28, the same date
most of the discriminates submitted their employment applica-
tions. When Smith realized this testimony was credible, he
changed Respondent’s position and testified that after the week
of June 20, Moya called him and told him he had a few drivers
who would make a good fit for Respondent. The General
Counsel contends this is nothing more than a poor attempt to
once again shift the blame for Respondent’s unlawful conduct
to Hugo Moya and was not asserted during the investigation or
in the position statement filed by Respondent.
Respondent’s Position
The Respondent did not address or appear to contest any of
the above maxims with respect to the bargaining obligations
and any successorship issues but appears to concede the above-
applicable principles discussed by the General Counsel in his
brief. Rather it bases its defense on the credibility of its wit-
nesses and alleged lack of credibility of the General Counsel’s
witnesses as discussed hereafter. In its brief, Respondent as-
serts as uncontroverted, the following chronology of events:
In late May 2005, MSK learned that another DHL contractor,
Act Fast, was terminating its contract at the DHL Station in
Harlingen, Texas (the HRL Station) and that DHL intended to
divide the contract and bid the area out as two separate con-
tracts, one covering the McAllen area and one covering the
Harlingen area. MSK’s general manager, Glynn Smith, was
familiar with the HRL Station from his former employment as a
district manager for DHL and knew it was a historically poor
performing station. When he looked into it further, he found
the station was still performing poorly and had a staggering
turnover rate. He found that four separate contractors had only
survived an average of 14 months over the past 5 years. How-
ever MSK had developed a reputation in the industry for turn-
ing problem areas into successful profitable contracts. On June
9, DHL awarded MSK the contract for the McAllen area to
commerce on July 5. Smith testified he believed the problem
was with the culture of the drivers rather than the contractors
and intended to replace all of the work force. On June 10,
Smith ordered an advertisement to run in a local newspaper for
“experienced, full time couriers in the Harlingen/McAllen
area,” as was his practice for new contracts. The next day he
sent an e-mail to DHL Manager Hugo Moya notifying him of
the placement of the advertisement soliciting applicants to pick
up applications at the HRL Station. He said he would send a
copy of the application packet to Moya and asked if he “would
mind mak[ing] a few copies and hand[ing] them out at your
counter.” Moya answered the e-mail on June 13, that he would
be happy to do so. Later on the same day Smith telephoned
Moya to confirm that he had received MSK’s application form
MSK CARGO/KING EXPRESS 1105
and to request that Moya express deliver the completed applica-
tions to MSK’s office in Dallas. At that time he also asked
Moya when Smith would be able to speak to the drivers em-
ployed by Act Fast. Moya called him back and said that be-
cause of a concern about service interruptions, Act Fast did not
intend to notify its drivers until July 1, and that Smith would
not be permitted access to the drivers until then. Smith also
testified that Moya told him that word had gotten out and that
some Act Fast drivers had asked for applications and asked
Smith what he should tell them. Smith testified he told Moya
to give applications to anyone who asked.
MSK contends in its brief that Moya initially denied this in
his direct testimony but later admitted on cross-examination
that this conversation took place and that Act Fast had told
Moya not to allow new contractors to interview their employees
until after June 28. However, after being confronted with his
affidavit Moya admitted that this conversation took place and
that he was specifically instructed by Act Fast not to allow the
new contractors to interview their employees until after June
28. However, in other testimony Moya stated that he called Act
Fast to ask them to tell their employees a new contractor was
coming and that Act Fast said, “no.” Act Fast Manager David
Maldonado repeatedly testified that Act Fast “had a large con-
cern about our employees knowing we were leaving” and that
he specifically told his supervisors to keep it a secret and that
allowing the new contractor to interview the Act Fast drivers
would have the same disruptive effect that Act Fast was con-
cerned about. Act Fast Executive Vice President Larry Sleeper,
after denying he had denied access to his employees, testified
he told Maldonado, “[I]f they want [a list of our drivers], they
can get it from DHL, like we got it from.” Moreover, 10 for-
mer Act Fast employees who were called to the stand, testified
that they were unaware that Act Fast was leaving until
Maldonado announced it on June 28, although over 100 appli-
cants had visited the station to fill out applications during the
week of June 13, and at least 35 applicants visited the station
for job interviews on June 20–21, and each of the new contrac-
tors walked freely about the docks when the drivers were pre-
sent even on occasion, shaking their hands.
MSK began receiving completed applications from Moya on
June 14, and began sorting through them, excluding those with-
out courier experience and conducting background checks on
desirable candidates and by the end of that first week, MSK had
approximately 35 suitable candidates and scheduled interviews
with those candidates on the following Monday and Tuesday,
June 20–21. During the week of June 13–19, six Act Fast em-
ployees completed applications: Omar Juarez, Jesus (Jessie)
Lopez, Felipe Quezada, Juan Avalos, Guadalupe Gonzales, and
Carlos Lopez. On Monday and Tuesday, June 20–21, Smith
and MSK Vice President John Gunn conducted interviews of
potential candidates at the HRL Station. Smith and Gunn con-
ducted at least 35 interviews scheduled from 8 a.m. until well
into the evening and made no effort to conceal their presence.
Many of the interviews were conducted within the breakroom
and were frequently interrupted by the presence of Act Fast
drivers. All of the six Act Fast employees who had completed
and submitted applications by June 20–21 were interviewed.
After the interviews Smith and Gunn returned to Dallas, com-
pared notes, conducted further background checks and ex-
tended job offers to suitable candidates. By the end of the week
of June 20, MSK had hired enough drivers to fulfill all avail-
able driver positions and was prepared to operate the new con-
tract. Subsequently, Moya forwarded five additional applica-
tions to MSK along with his recommendation that they be
hired. Although MSK had enough drivers at this point, it was
normal for MSK to commence new contracts with more drivers
than necessary because of anticipated turnover associated with
a new contract. Additionally, Moya was the person in charge
on the scene as the manager of the DHL station and his recom-
mendations carried great weight with MSK.
Under FAA regulations MSK is required to conduct two full-
day hazardous materials (Haz-Mat) training classes for all new
drivers. Smith and Gunn conducted these classes for approxi-
mately 25 people at a local hotel as the HRL Station did not
have sufficient room available for the group. Additionally, the
VCR at the station was not operational. Training took place
after Moya and Maldonado had announced the change and most
of the Act Fast drivers had already filled out their applications.
On July 5, MSK commenced operations at the HRL Station.
For reasons unknown to MSK, Moya requested local airport
police be present on that day. As was their custom, MSK
bought in a transition team of drivers, managers, and trainers to
ensure a smooth transition. After 7 to 10 days all new drivers
were trained and the contract was operating smoothly. Within
6 months of their start date the station was an efficient success-
ful operation with one of the lowest service error rates in the
region.
The Respondent urges in its brief that Hugo Moya and Omar
Juarez were not credible witnesses and that they essentially
undertook on their own a campaign to ensure that the Union did
not attain a majority among the drivers who were to be em-
ployed by the Respondent. Respondent points to inconsisten-
cies in an initial statement Moya gave to Respondent’s attor-
ney, Stephen Key, and an initial affidavit Moya gave to the
General Counsel to which he subsequently added other infor-
mation. Moya testified at the hearing that his earlier statement
in which he attributed no unlawful actions or improprieties to
the Respondent, was given to keep himself out of any involve-
ment with any legal proceedings, particularly in view of an
agreement he had signed with DHL in which he had agreed to
resign and had received a sum of money and a statement that he
had been in good standing in return for his promise not to take
any position contrary to that of DHL or to disclose the terms of
the agreement. Moya testified that he was concerned about
having any further involvement with the matter and wanted to
extricate himself from the situation in order that he could pur-
sue other job opportunities without being burdened with an
unfavorable job reference. Moya acknowledged having made
several anti-union statements and threats to the drivers concern-
ing their support of the Union.
Analysis
I find that the testimony by Moya was not without confusion
but after a thorough review of his testimony and that of Juarez,
I find the substantial weight of the evidence supports the testi-
mony of Moya that Juarez had been told by Respondent to only
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1106
give applications to the “new employees” and that Moya had
told Respondent’s managers, Gunn and Smith, that the two
Lopez brothers had voted against the Union and that Gunn had
referred to them as good loyal employees. The five employees
who had not been employed at the time of the election were
covertly given applications by Juarez with the instruction to
complete them and not to disclose this to other employees. The
only other employee covertly given an application was Rami-
rez. I conclude that Moya’s testimony should be credited as
should that of Juarez. It is also supported by the unrebutted
testimony of the employee witnesses who were covertly given
the applications by Juarez and who were employed by Respon-
dent at the time of their testimony in this case. I do not find it
plausible that Moya and Juarez were acting on their own initia-
tive to cause Respondent to hire only the new employees and
the Lopez brothers who were deemed to be antiunion. Rather, I
credit the testimony of Moya and Juarez that the new employ-
ees were covertly given the applications as directed by Respon-
dent’s management. I do not find credible the testimony of
Smith that Respondent was merely accommodating Hugo Moya
who had recommended these employees. I also do not credit
the testimony of Gunn and Smith that they were prevented from
talking to the employees or that they had asked for permission
to talk to the Act Fast employees concerning positions with
Respondent but had been denied access to the employees by
Moya. I credit Maldonado who has no interest in the outcome
of this case, that he had talked to both Gunn and Smith and that
they had not asked him for access to these employees to discuss
positions with them. I credit Moya that he asked Respondent’s
representatives Gunn and Smith if they wished to meet with the
employees during the week of June 28, and that they declined.
I further credit the unrebutted testimony of Garcia who testified
that following the transition to Respondent, he applied on his
own for a position and was asked by then Station Manager
Anthony Soto if he was one of the people causing trouble who
were outside the facility on the picket line established by the
employees, that he told Soto that he was not there on behalf of
the other workers but was there only on his own behalf and that
Soto told him that his management had told him to watch out
for these people. I also credit Garcia’s unrebutted testimony
that Soto subsequently told him he could not hire him because
he was one of the Act Fast drivers.
With respect to the General Counsel’s contentions concern-
ing the alleged lack of credibility of Respondent’s witnesses
Juan Avalos, Jesus Lopez, and Glynn Smith, I credit Avalos’
testimony that at a date in June, Moya told him that “he would
take care of it” in an apparent reference to the Union because
the couriers were chanting “long live the Union” in the dock
area. I note that Moya conceded in his testimony that he may
have made some antiunion comments as he was upset that the
employees had voted for the Union. I do not however find that
this comment is sufficient to support an inference that Moya
initiated a scheme to have only the employees deemed unfavor-
able to the Union to be hired by Respondent. I do not credit
Avalos’ testimony that he had no prior knowledge that Act Fast
was terminating its contract with DHL as David Maldonado
credibly testified that he told the supervisors of the change in
contractors 2 weeks before he told the drivers. I also find it
significant that the date of Avalos’ employment application is
June 17, which is 11 days prior to June 28, when the drivers
were informed of the change in contractors. I do not credit the
testimony of Jesus Lopez that he had not spoken to any of his
former managers or supervisors about his nonsupport of the
Union and his specific denial that he told Maldonado. I credit
Maldonado and Moya as well as Gilbert Villegas who testified
that the note found in Lopez’ vehicle was brought to his atten-
tion by Maldonado.
With respect to the testimony of General Manager Glynn
Smith, I find in agreement with the General Counsel that his
testimony conflicts with Respondent’s position statement
wherein Respondent stated that Juarez denied having covertly
distributed applications to any Act Fast employees and that
Respondent had no reason to doubt his veracity. Smith, who
was present in the courtroom, heard the credible testimony of
Juarez, Moya, Lorenzo Ramirez, and Rosalinda Sierra, that
Juarez had covertly distributed applications to Ramirez and
Sierra and the testimony of Ramirez and Sierra that they had
not filed their applications until June 28, which was the first
day when the applications were filed by the discriminatees.
Faced with this testimony Smith placed the blame on Moya by
testifying that Moya had told him he had a few drivers who
would make a good fit. I find this conflict in Respondent’s
prior position statement to be determinative in discrediting
Smith’s testimony.
In summary I have considered all of the testimony and ex-
hibits introduced into evidence. I find that notwithstanding
inconsistencies in Moya’s and Juarez’ testimony as well as the
position of Respondent that the covert issuance of applications
to drivers who were not viewed by Respondent as having sup-
ported the Union, was merely the brainchild of Moya and
Juarez. I find it unlikely that Moya and Juarez devised this
scheme on their own. Certainly there does not appear to be any
motivation for them to engage in this conduct. Moreover
Moya’s and Juarez’ testimony is supported in large part by the
individual drivers who were the beneficiaries of this covert
activity and who were puzzled as to why they had received the
applications in such a manner. I do not find the Respondent’s
training of the new employees at a local hotel to be determina-
tive of any issue in this case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily refusing to hire employees Edgar
Rangel, Jose Muniz, Thomas Vasquez, Rolando Galvan, Gil-
bert Villegas, Elizondro Martinez, Javier Torres, Michael
Guzman, and Ernesto Agiular.
4. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Union.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
MSK CARGO/KING EXPRESS 1107
THE REMEDY
Having found the Respondent has engaged in the above vio-
lations of the Act, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative actions
designed to effectuate the policies and purposes of the Act the
appropriate notice. It is recommended that Respondent cease
the unlawful refusals to hire found above and offer immediate
instatement to employees Edgar Rangel, Jose Muniz, Thomas
Vasquez, Rolando Galvan, Gilbert Villegas, Elizandro Marti-
nez, Javier Torres, Michael Guzman, and Ernesto Agiular. The
employees shall be instated to their prior positions or to sub-
stantially equivalent ones if their prior positions no longer exist.
The employees shall be made whole for all loss of backpay and
benefits sustained by them as a result of Respondent’s unfair
labor practices. All of the backpay amounts shall be computed
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), at the “short term Federal
rate” for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Respondent shall recognize
and offer to bargain with the Union as the exclusive collective-
bargaining representative of the unit employees.
[Recommended Order omitted from publication.]