Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Nov 10, 1999

329 N.L.R.B. 990 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
Overnite Transportation Company (Blaine, Minne-
sota Terminal) and International Brotherhood
of Teamsters, AFL–CIO and Dennis Blaskowski
and Teamsters Local 120, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO
Overnite Transportation Company (Norfolk, Virginia
Terminal and International Brotherhood of
Teamsters, Local 822, AFL–CIO
Overnite Transportation Company (Louisville, Ken-
tucky Terminal) and General Drivers Ware-
housemen & Helpers Local Union #89, affiliated
with International Brotherhood of Teamsters,
AFL–CIO
Overnite Transportation Company (Lawrenceville,
Georgia Terminal) and International Brother-
hood of Teamsters, AFL–CIO and International
Brotherhood of Teamsters, & Teamsters Local
728
Overnite Transportation Company (St. Louis and
Bridgeton, Missouri Terminals) and Highway,
City and Air Freight Drivers, Dockmen, Dairy
Workers and Helpers, St. Louis and Vicinity,
Missouri, Marine Officers Association, the
Navigable Inland Waterway Systems of the
United States Local 600, affiliated with Interna-
tional Brotherhood of Teamsters, AFL–CIO and
Highway, City and Air Freight Drivers, Dock-
men, Marine Officers Association, Dairy Work-
ers and Helpers, Local Union 600 affiliated with
International Brotherhood of Teamsters, AFL–
CIO.
Overnite Transportation Company and International
Brotherhood of Teamsters, AFL–CIO and
Teamsters Local 773, affiliated with Interna-
tional Brotherhood of Teamsters, AFL–CIO and
Drivers, Chauffeurs and Helpers Local Union
#639 and Teamsters Local #651, affiliated with
International Brotherhood of Teamsters, AFL–
CIO. Cases 18–CA–13481, 18–CA–13642, 18–
CA–13394, 18–CA–13438, 18–CA–13484, 18–
CA–13394-51 (formerly 5–CA–25268), 18-RC-
15812 (formerly 5–RC–14153), 18–CA–13394-35
(formerly 9–CA–32726), 18–CA–13395-36 (for-
merly 9–CA–32800-2), 9–CA–33793, 18-RC-
15814 (formerly 9–RC–16508), 18–CA–13394-27
(formerly 10–CA–28242-1), 8-RC-15786 (formerly
10–RC–14595), 18-RC-15782 (formerly 10–RC–
14595), 18–CA–13394-91 (formerly 10–CA–
28463), 18–CA–13394-13 (formerly 14–CA–
23487), 18-RC-15768 (formerly 14-RC-11501),
18–CA–13916, 4-RC-18747, 5–RC–14213, 9–RC–
16504, and 9–RC–16505
November 10, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
On April 10, 1998, Administrative Law Judge Benja-
min Schlesinger issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Parties filed answer-
ing briefs. The Respondent filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified3 and to adopt the recommended Order as modi-
fied and set forth in full below.4

1 The Respondent filed a motion for recusal of Member Liebman.
For the reasons discussed in Member Liebman’s attached separate
statement, the Respondent’s motion is denied.
2 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. Additionally, the Respondent asserts
that the judge’s findings are a result of bias and prejudice. After a
careful examination of the entire record, we find no evidence that the
judge prejudged the case, made prejudicial rulings, or demonstrated
bias in his credibility resolutions, analysis, or discussion of the evi-
dence.
We find it unnecessary to rely on fn. 34 of the judge’s decision in
which he cited, inter alia, General Knit of California, 239 NLRB 619
(1978), a case that was overruled by Midland National Life Insurance
Co., 263 NLRB 127 (1982).
3 Because of the cumulative nature of the allegation and because the
finding of this additional violation would not materially affect the rem-
edy, we find it unnecessary to pass on whether Atlanta Service Man-
ager Schager’s promise of benefits to employees, discussed in sec.
III,A,3, par. 12 of the judge’s decision, violated Sec. 8(a)(1) of the Act.
In addition, we reverse the judge’s finding that the Respondent vio-
lated Sec. 8(a)(5) and (1) of the Act by implementing the 1996 produc-
tivity agreement for employees in the six contested units. The General
Counsel specifically stated at the hearing that he was not litigating this
issue.
4 We shall modify the judge’s recommended Order to correct inad-
vertent errors and conform to the violations found. In addition, because
the Respondent’s conduct demonstrates a general disregard for the
employees’ fundamental rights, we shall substitute a broad cease-and-
desist Order for the narrow one recommended by the judge. America’s
Best Quality Coatings Corp., 313 NLRB 470, 473 (1993), enfd. 44 F.3d
516 (7th Cir. 1995), cert. denied 515 U.S. 1158 (1995); Hickmott
Foods, 242 NLRB 1357 (1979).
In the remedy section of his decision, the judge recommended that
the Respondent be ordered to rescind in whole or in part the overtime
portion of the productivity package at its service centers in Chicago,
Illinois; West Sacramento, California; Kansas City, Kansas; Blaine,
Minnesota; Indianapolis, Indiana; Grand Rapids, Michigan; Miami,
Florida; and Tucson, Arizona. The Respondent asserts that inclusion of
this provision would be clear error because it never implemented its
overtime provisions at those locations. The General Counsel concedes
that this remedy would be inappropriate. Accordingly, we shall not
order such rescission.
329 NLRB No. 91
OVERNITE TRANSPORTATION CO. 991
The principal issue raised by the Respondent’s excep-
tions is whether the judge correctly found that Gissel5
bargaining orders were warranted at four of the Respon-
dent’s service centers.6 For the following reasons, we
agree with the judge.
As explained in greater detail in the judge’s decision,
this enormous proceeding arises in the context of a cam-
paign conducted by the International Brotherhood of
Teamsters, AFL–CIO, and its affiliated locals (the Un-
ion) to organize many of the Respondent’s approxi-
mately 175 service centers throughout the country. On
July 29, 1995, the parties formally settled almost all the
8(a)(1) violations alleged in this proceeding and the
8(a)(3) allegations for which the only remedies required
were cease-and-desist orders and the posting of a notice.
They also settled certain 8(a)(3) allegations that con-
cerned the Respondent’s failure to implement the March
1995 wage and benefit package at “the four certified cen-
ters,” i.e., the four service centers where the Union re-
cently won elections and was certified by the Board.7 As
part of the settlement, the Respondent made the employ-
ees whole for the monetary losses suffered and agreed to
post a notice, at all its service centers, in which it
pledged not to violate the Act.
Specifically left for resolution in this proceeding were
the so-called “national allegations,” which related to all
of the Respondent’s facilities, and other allegations that,
in the General Counsel’s view, supported bargaining
orders under Gissel. The General Counsel specifically
reserved the right to use any competent, relevant, mate-
rial and otherwise admissible evidence to support his
claim for Gissel relief, even if the evidence pertained to
allegations that had been previously settled.
After carefully and thoroughly reviewing the volumi-
nous evidence the parties adduced in this proceeding, the
judge determined that the Respondent had committed
unfair labor practices affecting employees on a nation-
wide basis and that the issuance of Gissel bargaining
orders was warranted. As stated above, we agree with
the judge.
In Gissel, the Supreme Court “identified two types of
employer misconduct that may warrant the imposition of
a bargaining order: ‘outrageous and pervasive unfair
labor practices’ (category I) and ‘less extraordinary cases
marked by less pervasive practices which nonetheless
still have the tendency to undermine majority strength
and impede the election processes’ (category II).”8 The
Supreme Court stated that in fashioning a remedy in the
exercise of its discretion in category II cases, the Board
“can properly take into consideration the extensiveness
of an employer’s unfair labor practices in terms of their
past effect on election conditions and the likelihood of
their recurrence in the future. If the Board finds that the
possibility of erasing the effects of past practices and of
ensuring a fair election (or a fair rerun) by the use of tra-
ditional remedies, though present, is slight and that em-
ployee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order,
then such an order should issue.”9

In light of the General Counsel’s agreement with the Respondent
that the date in par. 2(h) of the Order should be December 11, 1995, we
shall substitute that date for February 10, 1995, the date recommended
by the judge.
5 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
6 Louisville, Kentucky; Lawrenceville, Georgia; Norfolk, Virginia;
and Bridgeton, Missouri.
7 West Sacramento, California; Kansas City, Kansas; Blaine, Minne-
sota; and Indianapolis, Indiana.
In agreeing with the judge that Gissel bargaining or-
ders should be issued, we find, for the reasons stated in
the judge’s decision and those set forth below, that the
Respondent’s course of misconduct, both before and af-
ter the elections, clearly demonstrates that the holding of
fair elections in the future would be unlikely and that the
“employees’ wishes are better gauged by [ ] old card
majorit[ies] than by [ ] new election[s].”10
Because this case falls within category II, we have, as
mandated by the Supreme Court in Gissel, examined the
extensiveness of the Respondent’s unfair labor practices
and the likelihood of their recurrence in the future. In
this regard, we observe that the unfair labor practices
committed in this case include “hallmark” violations11
such as the granting of an unprecedented wage increase,
as well as threats that employees would lose their jobs
and that the business would be closed if the employees
selected the Union. The Respondent also committed
numerous other serious and pervasive unfair labor prac-
tices12 at each terminal: asserting to employees that it
would be futile, as it had been in Chicago, to select the
Union as their representative; promising employees bet-
ter benefits, including better uniforms, overtime policies
and vacations, and participation in employee committees
to determine how benefit dollars would be spent if em-
ployees voted to keep out the Union; threatening em-
ployees with stricter discipline and adherence to work
rules and more onerous working conditions if the em-
ployees voted in the Union; threatening employees with
loss of pension benefits; threatening employees that rela-
tionships between employees and supervisors would de-
teriorate if employees voted for the Union; inviting em-
8 Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1077 (D.C.
Cir. 1996) (quoting Gissel, 395 U.S. at 613–614).
9 395 U.S. at 614–615.
10 Charlotte Amphitheater Corp. v. NLRB, supra, 82 F.3d at 1078.
11 The term “hallmark violations” has been used to describe unfair
labor practices that are highly coercive and have a lasting effect on
election conditions. See NLRB v. Jamaica Towing, 632 F.2d 208, 212–
213 (2d Cir. 1980).
12 Because most of this conduct pertained to “allegations that had
previously been settled,” the judge did not provide remedies for the
unlawful conduct. Instead, he considered the conduct, as the settlement
agreement allowed, “to support the bargaining orders.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
ployees to quit working for the Respondent if they
wanted to have a job with a “union company”; discrimi-
natorily denying employees access to company bulletin
boards to post prounion information; soliciting and
promising to remedy employee grievances through su-
pervisors, managers, and troubleshooters,13 and failing to
observe the Johnnie’s Poultry14 safeguards when the
Respondent’s attorneys interviewed employees in con-
nection with this case.
All bargaining unit employees were directly affected
by the Respondent’s misconduct. On a nationwide basis,
the Respondent orchestrated a highly coercive “carrot
and stick” campaign: First, in March 1995, at the height
of the organizational effort, the Respondent unlawfully
granted its unrepresented employees an unprecedented
wage increase, just months after the employees had re-
ceived their normal (January) increase. The total of both
increases constituted the largest annual increase ever
granted by the Respondent. As the judge recognized,
“[s]uch unlawful wage increases have a particularly long
lasting effect because the Board’s traditional remedies do
not require that an employer rescind its wage increase. . .
. Because such increases regularly appear in employees’
pay checks, they are a continuing reminder that ‘the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up if
not obliged’” (quoting NLRB v. Exchange Parts Co., 375
U.S. 405, 409 (1964)).
At approximately the same time that the Respondent
was illegally rewarding its unrepresented employees, the
Respondent proclaimed in the company newsletter that
“unfortunately” employees at the “four certified centers”
where the Union had recently won Board elections “will
not get these pay increases,” but “will have to wait for
negotiations.” The judge correctly found that the with-
holding of the March 1995 increase from the union-
represented employees was unlawfully motivated and
violated Section 8(a)(3) of the Act. The message that the
Respondent’s combined actions sent to employees was
unmistakably clear: they could choose to remain unrep-
resented and enjoy any pay increase the Respondent may
grant in the future, or they could vote for union represen-
tation and forego such benefits.

13 The troubleshooters, a group of current and former Overnite driv-
ers, traveled the country throughout the course of the union campaign
visiting service centers to solicit from employees the cause of their
unrest and to determine which employees supported the Union. The
troubleshooters determined through their solicitation of grievances that
the primary causes of employee unrest included low wage and mileage
rates and the lack of overtime pay. In addition to promising to remedy
many employee grievances and actually remedying some, the trouble-
shooters reported their findings to Bobby Edwards, vice president of
safety, at corporate headquarters in Richmond. Overnite covered all
the troubleshooters’ expenses, including airfare, hotels, meals, and car
rentals and paid them $14.50 per hour for 60 hours per week.
14 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965).
Having found, in agreement with the administrative law judge, that the
Respondent committed Johnnie’s Poultry violations with respect to
questions 2 and 4, we find it unnecessary to pass on the propriety of
questions 3 and 5.
The Respondent communicated to its employees a spe-
cial meaning of the phrase “will have to wait for negotia-
tions” by repeatedly citing the example of the Chicago
service center where, despite 13 years of bargaining and
a lengthy strike, the Union had not been able to negotiate
a collective-bargaining agreement with the Respondent.15
The judge correctly found that the Respondent’s narra-
tion of the Chicago experience violated the Act in two
respects: first, the Respondent gave employees the im-
pression that bargaining would be futile; second, the Re-
spondent threatened that the only way the Union could
bring pressure on the Company was by striking. There-
fore, when the Respondent stated that union-represented
employees would have to “wait for negotiations” to settle
the pay raise issue, the real message conveyed was that
these employees would not receive any increase because,
as the Respondent had made so clear, collective bargain-
ing had no chance of success.
In granting benefits the following year, the Respondent
again distinguished among its service centers based on
their union or nonunion status. Early in 1996, the Re-
spondent unlawfully withheld from its employees at 14
union-represented service centers the regular, annual
wage increase it granted employees at its approximately
160 other service centers. As it had done in 1995, the
Respondent publicized the withholding to demonstrate
that voting for the Union had serious, adverse conse-
quences. Thus, the Respondent distributed antiunion
campaign flyers stating that, after the 1996 wage in-
crease, employees in the represented units were 50 cents
per hour behind nonunion employees, and the Respon-
dent blamed the Union for the disparity. Again, the mes-
sage was clear: companywide wage increases would not
be granted to employees who voted for the Union. If it is
a fair assumption that employees seek union representa-
tion in the hope that the union might be successful in
negotiating wage increases, then the Respondent had
surely established, as it had maintained all along, that
voting for the Union was a futile act.
The severity of the misconduct is compounded by the
involvement of high ranking officials.16 The Respon-
dent’s unfair labor practices emanated from the highest
level officials, with many attributable to Jim Douglas,
president and chief operating officer. Paul Heaton, sen-
ior vice president for operations strategy, and Mark
Goodwin, the Respondent’s general counsel, helped di-
15 As discussed in detail in the judge’s decision, the Board and the
court of appeals found that the Respondent engaged in bad-faith bar-
gaining at Chicago. Overnite Transportation Co., 296 NLRB 669
(1989), enfd. 938 F.2d 815 (7th Cir. 1991).
16 Consec Security, 325 NLRB 453 (1998), enfd. mem. 185 F.3d 862
(3d Cir. 1999).

OVERNITE TRANSPORTATION CO. 993
rect the campaign.17 In fact, Bobby Edwards, who di-
rected the troubleshooters’ unlawful activities, reported
directly to Heaton. Goodwin advised Douglas through-
out the campaign and accompanied him on his visits to
numerous terminals during the campaign. “When the
antiunion message is so clearly communicated by the
words and deeds of the highest levels of management, it
is highly coercive and unlikely to be forgotten.”18
Douglas traveled to more than 50 service centers be-
tween January and April 1995 conducting the Respon-
dent’s unlawful campaign. He repeatedly conveyed to
employees the impression that bargaining would be, as it
had been in Chicago, futile.
Douglas continually reminded employees of all the
improvements he had unlawfully implemented. He told
them that he had granted unrepresented employees an
unprecedented wage increase in March 1995 while with-
holding the increase from employees in four recently
certified units. He also reminded employees that he had
eliminated speed and mileage limits which had long been
the focus of employee complaints and reinstituted safety
dinners and bonuses. Douglas promised that he would
do even more to improve the lot of employees if his
hands were not tied by the Union.
Douglas solicited employee grievances and when em-
ployees suggested changes in benefits, he promised to
include the employees in the decision-making process,
telling them, “I don’t know whether we’re spending [our
benefit dollars] in the right way. And we ought to go
back to people like you and a cross-section of our em-
ployee population and say, ‘what’s the right way to do
this.’”
Douglas threatened employees with the possible clos-
ing of the business and loss of jobs if they selected the
Union as their exclusive representative. In one gather-
ing, he asked a prounion employee if he “was willing to
sacrifice the jobs of 14,000 people” in order to have the
Union and if he understood that if the Union’s campaign
was successful “everything was being jeopardized—the
jobs and welfare benefits—everything.” Douglas said
that a Union victory would “drive this thing into non-
profit and put 14,000 jobs in jeopardy.” He “glower[ed]”
when he told that same employee that if the Union were
voted in there would be a “big change in management’s
attitude, especially at the local level, in the manner that
Overnite enforced its work rules, and that Overnite was
going to toughen up.”
The Respondent asserts that bargaining orders would
be inappropriate because, among other things, of its ad-
herence to a labor law compliance program which it es-
tablished pursuant to the settlement agreement and be-
cause of the turnover of employees in the bargaining
units since the close of the hearing.

17 As of at least June 30, 1998, Overnite still employed Heaton and
Goodwin.
18 Consec Security, supra. See Electro-Voice, 320 NLRB 1094, 1096
(1996); America’s Best Quality Coatings Corp., supra, 313 NLRB at
472.
The Respondent argues that pursuant to its labor law
compliance program it took “extraordinary steps to avoid
future unfair labor practices.” The program’s success,
however, was anything but extraordinary. The settle-
ment was signed on July 29, 1995. Since that time, the
Respondent violated Section 8(a)(5) and (1) of the Act,
as found in this proceeding, by, inter alia, bypassing the
Union and dealing directly with employees in the eight
recognized and six contested units with respect to its
1996 productivity package and violated Section 8(a)(5),
(3), and (1) by unilaterally and discriminatorily withhold-
ing the wage and mileage increases from those same em-
ployees.19 (The withholding of the 1996 wage and mile-
age increases also violated Section 8(a)(3) because it was
unlawfully motivated.) The Respondent also violated
Section 8(a)(1) by announcing and granting to unrepre-
sented employees the overtime portion of the productiv-
ity package in order to dissuade them from seeking union
representation. It further violated Section 8(a)(1) of the
Act by disregarding the procedural safeguards required
under Johnnie’s Poultry, supra.20 The Respondent’s la-
bor law compliance program, therefore, did little to alle-
viate the need for a Gissel bargaining order.21
19 The judge found that, by the above conduct, the Respondent vio-
lated Sec. 8(a)(1) of the Act, but he inadvertently failed to find that Sec.
8(a)(5) was also violated. We hereby correct the judge’s error.
20 The Respondent continued to violate the Act as found in other
cases as well. Pursuant to the alternative dispute resolution procedure
established in the settlement agreement, a neutral arbitrator determined
on October 10, 1997, that the Respondent violated Sec. 8(a)(3) of the
Act by discharging Columbus, Ohio employee Kenneth Gosney. In
addition, on February 13, 1998, an administrative law judge found in
Case 26–CA–17715 that the Respondent violated Sec. 8(a)(3) of the
Act by discharging and discriminating against Tupelo, Mississippi
employee Cary Ewing. In the absence of exceptions, the Board af-
firmed the judge’s decision on May 1, 1998. See Operating Engineers
Local 12 (Associated Engineers), 270 NLRB 1172 (1984) (a judge’s
decision to which no exceptions are filed may be considered by the
Board when determining whether a respondent has demonstrated a
proclivity to violate the Act).
21 The General Counsel reserved in the settlement agreement the
right to seek bargaining orders at the four service centers in issue here.
Therefore, the settlement itself does not preclude the granting of Gissel
relief. In addition, to the extent that the settlement agreement requires
the Respondent to comply with traditional remedies for conduct that
would violate the Act, the Respondent’s reliance on its compliance with
the settlement to avoid the imposition of Gissel bargaining orders is
clearly misplaced. Our conclusion that Gissel bargaining orders are
warranted in this case is necessarily based on a finding that such tradi-
tional remedies are inadequate to “eras[e] the effects of past practices
and . . . ensur[e] a fair election.” Gissel, supra, 395 U.S. at 614–615.
Member Hurtgen does not agree with this paragraph. If the Respon-
dent had complied with the settlement, that compliance may well have
obviated the need for a Gissel order. In Member Hurtgen’s view, the
effectiveness of a remedy is related, at least in part, to the promptness
of a remedy. A settlement agreement, if complied with, can promptly
restore conditions necessary for the holding of a fair election. In the
instant case, the Respondent did not comply with the settlement, and
thus the settlement did not obviate the need for a Gissel order.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
The Respondent further argues that a Gissel bargaining
order is inappropriate because of employee turnover
since the events in this case occurred and moves to re-
open the record for the purpose of presenting evidence on
this issue. The Respondent asserts that as of June 1998,
turnover of employees who were eligible to vote in the
elections at various terminals ranged from 28 to 37 per-
cent. It maintains that those percentages have increased
to a high of approximately 40 percent as of June 1999
and that such turnover renders a bargaining order unten-
able.
The Board traditionally does not consider turnover
among bargaining unit employees in determining
whether a bargaining order is appropriate, but rather as-
sesses the situation at the time the unfair labor practices
were committed. Salvation Army Residence, 293 NLRB
944, 945 (1989), enfd. mem. 923 F.2d 846 (2d Cir.
1990). Otherwise, the employer that has committed un-
fair labor practices of sufficient gravity to warrant the
issuance of a bargaining order would be allowed to bene-
fit from the effects of its wrongdoing. These effects in-
clude the normal delays inherent in the litigation process
as well as employee turnover, some of which may occur
as a direct result of the unlawful conduct. Thus, the em-
ployer would be rewarded for, or at a minimum, relieved
of the remedial consequences of, its statutory violations.
See Intersweet, Inc., 321 NLRB 1 (1996), enfd. 125 F.3d
1064 (7th Cir. 1997). Such a result would permit em-
ployers, particularly in businesses like the Respondent’s
that experience significant turnover in normal circum-
stances,22 to disregard the requirements of the Act with
impunity, with little expectation of incurring the legal
consequences of their violations.
Even when turnover is considered, as some circuit
courts require,23 a Gissel bargaining order remains an
appropriate remedy when the Board finds that traditional
alternatives are insufficient. Thus, when an employer, in
response to a union organizing campaign, terminated its
entire workforce and refused to rehire most of the em-
ployees who had signed union authorization cards, the
court agreed with the Board that the egregious unlawful
conduct warranted a bargaining order despite turnover
among employees and managers. Intersweet, supra, 125
F.3d 1064. In that case, 9 of the 31 employees employed
at the time of the mass discharge were still employed at
the plant, and the employer had hired 105 new workers.
In addition, the official who had ordered the discharge
was deceased. The court found that the employer did not
demonstrate that employee turnover had eliminated the
effects of its violations, noting that the employees would
certainly be aware of the unlawful conduct and would
have no reason to believe that they were less expendable
than their predecessors in the event that they attempted to
organize. The court further found that the management
of the company had not meaningfully changed. Simi-
larly, in NLRB v. Gerig’s Dump Trucking, Inc., 137 F.3d
936, 943–944 (7th Cir. 1998), the court enforced the
Board’s bargaining order, even though only 5 of 21 unit
employees remained, and the company president and
general manager at the time of the violations either had
left or were no longer involved in management.

22 In asserting that its 1995 wage increase was justified by a desire to
retain employees who might otherwise leave the Respondent’s employ,
the Respondent stated in its brief in support of exceptions that em-
ployee turnover was a problem as early as 1992 and had become more
widespread in 1994, reaching a level of 36 percent. Thus, the turnover
that the Respondent has experienced since the close of the hearing can
hardly be termed extraordinary.
23 See, e.g., Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166
(D.C. Cir. 1998).
In the present case, even accepting, arguendo, the facts
asserted by the Respondent concerning employee turn-
over, we find the effects of the Respondent’s unlawful
conduct are not likely to be sufficiently dissipated by
turnover to ensure a free second election. Although a
significant number of the employees who were employed
at the time of the unlawful conduct surrounding the elec-
tions may have left the facilities for reasons related or
unrelated to the Respondent’s unfair labor practices,
more than a majority (approximately 60 percent) remain
who would recall these events. We further find that the
new employees may well be affected by the continuing
influence of the Respondent’s past unfair labor practices.
As the Fifth Circuit has recognized, “Practices may live
on in the lore of the shop and continue to repress em-
ployee sentiment long after most, or even all, original
participants have departed.”24 In the present case, it is
difficult to believe that the impression made by the Re-
spondent’s barrage of serious unlawful conduct during
the period before and after the Board elections, and con-
tinuing to the time of the hearing and beyond, could have
dissipated in the minds of those employees who were
then employed, and that the virulence of the Respon-
dent’s response to the previous election campaign would
not restrain employee free choice in second elections.
Indeed, as noted above, the Respondent’s violations are
precisely the types of unfair labor practices that endure in
the memories of those employed at the time and are most
likely to be described as cautionary tales to later hires.25
24 Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978).
25 For these reasons, the evidence concerning turnover that the Re-
spondent seeks to introduce would not require a different result. Ac-
cordingly, we deny the Respondent’s motion to reopen the record.
Salvation Army Residence, supra, 293 NLRB at 945. We have, how-
ever, as discussed above, fully considered the evidence the Respondent
seeks to introduce and find that it would not preclude the issuance of
the bargaining order herein.
Member Hurtgen believes that the propriety of a Gissel order is de-
pendent upon the circumstances existing at the time of the order. That
is, the Board must be satisfied, at that time, that a fair election is un-
likely even if traditional remedies are imposed. In the instant case,
Member Hurtgen believes that this test has been met. The Respondent
engaged in extensive and severe unfair labor practices, including
“hallmark” violations. Even accepting as fact the Respondent’s evi-
dence of employee turnover, it can reasonably be concluded that this

OVERNITE TRANSPORTATION CO. 995
As stated, the Board generally evaluates the appropri-
ateness of a Gissel bargaining order based on the circum-
stances when the unfair labor practices occur. In some
recent cases, however, the Board has considered the pas-
sage of time, and particularly the delay of the case at the
Board, in declining to issue a bargaining order. See, e.g.,
Wallace International de Puerto Rico, 328 NLRB No. 3
(1999). In Wallace, we found that the employer threat-
ened plant closure if the employees selected the union as
their collective-bargaining representative. We concluded
that certain special remedies were necessary in view of
the severity of the violation and its effect on employees’
exercise of their rights under the Act. However, in view
of the delay at the Board following the administrative
law judge’s August 1995 decision, we concluded that
court enforcement of a bargaining order based on this
violation, which occurred in June 1994, would be diffi-
cult and that “employee rights would be better served by
proceeding directly to a second election.” Id. In contrast
to Wallace, we conclude that a bargaining order is a nec-
essary element of the remedy in the present case despite
the lapse of time since the Respondent’s violations. Ini-
tially, we observe that the violations occurred in 1995
and 1996 and the hearing ran from February 12, 1996, to
January 28, 1997, creating a hearing record of more than
14,000 transcript pages and many thousands of exhibits.
The judge issued his decision on April 10, 1998, and the
Board issues this decision approximately 1-1/2 years
later. Such a time frame has been found not excessive in
prior cases. In Intersweet, supra, the Seventh Circuit
enforced the Board’s Gissel bargaining order and found
that a period of 3 to 4 years is an “ordinary institutional
time lapse . . . inherent in the legal process.” 125 F.3d at
1068, quoting America’s Best Quality Coatings Corp. v.
NLRB, supra, 44 F.3d at 522.
The time this case has spent at the Board, as well as
the total lapse of time since the unfair labor practices,
does not approach the time found to render the Gissel
orders stale in some cases. Compare, for example,
Montgomery Ward & Co. v. NLRB, 904 F.2d 1156, 1160
(7th Cir. 1990) (8 years between violations and order,
including 6 years at the Board); Impact Industries Inc. v.
NLRB, 847 F.2d 379, 381 (7th Cir. 1988) (7-1/2 years
between violations and order, including 5-1/2 years at the
Board); NLRB v. Thill, Inc., 980 F.2d 1137, 1138 (7th Cir.
1992) (over 9 years between violations and order, includ-
ing 7 years at the Board).

unlawful conduct has a continuing impact on the current unit employ-
ees. In this regard, however, Member Hurtgen finds it unnecessary to
rely on an assumption (unsupported by evidentiary fact) that the em-
ployee-victims of unfair labor practices occurring more than 4 years
ago will necessarily apprise new employees of those events. Rather,
Member Hurtgen relies upon the continuing disparity between the
treatment of represented units and the treatment of unrepresented units.
That disparity presents an ever-present message that a carrot is given to
nonunion employees and a stick is used on unionized employees.
More importantly, the extent and severity of the viola-
tions in this case surpass the hallmark violation found in
Wallace. Under these circumstances, we conclude that
the Respondent’s unfair labor practices cannot be ade-
quately remedied at the present time by the Board’s
traditional remedies or by more limited special remedies
like those ordered in Wallace. Rather, we find that the
circumstances of this case fully warrant the issuance of
bargaining orders as a necessary and appropriate means
of effectuating the policies of the Act.26 See Garvey Ma-
rine, Inc., 328 NLRB No. 147 (1999) (citing number and
severity of violations in finding that delay at the Board of
more than 3 years did not render a Gissel order unwar-
ranted).
As discussed above, in concluding that a Gissel order
is warranted, as required by some circuit courts we have
26 In fashioning his remedy, the judge stated that “the Bridgeton pro-
ceeding is by far the closest to the kind of pure grant of wage increase
case” (without any negative acts of reprisal) that troubled the court in
Skyline Distributors v. NLRB, 99 F.3d 403 (D.C. Cir. 1996). He opined
that enforcement of a Gissel bargaining order at Bridgeton might be
difficult because the primary preelection violation that occurred at
Bridgeton was the announcement of the March 1995 wage increase.
We do not agree with the judge’s assessment of the Bridgeton situation,
and we find Skyline Distributors to be distinguishable. In expressing
his doubts about the enforceability of a Gissel bargaining order at
Bridgeton, the judge over looked the relevance of the postelection
conduct in which the Respondent engaged on a nationwide basis, in-
cluding acts of reprisal. See Long-Airdox Co., 277 NLRB 1157, 1160
(1985), citing Chromalloy Mining & Minerals v. NLRB, 620 F.2d 1120
(5th Cir. 1980) (“postelection violations ‘are always relevant because
they demonstrate that the employer is still opposed to unionization’”).
After the Bridgeton election, the Respondent, as discussed in detail
above, violated Sec. 8(a)(3) by denying the March 1995 increase to
employees who had voted for the Union in the Board-conducted elec-
tions. In addition, the Respondent violated Sec. 8(a)(5) and (1) of the
Act by bypassing the Union and dealing directly with employees in the
eight recognized and six contested units with respect to its 1996 pro-
ductivity package and unilaterally withholding 1996 wage and mileage
increases from those same employees. (The withholding of the 1996
wage and mileage increases also violated Sec. 8(a)(3) because it was
unlawfully motivated.) The Respondent also violated Sec. 8(a)(1) by
announcing and granting to unrepresented employees the overtime
portion of the productivity package in order to dissuade them from
seeking union representation. The Respondent further violated Sec.
8(a)(1) of the Act by questioning employees in preparation for this
litigation without adhering to the procedural safeguards required under
Johnnie’s Poultry, supra. In other cases, the Respondent has been
found to have unlawfully discharged employees. Thus, the Respon-
dent’s conduct after the election clearly indicated to employees that it
remained “opposed to unionization” and hostile to the exercise of em-
ployee rights.
Nor do we agree with the judge that the seriousness of the Bridgeton
violations is “undercut by the Union’s success the same day in its elec-
tion at Hall Street, only 17 miles away.” It is the objective tendency of
the unfair labor practices to undermine union support that is critical, not
the actual effect of the unfair labor practices. NLRB v. Gissel Packing
Co., 395 U.S. at 614. The fact that the Union was victorious at Hall
Street does not mitigate against the need for a remedial bargaining
order at Bridgeton. See United Oil Mfg. Co. v. NLRB, 672 NLRB
1208, 1212 (3d Cir. 1982), citing NLRB v. Permanent Label Corp., 657
F.2d 512, 519 (3d Cir. 1981) (en banc) (rejecting the contention that
unfair labor practices which occurred before the union actually
achieved majority status could not be relied upon by the Board in issu-
ing a bargaining order).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996
examined its appropriateness under the circumstances
existing at the present time and we have considered the
inadequacy of other remedies. See, e.g., Flamingo Hil-
ton-Laughlin v. NLRB, 148 F.3d 1166, 1173 (D.C. Cir.
1998). Further, as discussed below, we have given due
consideration to the employees’ Section 7 rights, another
concern expressed by some courts. Id.
In Gissel, the Supreme Court rejected the argument
advanced by the employers there that a bargaining order
is a punitive remedy that “needlessly prejudices employ-
ees’ Section 7 rights.” 395 U.S. at 612. The Court stated
that a bargaining order not only deters “future miscon-
duct,” but also remedies “past election damage.” Id. The
Court reasoned as follows:

If an employer has succeeded in undermining a union’s
strength and destroying the laboratory conditions nec-
essary for a fair election, he may see no need to violate
a cease-and-desist order by further unlawful activity.
The damage will have been done, and perhaps the only
fair way to effectuate employee rights is to re-establish
the conditions as they existed before the employer’s
unlawful campaign.33 There is, after all, nothing per-
manent in a bargaining order, and if, after the effects of
the employer’s acts have worn off, the employees
clearly desire to disavow the union, they can do so by
filing a representation petition. For, as we have pointed
out long ago, in finding that a bargaining order in-
volved no “injustice to employees who may wish to
substitute for the particular union some other . . . ar-
rangement,” a bargaining relationship “once rightfully
established must be permitted to exist and function for
a reasonable period in which it can be given a fair
chance to succeed,” after which the “Board may, . . .
upon a proper showing, take steps in recognition of
changed situations which might make appropriate
changed bargaining relationships.” [395 U.S. at 612–
613 (quoting Franks Bros. Co. v. NLRB, 321 U.S. 702,
705-706 (1944).]
_________________________
33 It has been pointed out that employee rights are affected
whether or not a bargaining order is entered, for those who desire
representation may not be protected by an inadequate rerun elec-
tion, and those who oppose collective bargaining may be preju-
diced by a bargaining order if in fact the union would have lost an
election absent employer coercion. [Citation omitted.] Any ef-
fect will be minimal at best, however, for there “is every reason
for the union to negotiate a contract that will satisfy the majority,
for the union will surely realize that it must win the support of the
employees, in the face of a hostile employer, in order to survive
the threat of a decertification election after a year has passed.”
Bok, The Regulation of Campaign Tactics in Representation Elec-
tions Under the National Labor Relations Act, 78 Harv.L.Rev. 38,
135 (1964).

This passage clearly shows that in approving the
Board’s use of the bargaining order remedy in category I
and II cases, the Gissel Court explicitly took into account
the rights of employees who both favored and opposed
union representation.27 The Court stated that if an em-
ployer’s unfair labor practices have the tendency to un-
dermine a union’s majority strength and destroy election
conditions, then “the only fair way to effectuate em-
ployee rights” is to issue a bargaining order. In these
circumstances, the interests of the employees favoring
unionization are safeguarded by the bargaining order.
The interests of those opposing the union are adequately
safeguarded by their right to file a decertification petition
at an appropriate time pursuant to Section 9(c)(1) of the
Act. On the other hand, if the facts of a case fall within
category III, i.e., the employer committed only “minor or
less extensive unfair labor practices” with only a “mini-
mal impact on the election machinery,” then a bargaining
order may not issue, notwithstanding the fact that a ma-
jority of employees signed authorization cards in support
of the union. 395 U.S. at 615.
In sum, the Gissel opinion itself reflects a careful bal-
ancing of employees’ Section 7 rights “to bargain collec-
tively” and “to refrain from” such activity. Therefore, if
a bargaining order has been adequately justified under
the Gissel standards, then we respectfully submit that due
consideration has been given to the employees’ Section 7
rights consistent with the concerns expressed by some
courts.28
Accordingly, for all these reasons, we agree with the
judge that Gissel bargaining orders are warranted in this
case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Overnite
Transportation Company, Richmond, Virginia,29 its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified and set forth in full
below.
1. Cease and desist from
(a) Announcing and implementing the overtime por-
tion of the productivity package in order to discourage
and dissuade its employees from selecting the Interna-
tional Brotherhood of Teamsters, AFL–CIO (the Interna-
tional) or one of its locals as collective-bargaining repre-
sentatives.
(b) Failing and refusing to grant wage and mileage in-
creases to certain of its employees to retaliate or dis-
criminate against them for selecting the International or
one of its locals as their collective-bargaining representa-
tives and to discourage or dissuade its other employees
from selecting the International or one of its locals as
collective-bargaining representatives.

27 MJ Metal Products, 328 NLRB No. 170, slip op. at 3 (1999);
General Fabrications Corp., 328 NLRB No. 166, slip op. at 3 (1999).
28 MJ Metal Products, supra; General Fabrications Corp., supra.
29 The Respondent’s corporate headquarters are located in Rich-
mond, Virginia.

OVERNITE TRANSPORTATION CO. 997
(c) Bypassing the exclusive representatives of its em-
ployees and dealing directly with its employees.
(d) Unilaterally changing the terms and conditions of
employment of its employees by failing and refusing to
grant them established wage and mileage increases.
(e) Unilaterally changing the terms or conditions of
employment of certain of its employees by implementing
the overtime and nonwage portions of its productivity
package.
(f) Exceeding the legitimate scope of interviews with
its employees in preparation for a hearing by unnecessar-
ily and coercively intruding into their Section 7 activi-
ties.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guar-
anteed them by Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with General Drivers, Ware-
housemen & Helpers Local Union #89 a/w International
Brotherhood of Teamsters, AFL–CIO as the exclusive
representative of its employees in the following appro-
priate unit concerning their terms and conditions of em-
ployment, and, if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time road drivers, city
drivers, dock workers, jockeys, and mechanics em-
ployed at Overnite Transportation Company’s Louis-
ville, Kentucky facility, excluding office clerical em-
ployees, account managers, dispatchers and all guards
and supervisors as defined in the Act.

(b) On request, bargain with the International as the
exclusive representative of its employees in the follow-
ing appropriate unit concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time dock workers, city
drivers, road drivers and jockeys, employed at Overnite
Transportation Company’s Lawrenceville, Georgia fa-
cility, but excluding shop employees, temporary em-
ployees, office clerical employees, managers, guards,
and supervisors as defined in the Act.

(c) On request, bargain with International Brotherhood
of Teamsters, Local 822, AFL–CIO as the exclusive rep-
resentative of its employees in the following appropriate
unit concerning their terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:

All full-time and regular part-time over the road driv-
ers, city pick-up drivers, delivery drivers, yard workers,
dock workers, and mechanics employed at Overnite
Transportation Company’s Norfolk, Virginia facility,
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.

(d) On request, bargain with Highway, City and Air
Freight Drivers, Dockmen, Dairy Workers and Helpers,
St. Louis and Vicinity, Missouri, Marine Officers Asso-
ciation, the Navigable Inland Waterway Systems of the
United States Local 600, affiliated with International
Brotherhood of Teamsters, AFL–CIO as the exclusive
representative of its employees in the following appro-
priate unit concerning their terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time city drivers, dock-
men, road drivers and mechanics, employed at Over-
nite Transportation Company’s Bridgeton, Missouri
terminal, EXCLUDING all office clerical and profes-
sional employees, guards, and supervisors as defined in
the Act.

(e) Make whole its employees in the bargaining units
at its service centers (terminals) located in Bedford Park,
Illinois; Kansas City, Kansas; Blaine, Minnesota; Indian-
apolis, Indiana; West Sacramento, California; Grand
Rapids, Michigan; Miami, Florida; Tucson, Arizona; St.
Louis, Missouri; Milwaukee, Wisconsin; Rockaway,
New Jersey; Romulus, Michigan; North Canton, Ohio;
and Atlanta, Georgia, for the monetary losses suffered as
a result of its failure and refusal to grant them its wage
and mileage increases, announced on December 11,
1995, and effective December 31, 1995, with interest as
set forth in the remedy section of the judge’s decision.
(f) At the request of the exclusive representatives of
the unit employees at its service centers at Norfolk, Vir-
ginia; Lawrenceville, Georgia; Louisville, Kentucky; and
Bridgeton, Missouri, rescind in whole or in part the over-
time and nonwage portions of the productivity package.
(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(h) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix”30 at all
its service centers. Copies of the notice, on forms pro-
vided by the Regional Director for Region 18, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all

30 If this Order is enforced by a Judgment of the 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.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. Because Respondent has
closed certain of its service centers, Respondent shall
duplicate and mail, at its own expense, copies of the no-
tice to all former employees employed by it at those ser-
vice centers since December 11, 1995.
(i) 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.
IT IS FURTHER ORDERED that the election in Case 4–
RC–18747 be set aside and this case transferred to the
Regional Director for Region 4 for the setting of a sec-
ond election at such time and place as she deems circum-
stances afford a free choice of a bargaining representa-
tive in the appropriate unit.
IT IS FURTHER ORDERED that the election in Case 5–
RC–14213 be set aside and this case be transferred to the
Regional Director for Region 5 for the setting of a sec-
ond election at such time and place as he deems circum-
stances afford a free choice of a bargaining representa-
tive in the appropriate unit.
IT IS FURTHER ORDERED that the election in Case 9–
RC–1650531 be set aside and the case be transferred to
the Regional Director for Region 9 for the setting of a
second election at such time and place as he deems cir-
cumstances afford a free choice of bargaining representa-
tive in the appropriate unit.
IT IS FURTHER ORDERED that the elections held in
Cases 18–RC–15768, 18–RC–15786, 18–RC–15812, and
18–RC–15814 are set aside and that the petitions in those
cases are dismissed.
IT IS FURTHER ORDERED that jurisdiction be retained
regarding the relief, if any, to be granted to remedy the
violations found in Case 18–CA–13916 at the other ser-
vice centers where the complaints in this consolidated
proceeding request bargaining orders.
IT IS FURTHER ORDERED that the protective orders en-
tered into during the hearing prohibiting the parties from
disclosing the contents of certain testimony and exhibits
be, and the same hereby are, continued in full force and
effect and that all exhibits introduced in evidence under
seal will continue to be maintained under seal.

31 The judge recommended that the election in Case 9–RC–16504 be
set aside and a new election held. After the issuance of the judge’s
decision, on August 11, 1999, the Board issued a Decision and Certifi-
cation of Representative in that case. Accordingly, there is no reason to
set that election aside.
IT IS FURTHER ORDERED that the complaints ruled on in
this Decision are dismissed insofar as they allege viola-
tions of the Act not specifically found.

Separate statement of MEMBER LIEBMAN.

Overnite Transportation Company (the Respondent or
Overnite) has filed a motion seeking my recusal from
this proceeding, arguing that a reasonable person could
question my ability to decide this case impartially and
without bias. The primary basis for the Respondent’s
motion is my prior employment from 1980 to 1989 as
staff counsel to the International Brotherhood of Team-
sters, AFL–CIO (Teamsters). For the reasons set forth
below, I deny the Respondent’s motion.
I.
The Respondent is correct that, as a party to this pro-
ceeding, it is “entitled as a matter of fundamental due
process to a fair hearing.” Citing 28 U.S.C. § 455, defin-
ing the circumstances that mandate the disqualification
of Federal judges, the Respondent contends that these
standards should apply as well to officials of administra-
tive agencies, such as Members of the National Labor
Relations Board. I agree.
The Respondent’s specific arguments for refusal are
based on §§ 455(a) and (b). These sections provide in
relevant part as follows:

(a) Any justice, judge, or magistrate of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of dis-
puted evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer
in the matter in controversy, or a lawyer with whom
he previously practiced law served during such asso-
ciation as a lawyer concerning the matter.

I will address each of the Respondent’s arguments. I
turn first to its contentions based on § 455(b) because
that section enumerates specific grounds for disqualifica-
tion.
II.
Under § 455(b)(1) actual bias or prejudice must be
shown. Hook v. McDade, 89 F.3d 350, 355 (7th Cir.
1996), cert. denied 519 U.S. 1071 (1997). “In determin-
ing whether a judge must disqualify himself under 28
U.S.C. § 455(b)(1), the question is whether a reasonable
person would be convinced the judge was biased.” Id.
The bias or prejudice “must be grounded in some per-
sonal animus or malice that the judge harbors . . . of a
kind that a fair-minded person could not entirely set
aside when judging certain persons or causes.” Id. “Sec-

OVERNITE TRANSPORTATION CO. 999
tion 455(b)(1) may alternatively require recusal in situa-
tions wherein the judge has pre-trial knowledge of the
facts of a case, independent of any possible bias or parti-
ality.” United States v. Winston, 613 F.2d 221, 223 (9th
Cir. 1980).
I have no “personal bias or prejudice” against the Re-
spondent. Nor do I have “personal knowledge” of any
“disputed evidentiary facts.”1 Indeed, my relationship
with the Teamsters terminated over 10 years ago. And,
throughout the course of my employment with the Team-
sters, I did not work on a single Overnite case. Given
these circumstances, no reasonable person would be con-
vinced that I was biased against Overnite merely because
I represented the Teamsters in unrelated matters during
the prior decade.
With respect to § 455(b)(2), the Respondent’s recusal
argument is based on the premise that the history of bar-
gaining at its Chicago terminal constitutes a “matter in
controversy” in the instant proceeding. That history can
be briefly summarized as follows. In 1982, Teamsters
Local 705 won a Board election and was certified as the
employees’ bargaining representative. In 1989, the
Board issued a decision finding that the Respondent vio-
lated Section 8(a)(1) of the Act during the course of its
antiunion campaign and violated Section 8(a)(5) and (1)
by thereafter bargaining in bad faith. Overnite Transpor-
tation Co., 296 NLRB 669. In 1991, the Seventh Circuit
upheld the Board’s decision. 938 F.2d 815. In 1992, the
Board dismissed complaint allegations that the Respon-
dent had committed additional violations of Section
8(a)(1) and had continued to bargain in bad faith in viola-
tion of Section 8(a)(5). Overnite Transportation Co.,
307 NLRB 666. As of the close of the hearing in the
instant case, the parties still had not negotiated a collec-
tive-bargaining agreement at Chicago.
The present matter arises from the organizational effort
the Teamsters and its affiliated locals commenced in Oc-
tober 1994 at numerous Overnite terminals across the
country. As part of its opposition to unionization, the
Respondent related to employees its views on the history
of bargaining at Chicago. The General Counsel and the
Charging Parties contend that the Respondent’s state-
ments about the Chicago experience violated the Act,
while the Respondent maintains that such statements
were lawful.
In its motion, the Respondent argues that because
“Chicago bargaining is a ‘matter in controversy,’” I must
recuse myself if I “worked on matters relating to, or
[have] any knowledge regarding, the Chicago Service
Center,” including 10 enumerated unfair labor practice
cases. For the same reason, the Respondent maintains
that I must recuse myself if, during the time I served as
staff counsel, “any other Teamster attorney worked on
cases or issues regarding bargaining” at Chicago.

1 Contrary to the Respondent’s assertion, I do not have “personal
knowledge of the Teamsters’ organizing tactics that are at issue in this
case.”
I will assume arguendo that, as the Respondent con-
tends, the Chicago bargaining history constitutes a “mat-
ter in controversy” within the meaning of § 455(b)(2).
Therefore, under the statute, the initial question is
whether, while employed by the Teamsters, I “served as
lawyer” with respect to matters involving the Chicago
terminal. The answer to the question is an unequivocal
“no.” As stated above, I did not work on any Overnite
matters involving any Overnite terminal. Nor do I have
any extrarecord knowledge concerning the history of
bargaining at Chicago.
The remaining issue under § 455(b)(2) is whether “a
lawyer with whom [I] previously practiced law served
during such association as a lawyer concerning” issues
involving the Chicago terminal. To the best of my
knowledge, none of the lawyers with whom I practiced
while employed at the Teamsters “served during [our]
association as a lawyer concerning” Chicago matters
because the Teamster local at that terminal was repre-
sented by a Chicago law firm. The accuracy of my recol-
lection is confirmed by the reported Board and court
cases involving the Chicago terminal, which all list Chi-
cago counsel as the attorney of record.2
With respect to the unreported cases, I have searched
the case records maintained by the Board’s Executive
Secretary, which date as far back as 1982, in order to
determine if a Teamster staff attorney with whom I was
associated “served . . . as a lawyer” with respect to mat-
ters involving the Chicago terminal. My research failed
to identify any such case.3
In sum, even assuming that the Chicago bargaining
history is a “matter in controversy” in this proceeding,
there is still no basis for my disqualification under
§ 455(b)(2) because while employed by the Teamsters I
2 Sheldon M. Charone of Carmell, Charone, Widmer, Mathews &
Moss represented Teamsters Local 705 in the following cases, all of
which are cited in the Respondent’s motion: Case 13–CA–22606,
reported at 296 NLRB 669, 672 (1989), enfd. 938 F.2d 815, 816 (7th
Cir. 1991) (John F. Ward of the same law firm also represented Team-
sters Local 705 before the court of appeals); Case 13–CA–28668, re-
ported at 306 NLRB 237, 240 (1992), modified on reconsideration 311
NLRB 1242 (1993); Cases 13–CA–29357 and 13–CA–29749, reported
at 307 NLRB 666 (1992).
3 With regard to Case 13–CA–30815, which is cited in the Respon-
dent’s motion, the Executive Secretary’s records show that the case
involved the Respondent’s petition to revoke an investigative subpoena,
but the records fail to reveal who, if anyone, represented the charging
party, Teamsters Local 705.
The Executive Secretary’s Office does not have a record of the re-
maining five unfair labor practice cases cited by the Respondent (Cases
13–CA–23224; 13–CA–24163; 13–CA–24246; 13–CA–26474; and
13–CA–28485).
Although not cited in the Respondent’s motion, the Executive Secre-
tary’s records reveal that in Case 13–RC–15990 Teamsters Local 705
was represented by Sherman Carmell of Carmell, Charone, and Wid-
mer. This 1982 representation proceeding is apparently the one that
resulted in the certification of Teamsters Local 705 as the bargaining
representative of the employees at the Chicago terminal.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000
did not “serve as lawyer” regarding issues involving the
Chicago terminal and no “lawyer with whom [I] previ-
ously practiced law served during such association as a
lawyer concerning [Chicago] matter[s].”
III.
The Respondent’s final argument is based on § 455(a),
which requires a judge to “disqualify himself in any pro-
ceeding in which his impartiality might reasonably be
questioned.” The purpose of this section “is to promote
confidence in the judiciary by avoiding even the appear-
ance of impropriety whenever possible.” Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847, 865
(1988).
Under this section, “the standard to be employed is an
objective one. That is, the . . . judge is required to recuse
himself only when a reasonable person with knowledge
of all the facts would conclude that the judge’s impartial-
ity might reasonably be questioned.” United States v.
Winston, supra, 613 F.2d at 222. “An objective standard
is essential when the question is how things appear to the
well-informed, thoughtful observer rather than to a hy-
persensitive or unduly suspicious person.” In re Mason,
916 F.2d 384, 385–386 (7th Cir. 1990).
It is true, as the Respondent maintains, that there is a
“long and contentious history between Overnite and the
Teamsters,” which encompasses the period when I
served as staff attorney. Thus, as stated by the Respon-
dent, during the past 20 years, the Teamsters and its af-
filiated locals have conducted numerous campaigns to
organize Overnite employees, have filed and litigated
unfair labor practice charges against Overnite, and have
been engaged in collective-bargaining negotiations with
Overnite. Claiming that the Teamsters have a “fixation
on Overnite,” the Respondent argues that “a reasonable
person—the man on the street—would find it hard to
believe that Member Liebman was wholly untouched by
these efforts during her ten years with the Teamsters.”
Therefore, according to the Respondent, my “impartiality
might reasonably be questioned,” and I should recuse
myself to avoid any appearance of impropriety.
As stated above, the standard under § 455(a) is an ob-
jective one, requiring examination of the issue from the
perspective of a reasonable person knowing all the cir-
cumstances. Accordingly, the following additional facts
must be considered.
First, I played no role whatsoever in the longstanding
dispute between Overnite and the Teamsters. Instead, I
represented the Teamsters in other diverse matters. To
the extent that these matters included organizational
campaigns, these were campaigns conducted among em-
ployees of other companies, primarily those covered by
the Railway Labor Act. While I was, of course, not un-
aware of Overnite and the Teamsters’ interest in organiz-
ing that company, I have only very limited and general
recollections of the Overnite activities that transpired
during my tenure at the Teamsters. Furthermore, while I
was, of course, an advocate for the Teamsters, and also
served as in-house counsel, a reasonable person would
understand that I was nonetheless the attorney, not the
client, and that there is a difference between the two.
Second, 10 years have now elapsed since I last worked
for the Teamsters. It is well established that “the long
passage of time since [a judge’s] last representation of [a
party] requires the conclusion that no reasonable person
could question his impartiality.” Cipollone v. Liggett
Group, Inc., 802 F.2d 658, 659 (3d Cir. 1986). Thus, in
Chittimacha Tribe of Louisiana v. Harry L. Laws Co.,
Inc., 690 F.2d 1157, 1166 (5th Cir. 1982), cert. denied
464 U.S. 814 (1983), the Fifth Circuit held that a judge’s
representation of a party on unrelated matters 6 years
prior to his appointment to the bench was “too remote
and too innocuous” to warrant his disqualification under
§ 455(a).
Finally, for the 4 years immediately preceding my ap-
pointment in 1997 as a member of the National Labor
Relations Board, I was employed by the Federal Media-
tion and Conciliation Service (FMCS), an independent
government agency created by Congress to promote
sound and stable labor-management relations. I served
initially as special assistant to the FMCS director and
later as deputy director of the agency. In those positions,
I represented neither labor nor management, but assumed
the role of a neutral assisting both sides to break down
traditional barriers and build better working relation-
ships.
Under all the circumstances, an objective observer
would not reasonably question my impartiality. Given
my lack of involvement with any Overnite matters, the
long passage of time since I last represented the Teamsters,
and my employment during the past 6 years with two neu-
tral government agencies, no reasonable person would har-
bor doubts about my ability to decide this case fairly on its
merits.
IV.
For all of the above reasons, the Respondent’s motion
is denied.

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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union

OVERNITE TRANSPORTATION CO. 1001
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT announce and implement the overtime
portion of the productivity package in order to discour-
age and dissuade our employees from selecting the Inter-
national Brotherhood of Teamsters, AFL–CIO (the Inter-
national or one of its locals as collective-bargaining rep-
resentatives.
WE WILL NOT fail and refuse to grant wage and mileage
increases to certain of our employees to retaliate or dis-
criminate against them for selecting the International or
one of its locals as their collective-bargaining representa-
tives and to discourage and dissuade our other employees
from selecting the International or one of its locals as
collective-bargaining representatives.
WE WILL NOT bypass the exclusive representatives of
our employees and deal directly with our employees.
WE WILL NOT unilaterally change the terms and condi-
tions of employment of our employees by failing and
refusing to grant them established wage and mileage in-
creases.
WE WILL NOT unilaterally change the terms or condi-
tions of employment of certain of our employees by im-
plementing the overtime and nonwage portions of our
productivity package.
WE WILL NOT exceed the legitimate scope of interviews
with our employees in preparation for a hearing by un-
necessarily and coercively intruding into their Section 7
activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with General Drivers,
Warehousemen & Helpers Local Union #89 a/w Interna-
tional Brotherhood of Teamsters, AFL–CIO as the exclu-
sive representative of our employees in the following
appropriate unit concerning their terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time road drivers, city
drivers, dock workers, jockeys, and mechanics em-
ployed at Overnite Transportation Company’s Louis-
ville, Kentucky facility, excluding office clerical em-
ployees, account managers, dispatchers and all guards
and supervisors as defined in the Act.

WE WILL, on request, bargain with the International as
the exclusive representative of our employees in the fol-
lowing appropriate unit concerning their terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

All full-time and regular part-time dock workers, city
drivers, road drivers and jockeys, employed at Overnite
Transportation Company’s Lawrenceville, Georgia fa-
cility, but excluding shop employees, temporary em-
ployees, office clerical employees, managers, guards,
and supervisors as defined in the Act.

WE WILL, on request, bargain with International Broth-
erhood of Teamsters, Local 822, AFL–CIO as the exclu-
sive representative of our employees in the following
appropriate unit concerning their terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time over the road driv-
ers, city pick-up drivers, delivery drivers, yard workers,
dock workers and mechanics, employed at Overnite
Transportation Company’s Norfolk, Virginia facility,
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.

WE WILL, on request, bargain with Highway, City and
Air Freight Drivers, Dockmen, Dairy Workers and Help-
ers, St. Louis and Vicinity, Missouri, Marine Officers
Association, the Navigable Inland Waterway Systems of
the United States Local 600, affiliated with International
Brotherhood of Teamsters, AFL–CIO as the exclusive
representative of our employees in the following appro-
priate unit concerning their terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time city drivers, dock-
men, road drivers and mechanics employed at Overnite
Transportation Company’s Bridgeton, Missouri termi-
nal, EXCLUDING all office clerical and professional
employees, guards, and supervisors as defined in the
Act.

WE WILL make whole our employees in the bargaining
units at our service centers (terminals) located in Bedford
Park, Illinois; Kansas City, Kansas; Blaine, Minnesota;
Indianapolis, Indiana; West Sacramento, California;
Grand Rapids, Michigan; Miami, Florida; Tucson, Ari-
zona; St. Louis, Missouri; Milwaukee, Wisconsin; Rock-
away, New Jersey; Romulus, Michigan; North Canton,
Ohio; and Atlanta, Georgia, for the monetary losses suf-
fered as a result of our failure and refusal to grant them
our wage and mileage increases, announced on Decem-
ber 11, 1995, and effective December 31, 1995, with
interest.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002
WE WILL, at the request of the exclusive representa-
tives of the unit employees at our service centers at Nor-
folk, Virginia; Lawrenceville, Georgia; Louisville, Ken-
tucky; and Bridgeton, Missouri, rescind in whole or in
part the overtime and nonwage portions of the productiv-
ity package.

OVERNITE TRANSPORTATION COMPANY, INC.

James L. Fox, Esq., David M. Biggar, Esq., Jeffrey Williams,
Esq., Carol L. Shore, Esq., Linda B. Finch, Esq., Paula S.
Sawyer, Esq., and Mary J. Tobey, Esq., for the General
Counsel.
Kenneth Lopatka, Esq., Kenneth F. Sparks, Esq., Thomas F.
Dugard, Esq., John N. Raudabaugh, Esq., James Swarden-
ski, Esq., Michael Duffee, Esq., Christopher A. Johlie, Esq.,
Craig T. Boggs, Esq., and, on the briefs, John D. Nelson,
Esq., and Tammy D. McCutchen, Esq. (Matkov, Salzman,
Madoff & Gunn), of Chicago, Illinois; William T. Cranfill
Jr. (Blakeney & Alexander) of Charlotte, North Carolina,
and Clifford R. Oviatt Jr., Esq., Kelly M. Boehringer, Esq.,
W. Carter Younger, Esq., and, on the briefs, Theofilos G.
Galoozis, Esq. (Mcquire, Woods, Battle & Boothe, LLP), of
Washington, D.C., for the Respondent.
Marc A. Stefan (Butsavage and Associates, P.C.), of Washing-
ton, D.C.; and James J. Vergara, Esq. (Vergara & Associ-
ates), of Hopewell, Virginia, for the Charging Party.
DECISION
PRELIMINARY STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge. This
massive proceeding results from the attempt of the International
Brotherhood of Teamsters, AFL–CIO (the International) to
organize Respondent Overnite Transportation Company, Inc.
(Respondent or Overnite or Company), one of the largest non-
union trucking companies with up to approximately 175 service
centers (or terminals) in the United States. In the course of that
struggle, the complaint alleges, Respondent granted a wage
increase in early 1995 to squash the Teamsters’ organizing
efforts not only by affecting elections held at various of its
service centers or terminals but also by discouraging support of
the Teamsters in the future, all in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act. The complaint
seeks bargaining orders at numerous service centers under the
authority of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
and this decision deals with four of them. Respondent denies
that it violated the Act in any manner.1

1 The relevant docket entries are as follows: The charge in Case 18–
CA–13481 was filed by the International on February 21, 1995. The
charge in Case 18–CA–13394 was filed by Dennis Blaskowski on
December 5, 1994, and amended on January 13, 1995. The charge in
Case 18–CA–13438 was filed by Teamsters Local 120 on January 17,
1995. The charge in Case 18–CA–13484 was filed by Teamsters Local
120 on February 22, 1995. The charge in Case 18–CA–13642 was filed
by the International on June 9, 1995. The charge in Case 18–CA–
13394–51 (formerly 5–CA–25268) was filed by Teamsters Local 822
on April 7. Thereafter, on August 9, 1995, Case 18–RC–15812 (for-
merly 5–RC–14153) was consolidated with Case 18–CA–13394–51
(formerly 5–CA–25268). The charge in Case 18–CA–13394–35 (for-
merly 9–CA–32726) was filed by Teamsters Local 89 on March 16,
1995, and amended on April 19 and May 8, 1995. The charge in Case
18–CA–13394-36 (formerly 9–CA–32800-2) was filed by Teamsters
Local 89 on April 5, 1995. Thereafter, Case 18–RC–15814 (formerly
9–RC–16508) was consolidated with Cases 18–CA–13394–35 (for-
merly 9–CA–32726) and 18–CA–13394–36 (formerly 9–CA–32800–
2). The charge in Case 18–CA–13394–27 (formerly 10–CA–28242–1)
was filed by the International on February 14, 1995. The charge in Case
18–CA–13394–91 (formerly 10–CA–28463) was filed by the Interna-
tional and Teamsters Local 728 on May 15, 1995. Thereafter, on May
24, 1995, Case 18–RC–15786 (formerly 10–RC–14595) was consoli-
dated with Case 18–CA–13394–27 (formerly 10–CA–28242–1). The
further consolidation on January 31, 1996, of Case 18–RC–15882
(formerly 10–RC–14595) appears erroneous, as it duplicates the earlier
consolidation, but with a different case number. If that is so, this con-
solidation ought to be rescinded. The charge in Case 18–CA–13394–13
(formerly 14–CA–23487) was filed by Teamsters Local 600 on Febru-
ary 22, 1995, and amended on April 11, 1995. Thereafter, on April 20,
1995, Case 18–RC–15768 (formerly 14–RC–11501) was consolidated
with Case 18–CA–13394-13 (formerly 14–CA–23487). The hearing
dealing with the allegations decided herein was held in this section was
held in Minneapolis, Atlanta, Louisville (occasionally New Albany,
Indiana), Norfolk, St. Louis, Richmond, and Washington, on about 65
days between February 1996 and February 1997.
JURISDICTION
Respondent, a corporate subsidiary of Union Pacific Corpora-
tion, with its headquarters and principal place of business in
Richmond, Virginia, has been engaged in the interstate transpor-
tation of general commodity freight by truck on a less-than-
truckload (LTL) basis. It is the fifth or sixth largest LTL trucking
company in the country, employing, when the hearing com-
menced, approximately 14,000 employees, including over-the-
road and city drivers, dockworkers, and mechanics. During the
calendar year ending December 31, 1994, Respondent derived
gross revenues in excess of $50,000 for the transportation of
freight from the State of Minnesota directly to points located
outside the State of Minnesota. I conclude, as Respondent admits,
that Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. I also conclude,
as Respondent admits, that the International and its Locals 120
(known as General Drivers, Helpers and Truck Terminal Em-
ployees, Teamsters Local Union No. 120), 822, 89 (known as
General Drivers, Warehousemen & Helpers Local Union #89),
728, 600 (known as Highway, City and Air Freight Drivers,
Dockmen, Dairy Workers And Helpers, St. Louis and Vicinity,
Missouri, Marine Officers Association, the Navigable Inland
Waterway Systems of the United States Local 600),2 773, 639,
651, 406, 390, 705, 41 (known as Teamsters Local Union No. 41,
Over-the-Road and City Transfer Drivers, Helpers, Dockmen,
and Warehousemen), 150 (known as Chauffeurs, Teamsters and
Helpers Local Union No. 150), 135 (known as Chauffeurs, and
Teamsters, Warehousemen and Helpers Local Union No. 135),
104, 200, 560, 299, and 92 are labor organizations within the
meaning of Section 2(5) of the Act.3
The following employees of Respondent in the four Gissel lo-
cations involved in this decision constitute units appropriate for
purposes of collective bargaining:

All full-time and regular part-time road drivers, city
drivers, dock workers, jockeys, and mechanics employed at
Overnite Transportation Company’s Louisville, Kentucky

2 It is also known as “Highway, City and Air Freight Drivers,
Dockmen, Marine Officers Association, Dairy Workers and Helpers,
Local Union 600.”
3 The International and its various Locals are most often separately
referred to herein as the “Teamsters” or “Union.” Hopefully, the correct
reference to the appropriate union is obvious.

OVERNITE TRANSPORTATION CO. 1003
facility, excluding office clerical employees, account man-
agers, dispatchers and all guards and supervisors as defined
in the Act.
All full-time and regular part-time dock workers, city
drivers, road drivers and jockeys, employed at Overnite
Transportation Company’s Lawrenceville, Georgia facility,
but excluding shop employees, temporary employees, office
clerical employees, managers, guards and supervisors as de-
fined in the Act.
All full-time and regular part-time over the road drivers,
city pick-up drivers, delivery drivers, yard workers, dock
workers and mechanics employed at Overnite Transporta-
tion Company’s Norfolk, Virginia facility, excluding all of-
fice clerical employees, professional employees, guards and
supervisors as defined in the Act.
All full-time and regular part-time city drivers, dock-
men, road drivers and mechanics employed at Overnite
Transportation Company’s Bridgeton, Missouri terminal,
EXCLUDING all office clerical and professional employ-
ees, guards, and supervisors as defined in the Act.

In addition, the following are the other labor organizations and
units involved in this Decision: On June 25, 1982, Local 705 was
certified as and since then, by virtue of Section 9(a) of the Act,
has been the exclusive collective-bargaining representative for
the purpose of collective bargaining of Respondent’s employees
in the following unit, which is appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act:

All full-time and regular part-time local drivers em-
ployed at Overnite Transportation Company’s Bedford
Park, Illinois facility; but excluding all office clerical em-
ployees, guards and supervisors as defined in the Act, and
all other employees.

At all times material herein, Local 705 has requested that Re-
spondent recognize it and bargain collectively with it as the ex-
clusive collective-bargaining representative of the Bedford Park
unit (referred to as Chicago).
On December 16, 1994, Local 41 was certified as and since
then, by virtue of Section 9(a) of the Act, has been the exclusive
collective-bargaining representative for the purpose of collective
bargaining of Respondent’s employees in the following unit
which is appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

All full-time and regular part-time over-the-road drivers,
city pickup and delivery drivers, hostlers, yard and dock
employees employed by Overnite Transportation Company
in the Greater Kansas City area but EXCLUDING office
clerical employees, O/S/D clerks, mechanics, shop employ-
ees, professional employees, guards, and supervisors as de-
fined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 41 has requested that Respon-
dent recognize it and bargain collectively with it as the exclusive
collective-bargaining representative of the Greater Kansas City
unit.
On December 28, 1994, Local 135 was certified as and since
then, by virtue of Section 9(a) of the Act, has been the exclusive
collective-bargaining representative for the purpose of collective
bargaining of Respondent’s employees in the following unit
which is appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time over-the-road drivers,
city pickup and delivery drivers, hostlers, yard and dock
employees, shop employees, and O. S. & D clerks employed
at Overnite Transportation Company’s Indianapolis, Indiana
facility; BUT EXCLUDING all office clerical employees,
all professional employees, and all guards and supervisors
as defined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 135 has requested that Respon-
dent recognize it and bargain collectively with it as the exclusive
collective-bargaining representative of the Indianapolis unit.
On January 24, 1995, Local 150 was certified as and since
then, by virtue of Section 9(a) of the Act, has been the exclusive
collective-bargaining representative for the purpose of collective
bargaining of Respondent’s employees in the following unit
which is appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

All full-time and regular part-time drivers and dock em-
ployees employed at Overnite Transportation Company’s
West Sacramento, California facility; excluding all other
employees, guards and supervisors as defined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 150 has requested that Respon-
dent recognize it and bargain collectively with it as the exclusive
collective-bargaining representative of the West Sacramento unit.
On February 7, 1995, Local 120 was certified as and since
then, by virtue of Section 9(a) of the Act, has been the exclusive
collective-bargaining representative for the purpose of collective
bargaining of Respondent’s employees in the following unit
which is appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

All full-time and regular part-time drivers, dockmen,
and mechanics employed at Overnite Transportation Com-
pany’s Blaine, Minnesota facility; excluding office clerical
employees, guards and supervisors as defined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 120 has requested that Respon-
dent recognize it and bargain collectively with it as the exclusive
collective-bargaining representative of the Blaine unit.
On June 7, 1995, Local 406 was certified as and since then, by
virtue of Section 9(a) of the Act, has been the exclusive collec-
tive-bargaining representative for the purpose of collective bar-
gaining of Respondent’s employees in the following unit which
is appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

All full-time and regular part-time over-the-road and
city drivers, dockworkers, mechanics employed at and out
of Overnite Transportation Company’s facility located at
2693 Courier Court, NW, Grand Rapids, Michigan; but ex-
cluding all office clerical employees, guards and supervisors
as defined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 406 has requested that Respon-
dent recognize it and bargain collectively with it as the exclu-
sive collective-bargaining representative of the Grand Rapids
unit.

On August 15, 1995, Local 390 was certified as and since
then, by virtue of Section 9(a) of the Act, has been the exclu-
sive collective-bargaining representative for the purpose of

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004
collective bargaining of Respondent’s employees in the follow-
ing unit which is appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All full-time and regular part-time over-the-road driv-
ers, city drivers, dock workers, jockeys, driver leadper-
sons, dock leadpersons and mechanics employed at Over-
nite Transportation Company’s Miami, Florida facility;
excluding all other employees, office clerical employees,
janitors, managerial employees, confidential employees,
guards and supervisors as defined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 390 has requested that Respon-
dent recognize it and bargain collectively with it as the exclu-
sive collective-bargaining representative of the Miami unit.
On November 24, 1995, Local 104 was certified as and since
then, by virtue of Section 9(a) of the Act, has been the exclu-
sive collective-bargaining representative for the purpose of
collective bargaining of Respondent’s employees in the follow-
ing unit which is appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All full-time and regular part-time dock employees and
city drivers employed at Overnite Transportation Com-
pany’s 325 East Medina Road, Tucson, Arizona service
center; excluding all other employees, including office
clerical employees, sales personnel, guards and supervi-
sors as defined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 104 has requested that Respon-
dent recognize it and bargain collectively with it as the exclu-
sive collective-bargaining representative of the Tucson unit.
On June 16, 1995, Local 600 was certified as the exclusive
collective-bargaining representative for the purpose of collec-
tive bargaining of Respondent’s employees in the following
unit which is appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:

All full time and regular part-time city drivers, dock-
men, road drivers and mechanics employed at Overnite
Transportation Company’s St. Louis, Missouri terminal,
EXCLUDING all office clerical and professional employ-
ees, guards, and supervisors as defined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 600 has requested that Respon-
dent recognize it and bargain collectively with it as the exclu-
sive collective-bargaining representative of the St. Louis unit.
On November 8, 1995, Local 200 was certified as the exclu-
sive collective-bargaining representative for the purpose of
collective bargaining of Respondent’s employees in the follow-
ing unit which is appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All full-time and regular part-time dock workers, city
drivers, road drivers, yard jockeys and mechanics em-
ployed at Overnite Transportation Company’s Milwaukee,
Wisconsin facility; but excluding office clerical employ-
ees, managers, guards and supervisors as defined in the
Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 200 has requested that Respon-
dent recognize it and bargain collectively with it as the exclu-
sive collective-bargaining representative of the Milwaukee unit.
On July 28, 1995, Local 560 was certified as the exclusive
collective-bargaining representative for the purpose of collec-
tive bargaining of Respondent’s employees in the following
unit which is appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:

All full-time and regular part-time city drivers, road
drivers, driver lead persons, platform lead person, platform
workers and jockeys employed at Overnite Transportation
Company’s Rockaway, New Jersey facility; but excluding
all office clerical employees, guards, professional employ-
ees and supervisors as defined in the Act.

At all times material herein, and particularly at all times on and
after December 11, 1995, Local 560 has requested that Respon-
dent recognize it and bargain collectively with it as the exclu-
sive collective-bargaining representative of the Rockaway unit.
The following employees of Respondent, constitute a unit
appropriate for purposes of collective bargaining:

All full-time and regular part-time drivers, dock work-
ers, mechanics and switchers, employed at Overnite
Transportation Company’s Romulus, Michigan facility;
but excluding all professional employees, confidential sec-
retaries, leadmen, guards and supervisors as defined in the
Act.

Pursuant to a petition filed by Local 299, the Board conducted
an election on March 15, 1995, among Respondent’s employ-
ees employed in the Romulus unit. 57 employees voted for
representation by Local 299, and 34 employees voted against.
Challenged ballots were insufficient to affect the results of the
election. Thereafter, Respondent filed timely objections to con-
duct affecting the results of the election. In the event that Local
299 is ultimately determined by the Board to be the exclusive
collective-bargaining representative of Respondent’s employ-
ees in the Romulus unit, based on Section 9(a) of the Act, since
March 15, 1995, Local 299 has been the exclusive collective-
bargaining representative of the Romulus unit. At all times
material herein, and particularly at all times on and after De-
cember 11, 1995, Local 299 has requested that Respondent
recognize and bargain collectively with it as the exclusive col-
lective-bargaining representative of the Romulus unit.
The following employees of Respondent constitute a unit
appropriate for purposes of collective bargaining:

All full-time and regular part-time city drivers, road
drivers, jockeys and dock workers employed at Overnite
Transportation Company’s 7900 Cleveland Avenue, N.W.,
North Canton, Ohio facility; excluding all office clerical
employees, professional employees, mechanics, guards
and supervisors as defined in the Act.

Pursuant to a petition filed by Local 92, the Board conducted an
election on April 6, 1995, among Respondent’s employees
employed in the North Canton unit. 25 employees voted for
representation by Local 92, and 17 employees voted against.
Challenged ballots were insufficient to affect the results of the
election. Thereafter, Respondent filed timely objections to con-
duct affecting the results of the election. In the event that Local
92 is ultimately determined by the Board to be the exclusive
collective-bargaining representative of Respondent’s employ-
ees in the North Canton unit, based on Section 9(a) of the Act,
since April 6, 1995, Local 92 has been the exclusive collective-
bargaining representative of the North Canton unit. At all times

OVERNITE TRANSPORTATION CO. 1005
material herein, and particularly at all times on and after De-
cember 11, 1995, Local 92 has requested that Respondent rec-
ognize and bargain collectively with it as the exclusive collec-
tive-bargaining representative of the North Canton unit.
The following employees of Respondent constitute a unit
appropriate for purposes of collective bargaining:

All full-time and regular part-time dock workers, city
drivers, combo drivers, jockeys and leadmen employed at
Overnite Transportation Company’s Moreland Avenue,
Atlanta, Georgia service facility; but excluding office
clerical employees, managerial employees, shop employ-
ees, guards and supervisors as defined in the Act.

Pursuant to a petition filed by Local 728, the Board conducted
an election on April 17, 1995, among Respondent’s employees
employed in the Atlanta unit. 136 employees voted for repre-
sentation by Local 728, and 100 employees voted against repre-
sentation. Challenged ballots were insufficient to affect the
results of the election. Thereafter, Respondent filed timely ob-
jections to conduct affecting the results of the election. In the
event that Local 728 is ultimately determined by the Board to
be the exclusive collective-bargaining representative of Re-
spondent’s employees in the Atlanta unit, based on Section 9(a)
of the Act, since April 17, 1995, Local 728 has been the exclu-
sive collective-bargaining representative of the Atlanta unit. At
all times material herein, and particularly at all times on and
after December 11, 1995, Local 728 has requested that Respon-
dent recognize and bargain collectively with it as the exclusive
collective-bargaining representative of the Atlanta unit.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. EARLIER SETTLEMENT
In July 29, 1995, the General Counsel and Respondent for-
mally settled, with certain exceptions, all the numerous 8(a)(1)
unfair labor practices alleged in the various complaints consoli-
dated in this proceeding and 8(a)(3) allegations for which the
only remedies required were a cease-and-desist order and the
posting of a notice.4 They also settled certain 8(a)(3) allegations
that concerned Respondent’s failure to implement the wage and
benefit package on March 5, 1995, discussed herein, at Blaine,
Kansas City, West Sacramento, and Indianapolis (sometimes
referred to as “the four certified centers”) which at that time
were the only service centers where the employees were repre-
sented by the Teamsters as a result of Board-conducted elec-
tions that Respondent did not contest. There, Respondent made
the employees whole for the monetary losses suffered; and
Respondent also posted a notice to employees at all of its ser-
vice centers nationwide, essentially promising not to commit
any of the violations again.
Specifically left for resolution in this proceeding were so-
called “national” allegations which related to all of Respon-
dent’s facilities and other allegations that, the General Counsel
contended, supported bargaining orders under Gissel, in addi-
tion to those ruled on in this Decision, in Nitro, West Virginia;
Lafayette, Indiana; Rockford, Illinois; Bensalem, Pennsylvania;
Parkersburg, West Virginia; Elmsford, New York; Dayton,
Ohio; Nashville, Tennessee; Richfield, Ohio; and Chattanooga,
Tennessee.5 The General Counsel specifically reserved the right
to use any competent, relevant, material, and otherwise admis-
sible evidence to support the bargaining orders, even if the
evidence pertained to allegations that had been previously set-
tled.
4 The settlement was approved by the Board and incorporated in its
Decision, DS-2350, dated September 6, 1995.
In addition, the parties entered into a novel agreement to en-
force the settlement and to resolve future violations. First, they
divided Respondent’s supervisors and managerial personnel
into two categories: category A, which included all of Respon-
dent’s service centers’ supervisors not included in category B,
which included service center managers, all supervisory or
managerial personnel above the level of service center man-
ager, and one additional supervisor designated by Respondent
in each of its 38 largest service centers. If the General Counsel
determined that any person or persons defined in category B
engaged in two or more “hallmark violations” of the National
Labor Relations Act; or in any five violations of Section 8(a)(1)
or (3) or in any four violations of Section 8(a)(1) or (3) of the
Act at a single service center, then the matter would be submit-
ted to an agreed-upon neutral arbitrator for a speedy disposi-
tion. Notwithstanding that, the General Counsel reserved the
right to issue a complaint and notice of hearing on the same
conduct if the alleged violations required a remedy other than a
cease-and-desist order and posting of a notice.
The effect of the settlement agreement limited this proceed-
ing primarily to the Gissel and discipline cases, and the parties
agreed to litigate a sampling of the Gissel cases, and to have
those cases decided, with the hope that the partial decision
would aid them in determining how best to proceed with the
remaining issues in this proceeding. That requires that I exam-
ine, first, whether the “national” allegations, if proved, are of
such magnitude that they justify the grant of Gissel bargaining
orders. If there is no proof of those national violations, or, sec-
ondarily, if there is no proof that a majority of the employees at
the various locations designated the Teamsters as their collec-
tive-bargaining representative, then there is no necessity to
examine all, except one, of the various other alleged violations
at the individual service centers heard thus far, because all of
them have been resolved in the settlement agreement. I, thus,
turn to the national allegations.
II. THE MARCH 1995 WAGE INCREASE
For at least 11 years prior to 1991, Respondent granted
across-the-board annual raises each October to its field hourly
employees wholly in the form of increases in their base wage
or, in the case of road drivers, base mileage rates. As a result of
Respondent’s disappointing 1991 financial performance, then
president and chief executive officer, Thomas Boswell, de-
ferred the October 1991 raise to January 1992, when Overnite
gave a 25 cents per hour increase, plus a $500 one-time pay-
ment. January increases followed in 1993 and 1994; but the
1994 increase was different because Respondent granted a
smaller wage increase, averaging approximately 25-cent-per
hour (30 cents for local drivers), and introduced its perform-
ance incentive plan (PIP), which was designed to provide em-
ployees with additional compensation if certain quarterly and
annual earnings targets were reached. Respondent’s financial
performance was not as rosy as its management had antici-
5 The complaint also sought bargaining orders at Memphis, Tennes-
see; Toledo, Ohio; and Moonachie, New Jersey. During the course of
the hearing, the General Counsel moved for orders, which I granted,
severing and dismissing those cases.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
pated. It met its earnings targets only in the second quarter of
1994, when there was a PIP payout, but there was none in the
first or third quarters, and by the early fall no likelihood, at
least in the opinion of some, of a bonus for the fourth quarter or
the whole year.
Perhaps as a result of the employees’ disenchantment with
PIP, the Teamsters began organizing Respondent’s employees
in September 1994. Boswell wrote to the employees on No-
vember 22, warning that the Teamsters’ main goal was to cap-
ture the employees’ money through dues and their pension
plan. Excoriating the Teamsters for everything from violence
and corruption to embezzlement and greed, he charged that the
Teamsters often caused strikes which harmed not only the em-
ployer but also the employees, pointing out that the Teamsters
conducted a 24-day strike in April 1994 against the union
trucking employers, resulting in a net loss of almost $3000 for
each employee, while the Teamsters obtained average yearly
increases of only 32-1/2 cents over a 4-year contract. He de-
fended Respondent’s pay structure, adding:

Everyone is disappointed we haven’t met our earnings
targets for 1994 and, hence, have not received the bonuses
we had hoped for. But, I assure you, we are all affected.
Every member of senior management will make signifi-
cantly less in 1994 than in 1993 when we met our targets.
So you need to know the system is fair, and I guarantee
you, based on what they have done at other companies, the
Teamsters will not help us to better make our targets or to
pay you bonuses or salary increases. It is a fact that of the
fifty top trucking companies in America thirty years ago—
almost all of which were represented by the Team-
stersonly eight are surviving today. The long lasting re-
cord of the Teamsters is not just that they failed to deliver
on their promises, but that when their demands have been
met, trucking companies have often lost the battle to sur-
vive.
It is now that time of year when we consider pay and
benefit changes for Overnite for the next year. We have al-
ready made decisions for 1995 that strike a balance be-
tween the current needs of all employees and our Com-
pany’s future needs. It would be irresponsible to do other-
wiseunfair to everyone if we don’t consider both current
needs and long term survival. We will be announcing the
1995 changes shortly. When we do, I believe everyone
will recognize that remaining a profitable, viable company
permits us to provide continued and much better im-
provements in our pay and benefit packages than the
Teamsters achieved with their painful 24-day strike. [Em-
phasis in original.]

A nearly identical letter was sent on December 7, 1994, to
the drivers and dockworkers in Los Angeles, who were at-
tempting to organize. Respondent forecast the lack of success
of negotiations and told of the inevitability of strikes: “the only
way the Union could try to bring pressure on the Company is to
call you employees out on strike,” and “the only way to guaran-
tee you will not be involved in a Teamsters Union strike or
lockout is to vote “NO” in the upcoming election.” (Emphasis in
original.) And strikes would be ineffective, giving as examples
Overnite’s experiences in Chicago—“[T]wo years later [after
being certified], when their wages, benefits and working condi-
tions were no different from those of any other local drivers in
the Company, the Union called them out on strike”—and Bal-
timore—“[J]ust like in Chicago, after the Union was unable to
keep the wild promises it made before the vote, it called the
employees out on strike.” In sum, nothing would do any good.
The letter also implied that, if the Teamsters was successful,
Respondent would not expand or be successful. Rather, Re-
spondent might fail. Thus, Respondent answered the question
why it cared if Teamsters won:

The answer is that our whole future here in Los Ange-
lesexpanding and making a success of this opera-
tionincreasing your satisfaction with your
workstrengthening your security in your joball defi-
nitely depend upon our pulling together and not pulling
apart. The close relationship we have tried to build and
hopefully can continue is absolutely essential. Whatever
tears down that sort of relationship will prove fatal in the
long run. [Emphasis in original.]

Respondent argued that Teamsters could not provide job secu-
rity:

We know that everyone is interested in job security.
But what a lot of people don’t realize is that job security is
possible only with a successful companythat is, a com-
pany that is well operated and sufficiently profitable to
generate the ability to reinvest in new trucks, trailers, tow
motors, terminals and technology to stay in business. We
have been a part of the transportation industry for a long
time and have seen firsthand what the Teamsters have
done to unionized companiesthe dilapidated and obso-
lete equipmentrun-down terminals, thousands of em-
ployees without jobs, only occasional work for many oth-
ers, and in the end financial disaster and shutdown for
many of them.
Look at all of the closed trucking terminals in the
Country. Look at Churchill, St. Johnsbury, PIE, Standard
Trucking, Spector-Red Ball, American/Smith, Eazor Ex-
press, Akers-Central, Eastern Express, Mercury Motor
Express, Branch, Interstate, IML, Mason Dixon and Smith
Solomon to name only a fewall of them forced into
bankruptcy in the face of unreasonable demands and pres-
sures from the Teamsters Union. In fact, since 1980, there
have been more than 150 unionized carriers who have
gone out of business resulting in loss of jobs for over
170,000 persons. And there will be more in the future.

The letter ended with the additional comparison of life with and
without the Teamsters:

We hope that you will think carefully about all these
things before you vote. As matters now stand at Overnite,
you have a steady job at good wages and a good place to
work. We all hope to make things even better. Do you see
any good reason to bring this outside Union in, pay your
money to it, and at the same time run the risk of tearing
apart everything you now have?

In the meantime, by letter dated December 2, 1994, Boswell
announced the 1995 regular wage increase. First, he advised the
employees that PIP “just didn’t do what we intended it to do”
and was going “back to the drawing board,” and, “if and when
it’s reinstated,” it will be better. Effective January 1, 1995,
there would be a 50 cents an hour raise and other improve-
ments, including a promise to formalize a pay schedule to com-
pensate road drivers for time lost due to breakdowns or

OVERNITE TRANSPORTATION CO. 1007
weather-related delays. That 3.5-percent increase, essentially
the normal yearly increase, is not at issue in this proceeding.
What followed is.
In early January, Boswell was ousted by Union Pacific. On
January 9, Jim Douglas became Respondent’s new president
and chief operating officer. That day, Douglas testified, he
determined that the employees should be given another raise;
and the General Counsel claims that that raise, announced by
letter a month later, was given to discourage Respondent’s
employees from organizing and to affect the outcome of the
many elections that the Teamsters and its Locals were seeking
throughout Respondent’s service centers, in violation of Sec-
tion 8(a)(3) and (1) of the Act, relying on NLRB v. Exchange
Parts Co., 375 U.S. 405 (1964).
Douglas wrote the employees on February 10 that, as the
new president, it was an opportunity “to begin solving the prob-
lems we’ve seen developing at Overnite over the past months
and years.” His letter continued:

This opportunity to refine our vision of what things
ought to be began immediately after I became president.
Days later, at the annual Management Leadership Confer-
ence in mid-January, I asked the 350 managers there to
look hard at the business problems we were having and
then give us their recommendations on what we could do
to respond to them as quickly as possible.
They went to work, independently in their own re-
gional sections, and came up with basically the same pri-
orities I had reached long before: concentrate on our peo-
ple, who really are the company, and concentrate on the
quality of our service product. Those priorities are abso-
lutely connected. Our Number 1 job is to serve Overnite’s
customers, and there’s no way a turned-off employee can
turn on a customer.
When we started this process, I gave myself no more
than a month to begin eliminating the problems we identi-
fied, the ones that get in the way of doing the job we want
to do for our customers. Since then, I’ve introduced myself
face-to-face to hundreds of our people in numerous loca-
tions. I’ve talked to others on the telephone, and again and
again, they confirmed what I’ve believed for a long time.
This letterand the actions I’m going to announceare
my first steps toward meeting the deadline I set for myself.
I say “first,” because I believe there’s still a lot more to do.
It’s been clear to me for months that our base pay has
fallen behind that of some of our competitors. I really be-
lieve that this company cannot continue to subject produc-
tive, talented, loyal employees to this kind of situation. We
paid a one-time bonus back in 1992, but the base-pay in-
crease still wasn’t high enough to keep us where we
should have been. Then last year, we paid a heavy penalty
for our inability to reach our targets. The irony is that we
worked harder in 1994 than we ever had, and still came up
short.
The Performance Incentive Plan simply did not pro-
vide you with the compensation that was intended, and
that’s the primary reason we discontinued it. Unfortu-
nately, the most recent wage increase did not make up for
the ground you and all our employees lost as the result of
1994’s failed Performance Incentive Plan.
What we need now is action that remedies that situa-
tion.
Well, here it is. It’s not everything, but as I said, it’s a
first step in the right direction. It brings us more in line
with our competitors (especially when you include our
great benefit package in any comparison). Most important,
it’s the right thing to do.

Douglas then announced the increases, which included a 55
cents per hour increase at the top rate of base pay for local P &
D drivers, dockworkers, yard jockeys, and mechanics, effective
March 5, 1995, an increase in the mileage rate for road drivers,
and the reinstitution of safety bonuses ($250), which had been
eliminated when PIP was in effect, for road drivers. Douglas
further explained:

These adjustments are in addition to increases an-
nounced in January. They represent the highest annual
hourly raise in Overnite’s history. As an example, they
give P&D drivers and dock workers total 1995 increases
of $1.05 per hour.
Through all this, I ask you to remember three things:
•
•
•
First, these are big steps in getting us back to a point
where Overnite’s compensation package is com-
petitive. But to continue that, we’ve got to meet
our service targets and grow our business. There’s
no other way. Youand our customersdeserve
no less;
Second, these things have bothered me for a long
time, and as soon as I became president, I wanted
you to know how I thought we could make this a
better, fairer, more customer-responsive com-
pany. So, my first priority has been to go to work
on solutions that have the greatest impact on our
customers, our employees and our business;
Third, you’re going to keep hearing from me. Some
things will take longer to accomplish than others,
but I give you my pledge: When I know it, you
will. Look for more announcements in the coming
weeks and months about how we implement our
vision of what the new Overnite will look like.
My own analysis shows plainly that we’re on the way
to doing what’s rightfor our customers and our com-
pany. I need your help, your commitment, your enthusi-
asm and your desire to give our customers, every day, the
best we’re capable of. And it’s got to be cost effective for
them and for Overnite. To stay competitive, we’ve got to
grow. We all benefit when every action we take feeds that
growth and the success of our customers.
I fully intend to keep you informed of our plans for the
company. This letter is the first demonstration that I’m
committed to making Overnite work better, to solve the
problems we’ve seen building over the months and years,
and to take advantage of the chance I’ve been given to do
it the right wayour way.

On the same day as Douglas’s letter to the employees, John
Pollard, Respondent’s counsel, sent Douglas’s letter to the Un-
ions that represented the four certified centers, advising them
that, because they were the bargaining representatives of the
drivers and dockworkers, “Overnite is prohibited from unilater-
ally implementing this discretionary increase for those employ-
ees.” But his letter served as formal notice of Respondent’s
“general plans” and its willingness to bargain over this and
other issues. Locals 41 (Kansas City) and 135 (Indianapolis)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
replied on February 22 that they requested that the increases be
implemented “on no less favorable conditions than any other
employee or group of employees.” They thought that the in-
creases could be effected without a formal bargaining session,
but asked for one as soon as possible if Pollard felt that one was
necessary. On February 22, Local 120 (Blaine) took exception
to the fact that Overnite was giving the increase to all employ-
ees, except those that voted for the Teamsters. It charged that
Respondent’s refusal was discriminatory and unlawful, noting
that Respondent had consistently granted across-the-board in-
creases to all employees who were not covered under a union
contract. Pollard replied to the three Locals on March 9 that
Respondent would “bargain in good faith regarding hourly and
mileage increases, the amounts and effective dates for each and
any other subjects you choose to raise on behalf of Overnite’s
employees represented by your union at collective bargaining
sessions as required or permitted by applicable law.”
The procedure in Chicago was different. There, Local 705
had been certified in 1982. Respondent would announce its
yearly companywide increase, and Pollard would advise Local
705 of the increase. Pollard would ask the Local’s representa-
tive if he wished to bargain about the increase and typically
advised that, if he did not hear from the representative by a date
certain, he would assume that the Local had no objection to its
implementation. That is what happened in 1995, and the Chi-
cago employees received their increase; but the employees at
the four certified centers did not receive the March 1995 wage
and mileage increases at the same time as did other employees.6
Douglas’ February 10 letter refers to the “problems” and the
“business problems” that he was trying to solve. The General
Counsel contends that the sole problem was the Teamsters’
organizing activity and that Respondent granted the increase
only to affect the outcome of the Board-conducted elections.
Clearly, in about late summer or early fall 1994, the Teamsters
began an unprecedented drive to organize the Respondent’s
employees, not, as in the past, at just one or two or a few ser-
vice centers, but at many locations, particularly in the Midwest.
By the time Douglas became president, the Teamsters had filed
petitions for elections in Kansas City (October 27, 1994); Los
Angeles (Commerce) (November 14); Indianapolis (November
15); Southborough, Massachusetts (November 28); West Sac-
ramento (December 5); Avon, Massachusetts (December 9);
Blaine (December 20); and Cornwell Heights, Pennsylvania
(January 4, 1995). The Teamsters had been certified at Kansas
City (December 16, 1994) and Indianapolis (December 28); and
there were to be two more certifications at West Sacramento
(February 3, 1995) and Blaine (February 7).
By the time of the announcement of the March increase, 21
new petitions for elections had been filed. On the day of the
announcement, another five were filed. It could be anticipated
that the Teamsters was not going to give up, and they did not.
By the effective date of the increase, yet another nine petitions
were filed. Day after day, from shortly after Overnite held its
annual San Antonio conference of managers, which began on
January 12, until April, when the number of Teamsters’ peti-
tions began to ebb, Douglas went to the service centers where
petitions had been filed, hardly returning home or to his Rich-
mond office. (He was to complain that he was spending only 2
days a month running the Company, being so absorbed in the
union campaign.) Typically, he would meet at the dock with the
employees, staying late into the night, so that he could talk with
the night shift, returning the next morning to talk with the day
shift and the drivers, and then attending a dinner for the em-
ployees and their wives, at which he and other officials of Re-
spondent, both local and national, would urge the employees
not to vote for the Teamsters. He held numerous conversations;
and, although Douglas emphasized that they were about his
attempt to get the employees to meet him and talk with him
about his management style and his direction, the real impact of
these conversations were his attempts to draw the difference
between him and Boswell and to emphasize that he looked
upon the employees more favorably and would take care of
them. Thus, the discussions included wages and overtime and
benefits, and Douglas’s purpose was to explore and remove the
employees’ concerns.7

6 They eventually received the increases as part of the settlement, re-
ferred to above.
Douglas was also concerned with spreading Respondent’s at-
titude towards unions. In its employee handbook, Overnite
made known that it had no use for labor organizations. Entitled
“Union-Free Environment,” it advised:

It is important for you to know that this Company values un-
ion-free working conditions. We believe that true job security
can come only from you and the management of this com-
pany working together in harmony to produce a quality prod-
uct. A union-free environment allows this kind of teamwork
to develop. We look forward to working with you as an indi-
vidual, with dignity and in a spirit of mutual trust and respect.

The filing of the representation petitions disrupted the “har-
mony.” Douglas was later to say and write:

This company is facing the most serious organized labor
threat that we have ever been through. . . . It is a very, very se-
rious threat to this company. I think at any time, because we
are the largest LTL carrier in the country, we have some of
the highest profitability numbers that anyone can see, we also
have the highest revenue numbers that any non-union carrier
will report, that makes us a natural target for the Teamsters to
organize. So to say on any particular year that we will not
have a petition or two come our way, I think we’ve got to ex-
pect that. But, folks, what we’ve got going on right now is
very, very, very serious. And I am here to tell you that it is our
franchise. If we do not solve this problem and [sic] the Over-
nite Transportation Company that you and I know today and
the Overnite Transportation that we want in the future, will
not exist. That is a guarantee, and it is not Jim Douglas’ guar-
antee, that is a Teamster guarantee. It will change dramati-
cally if we cannot solve that particular problem as we go for-
ward. [Opening speech to the San Antonio management con-
ference, January 12, 1995.]
You obviously are all aware we are in the biggest war
of our lives. Those that win wars are able to muster their
troops to all out attack. You must sound the bugle call and
7 This was consistent with headquarters’ earlier advice to all of its
service center managers, after the loss of the election in Indianapolis,
“to intensify our efforts to really communicate—face to face—to find
out what’s bugging people and then do something about it. It takes
listening even more than talking. It takes being out on the dock, not
behind a closed office door. It means being out in the yard, calling
people by name, and letting them know just how much we value their
efforts and their skills. It means responding, doing what you say you’ll
do (or explaining why you can’t).”

OVERNITE TRANSPORTATION CO. 1009
unleash the fury of the Overnite machine. [March 2, 1995
profs note to the service center managers.]

Although his words constitute a full-scale battle cry, his
views are not, per se, illegal. But the tenor of his comments
indicates that Respondent intended not to lose the battle, and its
troops were commissioned to find out what caused all this to
happen and to bring down the enemy. Thus, Overnite brought
out its “quality team” or “troubleshooters,” the responsibility of
vice president of safety Bobby Edwards, who was in control of
labor relations, assisted by Richmond-based safety department
officials, Danny Green and Roy Terry, Richmond-based direc-
tor of operations—training and development, Mike Morgan,
and field safety department officials, Les Bishop, Bill Hartle,
Dennis Teeter, and Marty Flynn. The troubleshooters were a
group of roving, solid supporters of Respondent, current and
former truckdriving employees from various service centers
throughout the United States, who were assigned (and those
who were still working had agreed to give up their work) to
travel to other service centers to find out the cause of employee
unrest and report their findings to Richmond, including their
assessment of who favored the Teamsters and who did not.
And so, as early as October 31, 1994, these present and for-
mer employees—among them, Robert Akers, Andy Hamilton,
and Larry Parks—traveled at Overnite’s expense (including
airfare, rental cars, hotels, and meals, and 60 hours’ pay at
$14.50 per hour per week), from service center to center, where
representation petitions had been filed, staying for weeks at a
time, usually until a day or two before the representation elec-
tion, rode all day with selected (by supervisors) drivers, buying
them lunch, or talked to employees while they worked on the
dock and elsewhere at Overnite’s facilities, and quizzed them
about what was wrong. The answers were low wage and mile-
age rates [from Indianapolis: “most feel the (January 1995)
raise was not enough”], lack of overtime pay, insurance and
pensions, scheduling, seniority, job security, bidding for runs,
too many hours, waiting and breakdown pay, supervisors’ in-
difference to employee concerns, subcontracting deliveries,
elimination of safety bonuses and dinners, speed and mileage
limits, and the PIP program.
The troubleshooters’ conduct went beyond merely soliciting
grievances, which in the midst of a union campaign inherently
constitutes an implied promise to remedy the grievances, even
when the employer merely states that it would look into or re-
view the problems but does not commit to remedying them.
Flexsteel Industries, 316 NLRB 745, 745 fn. 1 (1995), enfd.
mem. 83 F.3d 419 (5th Cir. 1996).8 The troubleshooters prom-
ised to bring the grievances back to Overnite’s headquarters in
Richmond and resolve them. Some were resolved while they
were still at the concerned service center. Employees in Kansas
City complained about a supervisor, Larry Sanderson, who was
almost immediately transferred to another service center. In
Indianapolis, employees complained about local management.
The Indianapolis service center manager was replaced while the
troubleshooter was still there. In Kansas City, employees com-
plained to Hamilton about the absence of load bars. Hamilton
testified that he notified either Edwards or Green (or both)
about this problem and was told that load bars would be sent
out.

8 The fact that, from time to time, Overnite’s managers stated that
they could not promise anything had little substance, in light of the
benefits given in early 1995 and the “Give Jim a Chance” campaign,
discussed below. As the Board stated in Raley’s, Inc., 236 NLRB 971,
972 (1978), enfd. mem. 608 F.2d 1374 (9th Cir. 1979), “[w]e conclude
that Respondent’s oft-repeated stock phrase of ‘no promises’ was a
mere formality, serving only as an all-too-transparent gloss on what is
otherwise a clearly implied promise of benefit.” During dome of Doug-
las’s testimony, he repeated, too frequently, the “stock phrase.”
The troubleshooters cajoled the employees to “Give Jim
[Douglas] a Chance,” a recurring theme in each election cam-
paign, evidenced by T-shirts and buttons; and they pointed to
the second, contested 1995 wage increase to ensure that the
employees were aware that Douglas was responsible for the
increase, was making good use of the chance that employees
were to give him, and had more improvements in store. In addi-
tion, the managers and other supervisors joined in extolling the
virtues of the new president, a “people’s person” who, unlike
Boswell, really cared about the improvement of Overnite. And
what was the improvement? The improvement was the elimina-
tion of PIP, which failed and did not give them the monetary
gains that Overnite had represented to the employees would be
theirs and that the employees in turn expected.
The supervisors knew what was troubling the employees. At
the San Antonio meeting in January, Douglas wanted to know
what the employees were so dissatisfied about and why they
were seeking out the Teamsters. The answers, among others
and with varying degrees of importance, were the same as the
troubleshooters were hearing—wage rates, Respondent’s fail-
ure to pay time and a half for overtime, the number of hours
employees were working, fringe benefits, Respondent’s cancel-
lation of safety bonuses and dinners, Respondent’s limitation
on the speed and the amount of miles that a driver could travel,
and the breakdown in communication between employees and
management. The consensus was that the speed and mileage
limit policies should be eliminated and that pay rates should be
increased. With the information supplied by the troubleshooters
and the supervisors, Douglas, if he had not known before, now
had the knowledge of the cause for the Teamsters’ petitions.
And so, if Overnite wanted to persuade the employees that
the Teamsters’ path was the wrong one to follow, a wage in-
crease would certainly be helpful. As stated above, the March
increase was not the normal increase, effective at the beginning
of the year. It was different for yet another reason. The January
increase was granted to all employees, regardless of their loca-
tion and the state of the union campaign at any service center.
More particularly, the first increase was granted even to the
employees at the Kansas City and Indianapolis service centers,
where the Teamsters had already been certified. But the March
increase was larger, if only by 5 cents, more than doubling what
the employees had been originally been granted two months
before. The total of both increases constituted the largest annual
increase ever granted by Respondent, and, in a leaflet, Overnite
was later to compare its $1.05 increase with what Teamster-
represented employees received over 4 years under the new
Teamsters’ contracts (the National Master Freight Agreement
or “NMFA”).9
The new increase was not granted silently. Rather, Respon-
dent trumpeted it, in about March 1995, in the first edition of its
new newsletter, The Overniter, in large, bold type, that there
would be “hourly wage increases across the board.” This be-
neficence was contrasted with the smaller, but also bold type,
which stated that “Kansas City, Indianapolis, West Sacramento
9 The $1.05 Overnite represented as the NMFA increase is less than
what Boswell wrote in his November 1994 letter, quoted above.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
and Blaine employees who voted for Teamsters not eligible.” In
the text, Overnite wrote that most employees would notice a
“big difference” in their paychecks; but that “[u]nfortunately,
the Overnite employees in Kansas City, Indianapolis, West
Sacramento and Blaine will not get these pay increases on
March 16. They voted for Teamster representation and will
have to wait for negotiations between the union and Overnite to
settle that and many other issues.” The clear implication was
that a vote for the Teamsters forfeited any benefits given by the
Company to the nonunion employees.
The Overniter was essentially propaganda in Overnite’s
campaign against the Teamsters. In addition to this second
announcement of the March wage increase, there was a sepa-
rate, lengthy comparison of Overnite’s fringe benefits, includ-
ing pension and insurance, with those in the NMFA. In an at-
tack on the Teamsters, similar to Boswell’s letters before the
turn of the year, Douglas contrasted Respondent with
“[c]ompany after company [that had] gone to the Teamster
graveyard in the past few years,” resulting in the loss of “thou-
sands of jobs.”10 He also threatened that Teamsters’ election
victories would result in “uncertain change . . . for you, your
families and for Overnite,” including “potential loss of the
Overnite Pension Plan.” He extolled his own actions, linking
them with the union campaign: “So far this year, you’ve seen
big changes at Overnite. We’re going to change more—and for
the better. Yes, there have been mistakes in the past, but we’re
not afraid to correct them.” In sum, the employees were cau-
tioned that a vote for the Teamsters would be “fatal,” resulting
in the demise of Overnite and the loss of its pension plan. But a
vote against the Teamsters would reward the employees with
guaranteed changes for the better.
Some of those changes had already taken place. Over-the-
road drivers had been limited to driving 60 (or 55) miles per
hour and 490 miles per day; and, although employees had fre-
quently complained about the policy, Edwards continually re-
jected any change on the grounds that the speed limits in-
creased fuel efficiency, was safer, and resulted in less mainte-
nance. On February 16 or 17, 1995, the speed limit was in-
creased to the maximum permissible speed limit for trucks
permitted under applicable state law and the mileage to as
many miles as the driver chose in a single day subject to the 10-
hour time limit established by the U.S. Department of Trans-
portation. Some service center managers had been telling em-
ployees much earlier that the change was going to be made. In
mid-January, Blaine service center manager Al Weber told
employees that Overnite “knew that they screwed up and there
was no way talking out of it”; Jim Douglas “was a people[‘s]
person and there was quite a few things that they wanted to do.
One of the things was to turn up the speed limit of the trucks . .
to make the drivers happy.” (He could not talk about the other
“things” because of the upcoming vote.) Lawrenceville man-
ager Bill Carter told employees that the service center managers
had identified the speed and mileage limit policies as sources of
employee dissatisfaction during the San Antonio management
conference and that the managers had recommended that the
policies be changed. Douglas told Lawrenceville employee
Michael Stuckey Sr., in early April that the elimination of the
speed and mileage limits were examples of changes Douglas
had made that would be beneficial to the drivers. The elimina-
tion of safety bonuses ($250, for driving 6 months without an
accident that was the driver’s fault) and dinners had been simi-
larly identified as a source of unhappiness. The managers had
recommended reinstating the bonuses and dinners, and they
were, with the March increase.11

10 Harrison Steel Castings Co., 293 NLRB 1158 (1989). Although
not specifically alleged, there was posted at the Louisville and Norfolk
service centers a poster of a “Teamsters Graveyard,” featuring the
gravestones of the Union trucking firms and Overnite’s headstone with
an open grave and a “?”. That violated the Act. Eldorado Tool, 325
NLRB 222 (1997). Electromation, Inc., 309 NLRB 990 (1992), enfd.
35 F.3d 1148 (7th Cir. 1994), relied on by Respondent, is distinguish-
able. The employer there made clear that it was not claiming that the
Teamsters caused the companies to close, but that unions could not
provide job security. Here, time and again, Overnite claimed by words
and pictures that the Teamsters caused companies to go out of business.
The newsletter’s diatribe against the Teamsters essentially
repeated the earlier Boswell letter to the Los Angeles employ-
ees, quoted above, but the post-Douglas era led to a new twist,
a promise of a new dawn. For example, in its January 24, 1995
letter to its Blaine employees (Edwards read this letter to those
employees during a meeting he and Douglas attended prior to
the election) and its February 8 letter to its Philadelphia em-
ployees, Overnite wrote that “[t]he Teamsters Can Guarantee
Nothing But Trouble. . . . We have a new President at Overnite
and we are definitely trying to listen and to solve problems with
you. Give us that opportunity.” (Emphasis in originals.) On the
other hand, the letters threatened that bargaining would be fu-
tile by telling the employees that local drivers at its Chicago
service center had earlier voted for representation; that, despite
a 16-month strike at the Chicago facility, “the Company did not
yield to a single demand of the Union” (emphasis in original);
and that the wages, benefits, and working conditions of the
Chicago local drivers were still the same as those of every other
Overnite city driver. They repeated the threat of the inevitabil-
ity of strikes and further threatened that the Teamsters’ would
tear down the close relationship between Overnite and its em-
ployees that “will prove fatal in the long run” and that a Team-
sters’ victory ran “the risk of tearing apart everything you now
have.” (Emphasis in original.) Taken together, the message was
that a Teamsters’ victory would be fatal to Overnite and that the
Teamsters in any event could not deliver on its promises, but
Respondent would. Indeed, throughout the campaign Douglas
admitted that Overnite had made mistakes in the past; but there
was a new management team that would listen to the employ-
ees more closely; that employees had already seen improve-
ments, including increased wages and lifting of the speed and
mileage limits; that they could expect to see more improve-
ments in the future; and that the employees should “Give Jim A
Chance” to solve their problems, not business problems, but the
problems that were driving them to the Teamsters for help, help
that Douglas now promised.
Only Douglas could deliver. The Teamsters could not, Over-
nite repeatedly claimed, as shown by its dealings with the Un-
ion in Chicago, where Local 705 was certified in 1982 and
bargaining had little favorable results for the Teamsters. The
employees struck, equally unsuccessfully. The strike ended, but
the employees were not replaced, Respondent fearing that the
strike might be found to be an unfair labor practice strike, as
indeed it was, in 1989. Overnite Transportation Co., 296
NLRB 669 (1989), enfd. 938 F.2d 815 (7th Cir. 1991). After
11 Keeping road drivers happy was important. Overnite perceived
that they were its most influential job class and most senior and loyal
work force, who, if alienated, would harm Overnite’s labor relations.

OVERNITE TRANSPORTATION CO. 1011
the resolution of the unfair labor practice proceeding, bargain-
ing resumed, but with no appreciable results. Finally, there was
a breakthrough. One of the stumbling blocks had been the
Teamsters’ insistence on its own welfare plan, which Respon-
dent opposed because of its cost. The Teamsters reduced that
cost. Another obstacle was the Teamsters’ insistence on its
pension plan, which Respondent also contended was too expen-
sive. In addition, the Teamsters opposed extending credit for
the employees for the time that they were covered under Over-
nite’s Section 401(k) plan. The Teamsters finally acceded.
Other issues were compromised, and the negotiators reached an
agreement. However, the Teamsters’ executive committee12
refused to ratify the agreement; and negotiations recommenced
“at square one,” further delayed by the death of the Local’s
counsel and the assumption of the duties of negotiations for the
Teamsters by a national negotiating committee.
Respondent, however, never gave the employees all these
facts and never told them that the 7-year delay was caused by
its own unfair labor practices. Rather, it told only of a subse-
quent Board proceeding, in which a complaint against it of
bargaining in bad faith was dismissed; and Respondent claimed
to its employees only that that decision proved that it had nego-
tiated in good faith in Chicago.13 Thus, it selected those facts
that were calculated to lead the employees to the inescapable
conclusion that a vote for the Teamsters would not give them a
collective-bargaining agreement but would lead to years of talk
and no action, not even Board action, with Respondent giving
exactly what it wanted to give, no more and no less. And Re-
spondent could give less, because negotiations were a two-way
street, wages could go up or down, and nothing was guaranteed.
Thus, Respondent told the employees that “collective bargain-
ing is potentially hazardous for employees and that as a result
of such negotiations employees might possibly wind up with
less benefits after unionization than before.”14
The message was the same in almost all locations. For ex-
ample, in Louisville, Respondent told its employees that:
“[N]othing will automatically happen if the Teamsters win the
election. Overnite will sit down with IBT’s representatives and
will bargain in good faith over your pay, benefits, and working
conditions. However, no law requires the company to agree to
anything or to make concessions; and impassethat is, an
agreement to disagreeis always possible.” Respondent then
followed with the example of Chicago, with no mention that the
Board had found that it had not bargained in good faith and had
violated the Act: the Teamsters was elected 12 years before and
still had not negotiated a contract, even after a 16-month strike
that caused an average wage loss of $35,000. Respondent added
that there was nothing speedy about negotiations. They “take
time, and results are sometimes not realized for months or
years,” again pointing to the experience of the Chicago negotia-
tions. Furthermore, if Respondent could not or would not agree
to what the Teamsters proposed, there were only two results:
first, the union would have to accept what Respondent was
willing to agree to, “and there goes all the union’s big prom-
ises”; and, second, a strike, which besides all the losses that
strikes generate, was futile, as shown by Chicago, as Respon-
dent bragged, because “the Teamsters return[ed], empty
handed, to work. They did not gain one single concession from
Overnite; indeed, they still do not have a contract with Over-
nite.”

12 I assume that this was the International’s committee, not the Lo-
cal’s, which was negotiating the agreement.
13 307 NLRB 666 (1992).
14 Quoting from Coach & Equipment Sales Corp., 228 NLRB 440,
441 (1977).
Respondent’s narration of the Chicago experience violated
the Act in two respects. First, rather than telling the whole truth
about what happened in Chicago, Respondent explained it in a
way that made it implicit that Respondent had no intention of
bargaining in good faith. Rather, it would agree to nothing that
the Teamsters wanted, only what Respondent wanted; and that
it would interminably stall negotiations. Respondent thus gave
the impression that bargaining would be futile. Atlas Microfilm-
ing, 267 NLRB 682, 685–686 (1983), enfd. 753 F.2d 313 (3d
Cir. 1985); Naum Bros., Inc., 240 NLRB 311, 317 (1979), enfd.
637 F.2d 589 (6th Cir. 1981). Respondent also threatened that
the only way that the Teamsters could bring pressure on Over-
nite was by striking, and that is clearly unlawful. Fred Wilkin-
son Associates, 297 NLRB 737 (1990), citing with approval
Amerace Corp., 217 NLRB 850, 852 (1975).
The only hope was to vote “no” (written on the back of T-
shirts worn by supervisors, troubleshooters, and some employ-
ees) and to give Douglas a chance (written on the front of those
T-shirts), of which he is deserving, as shown by his benefi-
cence—wage increase, reinstatement of safety bonuses and
dinners, increase of speed and mileage limits—and the promise
to make other changes that would correct the mistakes of the
past. The “Give Jim a Chance” campaign was also unlawful
and not protected as free speech under Section 9(c). Rather,
Respondent’s comments lost their protection when its request
for a chance was coupled with the earlier benefits already be-
stowed and promises, both express and implied, to remedy
grievances in the future. The campaign “would be interpreted
by reasonable employees as an implied promise either to grant
additional benefits or to remedy employees’ grievances, or
both.” Reno Hilton, 319 NLRB 1154, 1156 (1995). For this
reason, National Micronetics, 277 NLRB 993 (1985), cited by
Respondent, is inapposite, for there the statements were held to
be too vague to rise to the level of illegal promises of benefits,
whereas here, there was a direct relation between the statement
and the benefits previously given and those, by implication, to
be given.
Respondent’s reliance on Mercy-Memorial Hospital, 231
NLRB 1108 (1977), is also misplaced. There, the administra-
tive law judge did not read one leaflet’s reference to the bar-
gaining history as conveying the message that it would be futile
for the employees to select the union as their representative
because Respondent would refuse to abide by its obligation to
bargain in good faith. Rather, he found that the leaflet, distrib-
uted only once, “was merely intended to place the responsibil-
ity of the [u]nion for their failure to conclude an agreement . . .
and for the breakdown in negotiations, and thereby to demon-
strate that the . . . employees had nothing to gain from voting
for the [u]nion.” Id. at 1122. Had Respondent said more, rather
then less, and explained the history of its Chicago negotiations,
reliance on Mercy-Memorial Hospital may have been well-
founded. However, the emphasis of its campaign was not, in a
single leaflet, the Union’s failure but, repeatedly, in dinner
speeches and meetings with its employees, that negotiations
had no end and that it would never give anything that it was not
willing to give; it would never make any concessions; and the
Union’s only alternative to taking what Respondent would give
would be to strike. As in Amerace Corp., 217 NLRB 850, 852

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012
(1975), Overnite demonstrated an “attitude of predetermination
that bargaining itself [would] accomplish nothing.” Its message
to the employees was “to instill in them a fear of the adverse
effects of collective bargaining, coupled with the admonition
that the selection of [the Union] was an excursion into complete
futility.”
An employer violates Section 8(a)(1) when, during a union
organizing campaign, it grants pay increases or other benefit
improvements “for the purpose of inducing employees to vote
against the union” or is reasonably calculated to impinge on
employees’ freedom of choice for or against unionization,
NLRB v. Exchange Parts Co., 375 U.S. at 409, or “with an eye
toward achieving union disaffection.” Acme Bus Corp., 320
NLRB 458 (1995). In assessing whether or not benefit in-
creases are unlawful, the issue is whether they are actually or
could reasonably be perceived by employees to be contingent
on the Union’s loss of the election. Pembrook Management,
296 NLRB 1226 (1989). Here, Overnite openly proclaimed that
most of its employees would receive the increase, but those
employed where the Teamsters had been certified would not.
From this, employees could reasonably assume that, if they
voted for the Teamsters, they too would forfeit any increases
that Overnite might give in the future, especially because the
Company had made so clear that bargaining was an exercise in
futility. That is the ultimate “fist inside the velvet glove,” which
concerned the Supreme Court in NLRB v. Exchange Parts Co.,
375 U.S. at 409.
The Board in Acme Bus found a violation even though the
wage increase was in keeping with the employer’s established
past practice. Here, the General Counsel’s case is even stronger
because of the timing: the increase was unusual, the second in
1995, granted within 10 weeks of the first increase, and even
larger than the first. Like Acme Bus, Overnite’s announcement
of the March increase was tied to the correction of past mis-
takes that Overnite had heard; the only way that Overnite could
move forward was to keep the Teamsters out; and voting the
Union in could cost employees their jobs. The statements in
The Overniter, to paraphrase Acme Bus, amount to a declaration
to employees that Overnite’s actions were a direct product of
the dissatisfaction expressed at the outset of the Teamsters’
organizational effort and that the best way to ensure the con-
tinuation of such improvements was to support Overnite rather
than the Teamsters. If one did support the Teamsters, there
would be no present increases; and there would be no future
increases, because collective bargaining for as long as 12 years
would gain nothing, and the employees would be forced to
strike, resulting in a similar lack of concession by Overnite, as
well as loss of pay during the strike and threat of replacement.
Overnite insists that it was entitled to withhold the wages
from its Teamsters-represented employees. As a general rule,
when granting wage increases to its unorganized employees, an
employer need not grant those increases to its represented em-
ployees, who may be seeking in collective-bargaining negotia-
tions much greater gains. B. F. Goodrich Co., 195 NLRB 914
(1972). However, if the employer is unlawfully motivated, the
rule is different. Shell Oil Co., 77 NLRB 1306 (1948). Such an
“unlawful motive” would be found: “Had the grant been ac-
companied by statements encouraging the employees to aban-
don collective representation in order to secure the benefit.”
Then there would be clear evidence of unlawful 8(a)(3) motiva-
tion.” B. F. Goodrich, 195 NLRB at 915 fn. 4. The grant of the
March increase was conspicuously accompanied by the state-
ment, highlighted in The Overniter, that the four certified cen-
ters would not be receiving the increase, pending negotiations,
which the employees by then knew would result in no result.
The inclusion of that statement had no purpose other than to
encourage the employees to “abandon collective representa-
tion,” because that was the only way to qualify for the wage
increase.
Although the Board makes no presumption that increases
granted during an organizing campaign are unlawful, it will
draw an inference of improper motivation and interference with
employee free choice from all the evidence and Respondent’s
failure to establish a legitimate reason for the timing of the
increases. Speco Corp., 298 NLRB 439, 439 fn. 2 (1990), and
case cited therein. Respondent defends on the ground that the
wage increase had nothing to do with the election and that it
was not granted to discourage the employees’ efforts to organ-
ize, but to stop them from leaving as a result of Overnite’s non-
competitive wages and to encourage new employees to come to
work for Overnite.15 This is proved, Respondent contends, by
the fact that Douglas, even prior to the Teamsters’ campaign,
had recommended higher wage increases than Boswell finally
approved. Therefore, Douglas could not have increased them
for reasons related to the Teamsters’ organizing campaign.
The facts are: After about 20 years working for Union Pa-
cific and certain of its subsidiaries, Douglas transferred to Re-
spondent in 1991 as a vice president responsible for watching
over Respondent’s financial well-being. One of his duties in-
volved budgetary functions, and he served on two groups, the
budget committee, a large group consisting of Boswell, Re-
spondent’s senior staff, and its vice presidents, and a smaller
group, the quality council, composed of Boswell; Paul Heaton,
senior vice president; and John Sarto, senior vice president-
marketing and sales (later marketing and customer services).
The committee initially reviewed the compensation recommen-
dations that were made early by Respondent’s wage and bene-
fits section and frequently requested further studies. The coun-
cil then reviewed the committee’s recommendations and made
the final decisions, but that statement is accompanied by a ca-
veat. Corporate management, at least in Respondent’s case, was
not a democracy. There was one vote that counted to the exclu-
sion of all others: President Boswell always made the final
decision, just as Douglas took responsibility for the second
1995 wage increase and the increase in 1996, discussed below.
In the fall of 1991, Boswell concluded that Overnite, because
of poor performance, should delay its normal October wage
increase to January. That would result in a smaller impact on
the Company’s finances. Then, he increased wages only by 20
cents per hour, which was less than had been customary, but
also gave employees an unprecedented one-time lump sum
payment of $500. While the increase appeared in total to be a
good one, an additional 24 cents per hour, the effect was to
lower the base pay of the employees who had pocketed the
bonus. Thus, any later wage increase would be based on a

15 Respondent contends that the increase was given to employees
other than those whom the Teamsters was attempting to organize, but
that does not prove a lack of intent to coerce or discriminate against the
objects of the Teamsters’ campaign. Holly Farms Corp., 311 NLRB
273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995). Respondent also
frequently contends that it exhibited no animus, but this Decision is
replete with Respondent’s unlawful purpose to discriminate against the
Union and its adherents. Florida Steel Corp. v. NLRB, 587 F.2d 737,
744 (5th Cir. 1979).

OVERNITE TRANSPORTATION CO. 1013
lower hourly wage. Heaton had three reservations: this was a
change of a practice that employees historically had come to
expect; the employees would soon forget the lump sum, but not
the smaller hourly increase; and Overnite was already paying
less than many of its competitors, and the smaller raise would
merely increase the differential.
In the wage discussions in the fall of 1992, Heaton, joined by
Jim D’Alessio, the regional vice president for the Northeast
region, again complained that wages were falling behind and
claimed that the wage situation was hurting morale and seri-
ously affecting Respondent’s ability to attract and hire new
employees and retain the current employees. Boswell raised the
idea of changing Overnite’s pay structure to an incentive pay
system. Both Heaton and Douglas opposed that, particularly
because, with the earlier lump sum payment, there was a lower
base wage increase. Boswell, while delaying implementation of
an incentive plan, ordered that an amount be accrued to fund it,
which became PIP, to begin in 1994. In the meantime, the
hourly pay for 1993 was increased 50 cents. During the discus-
sions in the fall of 1993, D’Alessio became even more heated
about losing employees in the Northeast to competitors and
having trouble keeping employees. Heaton expressed reserva-
tions about the PIP plan, the widening of the wage gap, and the
bad effect on employee morale. Douglas and Sarto agreed with
him, recommending a large base wage increase instead of PIP.
Boswell discounted their concerns, implemented PIP in January
1994, and granted a wage increase of 25–30 cents per hour,
depending on the job classification. Overnite again accrued an
amount to pay for PIP, which was designed to increase em-
ployee compensation in 1994.
At a meeting of the quality council in the second quarter of
1994, Douglas expressed his “deep” concern that, although
there would be a small incentive payment for that quarter, there
would be none for the rest of the year, because of escalating
costs and the unprofitability of the type of freight being carried.
Overnite’s problems with recruitment and retention of employ-
ees began to spread. There were one or two complaints weekly
from service center and field human resources managers across
the country, causing Director of Compensation Lynn Willis to
recommend to the budget committee to adopt a 5.5-to 7-percent
wage increase. Willis explained to the budget committee that
over the last 6 years Overnite’s wages had not kept pace with
the labor market or even with the consumer price index. Over-
nite would fall even further behind if PIP failed to pay out for
the remainder of 1994. Douglas and others continued to be
pessimistic about the likelihood of payouts from the end of the
second quarter forward.
During the September committee meeting, Douglas, particu-
larly, attempted to persuade all members to pay attention to
Willis’s market data and to discuss the fact that Overnite was
behind the marketplace.16 However, Boswell, who remained
optimistic and did not acknowledge PIP’s failure until some-
time late in the fall budget discussions, interrupted these dis-
cussions, stating that Willis’s survey data was inaccurate.
D’Alessio supported the concerns about competitiveness of
wages in the Northeast and gave the general opinion of the
regional vice-presidents that Overnite’s pay was behind in
every part of the country. When one vice president tried to
provide examples of his problems to Boswell, Boswell angrily
cut him off and accused him of “stretching the situation, that it
wasn’t as bad as it was.” Douglas and Heaton continued to
advocate a larger increase to base wages designed to make up
for the shortfalls of past years. Willis prepared a more detailed
report of the survey data to examine more closely Estes Express
and Southeastern Express who, with Conway Carriers, Old
Dominion, AAA Cooper, and Averitt Express, were the nonun-
ion competitors Overnite most wished to emulate. Boswell was
not persuaded. (Even Douglas conceded that there is no way, in
such a competitive industry, to obtain the precise wages paid by
other companies.) He agreed with the council that PIP had been
a failure and dropped it, but he authorized an increase of only
3.5 percent for 1995.

16 This was the first time that Douglas actively sought a higher in-
crease. Before he appeared to be more passive, generally agreeing with
Heaton. As Douglas admitted, he was a financial officer, not that famil-
iar with the operations of Overnite earlier in his employment.
These facts show that Douglas wanted a higher wage for the
drivers and did not get his wish and that, as Sarto testified,
turnover of employees had been and continued to be a serious
problem in the trucking industry. Contrary to the contention in
Respondent’s brief, however, that does not end this case. Doug-
las’s professed notion of fairness and desire to remain competi-
tive do not result in the automatic finding that, once becoming
president, he had the power to authorize it for those reasons or
that those reasons motivated his actions in early 1995. Times
change, and certainly the onset of the Teamsters’ campaign in
late September 1994 could have made Douglas’s desires more
urgent and compelling.
What Douglas wanted, however, is certainly not the whole
story, because Union Pacific, Overnite’s owner, was not a silent
parent corporation. Union Pacific was concerned with making
money, more particularly, a profit from its subsidiary’s opera-
tions. Yearly, Union Pacific approved Overnite’s budget. Its
officials visited Overnite’s headquarters on a regular basis to
monitor Overnite’s operations to ensure that it was not doing
something that would make it difficult to meet the net income
target that Union Pacific had set. In late 1994, Boswell could
not agree with the recommendations of his colleagues on the
council because Union Pacific had set an overall wage increase
at 3.5 percent; and he could find no way to rearrange Union
Pacific’s net earnings targets to permit a greater increase. From
Boswell’s perspective, it was not he who made the final deci-
sion but the planners at Union Pacific.17 Yet Douglas testified
that he alone made the decision in 1995 to grant the second
increase, never consulting with Union Pacific and essentially
ignoring Union Pacific’s budget determination. Sarto testified
that it might be an act of insubordination to ignore the net in-
come target set by Union Pacific, and that one might be fired
for doing so. Douglas countered that he and Union Pacific’s
president and chief operating officer, Drew Lewis, had a “much
more open and communicative” relationship that empowered
17 For example, at the October 17, 1995 meeting, discussed in detail,
below, in sec. IV, Union Pacific agreed to reduce the earnings it budg-
eted Overnite to make from $30 to $10 million. On September 21,
1995, Union Pacific wrote to Overnite, setting forth Union Pacific’s
corporate guidelines and economic assumptions for Overnite’s use in
preparing its budget. Regarding preliminary assumptions, Union Pacific
wrote: “The final Corporate-wide salary guidelines are not yet estab-
lished. In the meantime, use an average of 4.5%.” Even Douglas told
employees in Atlanta that Lewis permitted him to do his own thing,
unless he got “off target.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014
him to make his own decisions, strangely enough, without
communication.18
That is hard to believe, and I do not. Douglas had just
reached the pinnacle of his career and would be unlikely to risk
being discharged, as Boswell was. Indeed, Douglas felt a need
to back up his decision with paperwork, commissioning his
human resources staff to prepare comparisons of Overnite’s pay
structure with that of its competitors, after he had, Douglas
testified, already announced the increase. If he had such a spe-
cial relationship with Lewis, why would he have felt it neces-
sary to protect himself by justifying his increase to Union Pa-
cific? And would not his “open and communicative” relation-
ship with Lewis lead to a sharing of information with Lewis,
rather than going behind his back? He certainly shared informa-
tion with Lewis in January, when Douglas went to him with his
plan to bring in an outside management consultant, hoping,
Douglas testified, that Lewis would pay for it. (Lewis did, and
Overnite, or Union Pacific,19 hired the consultant, A. T. Kear-
ney.) Why would Douglas go to Lewis with a rather minimal
budget item, and not consult with Lewis about a second wage
increase, an $18.8 million expense? After all, Lewis is paying
for that increase just as much as he is paying for the cost of the
consultant, because the expense results in less profit for Over-
nite and thus less profit for Union Pacific.20
Furthermore, assuming the importance of the union activity
to the existence of Overnite, as Douglas proclaimed to his man-
agers, it would be strange had Douglas not discussed the prob-
lems of the union organizing drive with Union Pacific. Yet,
Douglas recalled nothing of the sort. At the time that he was
offered the top job, no reason for his appointment was given.
No one ever told him the reason that Boswell was leaving. The
day that Lewis visited Overnite to install Douglas in his new
position, although he recalled talking with Lewis, he remem-
bered nothing of the substance of that conversation. Thus, ac-
cording to what Douglas testified that he remembered, the
change of Overnite’s management happened in a vacuum.
Douglas was selected for no reason, and Boswell retired or left
or was dismissed for no reason.21

18 The General Counsel points out that the reason for Boswell’s less
than positive relationship with Lewis was, according to Douglas, that
Lewis was angry that Boswell, without Lewis’s consent, had increased
the amount that Union Pacific paid for Overnite. However, Lewis then
rewarded Boswell by making him the president and chief executive
officer of Overnite, not a very good example of an angry reaction. As if
Douglas’s explanation were not difficult enough to believe, Douglas
failed to explain why his increase of wages would not have resulted in
the same less than positive relationship. I agree that Douglas’s explana-
tions are not credible.
19 It is difficult to know who was the guiding force. Initial reports of
Kearney indicate a “Union Pacific Task Force.” The steering committee
guiding management’s position consisted of Douglas and White Mat-
thews, Union Pacific’s executive vice president. In addition, the Union
makes an interesting case for the proposition that, in light of Douglas’s
lack of experience with trucking operations, Kearney was hired by
Union Pacific to examine what was wrong with Overnite, while Doug-
las spent almost all of his time campaigning against the Teamsters, the
reason for his selection as president, in addition to insulating the current
administration from the mistakes of those who had left, primarily Bos-
well and Edwards. Although I agree with this premise, it is unnecessary
to use it to support the findings herein.
20 Union Pacific paid $1.2 billion for Overnite.
21 Lewis was never called to testify, nor was any other official of Un-
ion Pacific. I infer that their testimony would not have supported Doug-
las’.
I believe neither that Douglas lacked memory nor that the
change of Overnite’s management and the wage increase were
unrelated to the Teamsters’ organizing efforts. Rather, I am
convinced that Union Pacific gave its approval to Douglas, and
it would have been simple for Douglas to aver (although I
would not necessarily have believed him) that he had talked to
Union Pacific and made them aware of his reason for the in-
crease—that Overnite was having difficulty attracting and re-
taining personnel—so that Union Pacific could have deter-
mined whether to authorize this additional expenditure. The
absence of that discussion leads to the conclusion that the ap-
proval was not based on such a lawful rationale. Rather, it was
based on something that Douglas wanted to conceal, and that
had to be the union activity that absorbed him for the first 4
months of his new position. Indeed, that is what Douglas fre-
quently told employees, linking the increase and other changes
to correcting past errors and giving him a chance to make the
employees happy. For example, in a preelection speech at the
St. Louis service center on February 26, Douglas bragged about
what he had done to rectify past problems, specifically referring
to the February 10 announcement of the wage increase and “a
number of managerial changes” and noting that Overnite
wanted to ensure that it “did right” by its employees. Overnite
could move forward if it and its employees could solve their
own problems and not have the Teamsters between them. Simi-
larly, at the Romulus service center on March 11, Douglas
asked for the employees’ support, noting that the Act hand-
cuffed him from making certain changes; but he wanted them
to be sure that they saw the changes thus far, which included
the pay increase and speed and mileage limits. And at the Law-
renceville service center on April 12, Douglas told employees
that the only changes he could make because of the union cam-
paign were “operational,” including the pay increase, because
what Overnite had done was “wrong.”
Douglas was somewhat more sophisticated and guarded in
his approach to the employees that some of Overnite’s service
center managers. Roger Schager, from Atlanta, told employees
that Overnite would not have granted the March 1995 wage
increase or made other improvements had it not been for the
organizing. Jeff Woods, from Wichita, told Mark Frederick, a
St. Louis (Hall Street) employee, that the Teamsters’ campaign
made Overnite realize it had “screwed up” in its wage policy.
In addition, Dave Heaton, from St. Louis, asked employee
Thomas Kane what he thought of Overnite’s $1.05-per-hour
wage increase. Kane replied that it would have swung some
votes if there were a “2” in front of the “$.05,” but Heaton said
that it was just the “first step.”
Although the wage increase is the prime focus of the national
allegations, the curing of the employees’ discontent with their
pay was merely part of Overnite’s strategy to improve condi-
tions so that the employees would not feel it necessary to seek
the aid and support of the Teamsters. Thus, at a campaign meet-
ing at Blaine in mid-January, Regional Director of Operations
Mike Knight told employees that Overnite had a new president,
Douglas, and a new regional vice president, Mac Bronson; that
Overnite was heading in “a whole new direction”; that Overnite
was going to “make your environment better and make your job
easier”; and that employees would be able to give Bronson
“more feedback” and he could “react faster, better, quicker” in
furnishing equipment such as “two-wheelers” and “forklifts
[with] windshields in winter.” Manager Weber added that
“[o]ne thing I can guarantee you is that Jim Douglas will know

OVERNITE TRANSPORTATION CO. 1015
that that [pay] was talked about at this meeting, and Jim Doug-
las has said, ‘Hey, we’re going to have to look at pay’”; and
that “we’ve heard, we’ve listened, and believe me, we’ve done
a lot of disgruntled talking that I think may have forced a deci-
sion at the top.” Knight also told the employees: “Drew Lewis
mentioned that during his speech with us the other day . . . it’s
one thing when you’ve got a new head coach, you know, we all
go back to square zero, we start all over again. It’s a whole new
deal, and I don’t think it was to give you guys false hope, you
know. For the 31st [the day of the election].” Knight added that
Lewis told Douglas that he had the full backing of Union Pa-
cific to “turn this thing around.”
At another preelection meeting at Blaine, Douglas told em-
ployees that he realized that employees were not being treated
properly and that Overnite had made mistakes. He said that he
was going to correct those mistakes, that it would take longer to
do so if the employees voted for union representation, that the
Teamsters would be an impediment to change, that Overnite
was a family, that the Teamsters and its Locals were outsiders
who would break up that family, and that a vote against the
Teamsters would help Douglas in making improvements. He
added that he was looking at the employee pension plan in an
effort to improve it and that Respondent had some things in the
works that he could not talk about with the election approach-
ing and asked that the employees give him another year and
“give us a chance.” Added to this, at the locations where they
were sent, the troubleshooters asked the employees, with little
guile, what was wrong and what would make them feel better,
and openly promised to get their complaints remedied.
With all this evidence that the problems that Douglas and
others were addressing were employee discontent and dissatis-
faction, I reject Respondent’s defense that the changes it made
were solely “operational and customer service related.”22 Any
change can be categorized that way. A raise in pay makes em-
ployees happy; a happy worker performs better and smiles at
customers. Indeed, the wage increase and change to the mileage
and speed limits could be looked at as operational changes, as
well as the removal of managers and the supply of new equip-
ment, and the reinstatement of the safety dinners and awards of
the safety bonuses as a method to encourage drivers to be more
cautious in their driving. But it is more than coincidental that
all of these changes were noted on the troubleshooters’ list of
employee concerns, that many of them were raised by the man-
agers at the San Antonio meeting,23 and that they were finally
responded to only after the Teamsters’ organizing campaign
became so onerous to Overnite.

22 As Douglas said in mid-April 1995 to employees in Lawrenceville
who were talking about concerns with their pay, “You want to talk
about trust. Hold on! Hold on! You want trust and I’m telling you I got
these handcuffs on me like crazy because of all the stuff that’s going on
out there. And about the only thing I can do is make some operational
changes. And I can’t do hundreds of ‘em, I can’t do hundreds of ‘em.
So all I’m trying to demonstrate in three months here is stick with me
and we’re going to do these things.” (Emphasis added.)
23 Among the comments of the managers at San Antonio: “Safety
dinners give [service center managers] opportunity to meet and get to
know wives (union issue).” “[M]etro terminals could fight off union,
not the pay issue.” “Teamsters are pounding us on the time and a half
issue.” “Safety bonuses back to the road drivers.” “The company and
the region have stopped listening to their people. Most of the union
situations within the region are coming from our people not wanting to
unionize but to be recognized and be heard.” “Compensation and bene-
fits issues were of major concern. The field does not have control of the
‘World Hunger’ issue of compensation/benefits but Senior Manage-
ment does and it needs to be addressed.” “[B]ottom line of the money
issue that we have all discussed in San Antonio and Bensalem.
Money.”
Indeed, the “business problem” addressed in Douglas’ Feb-
ruary 10 letter is really employee compensation. He pledged to
concentrate on his people, particularly the turned-off employee.
He pledged to meet face-to-face with the employees. The in-
crease was the right thing to do and was only a first step in the
right direction, and the employees were to look for more an-
nouncements. There were mistakes in the past, but he was not
afraid to correct them and was committed to solving the prob-
lems. Some things would take longer to accomplish, but he was
on his way to doing what was right. The wage increase reme-
died what the troubleshooters reported had made the employees
unhappy, and the visits of Douglas and other leading members
of management remedied the employees’ complaint of the lack
of personal contact. Douglas’ announcement of more to come
foretold the soon-to-be-announced increase of the mileage and
speed limits and reinstatement of the safety dinners and bo-
nuses, also prominent on the troubleshooters’ lists. I find that
the defense was merely a catch-all phrase to justify as a busi-
ness reason what was otherwise a change in terms and condi-
tions of employment to solve the concerns of the employees
that led them to organizing. Accordingly, I discredit Douglas’
responses to the contrary.24
Nor do I credit Douglas’ denial that he knew of the existence
of the troubleshooters no earlier than the 2 weeks after Febru-
ary 15, 1995, when Goodwin first told him. Douglas had a
fairly good memory of events that he wanted to remember, at
least with his own slant. He was able to recall many of the em-
ployees at the various locations who testified about conversa-
tions with him that would have supported unfair labor practice
allegations. Regarding the troubleshooters, however, he re-
called nothing. Yet he traveled with Boswell to both Kansas
City and West Sacramento in late 1994 to campaign (unsuc-
cessfully) there and met at least Hamilton twice. Parks and
Hamilton were in West Sacramento when Douglas, Heaton,
Goodwin, and Green were there. Parks told Goodwin that he
was from Baltimore and that he was at the West Sacramento
service center to find out what the problems were. Boswell,
Heaton, and Edwards came to Indianapolis when Parks was
there performing his troubleshooter duties. Al McBride, a re-
gional vice president, and Keith Dobson, vice president of fleet
services, were also there. The troubleshooters were advised to
report what they learned to Edwards and that Edwards would
tell other management officials, including Boswell and Heaton,
of their findings. Akers reported what he found to management.
Parks told at least McBride and Edwards what problems the
troubleshooters found in Indianapolis. On at least one occasion,
Edwards told Parks that Overnite was working on solving the
overtime problem, and Green told Hamilton that Overnite was
looking into the problems.

24 In doing so, I find that Douglas often slanted what he had to say
with his own false impression of reality. A prime example is his an-
nouncement in 1995, more fully discussed below, that Overnite would
pay overtime pay in 1996 after an employee worked 47 hours. He testi-
fied that this was intended as a management tool to limit the hours that
employees were assigned work to under 47 hours, so that Overnite
would not be required to pay time and one-half. Yet, he told the em-
ployees that this was a “reward,” in the circumstances a blatantly false
description.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016
So, if Douglas did not meet all the troubleshooters (there
were at least 13), word of their activities must have filtered
back to him, through Green or Edwards or Bronson or McBride
or Heaton or Goodwin or even Boswell.25 Some of these people
were his trusted advisers26 and traveled with him on his tours of
election locations, and all of them were at those locations at one
time or another. It is unbelievable that all would remain silent
on the company plane or at the election locations, never men-
tioning the problems of Overnite, as gleaned from the trouble-
shooters. Furthermore, only days after being named to head
Overnite, Douglas spoke to the managers in San Antonio of the
“very, very, very serious” dangers of Teamsters organization;
and he must have known something to base that judgment on.
In addition, Douglas said that he was aware of all the problems
that the managers reported to him at the San Antonio confer-
ence, so he must have been getting regular reports of the find-
ings of the troubleshooters. Furthermore, although I suspect
that not all the reports of the troubleshooters were produced and
that expense reports are not accounted for, surely Douglas
would have seen the expenses that the troubleshooters were
incurring. Overnite spent a minimum of $51,330 in wages alone
(59 weeks x 60 hours per week x $14.50 per hour) to identify
the problems that were causing employees to seek union repre-
sentation. The record does not disclose the additional substan-
tial amount Overnite spent on airline tickets, hotels, meals, car
rentals, and other expenses for at least 13 troubleshooters. Fi-
nally, Douglas sought to create the impression that he knew
nothing about the troubleshooters and, when finding out about
them for the first time from Goodwin in February (indeed,
Parks told Goodwin in late 1994 what he was doing in West
Sacramento), immediately ordered their use discontinued. Not
only do I not believe him, but I draw the opposite conclusion,
based on Respondent’s attempt to create this impression and
then hiding behind the attorney-client privilege when asked
about the details of his entire conversation with Goodwin. All
this persuades me that Douglas knew well of the existence of
the troubleshooters and used their illegally obtained product to
learn of and correct the employees’ grievances in order to dis-
courage employees from supporting the Teamsters.
I find that Douglas’ testimony that there was any motivation
other than to thwart the Teamsters’ organizing drive27 is false
and misleading.28 Although there may have been some justifi-
cation for a greater increase in January 1995, but Union Pacific
would not approve it in 1994. The employees were unhappy
with their wages and turned to the Union for help in increasing
numbers. Union Pacific realized that Boswell had underesti-
mated the employees’ discontent and replaced him. Douglas, in
turn, sought to increase the wages and eliminate that source of
unhappiness to stop employees from supporting the Teamsters
and to affect the results of upcoming elections.29 The rest of
Respondent’s explanation of the reasons for the increase is all
pretext. To conceal his unlawful purpose. Douglas ordered
prepared material to back up his decision to increase wages,
even though he had already made the decision. The material
was prepared, not to show to Union Pacific, because Union
Pacific had approved the decision, but solely to supply a busi-
ness justification for the increase should a Board complaint
ever issue. But in the preparation of that document, Respondent
made a fatal error. Although it supports an increase for many of
the reasons that Douglas relied on, namely, the perception that
employees had suffered a loss by the payment of the lump-sum

25 Goodwin, Heaton, and Edwards, among others, did not testify.
26 Goodwin was with Douglas almost every day that he testified.
Douglas, by his own admission, promoted Heaton to take over all labor
relations and moved Bronson to take over Respondent’s central region.
Heaton had more authority than Douglas was willing to admit, as
shown by Respondent’s organizational chart, distribution of Goodwin’s
letter of December 29, 1994, and Sarto’s testimony that Edwards re-
ported to Heaton. That Douglas would misstate this seemingly innocu-
ous fact demonstrates that it probably had more meaning in the context
of this proceeding, an attempt to blame Edwards to take the pressure off
the person actually running much of the campaign, Heaton.
27 Douglas attempted to show how urgently he sought a greater in-
crease, first, by relating a purported conversation with Boswell in No-
vember and, second, by threatening Matthews that he would resign.
The conversation with Boswell, one that Douglas quoted Boswell stat-
ing an epithet that Douglas said that he would never forget, Douglas
forgot to include in his precomplaint investigatory affidavit, which was
prepared by his counsel. Neither Boswell nor Matthews testified, and I
infer from Respondent’s failure to call them that their testimony would
not have been helpful to Respondent’s cause. I do not believe Douglas’
testimony.
28 In making this and other credibility findings, I have fully reviewed
the entire record and carefully observed the demeanor of all the wit-
nesses. I have also taken into consideration the apparent interests of the
witnesses; the inherent probabilities in light of other events; corrobora-
tion or the lack of it; the consistencies or inconsistencies within the
testimony of each witness and between the testimony of each and that
of other witnesses with similar apparent interests. Testimony in contra-
diction to that upon which my factual findings are based has been care-
fully considered but discredited. See generally NLRB v. Walton Mfg.
Co., 369 U.S. 404, 408 (1962). Where necessary, however, I have set
forth the precise reasons for my credibility resolutions, bearing in mind
the oft-quoted advice: “It is no reason for refusing to accept everything
that a witness says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe some and not
all.” NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950). Finally, there are some misstatements of fact that weigh more
heavily in my consideration, being purposeful rather than merely re-
flecting a misunderstanding of events. In such instances, it is reasonable
to believe the very opposite of what the witness says. Walton Mfg. Co.,
369 U.S. at 408; and to disbelieve the witness utterly.
29 Other reasons for discrediting Douglas are the following: Douglas
testified that Boswell was called in by the board of directors one day
and told that he was no longer employed. Within a minute or two,
Douglas denied having so testified. Respondent contends that it was not
the Teamsters that Douglas opposed, only the NMFA; yet Douglas
testified that the flexibility of being nonunion was critical to Overnite’s
survival and that he opposed unions at Overnite. He testified on Febru-
ary 20, 1996, that he was unaware that Respondent had been found in
violation of the Act in Chicago, despite the fact that the Board and
court proceeding had been drawn to his attention when he testified at a
Congressional hearing in the early summer of 1995. He falsely claimed
that the “Give Jim a Chance” campaign was adopted by the employees,
rather than started by the managers at the San Antonio meeting, re-
peated by managers (and Douglas) elsewhere, and often, and paid for
by Overnite in the form of T-shirts worn by managers and representa-
tives of Overnite. This was contrary to his testimony before the Con-
gressional oversight committee, which he told: “Many of our supervi-
sors and managers at our various field locations adopted a slogan that
said ‘Give Jim a Chance.’” Respondent’s brief attempted to salvage
some of Douglas’s testimony by contending, without record evidence,
that his failure to testify about the reason for Boswell’s dismissal re-
sulted from his knowledge “from preparation and instructions during
his testimony not to speculate.” Yet, in attempting to justify his answer
about the origins of the “Give Jim a Chance” slogan, the brief contends,
on the very same page, that Douglas “speculated based on his under-
standing.”

OVERNITE TRANSPORTATION CO. 1017
payment in 1993 and the failure of PIP to pay what had been
expected, the compensation analysis states only: “Wage rates
substantially below union carriers market data and not always
competitive to non-union carriers.” It omits mention of what
Douglas testified was the compelling reason for the increase—
turnover and retention of employees.30 I thus find those reasons
a sham and unworthy of belief.31

30 Kearney found that Overnite was operating inefficiently, with too
many employees. Many were laid off, and Overnite closed a number of
its terminals. Admittedly, it may have been that Overnite was failing to
retain only the very best of its employees, but this record is silent on
that issue.
31 Similarly, I reject Respondent’s contention that Douglas could not
have been influenced by the Teamsters’ campaign because, even before
organizing began, he wanted greater wage increases that Boswell was
willing to approve. The issue here is the reason for Douglas’ urgency in
granting the March increase when he did. The Teamsters’ organizing
campaign was raised at one quality council meeting, if not more. By the
time of Douglas’ San Antonio speech, he had to know of the serious-
ness of the Teamsters’ efforts. He said so in his speech. Although it is
not wholly clear the exact date that Respondent knew of the Teamsters’
organizing efforts, Respondent was aware of them at the time that
serious discussions of the proposed 1995 wage increase began. In Bos-
well’s November 22, 1994 letter, he began: “Over the past few months
most of you around the nation have been the subject of a well-
orchestrated organizing campaign by the Teamster’s Union. You have
been handed literature spelling out great promises; many have had
visitors at your homes; and some of us have been bullied and threat-
ened.” Boswell professed knowing about a letter that had been sent to
the employees, recruitment of employees to “spread the word,” and
planting of organizers. Because Overnite’s “prime budgeting time” was
October, Douglas surely knew of the Teamsters’ campaign by then.
The General Counsel seeks adverse inferences from Respondent’s
failure to produce hundreds of documents. At the beginning of this
proceeding, Respondent moved to quash the General Counsel’s sub-
poenas on numerous grounds, including the assertion of the attorney-
client and work product privileges. Respondent did not list in its mo-
tions which documents it believed were protected, and I ruled, similar
to rulings I made regarding motions for similar relief made by the Gen-
eral Counsel and the Union, that Respondent should prepare a log and
produce the documents for my in camera inspection. No one objected to
that ruling; but, months later, when Respondent finally prepared its log,
it made clear that it had no intention of producing the documents, al-
though I questioned how I could possibly rule on the assertion of the
privilege without examining the documents. In its brief at the close of
the hearing, Respondent, for the first time, relied on U.S. v. Zolin, 491
U.S. 554 (1989), in which the Supreme Court ruled that one who as-
serts an attorney-client privilege has a right to refuse production of
documents for wholesale in camera inspection, where the proponent of
the subpoena does not supply proof that the documents should be
turned over under the crime or fraud exception to that privilege. Patrick
Cudahy, 288 NLRB 968 (1988), has practically obliterated that excep-
tion, so Zolin is of limited application to Board proceedings.
In any event, neither the General Counsel nor the Union urged the
application of the exception. All they wanted was the assurance, as they
gave to Respondent in submitting their claimed privileged documents
to me for in camera inspection, that Respondent’s documents were
similarly privileged. In camera inspections are well-established proce-
dures in the Federal courts, U.S. v. Smith, 123 F.3d 140, 151–152 (3d
Cir. 1997), and have been approved by the Board, Brink’s Inc., 281
NLRB 468 (1986). Furthermore, although Respondent’s logs are
somewhat helpful, tens of documents bear the description “labor law
compliance,” hardly an adequate description for me to make an in-
formed judgment as to whether the claimed privilege applies, and other
documents were prepared by persons who were never identified in the
record, so I cannot hold that they were communications between an
attorney and a client. U.S. v. Construction Products Research, 73 F.3d
464, 473–474 (2d Cir. 1996). The General Counsel asks that I draw
adverse inferences from Respondent’s refusal, but does not suggest
which ones he deems appropriate. Probably, Respondent’s failure to
produce lends support to and bolsters my findings of fact; but my find-
ings would have been exactly the same, had Respondent produced the
documents. Pioneer Hotel & Gambling Hall, 324 NLRB 918 (1997).
Because I have found that the business justification was pre-
textual, it is unnecessary to dispose of the General Counsel’s
and Union’s attack on the bona fides of Douglas’ selection of
55 cents as the amount of the increase.32 Both parties use all
manner of statistics to support their respective positions, but
none of them are more particularly compelling or persuasive
than the others. The most that can be said is that there were
reasons that a greater increase, as recommended by Heaton and
Douglas in the fall, might well have been considered. But the
evidence does not compel that conclusion, nor compel the con-
clusion that an additional 2 percent or 3.5 percent (the increase
recommended was 5.5 to 7 percent) was the appropriate one.
The Union contends that the 55-cent increase is more than
the 7-percent figure that Douglas recommended and that the
figure was arrived at so that Respondent could make the argu-
ment to its employees, as it did, that Teamster-represented em-
ployees who struck during the spring of 1994 achieved wage
increases of $1.05 over 4 years, whereas Overnite employees
received the same increases in 1 year. The Union is correct, if
using the base figure of the wages given in the prior year. But
Respondent’s brief contends that the 7 percent was an increase
over what Respondent had allocated for all wages, and that
included the amount that had been set aside for PIP increases. I
did not understand that to be the position of Overnite’s wit-
nesses. If the January increase was 3.5 percent and was 50
cents, an additional increase of the same amount would have
been an additional 3.5 percent. In fact, Respondent’s compensa-
tion analysis does not support the brief’s contention, as it states
that the 55-cent-an-hour increase represented a 3.8-percent
increase. However, there is insufficient proof that 55 cents was
selected to make the argument that the Union contends.
Nor do I find that Respondent’s timing of the announcement
in February and effective date of an increase in March had any
particular significance, affecting 11 elections scheduled during
the interim. The action would have had equal significance at
any time, from the date Douglas became principal officer, as
there were elections throughout this period and 21 new peti-
tions were filed between January 17 and February 9. In fact,
employees at Overnite’s Norfolk service center were threatened
outright that they would not receive the wage increase if they
voted for representation.
The General Counsel and the Union also attack Respon-
dent’s contention that its pay level left it at a competitive disad-
vantage in attracting and retaining qualified employees—that
the turnover rate was “escalating dramatically” and that service
to customers and productivity were deteriorating because of
noncompetitive wages. Indeed, problems relating to turnover
had existed at least since 1990. Yet, Boswell was to write in his
November 22, 1994 letter that, “Every day we at Overnite are
getting job applications from Teamsters.” In addition, Over-
nite’s March 1995 business review indicated that service and
productivity had both improved during 1994, with decreasing

32 Douglas explained that the increase was to make up for the 20-
cent increase in 1992 and the 25-cent increase in 1994, both of which
should have normally been 50-cents. That testimony is inconsistent
with what he wrote on February 10, that the increase was to make up
for the “loss as a result of 1994’s failed Performance Incentive Plan.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
claims in March and April. And in a letter a month later, a
month after the second increase became effective, Overnite
bragged to Union Pacific that its overall service had dramati-
cally improved, with substantial increases of on-time service.
Once again, there is some substance to their position. Re-
spondent’s proof shows no dramatic escalation of turnover, and
there appears to be no provable correlation between the wage
level and service to customers and productivity. But there is
evidence to support the contrary, and there is ample proof
(Willis was receiving one or two phone calls or faxes weekly)
that, for whatever reason, Respondent was losing employees
whom it valued, particularly in the Northeast, and its managers
blamed Respondent’s hourly wage level, which, depending on
the companies Respondent chose to compare, were generally
lower for drivers, but higher for dockworkers. There is no proof
that Respondent’s valued employees were flocking to its prized
competitors, such as Estes and Northeastern, which Respondent
suggests by implication. Rather, many were simply leaving the
industry or going into different types of jobs, and some were
moving to union carriers, which traditionally have paid far
greater hourly rates than Overnite. And the numbers of em-
ployees who left appears minuscule, when compared to Re-
spondent’s total employee complement, particularly when Re-
spondent was soon to consider a reduction of its workforce.
Indeed, one of Overnite’s reports found that turnover was iso-
lated to certain areas and that turnover was not even consistent
in the Northeast and would not justify an across-the-board dif-
ferential for the entire Northeast. In addition, by April 1995,
Overnite was not even hiring or replacing road drivers, and in
the Northeast the regional vice president proclaimed that the
region was properly staffed. All these points are matters of
legitimate dispute and probably favor the General Counsel’s
cause. But, because of my finding of pretext, it is unnecessary
to conclusively determine these issues.
But I do find that Overnite reinstated the safety dinners and
the bonuses and increased the speed and mileage limits for
unlawful reasons. Witnesses often err in recalling dates, and
those mistakes are frequently meaningless in assessing credibil-
ity. Here, however, there are documents and testimony about
dates that give me more than the usual problems. Douglas is-
sued a memorandum on February 17 directing Edwards to in-
crease the speed and mileage limits and reinstate the safety
dinners. Edwards, however, directed that the dinners be rein-
stated the day before, February 16, and on February 17 issued
another one concerning the speed and mileage limits. But
Douglas was in St. Louis on February 17, and Edwards was in
Parkersburg, West Virginia, and Lexington on February 16 and
17, respectively.
When first confronted with this discrepancy, Douglas had no
explanation, but did 2 days later, when he explained that he had
returned to Richmond and signed the memorandum. As to how
Edwards would have issued directives when he was not in
Richmond, Douglas explained that he had advised Heaton early
in the week to direct Edwards to issue his memoranda. As
pointed out earlier, neither Heaton nor Edwards testified; and I
am asked to accept Douglas’ explanation. That is troubling, in
light of the fact that the issue of the speed and mileage limits
had apparently been decided on weeks before, when Weber and
Norfolk Service Center Manager Mike Mendenhall announced
it and Carter prepared his memorandum, on February 2, even
though he may not have posted it until later. There is nothing to
explain these facts, except to find that Douglas’ memorandum
was prepared at a later date to supply some written business
justification that it did not really have.
There is no question that, for whatever reasons, the over-the-
road drivers had been complaining for years about the fact that
they were not being allowed to drive the speed limits. Douglas
decided to change that rule, but he claimed that he did not do so
for an unlawful purpose but for operational efficiency. Yet that
it not what the February 17 memorandum states. It relies solely
on Douglas’ “sense” that Overnite had been inconsistent in
enforcing the rule, which was designed to save fuel, and Doug-
las’ “doubt” that there had been “much in the way of fuel sav-
ings.” Then Douglas stated his preference that “we simply have
a uniform posted limits policy,” when the policy before had
been “uniform.” There is no “smoking gun” here, to be sure;
but there certainly is an implausible explanation for the change
of the rule, supported by documents which appear to reflect
concocted dates or, at least, a sequence of events that make no
sense.
I find that the rule was changed to solve a grievance that the
drivers had complained of for years and to affect the union
elections.33 Similarly, the reinstatement of the safety dinners
was prompted by the troubleshooters, who reported the lack of
them as one of their grievances. Douglas’ only justification for
their reinstatement appears to be that they were removed with
the institution of PIP, and, with the removal of PIP, they should
be reinstated. But PIP was removed with the January wage
increase. Respondent made no attempt to reinstate the safety
dinners at that time. The announcement in February was merely
another correction of a prior mistake, to induce employees to
vote against the Teamsters. That is graphically demonstrated by
the fact that, in Lawrenceville, although Overnite held a safety
dinner within 2 weeks of the April 17, 1995 election, no subse-
quent safety dinners had been held within the next year, despite
the fact that drivers had qualified. Once that election had been
held, the reinstitution of the dinner had its effect; and there was
no pressing need to hold another dinner.
Despite the fact that the Blaine service center was not a Gis-
sel bargaining order location, the General Counsel introduced
evidence of unlawful conduct there on the theory that it was
relevant to the national issues litigated in these cases and sup-
ported a finding that Overnite’s unlawful conduct was author-
ized, directed, and participated in by officials at the very high-
est levels, including Douglas. Except for some of the more
minor issues of the campaign, there is little question that the
point the General Counsel was seeking to make has been amply
proved. The campaign was directed by Douglas, with the help
of at least Goodwin, Edwards, and Heaton, and, equally impor-
tant, orchestrated by outside counsel, many of whom partici-
pated in this case. They prepared the leaflets, arranged for the
videotapes, prepared the scripts for the meetings that the ser-
vice center managers were to hold, and led seminars on the
operation of the campaign. The troubleshooters were sent from
place to place, officials from the Richmond headquarters were
sent as needed, managers from other service centers were sent
to help, and Douglas and Edwards were there to sum up. The
service center managers may have selected certain issues that
they wanted to emphasize and may have decided on other is-
sues that they did not feel were important to the employees in

33 Contrary to Respondent’s contention, there is a benefit to drivers.
They make more money in a shorter time period and can spend more
time with their families.

OVERNITE TRANSPORTATION CO. 1019
their locations, and so decided not to distribute various leaflets
that had been distributed at other locations, but the campaigns
were essentially the same from place to place—solicitation,
promises, “Give Jim a Chance,” Chicago, Teamsters” grave-
yard, futility.
The same kind of threats of futility were made. Edwards told
employees that Overnite’s Chicago facility had been organized
for 13 years, but Overnite had not yielded to a single union
demand, despite lengthy bargaining. No mention was made that
Overnite had been found to have engaged in bad-faith bargain-
ing at that facility. It may not be that both Edwards and Weber
threatened employees that Overnite would never sign a contract
with the Teamsters, but they did not have to be that crude. The
point was clearly made by the Chicago example, as admitted by
employee Patrick Shipshock, who was called as a witness by
Overnite, that the experience of the Chicago negotiations dem-
onstrated that Overnite would never sign an agreement. Other
than these general matters, because of the settlement of all the
8(a)(1) allegations, I find that what happened at Blaine is of no
significance to a determination of whether to grant Gissel relief
at the four service centers that are the subject of this Decision.
That Weber or one of the supervisors may have engaged in
conduct that may have affected the results of the election at
Blaine had no far-reaching consequences.
One final matter must be considered before turning to the
four Gissel service centers, that is, whether the unfair labor
practices are of a kind that would warrant the relief of a bar-
gaining order. For, unless there could be such relief, the settle-
ment agreement prohibits the revisitation of all the alleged
8(a)(1) violations that were settled. The Court of Appeals for
the Second Circuit has characterized grants of benefits as
“hallmark” violations, warranting the issuance of a bargaining
order. In such cases, “the seriousness of the conduct, coupled
with the fact that often it represents complete action as distin-
guished from mere statements, interrogations or promises, justi-
fies a finding without extensive explication that it is likely to
have a lasting inhibitive effect on a substantial percentage of
the work force.” NLRB v. Jamaica Towing, Inc., 632 F.2d 208,
213 (2d Cir. 1980). The Board has found that a wage increase,
with little else, has an enduring impact on the bargaining unit
and is enough to warrant Gissel relief. Skyline Distributors, 319
NLRB 271 (1995), enf. denied 99 F.3d 403 (D.C. Cir. 1996);
Honolulu Sporting Goods, 239 NLRB 1277, 1282 (1979), enfd.
mem. 620 F.2d 310 (9th Cir. 1980); Skaggs Drug Centers, 197
NLRB 1240 (1972), enfd. 84 LRRM 2384 (9th Cir. 1973);
Tower Records, 182 NLRB 382, 387 (1970), enfd. 79 LRRM
2736 (9th Cir. 1972). As the Board stated in Pembrook Man-
agement, 296 NLRB 1226 (1989), quoting from Tower Re-
cords, supra at 387, “it is a fair assumption that in most in-
stances where employees designate a union as their representa-
tive, a major consideration centers on the hope that such repre-
sentative may be successful in negotiating wage increases.”
And the granting of the increase by the employer makes in
likely that the employees will be less likely to vote for the un-
ion, because the employees received what they wanted. NLRB
v. WKGR-TV, Inc., 470 F.2d 1302, 1319–1320 (5th Cir. 1973).
Members of unions pay dues, and there is less reason for em-
ployees to pay those dues if the employer has already granted
what the employees originally sought from the union.
When Overnite unilaterally granted the March increase, in
recognition of the employees’ complaints that wages were still
less than what they wanted, it became difficult to conceive of
conduct more likely to persuade the employees that the Team-
sters was no longer needed and that Overnite would solve all
their problems, particularly in light of Overnite’s “Give Jim a
Chance” campaign to promise relief from all past “mistakes”
and rectify everything. Such unlawful wage increases have a
particularly long-lasting effect because the Board’s traditional
remedies do not require that an employer rescind its wage in-
crease. Koons Ford of Annapolis, 282 NLRB 506, 508 (1986),
enfd. mem. 833 F.2d 310 (4th Cir. 1987). Because such in-
creases regularly appear in employees’ paychecks, they are a
continuing reminder that “the source of benefits now conferred
is also the source from which future benefits must flow and
which may dry up if it is not obliged.” NLRB v. Exchange Parts
Co., 375 U.S. at 409. That becomes particularly compelling in
light of Overnite’s simultaneous campaign emphasizing the
harm of voting for the Teamsters, that is, that the same com-
pany-wide wage increase would not be granted to the employ-
ees who had voted for Teamsters’ representation. They would
have to wait for collective bargaining, which had no chance of
success. In sum, under Board law, the wage increase alone is
sufficient to support the relief of a bargaining order34; and I turn
to the individual locations that are the subject of this Decision.
III. THE GISSEL BARGAINING ORDER CASES
A. Lawrenceville, Georgia
1. Majority status
The parties’ earlier settlement agreement allows the litigation
of the 8(a)(1) allegations to support a bargaining order under
Gissel, which generally, with exceptions, permits the Board to
order an employer to bargain with a union that has demon-
strated majority strength prior to the commission of the unfair
labor practices that the order is meant to remedy. 395 U.S. at
613–614. Having determined that Respondent’s unfair labor
practices are of the nature that would permit a Gissel bargain-
ing order, it is necessary, first, to inquire into the Teamsters’
support, because, if the Union never attained a majority, I need
not even consider the 8(a)(1) allegations. Respondent contested
the majority strength of the Teamsters in this and others of the
Gissel locations.
The parties agree that, as of February 4 through 17, there
were 85 employees in the Lawrenceville unit. They disagree
about the status of two others, both of whose names appear on
Respondent’s Excelsior list: Robert Nevins, who Respondent
contends was a statutory supervisor; and Thomas Mash, who
the General Counsel contends had left Respondent’s employ.
Nevins worked fulltime, Monday to Friday. On the first 4 days,
he assisted road dispatcher and supervisor, Mike Rivers; but,
because Rivers’ workweek was from Sunday to Thursday,
Nevins assumed Rivers’ functions on Friday; and he also did so
sporadically on other days when Rivers was absent. When he
did so, Respondent paid him Rivers’ rate of pay, more than $4
an hour more than Nevins’ normal rate of his classification by
Respondent as a full-time dock employee.
Primarily, his duties involved dispatching of drivers and the
paperwork and computer entries that were associated with it.

34 Respondent’s reliance on J. G. Getman, S. B. Goldberg & J. B.
Herman, Union Representation Elections: Law and Reality (1976), is
undermined by the Board’s views in General Knit of California, 239
NLRB 619 (1978). See also the dissent of Member Jenkins in Shopping
Kart Food Market, 228 NLRB 1311 (1977).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020
When he was alone, his functions also included calling in and
assigning extra board drivers, telling dock supervisors and
leadmen what work to load, instructing dockworkers regarding
loading procedures, reporting to Overnite’s central dispatch
office in Richmond, and dispatching additional drivers, if
needed, to carry loads to Overnite’s Atlanta terminal before
proceeding on their regular routes. The assignment of extra
board drivers would result in more pay for the drivers, but
much of the selection process was governed by a first in–first
out policy which made Nevins’ choice little more than routine.
In addition, there is no evidence that Nevins disciplined em-
ployees. On the only occasion that Respondent relies on, Nev-
ins merely reported an incident for the file, as requested by his
superiors, and relayed a policy that should have been known to
all employees. In sum, his work for one-fifth of his time was
nominally that of Rivers, an admitted supervisor, but only
nominally. Otherwise, he did work in the office and occasion-
ally helped out on the dock. Clearly, Respondent treated him as
an employee, classifying him and paying him the same rate as a
full-time dock employee, putting him on the Excelsior list, and
permitting him to maintain his prounion sympathies, which one
would have expected would have not been condoned, had Re-
spondent really thought that he was a supervisor. Furthermore,
Respondent did not invite him to its training programs regard-
ing the Union’s organizing campaign that all its supervisors and
managers were required to attend.
Respondent has the burden of proving that Nevins is a su-
pervisor. Pacific Dry Dock Co., 303 NLRB 569 (1991). I find
that he was not; but, even if he was when he relieved Rivers,
this does not exclude him as an employee, because his exercise
of supervisory authority must be both regular and substantial,
and it was irregular and minimal. Hexacomb Corp., 313 NLRB
983, 984 (1994); Latas De Alumino Reynolds, 276 NLRB 1313
(1985). Alternatively, Respondent contends that Nevins was an
office clerical employee, and that is specifically excluded.
However, because Nevins does not work in the office and his
duties do not relate to the general office operations, he is a
plant, not an office, clerical employee. J. Ray McDermott &
Co., 240 NLRB 864, 869 (1979); Cf. Mitchellace, Inc., 314
NLRB 536 (1994). Furthermore, Viacom Cablevision, 268
NLRB 633 (1984), instructs that in a stipulated unit, the
Board’s function is to establish the parties’ intent and, if the
intent is unclear, the community-of-interest principles should
be utilized. Here, Nevins had daily contact with the drivers and
assisted them in loading trailers. Furthermore, Respondent
originally urged his exclusion only because he was a supervi-
sor, and not an office clerical, and placed him on the Excelsior
list, an acknowledgment that he at least belonged with the dock
workers and drivers, and not the office clericals. I find that he is
a member of the appropriate unit.
Mash was first employed in September 1993, but did not
work during the three payroll weeks ending February 4, 11, and
18, 1995, when his name on the payroll sheets was crossed out.
From this, the General Counsel contends that he was not em-
ployed permanently, even though he was paid for the following
pay periods, up to May, when he took a leave of absence, failed
to report back, and was fired in July. No one seemed to know
what Mash was doing in early February, and the only person
who may have known was his supervisor, who was not called
to testify by Respondent. Furthermore, Respondent’s only rea-
son that his name was crossed out was one that the witness had
no knowledge of. If Mash’s name had not been on the payroll,
he would not have been considered an employee. The fact that
his name was on the payroll, but was crossed out, should, in
these circumstances, lead to the same conclusion. Without
some explanation of his whereabouts, I am constrained to find
that he was not employed by Respondent for these 3 weeks.
With the addition of Nevins, the total number of employees
in the unit from February 4 to 17, 1995, was 86, and 44 would
constitute a majority. The General Counsel proved the signa-
tures of employees on papers, some 21 petitions, most of which
stated at the top:

Yes: We want a voice through collective bargaining

WE BELIEVE THAT ONLY THROUGH COLLECTIVE BARGAINING
CAN WE HAVE A VOICE IN OUR WORK PLACE, ACHIEVE FAIR
TREATMENT FOR ALL, ESTABLISH SENIORITY, JOB SECURITY,
BENEFITS, WAGES AND WORKING CONDITIONS. THEREFORE,
THIS WILL AUTHORIZE THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, AFL–CIO TO REPRESENT ME IN COLLECTIVE
BARGAINING WITH MY EMPLOYER. THIS WILL ALSO AUTHORIZE
SAID UNION TO USE MY NAME FOR THE PURPOSE OF ORGANIZING.

Two of the petitions substituted for the Teamsters, “the AFL–
CIO and/or its appropriate affiliate,” and they added the per-
mission to use the employee’s name on leaflets.35 That was
followed by ten boxes, with spaces to be filled in for the printed
name, date, address, department, shift, phone, job, rate of pay,
and signature. Some pages were signed by only 1 employee:
others, by as many as 10 employees.
In Gissel, 395 U.S. at 606–608, the Supreme Court approved
the Board’s Cumberland Shoe doctrine36 for determining the
validity of authorization cards (here petitions), describing
Board law, 395 U.S. at 584, as follows:

Under the Cumberland Shoe doctrine, if the card itself
is unambiguous (i.e. states on its face that the signer au-
thorizes the Union to represent the employee for collective
bargaining purposes and not to seek an election), it will be
counted unless it is proved that the employee was told that
the card was to be used solely for the purpose of obtaining
an election.

The petition refers solely to a single purpose and, even though
there is a reference to using the signatories’ names for purposes
of publicity, the petition does not refer to an election or make
any statement inconsistent with the stated single purpose of
designating the Union as the collective-bargaining representa-
tive. This type of petition is an unambiguous single-purpose
authorization card. Ona Corp., 261 NLRB 1378 (1982), enfd.
in relevant part 729 F.2d 713, 723–724 (11th Cir. 1984).
The Supreme Court, in Gissel, 395 U.S. at 606, set forth the
following rule for an unambiguous single-purpose authorization
card:

[E]mployees should be bound by the clear language of what
they signed unless that language is deliberately and clearly
canceled by a union adherent with words calculated to direct
the signer to disregard and forget the language above his sig-
nature.

35 The designation of a parent union instead of the local union does
not invalidate the petition. Cam Industries, 251 NLRB 11 (1980), enfd.
666 F.2d 411 (9th Cir. 1982).
36 Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d
917 (6th Cir. 1965), reaff. in Levi Strauss & Co., 172 NLRB 732
(1968).

OVERNITE TRANSPORTATION CO. 1021
Since the petitions on their face clearly state a single purpose to
designate the Union as the collective-bargaining representative,
the only basis for denying face value to the petitions is affirma-
tive proof of misrepresentation or coercion. Levi Strauss & Co.,
172 NLRB 733 (1968).
Respondent called numerous witnesses to contest their au-
thorizations. Their testimony—that they did not know how their
signatures ended up on the documents shown to them, or that
they did not sign the documents that were placed before them,
or that they signed different documents—was weak, often con-
fused, frequently inconsistent, sometimes bordering on the
silly, and uniformly unbelievable. That they so testified was not
necessarily unexpected. The Supreme Court commented in
Gissel, 395 U. S. at 608, that: “[E]mployees are more likely
than not, many months after a card drive and in response to
questions by company counsel, to give testimony damaging to
the Union, particularly where company officials have previ-
ously threatened reprisals for union activity in violation of Sec-
tion 8(a)(1).” (Footnote omitted.) Overnite made known in its
personnel policies, quoted above, its distaste for any labor or-
ganization, further reason that employees would wish to hide
their one-time allegiance to the Union. However, part of the
confusion of the employees may be attributed to the fact that
the Union sought support through a variety of means. At first,
the Union used authorization cards, not petitions, that are ordi-
narily seen in union drives and these proceedings; and it may be
that, when it did, the solicitors told employees that the cards
were being used solely to obtain an election. That, in turn, may
be the reason that the Union discontinued using the cards,
changed to the petitions, and ceased advising the potential sig-
natories that their signatures would be used only for that pur-
pose. Later, the Union solicited signatures for a leaflet entitled
“Give Us A Chance,” on papers which asked only for the em-
ployee’s name, department, and years of service. I am per-
suaded that much of what Overnite’s witnesses testified to was
the signing of other cards or written material and helps to ex-
plain the testimony of many of them that they signed other
documents, forgetting (or misstating) that they also signed the
petitions.
I am also persuaded that they signed the petitions, in the
form that was introduced at the hearing.37 The Teamsters’ cam-
paign started in December 1994. union meetings were held
every weekend, and the employees would have been aware of
the significance of the document that they were being asked to
sign, especially knowing of the feelings of Overnite as ex-
pressed in the personnel manual. Thus, I find it difficult to be-
lieve that these employees would have signed a blank piece of
paper38 or that the solicitors were distributing blank pieces of
paper as a means of obtaining addresses to send employees
information about the Teamsters.39 In addition, not all of Over-
nite’s witnesses testified that the papers that they signed were
blank. Other witnesses it called did not take the same position,
indicating that they were presented with petitions in the same
form as those in evidence—with the full authorization at the top
of the document.

37 Perhaps, as Respondent suggested, by photocopying, the words at
the top could have been omitted and inserted at a later date, but the test
sample that Respondent prepared using its photocopying machine was
not tested scientifically for dust or dirt spots or other markings that
might appear under closer examination.
38 Incredibly, Danny Brady testified at one point that he thought that
what he signed was a raffle ticket.
39 Although Craig Roberts claimed that Nevins (it was actually
Huff), the solicitor of his petition, told him that the reason for signing
the document was to send him information by mail, Roberts conceded
that it would have been impossible to receive mail because he did not
write his complete address on the petition.
Almost all of Respondent’s witnesses testified that the signa-
tures on the petitions were theirs,40 but some testified that they
were told something different from what was placed on the
paper, or that they did not understand what they were signing.
Those witnesses who testified that they were told only that the
petitions were to obtain an election misstated the facts.41 A few
solicitors mentioned that that was a purpose of the petitions, but
they never testified that that was the sole purpose. I credit the
solicitors who testified that they also told the employees that
the petitions were being presented to show that the employees
wanted the Teamsters to represent them as their collective-
bargaining agent. That statement was clearly reflected at the top
of the petition, which could not be mistaken; and the petitions
signed by the employees who were told about the dual purpose
of the petitions must be counted. DTR Industries, 311 NLRB
833, 839 (1993), enf. denied 39 F.3d 106 (6th Cir. 1994). Some
employees who signed petitions could not recall what they were
told. I do not credit them and I credit the solicitors, whose rec-
ollections were far better and clearer and whose demeanor ex-
hibited sincerity, not the unreal quality of many of Respon-
dent’s witnesses.42 There was also testimony about the signing
of petitions at a union meeting on December 10, 1994. Respon-
dent makes much of the fact that the testimony of the solicitors
was inconsistent in their recall of whether the signers went to
the front of the room and gathered around a table, waiting to
sign the petitions, or whether they stood in line. The important
fact is that the employees signed the petitions, and I do not
discredit the General Counsel’s witnesses who said that they
saw the employees sign. I note, in so holding, that, according to
Lawrenceville Manager Bill Carter, employee Gus Stephenson
attended the meeting and reported that he saw the employees
sign the petitions.
Jerry Williams filled out the petition but, by inadvertence,
forgot to sign it; and he was sorry that he had not. The unsigned
petition is valid. Skyline Transport, 228 NLRB 352, 354 fn. 11
40 To the extent that Gerald Jennings testified only to the effect that
he believed that the signature purporting to be his was probably his
signature, I find that it unmistakably was. I summarily reject the testi-
mony of John Green and Bobby Truitt, who denied, or at least could
not agree, that the signatures on the petitions were not theirs. They
obviously were not telling the truth.
41 Even if I credited them, the petitions would nonetheless be valid
under Levi Strauss & Co., supra.
42 Respondent contends that Nevins, Smith, and Wilcox solicited pe-
titions that were not offered to support the Union’s majority. At least, a
Teamsters’ organizer so testified. From this, Respondent argues that the
solicitors who appeared at the hearing were lying about those whom
they asked to sign, because they were actually asked by the three
named employees. Even if I credited the union organizer, I cannot
make the finding that Respondent seeks. I have no idea whether the
petitions obtained by the three exist or what they contain. Respondent
was free to subpoena those employees (including Nevins, whom Re-
spondent claimed was a supervisor) and their petitions, but there is
nothing in the record to demonstrate that it did so. Furthermore, the
petitions in evidence contain many more names of employees than were
used to support the Teamsters’ majority. It is likely that they revoked
their authorizations, and the petitions solicited by the three employees
may have also contained signatures of employees who subsequently
revoked their authorizations.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1022
(1977). To the contrary, Jimmy Lee purposely did not sign the
petition because he did not believe in it and was merely trying
to rid himself quickly of the solicitor. I will not count his peti-
tion. To the extent that Respondent contends that, by signing
“Billy” and not “William,” Lovins was not be legally bound,
Lovins admitted that he wrote “Billy” because that was the
name that he was known by. I shall count his signature. While
Mike Stuckey’s petition is undated, I credit testimony that it
was signed sometime in February. It must have been signed by
February 27, because that is the date placed there by the Re-
gional Office. I shall count his signature. Pilgrim Life Insur-
ance Co., 249 NLRB 1228, 1241 (1980), enfd. mem. 659 F.2d
1070 (3d Cir. 1981). Larry Smith printed his name in both the
space for his printed name and for his signature. Block printing
is sufficient to support a holding that his petition should be
counted. Ibid. Pat Reed testified that he attempted to write his
signature differently in order to avoid the clear language of the
petition. Similarly, Randy McCall said he signed his petition
“R. McCall” rather than with his full name, to avoid the conse-
quences of the petition. (He also claimed that what he signed
must have been altered and that the petition was so unclear that
he could not read it.) I believe neither of them. Rather, I find
that they, like many of the other witnesses called by Respon-
dent, were afraid of the consequences of their act, now in the
open, and were willing to do anything, even to give false testi-
mony, to preserve their jobs and their good standing with their
employer.
In conclusion, the petitions of the following employees are
valid authorizations for union representation: Gerald Jennings,
David Riddle, Mike Smith, Reginald Wilcox, Jerry Williams,
Vincent Greer, Gary Hicks, and Willie Huguley (December 10,
1994); Joe Huff (January 8, 1995); William Elkins, Robert
Nevins,43 Romney Ramey, Craig Roberts, Danny Brady, Billy
Lovins, Robert Meredith, Scott Powell, Larry Smith, and Rob-
ert Crocker (January 9); Shandur Burke, Grover McCullors,
James Hayes, John Dickens,44 and R. McCall (all January 10);
Harry Gibbs and Bobby Truitt (January 11. 1995); Gerald Ford
and Ed Davis (January 16); Angelo Byrd (January 18); Tom
Miller (January 19); Tracy Harris (January 21); Ernie Trippy
(January 23); Keith Thomas and Jimmy Thompson (January
24); Pat Reed (January 25); Bruce Garmon and Gerald Rice
(January 26); Marvin Bennett and Randy Rich (January 28);
Timothy McGee and Jesse Woodlee (January 31); George
Cates (February 1); Jerry Covington (February 2); Richard
Lewis (February 3); Brooks Fiveash (February 8); John Green
(February 9); Kenneth Fisher (February 24); Mike Stuckey (on
or before February 27); and James Whorley (March 10). Thus,
from February 4 through 17, 1995, with 86 employees in the
unit, the Union had 44 valid petitions. As of February 25, there
were still 86 employees in the unit (Bennett was terminated,
and Mash was again on the payroll); and the Union had 45
valid petitions. As of March 11, 1995, there were 88 employees
in the unit (Stuckey and Broedell were hired); and the Union
had 46 valid petitions. I conclude that the Union had, at these
times preceding the election, valid petitions from a majority of
the employees in the unit.

43 I note that Nevins’ petition, although dated January 9, may have
been signed on January 10, because it follows the petition of Dickens,
which is dated January 10. On the other hand, Dickens may have writ-
ten the wrong date by inadvertence.
44 See fn. 35, supra.
2. Credibility
Notwithstanding Respondent’s sometimes blistering attacks
on the credibility of the General Counsel’s witnesses, I found
them sincere, truthful, and generally reliable. They were not
concocting the various incidents about which they testified.
Various incidents occurred, and sometimes I had difficulty
finding that the General Counsel’s witnesses accurately per-
ceived those incidents, but they did not make them up. So, I
have generally credited them, wholly independent from, but
certainly consistent with, Board law, which recognizes that the
testimony of current employees that contradicts statements of
their supervisors is likely to be particularly reliable. Flexsteel
Industries, 316 NLRB 745 (1995), enfd. mem. 83 F.3d 419 (5th
Cir. 1996). The testimony of current employees that is adverse
to their employer is “given at considerable risk of economic
reprisal, including loss of employment . . . and for this reason
not likely to be false.” Shop-Rite Supermarket, 231 NLRB 500,
505 fn. 22 (1977). The wisdom of these Board decisions is
supported by Atlanta Manager Schager, who testified that some
of his employees had voluntarily told him that, although they
had signed union cards, they would nonetheless support Over-
nite in the election. Because the Union received a majority of
votes at the Atlanta terminal, Schager said they had lied to him
to “cover . . . their butt” in case the Teamsters lost. Obviously,
even Schager acknowledged the employees’ fear of retaliation;
and I find it unlikely that the employees knowingly lied about
their employer’s misdeeds. I have thus generally credited those
that testified in support of the unfair labor practices.
I do so not only because I so distrusted the veracity of the
employees who testified falsely about the circumstances of
their signing the petitions, but also because the kinds of illegal
activity was so consistent throughout the hearing, from Blaine
to the four Gissel locations. On the one hand, Overnite empha-
sized blaming Boswell, praising Douglas, the correction of the
past mistakes, the announcement of the second wage increase
and the increase of the speed and mileage limits, and “Give Jim
a Chance.” On the other hand, Overnite tried to ensure that its
employees would understand that the Teamsters was a
“plague,” ridden with crime and filled with greed to fill its ail-
ing union coffers and to fund its bankrupt pension plan. Be-
sides, Overnite contended, it would do no good to vote for the
Teamsters, because it had already had its chance in Chicago,
and look what happened. This is not to say that many of the
topics discussed were not fair game, but, as found below, the
credited testimony is consistent with Overnite’s campaign; and
Overnite often exceeded the bounds of what it could lawfully
do, similar to the kinds of threats found in Overnite Transporta-
tion Co., 296 NLRB 669 (1989), enfd. 938 F.2d 815 (7th Cir.
1991).
Furthermore, I must note that Douglas commented on June
14, 1995, in response to the press release that the Board in-
tended to seek a 10(j) injunction:

I have reviewed the specific charges made against me, and
can say without hesitation that they’re flat-out lies. They’re
obviously being made by individuals who believe either that
I’m so stupid that I’d violate the law, or they’re folks who ei-
ther have problems hearing what I say or whose moral and
ethical character won’t let them tell the truth. Knowing our
management team as I do and you do, and because I know the
allegations against me personally are without merit, there is

OVERNITE TRANSPORTATION CO. 1023
strong reason to believe that the charges against others in our
company are lies as well.

So no one tells the truth except Douglas, and the managers and
supervisors should be sure that their senior officer knows that
they, too, committed no violations. Whatever strain there may
have been on the employees who were actively supportive of
the Union to testify in favor of the complaint’s allegations,
there was equal pressure on Overnite’s witnesses to deny any
wrongdoing.
3. The unfair labor practice allegations
Respondent maintained two bulletin boards in the employee
break room and an additional one outside the break room on the
dock. Before the commencement of the organizing drive began,
all three were open to the Lawrenceville employees to post
anything on them, but employees posted their union propa-
ganda primarily on the two in the break room, particularly dur-
ing the campaign, and they also left literature on the tables in
the break room. In March 1995, 3 months after the organizing
campaign had begun, Manager Carter enclosed the two bulletin
boards in the break room in glass, under lock, preventing the
employees from posting union literature in the break room.
Respondent gave no reason for making those boards inaccessi-
ble. (There are a spate of arguments in its brief, but those are
unsupported by fact.) Although employees still left literature on
the tables and they could use the third board on the dock, Re-
spondent changed its practice of permitting the posting of lit-
erature by employees, limiting particularly the places that em-
ployees customarily looked. I find that Respondent’s purpose
was to discourage the employees in their campaign and con-
clude that Respondent violated Section 8(a)(1) of the Act. Vin-
cent’s Steak House, 216 NLRB 647 (1992).
In January, employee Kevin Adams told Carter that he had
heard some rumors about the Union and asked what was going
on, as Adams apparently did not know. Carter replied that there
had been a meeting at the union hall, that he knew which em-
ployees had attended and what they had said at that meeting,
and that he hoped that the employees would wait to see what
changes Douglas would make before making their decision.
Carter added that someone had placed flyers or leaflets in the
trucks and that a city driver had removed them and brought
them to Carter. Even though he had received his information
legally, Carter gave the impression to Adams that he was moni-
toring the union activities of the employees. That is unlawful
and violated Section 8(a)(1) of the Act. Flexsteel Industries,
311 NLRB 257 (1993).
On February 10, at a meeting of employees, Carter told them
that he had attended the San Antonio management conference,
where the service center managers had met in groups to try to
come up with solutions to the “problems that were going on at
Overnite.” Mike Smith testified that Carter announced that he
had a list of 23 improvements, such as incentives for bringing
back business lost in the 1994 Teamsters strike and bringing in
new business, a picnic budget, paying for overtime, night-liners
(Smith could not explain what this was), vacation time, and
better uniforms. Carter also compared Boswell, a tougher busi-
nessman who would not talk to employees or improve working
conditions, with Douglas, a “hands-on guy” who would try to
communicate with the employees better than Boswell did.
Despite Carter’s denials, I generally credit Smith, who was
no longer employed by Overnite and thus had no reason to
fabricate his testimony. One of the purposes of the San Antonio
conference was to discuss employee complaints, and the reason
for doing so was to rid Overnite of the causes of employee
unrest. By comparing Douglas with Boswell, who would not
improve working conditions, Carter gave the impression that
Douglas would, and in the particulars that Carter enumerated.
The list that Smith recalled was perhaps somewhat faulty, but
sufficient enough to include overtime and uniforms, causes for
complaints in many locations. The statement about Douglas’
character was also consistent with what was frequently said
throughout the campaign. Carter’s statements, made in response
to the Union’s campaign, unlawfully promised benefits in order
to discourage employees from supporting the Teamsters. Har-
bor Cruises, 319 NLRB 822, 839 (1995). I conclude that Re-
spondent Section 8(a)(1) of the Act.
That same evening, Carter held another meeting, telling em-
ployees that Douglas had just given them the March 5 raise,
which was overdue. He then said that Overnite could not sur-
vive under a Teamsters’ contract and that it would cost too
much to bring Respondent’s employees up to the Teamsters’
pay scale and would probably hurt Overnite more than help it.
He then praised Overnite because it was not as strict as other
trucking companies and did not have as many tough rules. But
he had “a list of things in his office” if he needed to get rid of
people; and that could be done “very easily.” Finally, the em-
ployees’ pension plan would probably go into the Teamsters’
fund and be used to pay other Teamsters’ members who were
then retiring.
Compared with the “carrots” offered at the earlier meeting,
Carter added some “sticks” at night, which, the General Coun-
sel claims, constitute illegal threats. Carter’s threat that he had a
list of things in his office he could use if he wanted to get rid of
employees—even though Carter denied this, he admitted telling
two other employees that he could have fired them for certain
incidents, but had decided not to do so—was illegal. He was
advising them that, if they voted to be represented by the
Teamsters, he would not be as lenient. That violated Section
8(a)(1) of the Act. Aero Tec Laboratories, 269 NLRB 705, 706
(1984).
The remainder of what Carter said raises an issue which is
often presented in this proceeding. Many of the witnesses
called by the General Counsel testified to various threats that
Overnite would never sign a contract and that, if the employees
voted for the Union, there would be various adverse conse-
quences. Carter and many of Overnite’s managers and supervi-
sors testified that their discussions related to the NMFA and not
to unions or the Teamsters. Thus, any implied threats were
merely reflections of what would happen if the Teamsters suc-
cessfully obtained the terms and conditions of the NMFA and
applied them to Overnite’s facilities. On the other hand, the
General Counsel’s witnesses, with somewhat less uniformity,
testified that the implied threats had nothing to do with the
NMFA but were merely predictions of dire consequences, un-
protected by the Act and unsupported by objective facts.
Section 8(c) of the Act protects an employer’s right to ad-
dress the issues of union representation, provided that its views
are devoid of threat of reprisal or promise of benefit. The Su-
preme Court gave the following guidance in Gissel, 395 U.S. at
618:

[A]n employer is free to communicate to his employees any
of his general views about unionism or any of his specific
views about a particular union, so long as the communications
do not contain “threat of reprisal or force or promise of bene-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024
fit.’’ He may even make a prediction as to the precise effects
he believes unionization will have on his company. In such a
case, however, the prediction must be carefully phrased on the
basis of objective fact to convey an employer’s belief to de-
monstrably probable consequences beyond his control . . . . If
there is any implication that an employer may or may not take
action solely on his own initiative for reasons unrelated to
economic necessities and known only to him, the statement is
no longer a reasonable prediction based on available facts but
a threat of retaliation based upon misrepresentation and coer-
cion, and as such without the protection of the First Amend-
ment. . . . As stated elsewhere, an employer is free only to tell
what he reasonably believes will be the likely economic con-
sequences of unionization that are outside his control,’’ and
not “threats of economic reprisal to be taken solely on his own
volition.’’ [Citations omitted.]

To the same effect, see, e.g., General Electric Co., 321 NLRB
662 (1996); Action Mining, 318 NLRB 652, 656–657 fn. 12
(1995); Deer Creek Mining Co., 308 NLRB 743 (1992).
Here, the focus the remarks of Respondent’s managers and
supervisors must be on the fact that the Teamsters was attempt-
ing to organize the employees at the Lawrenceville service
center (or Louisville or Norfolk or Bridgeton to follow), not all
175 service centers operated by Overnite. What Overnite is
then privileged to say is how the organization of that single
facility may impact on its operation of that facility. Carter ad-
mittedly talked about the Teamsters’ contract, but there was no
objective fact stated to the employees at Lawrenceville, nor is
there even one in the record, to show that the application of the
NMFA to Lawrenceville would cause Overnite to go out of
business. Respondent did offer evidence to show that, if the
NMFA had been applied generally to all Overnite’s employees
throughout its operations, it would have, instead of making a
profit, lost substantial moneys. Again, even that was never
stated to the employees, and there is no proof that Carter relied
on those figures when making his threat. Carter’s prediction
thus had no objective factual basis and is unlawful. Similarly,
his statement about the pension fund is not objective.45 Even if
it were true that the Teamsters would ask for its own pension
fund, a merger of Overnite’s funds into the Teamsters’ funds
would not even probably be a likely result, unless Overnite
permitted it. What Carter was saying was that the employees
would lose all the money that had vested in Overnite’s fund,
and that was not the likely result of a union contract or even the
NMFA.
Part of Overnite’s campaign at each of the service centers
was a series of meetings that employees were required to attend
(“mandatory meetings”). Schager, even though the manager of
the Atlanta service center, conducted three or four mandatory
meetings with the Lawrenceville employees on January 25, and
he made a number of statements that are alleged to violate the
Act. One was that he believed that Overnite could not operate
under a union contract and that if the Company were forced to
do so, the company would be forced to go out of business. An-
other one was that, if the employees voted for representation by
the Teamsters, it would lose 40 percent of its business because
its customers would not use union carriers and it would lose 55
percent of its managers. Yet another is that 150 unionized truck
companies had gone out of business and that, if Overnite had
been unionized in 1994, it would have lost $44 million.

45 This may not have been directly alleged in the complaint, but it
was litigated and briefed by all parties.
Schager testified that whatever he said was in the context of
the NMFA, but not even Respondent’s own employee wit-
nesses (who testified is support of some milder language) cor-
roborated that testimony. Anyone who tells an employee, albeit
one employed at the Atlanta service center, that Overnite was
going to play hard ball and was thinking of closing down is
capable of making the statements that the employees attributed
to him. Schager misstated that he had not made this threat, and
I do not credit him generally. I find violations of Section
8(a)(1) of the Act. There is no objective support for any of his
predictions of loss of business, customers, or managers. Reeves
Bros., Inc., 320 NLRB 1082, 1083 (1996). Further, his state-
ment that Overnite could not operate under a union contract
constituted an illegal threat of closure of the business and loss
of the employees’ jobs. Such a threat violated Section 8(a)(1) of
the Act, under the circumstances herein. The necessary implica-
tion of Schager’s statement that 150 unionized truck companies
had gone out of business is that the Teamsters was to blame for
those closings. That, too, violated the Act. Eldorado Tool, 325
NLRB 222 (1997).
At the same meetings, Schager, while threatening the em-
ployees with dire consequences if they supported the Union,
made the same kind of promises as did many others of Respon-
dent’s managers and supervisors. Thus, he recognized that
Overnite had problems, but Boswell was the culprit, caring
more about profits than about the employees. Douglas, how-
ever, cared more about people; he was going to make a lot of
changes; and the employees should give him a chance. I con-
clude that Schager promised benefits to the employees in viola-
tion of Section 8(a)(1) of the Act. Reno Hilton, 319 NLRB
1154, 1156 (1995).
After watching films at one of the meetings, Smith and
Schager had a heated discussion, starting with Smith’s com-
plaint that he was insulted by the antiunion film that Overnite
showed. When Smith began to advocate the Union, Schager
contended that the Union was not such a good thing; and he
told Smith: “[I]f you want a Union job why don’t you go and
get a Union job with a company that is a Union company.” At
another meeting, Schager said that if anyone who worked for
Overnite was not satisfied with its nonunion status, Schager
could try to help the employee get work with a union carrier.
His invitation to Smith and others to quit interfered with their
right under Section 7 to engage in union activity and thereby
violated Section 8(a)(1) of the Act. IMAC Energy, 305 NLRB
728, 731 (1991).
At the same meeting, employee Jerry Williams asked
Schager if the employees would have been given the wage
increase and if Respondent would be trying to improve the
employees’ conditions had the Union not tried to organize the
employees. To both questions, Schager responded: “[N]o.”
Smith, apparently believing that the Union should receive credit
for the wage increase and any future benefits, asked the other
employees what more they needed to hear. Whether Smith was
correct or not, Schager was contending that the employees did
not need the Union, because Overnite would respond to their
organizing drive by taking care of them, thereby attempting to
dissuade them from supporting the Union and interfering with
the exercise of their Section 7 rights. Hamilton Avnet Electron-
ics, 240 NLRB 781, 790 (1979): Topeka Discount, 181 NLRB

OVERNITE TRANSPORTATION CO. 1025
17, 18 (1970). I conclude that Respondent violated Section
8(a)(1) of the Act.
The testimony of the General Counsel’s witnesses about
overtime and pensions was hardly the model of consistency.
Overnite’s failure to pay employees for overtime was a major
issue at Lawrenceville. Only Joe Huff testified to Schager’s
threat that, if the Union won the election, Overnite would not
pay overtime, but would hire more employees to keep from
paying time and one-half. On the other hand, employee Gerald
Jennings testified that Douglas, shortly before the election, told
the employees that, if they became represented by the Union,
Overnite would probably have to lay off workers if it was
forced to pay overtime. As to pensions, Huff testified that
Schager threatened the employees that, if they selected the
Union as their representative, they would lose their pensions.
Overnite’s pension plan for employees would have to be rene-
gotiated, and the contributions paid into the Teamsters’ pension
fund would be used to pay the retirement benefits of those who
had retired under that fund, because it was broke. Smith added
Schager’s threat that Overnite’s employees would lose credit
for all the time they had worked for Overnite, and that would
have to be renegotiated. On the other hand, employee Bob
Crocker testified that at the meeting he attended, Schager said
that the Teamsters’ retirement fund was underfunded, that it
could go broke if the Teamsters did not get more members, and
that Overnite’s plan was fully funded. Another twist was added
by Atlanta employee Dwayne Strickland, who testified that
Schager said that the only reason that the Teamsters wanted to
organize them was to capture their retirement plan and they
would lose their retirement money to the Union. Finally, the
General Counsel relies on statements that Carter made to Smith
and several other Lawrenceville employees that, if the Union
won the election, the employee’s money from Overnite’s plan
would be put in one pot and be used to pay the employees who
were presently retiring from the Teamsters.
Schager admitted that he talked to employees about pen-
sions, but said that all he told them was that if the Union won
the election, everything, including pensions, would be subject
to negotiation. While he discussed the fact that the Teamsters’
pension fund was underfunded, and Respondent’s was fully
funded, he denied that he told employees that Overnite’s pen-
sion would go into the underfunded Teamsters’ fund, denied
that he told employees that they would lose what they had if the
Union won the election, and denied that he ever said that the
Union wanted to get its hands on Respondent’s retirement fund.
Carter also denied that he told employees that, if Respondent
were to contribute to the Teamsters’ fund, the money would be
used to pay retirement benefits for employees of other carriers.
I cannot believe that Respondent sent out as many diverse
messages about pensions as these employees related. It is likely
that Schager said more about the pensions than he was willing
to admit; but, from all this testimony, I cannot tell what. Nor do
I find it probable that Douglas was espousing laying off em-
ployees, if forced to pay overtime, while Schager was stating
that Respondent would hire more employees. Even if I believed
one or the other, it is problematic whether either, properly un-
derstood, is a violation of Section 8(a)(1) of the Act, or merely
a prediction of what might result from Overnite’s grant of over-
time pay. I conclude that the General Counsel did not prove any
of these allegations by a preponderance of the evidence.
At the January 25 meeting, Schager repeated Overnite’s
mantra about bargaining in Chicago, that the Chicago employ-
ees had voted for union representation long ago and still did not
have a contract. All that Respondent had to do was bargain in
good faith. Schager said that this demonstrated that voting for a
union does not mean that the employees will get a negotiated
contract, because employees in Chicago did not have one after
12 to 13 years. By Schager’s omission of any reference to the
Board’s finding that Overnite bargained in bad faith, Respon-
dent implied that bargaining would be futile, lasting for years
without any possibility of agreement.46 For the reasons set forth
above, I conclude that Respondent violated Section 8(a)(1) of
the Act. Taylor Chair Co., 292 NLRB 658, 662 (1989).
One of the major issues in the Lawrenceville campaign was
the status of the service center’s part-time employees. Schager
told the employees that the union contract allowed only casual
employees and not part-time employees to work. Although
employee witnesses testified that Schager threatened that, If the
Teamsters became the employees’ representative, the current
part-time employees would lose their jobs and could be re-
placed by casuals from other Union carriers, I find that he did
not misstate the logical effect of the NMFA contract. Thus, I
find no violation.
In March 1995, dispatcher Rivers told employees that a team
of Overnite’s lawyers had come to the terminal and informed
the managers that Overnite had set aside $20 million to fight
the Teamsters and that Overnite would break the Teamsters
before it could organize the employees. He pointed out that,
despite the fact that the employees at the Kansas City terminal
had voted for the Teamsters, they did not receive the March 5
pay raise; and, based on what the lawyers told Rivers, Overnite
would never sign a union contract. He asked the employees to
look at what had happened at the Chicago service center, that
those employees had been represented by the Teamsters for 10-
13 years and still did not have a contract. All Overnite had to
do was bargain in good faith. Finally, he threatened that, if
Overnite’s employees were represented by the Teamsters, em-
ployees from other unionized employers who were laid off
could bump Overnite’s part-time employees and take their jobs.
In another conversation later that month, when a driver made a
pro-Teamsters comment, Rivers responded that the employees
should vote for the Teamsters. “Chicago did and what good did
it do them.” The Chicago service center still did not have a
contract.
Respondent contends that Rivers was a low level supervisor
and not an agent. The Board wrote in Zimmerman Plumbing
Co., 325 NLRB 106 (1997):

It is well established that apparent authority results from a
manifestation by the principal to a third party that creates a
reasonable basis for that party to believe that the principal has
authorized the alleged agent to perform the acts in question.
See generally Dentech Corp., 294 NLRB 924 (1989); Service
Employees Local 87 (West Bay), 291 NLRB 82 (1988). Thus,
in determining whether statements made by individuals to
employees are attributable to the employer, the test is

46 I do not find, as Huff testified, that Schager threatened directly
that Respondent would not sign a contract, but the intent was to clearly
demonstrate the futility of bargaining with Overnite. I also do not find,
as Schager testified, that his only mention of Chicago was in response
to employees’ questions. The Chicago experience was a linchpin of
Overnite’s campaign strategy, repeated by Edwards and various man-
agers and supervisors at every location involved thus far in this pro-
ceeding.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
whether, under all the circumstances, the employees “would
reasonably believe that the employee in question [alleged
agent] was reflecting company policy and speaking and acting
for management.” Waterbed World, 286 NLRB 425, 426–427
(1987).

Rivers attended management meetings on labor relations (the
ones from which Nevins was excluded) and was in charge of
dispatching the drivers. Furthermore, his comments represented
nothing particularly new or startling in the context of the evi-
dence in this proceeding. He was merely parroting much of
Respondent’s propaganda line, and employees would reason-
able believe that he was acting for management. Thus, Respon-
dent should be responsible for it. I conclude that Respondent
violated Section 8(a)(1) of the Act by threatening that the selec-
tion of the Union would be an exercise in futility because Re-
spondent would ensure that there would be no contract; and by
threatening employees, including part-time employees, without
any factual basis, with the loss of work by casual employees
from employees at other carriers taking the jobs of current em-
ployees, if the Union won the election. General Electric Co.,
321 NLRB 662, 666 (1996), modified and remanded 117 F.3d
627 (D.C. Cir. 1997).
In late March, Edwards repeated to the Lawrenceville em-
ployees the Chicago story, with a little more detail than at any
other service center—that the employees there had voted for
Teamsters’ representation and had been in negotiations with
Respondent for about 10 years and still did not have a contract,
although the negotiators had come close a couple of times.
Edwards said that Overnite had been negotiating in good faith
and then added that the employees at Respondent’s service
centers that had voted for Teamsters’ representation in 1994
and 1995 would not receive the March 1995 pay raise because
it would have to be negotiated. At another meeting, Edwards
said that contract negotiations for the Chicago service center
had been going on for 13 years; that during that time a lawyer
had died, and the officials of the Local had changed; and nego-
tiations had to start over. The Teamsters had tried to call a
strike and only seven employees participated.47 All Respondent
had to do was negotiate in good faith, Edwards adding “that
Overnite could be negotiating with the Union for years and that
they could make this thing go on for years and they could drag
it out in the court for years.” In the meantime, Edwards an-
nounced that the employees at Respondent’s five terminals that
had voted for union representation before March 5 would not
receive the increase, because the raise was “on the negotiating
table.”
Edwards’ comments were intended to convey to employees
the message that it would do them no good, and would be an
effort in futility, to vote for representation by the Union, be-
cause there never would be an agreement. El Rancho Market,
235 NLRB 468, 472 (1978), enfd. mem. 603 F.2d 223 (9th Cir.
1979). The employees would also be punished for voting for
the Teamsters, because doing so would effectively deprive
them of any future increase. I conclude that Overnite violated
Section 8(a)(1) of the Act in both instances.
In early April, Douglas and Adams, among others, were talk-
ing about the employees’ complaint that Overnite was contract-
ing out freight that the Lawrenceville drivers used to carry to
Florida. Douglas told them that he was looking into ways that
Respondent could return this work. The discussion then turned
to the benefits that Respondent provided to its employees.
Douglas said that Overnite spent $120 million dollars annually
on benefits and that perhaps employees were not happy with
the way that the money was being spent. He wanted to form
committees to get employee input on how to spend that money
and told Adams that Overnite needed people like him to serve
on such a committee. There had been no such committees be-
fore. About a week later, Douglas told some employees that
they needed to put the organizing drive behind them and elimi-
nate all the hard feelings. Employee Paul Carpinez had been
talking about things that he felt were wrong, and Douglas said
to him that Overnite needed someone like him to serve on a
committee to provide input to help solve problems.

47 One witness called by Respondent recalled Edwards saying that
almost all of the employees who had voted the Teamsters in at Chicago
were no longer employed by Overnite.
Douglas tried to hedge his answers, but did admit that he
wanted to get “cross sections of our employees to help us to
determine how to spend our benefit dollar.” In fact, Douglas’
suggestion and offer was a way to solve problems, with the
employee groups to tell management what the best way to solve
a problem was. For example, Carpinez was suggesting that
Overnite’s retirement be changed from 65 to 58, as in the
Teamsters’ plan; and Douglas explained the costs of such a
change and the limitations on the activities of a retiree. Then he
repeated: “My whole point is I don’t know whether we’re
spending it in the right way. And we ought to go back to people
like you and a cross-section of our employee population and
say ‘what’s the right way to do this.’”
Respondent contends that there was nothing wrong with
Douglas’s statements, but I find a clear promise, made during
the course of an organizational campaign, never before in ef-
fect, that a group of employees would help Respondent to de-
termine what the best way was to spend the money available for
employee benefits. That violated Section 8(a)(1) of the Act.
Torbitt & Castleman, Inc., 320 NLRB 907, 909–910 (1996). In
addition, Douglas’ offer to Carpinez to serve on a committee to
help solve problems amounted to solicitating grievances from
employees with a promise to redress them. Valley Special
Needs Program, Inc., 314 NLRB 903, 904 (1994).
During the first conversation, Douglas asked Adams
whether, during his employment by Overnite, he had ever
missed a paycheck. Adams replied that he had not, but his pay-
check had become smaller, even with the raises that Overnite
had given, as a result of changes, including route changes, that
Respondent had been making. Douglas asked whether Adams
was willing to sacrifice the jobs of 14,000 people for “this
campaign.” Adams responded that he was, but did not believe
that Douglas understood, with the cutbacks in jobs being made,
including the subcontracting of freight to Florida, that employ-
ees already felt that their jobs were being threatened. Douglas
repeated that he could not believe that Adams was willing to
sacrifice wages and benefits of his fellow employees for the
campaign. Later, one of the employees asked about the reduc-
tion of some full-time employees at the Atlanta terminal to
part-time status. When Douglas said he knew nothing about it,
Adams said that he did; but Douglas brushed him off and told
him to check with Schager and get his facts straight. Douglas
then threatened Adams that, if the union campaign were suc-
cessful, everything was being jeopardized—the jobs and wel-
fare benefits, everything—and the employees would see a big
change in management’s attitude, especially at the local level,
in the manner that Overnite enforced its work rules, and that

OVERNITE TRANSPORTATION CO. 1027
Overnite was going to toughen up. Douglas glowered at Adams
as he said this.48
During Douglas’ conversation a week later, Douglas asked
the employees how the Teamsters could solve the problems that
they were raising. Adams answered that the Teamsters would
merely bring existing problems to light. Douglas said the
Teamsters would create problems by going after the NMFA,
and the company would lose money, a situation that Adams had
said earlier he did not care about. Adams disagreed, saying he
did care, but that might be necessary to get the point across
about how upset employees were. Douglas then said, “[S]o, and
so we’ll drive this thing into nonprofit and put 14,000 jobs in
jeopardy and that’s the way to answer that.”
The Teamsters was seeking to represent the employees in
Lawrenceville. The issue of representation by the Teamsters in
Lawrenceville cannot conceivably bring down the entire com-
pany because the NMFA would apply only to Lawrenceville.
Besides, Respondent repeatedly said that it would not sign a
contract that was not beneficial to it. Accordingly, there was no
objective factual basis to threaten these employees that their
vote would cause not only their downfall but also the demise of
the entire company. I conclude that Respondent violated Sec-
tion 8(a)(1) of the Act. Further, Douglas’ threat that manage-
ment would change its attitude in the way it enforced its work
rules in the event the employees voted for union representation
is a threat to retaliate because of the employees’ exercise of
their Section 7 rights. That also violated Section 8(a)(1) of the
Act. Aero Tec Laboratories, 269 NLRB at 706.
4. The objections
The International filed a petition for an election in Case 10–
RC–14595 (now Case 18–RC–15786) on February 27, 1995.
An election was held on April 17, 1995, which the Union lost,
38 to 42, with an insufficient number of ballots challenged to
affect the results of the election. The Union filed timely objec-
tions, and the Regional Director issued an order directing a
hearing on all of them, deeming them coextensive with certain
(without stating which) of the allegations in the unfair labor
practice complaints issued relating to the Lawrenceville unit.
That is no doubt true, but it leaves me with the task of picking
out and sorting which of the 11 objections, many of which are
duplicative and repetitive, relate to which of the many allega-
tions of the complaint. It suffices that the March wage increase
certainly interfered with the laboratory conditions of the elec-
tion, as did the many threats of futility and other 8(a)(1) viola-
tions that I have found, to the extent that I have specifically
found that they occurred within the critical preelection period,
after the filing of the petition. Ideal Electric, 134 NLRB 1275,
1278 (1961).Those appear to be the ones pertaining to the bul-
letin boards and the unfair labor practices committed by Doug-
las and Edwards.
B. Louisville
1. Majority status
Unlike Lawrenceville, there is no issue about the majority
status of the Union at the Louisville service center. On January
20, 1995, the Union requested Overnite to recognize it as the
representative of the employees. As of then, 117 of 174 em-
ployees had signed cards designating the Union as their repre-
sentative for the purposes of collective bargaining. In making
this calculation, I have omitted the cards dated after January 20
and the card of Prince Greer, which was undated, but had to be
signed before the date that the Region stamped as the date it
received the card. I have included the cards of James Kinnamon
and Dale Waford, which, although undated, bore postage can-
cellation stamps in October and December 1994, respectively,
and the cards of James Hester and Charles Turner, as to whom
Richard Shipp, the handwriting expert, opined that it was prob-
able that they signed the cards. Under the Board’s normal pre-
ponderance-of-the-evidence test, that expert opinion is suffi-
cient. I have also included the card of Russell Anderson, who
testified that he signed the card that is in evidence.

48 At one point in the hearing, the Counsel for the General Counsel
asked Douglas a question about whether there was any written support
for his position. Douglas glowered as he asked whether he was being
called a “liar.”
2. Credibility
I rely on the same considerations for determining credibility
that I stated above, noting that the pattern of Overnite’s opposi-
tion to the Teamsters was so similar from location to location.
There might have been little variations, but essentially Over-
nite’s task was to find out what the problems were, attempt to
resolve those problems, show why Overnite could resolve the
problems better than the Union can, show the harm that voting
for the Union might cause, and assure the employees that their
best hopes rest with Overnite than with the Teamsters. In doing
so, Respondent’s conduct lapsed in the respects found below,
and, in so finding, I reject Overnite’s brief’s full-scale attack on
the credibility of the General Counsel’s witnesses. I find it un-
likely that they concocted the varied incidents about which they
testified. Rather, I found them generally reliable, clear-headed,
sincere, and able to recall accurately the events that transpired.
To the contrary, I felt that Respondent’s witnesses, with one
exception, were relating what they wanted me to hear, rather
than what actually occurred.
3. The unfair labor practice allegations
The Union began organizing the Louisville employees
around early October 1994 (the first authorization card was
executed on October 3). In early November, Service Center
Manager Dave Harmeier learned about the organizing efforts
and, pursuant to Overnite’s policy, called his immediate super-
visor, Alan McBride, the central region vicepresident, to so
advise him. Shortly after, in late November, McBride visited
the Louisville service center and asked road driver Ken Trulock
and his sleeper team partner, Mike Cantrell, if they had any
problems in any areas or any complaints that he could help
them with or anything that they had seen that could have been
done better. Trulock responded that there were delays in getting
into and out of terminals because there were dispatchers who
were abusing their authority. McBride said that he would try to
work on those areas and find out. With one exception, which
occurred as many as 5 years before, no one not immediately
associated with the Louisville terminal had asked Trulock, who
had been employed by Overnite since 1979, if he had any
work-related issues of concern. Implicit in McBride’s unsolic-
ited inquiry is the promise to correct Trulock’s grievances, even
if he said only that he would try to work on those areas. I con-
clude that that is sufficient to sustain a violation of Section
8(a)(1) of the Act.
About February 1, 1995, Harmeier held an impromptu meet-
ing with the third shift. He asked what he could do to make the
situation better so the Union would be kept out. The employees

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028
raised the issue of overtime. Harmeier said he had some control
over the number of hours worked but he could not promise time
and one-half. “But possibly, in the future, things might get bet-
ter.” The employees expressed their grievances, Cunningham
reminding him that in 1994, when the third shift had met with
him to complain that they were being forced to work overtime
at Lexington when the second shift was not required to go, he
told them that they could quit. Harmeier promised that he
would work with the employees as best he could. Again, I con-
clude that Respondent solicited employee grievances and im-
pliedly promised improved benefits if the employees did not
select the Teamsters, in violation of Section 8(a)(1) of the Act.
Harmeier conducted a series of five mandatory meetings. At
one, Harmeier encouraged employees to give Douglas a
chance. He said that Douglas had a “new vision” and was a
very sincere person. If he said he was going to do something,
Harmeier believed that he would; and if, at the end of 12
months, Douglas did not do what he said he would do, the em-
ployees could always vote for the Union to represent them. His
remarks set the tone for Douglas’ visits to the Louisville service
center in March. A week before the election, about March 9 and
10, Douglas explained to employees some of the things that he
thought had been wrong while Boswell was president. He
promised that he was going to work on making conditions bet-
ter for the employees, that he was trying to upgrade employee
benefits, and that there were some other “things [Overnite was]
working on.” In a conversation with some dockworkers, Doug-
las said that he had just taken over and realized there were
some problems; and that was the reason that he had been put in
charge. He was going to try and “straighten stuff out” and
would have an open line—employees could call and talk to him
about problems. Douglas said to yet other employees that he
was the new president and he was visiting terminals to learn
about problems firsthand. Douglas asked Trulock about his
areas of concern. Trulock was appreciative of his interest, not-
ing that he had never met (except for McBride and a safety
supervisor) anyone higher than a terminal manager. He said
that he had no problems in Louisville, but did on the road, wait-
ing for loads. Drivers ought to be paid for a wait in excess of an
hour. Douglas replied that waiting 30 minutes was too much.
During the conversation, Douglas showed how he was trying to
make some changes, specifically mentioning the wage increase
and the increase of the mileage limits. I conclude that Douglas
promised improved benefits, which, in the context of Har-
meier’s introduction of him and the “Give Jim a Chance” cam-
paign, were promised to dissuade employees from supporting
the Teamsters as their collective-bargaining representative, in
violation of Section 8(a)(1) of the Act.
During Douglas’ same visit, employee Gregory Sageser ar-
ranged for a meeting with him (but specifically not including
Harmeier) for the third-shift dockworkers and some city drivers
to present their concerns and complaints.49 Sageser asked why
dockworkers were not receiving jockey pay (25 cents per hour
more) when assigned to the yard. Douglas appeared amazed.
Regional Vice President Bronson left the room and consulted
with Harmeier on the dock. Subsequent to this meeting, em-
ployees began to receive jockey pay. Douglas told the employ-
ees that Drew Lewis had given him 12 months to turn things
around or he would be finding a new job. When employee Tim
Nalley asked about time and one-half, Douglas responded that
they would be looking into everything, but his hands were tied
and he could not say because of the election. Douglas was
wearing a “Give Jim a Chance” button, and Douglas referred to
the slogan as one that some of his friends in Richmond had
devised to indicate that he would turn the company around.
Douglas also mentioned the upcoming March wage increase:
the previous performance incentive plan had not compensated
employees fairly and the second raise would make up for what
the employees deserved in 1994.50 The Union would probably
try to block the increase, but Overnite was going to give it
anyway. At the conclusion of the meeting, Douglas told em-
ployees to call him if they had any questions. Nalley asked for
his telephone number, and Douglas supplied it. By the forego-
ing, Douglas solicited grievances and implied that he would
continue to make improvements, such as the March wage in-
crease—all in violation of Section 8(a)(1) of the Act. Although
I find that Overnite also resolved the grievance about jockey
pay by granting it, that was specifically withdrawn as an unfair
labor practice allegation, but was still litigated.

49 There was little agreement among the General Counsel’s wit-
nesses about what happened, and Douglas denied much of what they
testified to. The facts that are set forth are the only ones I credit.
In contrast to the promises that conditions would become
better and improvements would be made, various of Respon-
dent’s managers warned of the harm to employees that would
result if the Union were successful. Early in the campaign, in
late January 1995, city dispatcher Johnny Gilreath saw Don
Cunningham and another employee, Alan Kincaid, wearing
Teamsters’ hats and buttons. Gilreath said, “[I]f we go union
the company will shut the doors.” Also in January, Outbound
Supervisor Jerry Ralston told Cunningham that the Union pin
he was wearing could be hazardous to his health. In late Janu-
ary or early February, dock leadman Tim Nalley was wearing
his Teamsters hat, and dispatcher Don Fulton asked him if had
thought about what it would cost him if the Union got in. Ful-
ton answered his own question: if the Union got all the extra
wages and benefits, it was going to cost some of Nalley’s fel-
low employees their jobs. Nalley replied that he would like
everyone to be better off, but Fulton did not think it would end
that way. Rather, Overnite could close down the terminal,
change the name to “Special Services Division,” and hire all
new employees. Nalley protested that that was illegal, but Ful-
ton just shook his head. Around the same time, Nalley had a
similar conversation with another dispatcher, Larry Jones, who
thought that Lexington was waiting for Louisville to vote the
Union in so that the Lexington terminal could run freight
around Louisville and starve the Louisville drivers to death.
Nalley said that that was not feasible financially and was ille-
gal, but Jones just laughed.
Later, in February 1995, Ralston reprimanded Cunningham
after he had joked with another employee about shoving a skid.
Ralston told Cunningham that, since the union campaign had
started, Cunningham had an attitude problem. Cunningham
disagreed and said that he was standing up for his own rights
and the rights of other employees. Ralston asked if he realized
that, if they voted a union in, Ralston would be forced by Har-
meier to write employees up for anything that they could possi-
bly get the employees for. Also in February, Dock Supervisor
Joe Burke warned employees that if the Union won the elec-
50 Douglas did not testify at the hearing that he arrived at the 55-
cents-an-hour increase from the money that the employees lost as a
result of PIP. See fn. 32.

OVERNITE TRANSPORTATION CO. 1029
tion, Overnite would “play hardball” and employees would
have to work harder than they were working now. In March,
employee Carl King joined a conversation between some em-
ployees and Supervisor Steve Decker, who said that he did not
understand why King wanted to get on a “sinking ship” because
the Teamsters was going broke and “we’d all be out of work if
we voted it in.” During a conversation about the Union, Decker
suggested giving Douglas a year to see what came out of it. I
conclude that Respondent violated Section 8(a)(1) of the Act by
threatening employees with the loss of their jobs and more
onerous working conditions if they selected the Teamsters as
their bargaining representative.
In addition to the threats of harm, there was the familiar
theme that voting for the Teamsters would not do the employ-
ees any good, because there were no favorable results that
would be reached in bargaining. At one mandatory meeting,
Harmeier said that Overnite was not going to sign any contract,
including the NMFA, that made it less competitive. All it
needed to do was bargain in good faith, and that could result in
employees’ receiving less than they did now. Up to this point,
his remarks were lawful; but then he briefly mentioned Over-
nite’s experience in Chicago, and said that Edwards could tell
the employees better than he could. Edwards then said that
Chicago facility still did not have any kind of contract, and it
had been [at least] 10 years since the employees voted the Un-
ion in. At other mandatory meetings, Edwards said that the
Union had been voted in during 1984 and Overnite had been
bargaining in good faith since that time. Edwards claimed that
all Overnite had to do was offer 5 days’ sick leave and that was
bargaining in good faith; and, even if the Union was voted in,
that did not mean employees would get the NMFA. Rather, “if
it was voted in, then that means that they would start from
scratch.” Edwards added that at terminals that had voted in the
Union, the raise would have to be negotiated; and, if the Louis-
ville employees voted in the Union, bargaining would be han-
dled basically like negotiations in Chicago, repeating that all
Overnite would have to offer would be 5 sick days and that was
bargaining in good faith. At another meeting, Edwards pointed
out that 13 years after voting a union in, there was no contract.
He said that Respondent’s representatives would show up,
charges would be filed for bargaining in bad faith, Respondent
would go to court and pay a little fine, and then it would not
have to show up again until the following year. Edwards’
statements constituted threats that it was futile for the employ-
ees to unionize in violation of Section 8(a)(1) of the Act.
At another mandatory meeting, Edwards pointed out that the
Louisville employees would be receiving the wage increase, but
terminals that had voted a union in, such as Kansas City, would
not because they now had to negotiate first. At another meeting,
Edwards stated that the only way that employees would get a
contract was to go on strike, and, if they did so, they could be
replaced. Harmeier also stated that the only leverage that the
Teamsters had in bargaining was to call a strike and that it
could do so without a vote by the employees. Edwards’ state-
ments constituted threats that bargaining would be futile, and
both his and Harmeier’s statements constituted threats that the
only way that employees would get a contract would be to
strike. The major presupposition of collective bargaining is that
parties may be persuaded by discussion and good sense and
common logic to reach an agreement amicably, without the
necessity for a strike. Fred Wilkinson Associates, 297 NLRB
737 (1990), citing with approval Amerace Corp., 217 NLRB
850, 852 (1975). All violate Section 8(a)(1) of the Act. Har-
meier told employees that Overnite would never sign a contract
that would make it uncompetitive and that the only leverage the
Union would have was a strike. He passed out “The Wheel of
Misfortune” during a discussion of strikes, which showed what
an employee would lose, depending on pay rate and length of
the strike. Harmeier said that negotiations would not start at the
point where employees were at present, but would start from
scratch and employees could actually lose what they had and
end up getting less money and less benefits. Most of his com-
ments are protected, too, except the one relating to the Union’s
sole leverage being a strike. Fred Wilkinson Associates, supra. I
find that only this comment violated Section 8(a)(1) of the
Act.51
There were some other unfair labor practices litigated. Al-
though Respondent had no rule prohibiting talking during
worktime, in February or March, Dock Supervisor Jerry
McKinley told employee Dallas Jones,52 an open union adher-
ent who was leaving work and had been briefly talking with
another employee, that “these 10 minute huddles” were going
to have to stop. On the other hand, employees opposed to the
Union were permitted to talk with other employees without
interference by supervision. Before the campaign, no supervisor
ever cleaned the break room.53 However, during the union
campaign, Burke, McKinley, Ralston, and city dispatchers Gil-
reath and Jim Hammond removed union literature and buttons
from tables in the break room but left antiunion flyers, newspa-
pers, used coffee cups, and other trash. On one occasion, Burke
literally pulled papers out of the hands of one employee who
was reading it and threw it in the trash. (Although employee
Diane Kress denied that this happened, I do not believe her.
Something prompted her after that incident to call Burke a
“jerk,” as she admitted.) On another occasion, Burke ensured
that the leaflets would not be read by throwing them in the trash
and then pouring the contents of coffee cups and soda cans over
them. When Trulock complained to his dispatcher, Don Fulton,
about Burke’s behavior, Fulton replied that they were under
orders to keep the room clear of union literature and Trulock
was wasting his time putting materials in there. The Friday
night before the election, Burke told Nalley that Harmeier had
instructed him to get rid of all the union literature the last week
of the campaign. Nalley said that he put a lot of it out himself,
and now Burke was asking him to throw it away. Burke replied
only that Harmeier had told him to keep the tables clean. I find
all these incidents of prohibiting employees from talking about
the Union and distributing union literature, as they had in the
past, in violation of Section 8(a)(1) of the Act. With respect to
Fulton, however, I find that his response to Trulock’s complaint
merely reflected Respondent’s illegal conduct of prohibiting the
distribution of union literature and did not, as alleged, consti-
tute an independent unfair labor practice declaring the futility
of campaigning or distributing of prounion literature

51 The General Counsel’s witnesses had difficulty recalling with pre-
cision when various statements were made. I find that understandable,
in light of the many meetings that were held and conversations that
were engaged in over several months of the Union’s attempt to organ-
ize the employees. In so finding, however, it may be that this finding of
a violation results from the same facts found earlier in this paragraph.
52 When he testified, Jones was no longer employed by Overnite. He
had little reason to fabricate these events.
53 Respondent employed a person to clean up the room every morn-
ing.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030
There are a number of alleged violations that have no sub-
stance: (1) At the dinner meeting at the Marriott Hotel on
March 12, Douglas reemphasized that Overnite would not sign
a contract that made it less competitive and pointed out that
Union Pacific, since purchasing Overnite, had put more money
in than it had received. This is not an illegal threat, but is a
statement of position that Respondent had no desire to dig its
own grave. The logical result is that, if Respondent is not com-
petitive, it cannot sustain its business. The comment about Un-
ion Pacific is mere surplusage and clearly not threatening. (2)
Birch also heard Douglas speak at the dinner meeting. Douglas
discussed doing whatever was necessary to become a world
class company. He added that that did not include the Union.
There was no testimony that Douglas either promised employ-
ees improved benefits if the employees did not select the Union
or threatened futility and that Respondent would never sign a
contract, as the complaint alleges. (3) At another meeting, in
the course of a discussion that sales in the central region had
decreased, Bobby Allgeier, the supervisor in charge of over-
ages, shortages, and damages, commented that one customer
had told him that, if Overnite went union, it would lose that
customer’s business. Allgeier’s statement was a truthful state-
ment of what one of the customers had told him, was thus ob-
jective, and did not violate the Act.
I also found Assistant Terminal Manager Harold Priest a
generally credible witness and credit much of his testimony,
rather than those who testified that he violated the Act. Thus, I
find that in February 1995, Priest did not threaten employees
that there would be a reduction of hours if they selected the
Union as their representative. Rather, in a conversation involv-
ing the employees’ interest in the Teamsters because of the
overtime provisions of the NMFA, when Priest asked whether
they would be satisfied if Overnite offered overtime after 45
hours, the employees expressed distrust of that idea, some say-
ing that Respondent might work them for several 12-hour days
and then give them only 3 or 4 hours another day. They wanted
only 8 hours a day. Priest rejected that idea, because that would
cause the elimination of several runs which lasted much more
than 8 hours and would become unprofitable because of the
overtime expense. As a result, hours from those runs might
have to be reduced. That is a reasonable prediction based on
known facts and does not violate the Act.
The complaint also alleged that on February 16 Priest in-
formed the employees that it would be futile to vote for the
Union and in March he threatened an employee that Respon-
dent would never sign a contract. In fact, two of the General
Counsel’s witnesses testified that the latter statement was made
twice in February, and there does not appear that there is any
testimony about an incident in March. Nonetheless, I am not
persuaded that anything illegal occurred. Rather, Priest in all
his conversations made clear that he was talking about the ef-
fect of the NMFA on Overnite’s operations. Thus, Priest merely
told Sagaser of his experiences with a company that voted in
the union. It was working as a government contractor and failed
to get another contract. It is probable that Priest said that Over-
nite would never sign the NMFA, but I credit his denial that he
used his prior experience as a threat that Overnite would simi-
larly close. On another occasion in February, Nalley, Sageser,
and Ralston were debating pension benefits when Priest joined
the conversation. He said that most of the union companies
were on their last legs, and there were not many exceptions, and
what Teamsters’ companies paid for wages and benefits was
out of line with what the industry could afford. Priest added
that he was an old man and had been around a long time, and he
did not believe that Overnite would ever sign the NMFA. I find
no violation.
The day before the election, March 16, about 10 persons
walked around the yard wearing “Give Jim A Chance” T-shirts.
At least one approached a Louisville employee to ask for his
vote against the Teamsters. This is an area limited to dock-
workers, drivers, and people making deliveries to the terminal.
Dispatcher Decker told employee Herb Birch that they were
Lexington, Kentucky, employees who were angry that their
election had been canceled. The complaint alleges that this
constituted surveillance and intimidation and an interrogation,
but the evidence supports a finding of electioneering only, and
no violation.
On the day of the election, March 17, Birch clocked in at his
regular starting time of 7 a.m. Having been told that he would
be dispatched after he voted, he, with Bill Thomas, another city
driver, joined the end of the voting line which consisted of
approximately 20 employees. Birch testified that, as he stood in
line chatting, Field Safety Supervisor Richard Buntain told him
that he was not supposed to be talking in the line. Birch said
that he was not campaigning, but Buntain repeated his admoni-
tion; and then directed Birch and Thomas and another em-
ployee, Kevin Cornell, to go to the dock and wait and then he
escorted them to the break room. About 15 minutes later, Priest
advised them that they could vote. Respondent contends that
there is no violation because it had established a schedule for
the voting, and Birch and the other employees were not sup-
posed to vote at that time. Overnite relied on a releasing sched-
ule that it claims (the Union disagreed) was agreed to by the
parties at the preelection conference. Because the Union sub-
mitted evidence, according to the Acting Regional Director’s
Report, that “the Employer informed several individuals who
went to vote that they could not vote at that time and that they
would be called when it was their time to vote,” I agree that
Buntain’s action had nothing to do with Birch’s talking or cam-
paigning, except that Buntain came to the voting line because
he had heard that Birch was campaigning. However, Buntain
said nothing to him other than that Birch was not supposed to
be voting at that time. Accordingly, I conclude that the allega-
tion that this interfered with Birch’s Section 7 rights has no
merit.
In another impromptu meeting called by McKinley during
the week of the election, according to employee Marvin
Hammond, McKinley said that the employees in Lexington did
not have their chance to vote. (The election had been canceled
because of blocking charges filed by the Union.) McKinley
called the Union a bunch of hoodlums and said that the em-
ployees would never get a contract, that they would have to go
on strike, and they would all be out of a job. Hammond re-
sponded by telling McKinley that he was leaving himself open
to charges. Don Cunningham, recalling that McKinley called
the Teamsters “gangsters,” testified that McKinley also said
that the employees needed to vote no or they could lose their
jobs. The only consistency in this testimony is that both recall
McKinley threatening that the employees would or could lose
their jobs. With these inconsistencies, although I suspect that
McKinley made some kind of unlawful threat, I do not know
what McKinley said and can make no finding of a violation.

OVERNITE TRANSPORTATION CO. 1031
In January 1995, Ralston offered to trade a cap with Respon-
dent’s logo for the Teamsters hat54 that Charles Price Jr. was
wearing. The complaint characterizes this as a threat of un-
specified reprisals. I find none; and to the extent that the com-
plaint is one involving illegal interrogation, I find none, either.
Vemco, Inc., 304 NLRB 911, 913 (1991), enfd. in relevant part
989 F.2d 1468 (6th Cir. 1993). In early to late January 1995,
Harmeier asked why Price was wearing his Teamsters hat and
button, and Price responded that employees had not received
wage increases in several years. Harmeier said that was not true
and that the increases that Overnite had granted had been better
than Teamsters-represented employees had received. Price
countered that his health insurance deductibles had risen and
that Overnite had reduced the employees’ benefits. A week
later, Harmeier told Price that he had checked and Price had
received raises. Price agreed, but again pointed out that the cost
of benefits had increased. Rossmore House, 269 NLRB 1176
(1984), enfd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985), sets forth the relevant
factors in considering whether the interrogation is coercive. I
find nothing about this interrogation of a known union adherent
coercive in the slightest and conclude that Respondent did not
violate the Act. Finally, in early February, Supervisor Steve
Decker asked Price why he was wearing his Teamsters hat and
button. Price replied that he wanted better pay and benefits and
he hoped it would reduce favoritism. The campaign had been
going on for several months, and Price had been wearing his
hat without discipline. There was no threat of discipline or pen-
alty or future reprisals during this brief conversation. I conclude
that there was no illegal interrogation. Sunbeam Corp., 287
NLRB 996, 997–998 (1988). Nor do I find that Harmeier en-
gaged in unlawful interrogation when he asked Price in early
March if he thought that the Union could really help him. Har-
meier cautioned that negotiations could result in a pay cut.
Price agreed that all terms of a contract were negotiable; but,
given Overnite’s conduct over the last couple of years, employ-
ees had been backed into a corner and their only choice was a
union. Again, there was nothing threatening to constitute a
violation. Harmeier merely tried to convince Price that negotia-
tions did not necessarily result in a gain for the employees.
There was one alleged 8(a)(3) violation alleged regarding the
Louisville service center.55 Respondent’s employee handbook
requires a driver who has an accident to “[r]eport the accident
immediately by telephone as soon as possible or by other com-
munication to the nearest Overnite terminal or to Central Dis-
patch in Richmond . . . . Violation of this rule will result in
dismissal.” Price, who knew the rule and its consequences,
damaged his trailer on March 22, 1995, but did not report it
because, he testified, he did not know that it happened. Rather,
it was only when he was waiting for his last pickup at the B. F.
Goodrich plant in the Bluegrass Industrial Park, a site approxi-
mately one-tenth of a mile from the terminal, that he noticed
what appeared to be a dent in the upper right-hand corner of his
trailer. In fact, a chunk of metal was torn off. He then returned
to the Louisville service center and pointed out the damage to
the shop mechanic on duty. The shop manager advised him to
fill out an accident report. Price went to the dispatch office and
notified Bart Adkins that it looked as if he had hit a tree limb.
Adkins asked a few standard questions included in Respon-
dent’s accident form, excused Price, and completed the form

54 Ralston described it as a Pittsburgh Pirates hat, because it had the
colors of that team.
55 This is the only 8(a)(3) violation alleged and disposed of in this
Decision. However, there were about 15 discharges, in addition to
suspensions and warnings, alleged in this consolidated proceeding, all
of which were separately scheduled for hearing in mid-1997 and all of
which settled, without formal decision. Respondent expressly claimed
that it committed no violation of the Act.
The following day, Price reported for work but was in-
structed to see Shift Supervisor Ray Rhodes before leaving on
his assignment. In response to Rhodes’ questions, Price told
him that he must have hit a tree limb, possibly on Chestnut
Street along the Northwest Parkway, but denied that he had felt
the impact with the tree. Rhodes, feeling that Price’s story did
not make sense, suspended him pending further investigation of
the incident. The following Tuesday, March 28, Price was
summoned to a meeting with Harmeier, Rhodes, and Adkins, at
which Harmeier advised that he ought to fire Price for failing to
report the accident, but he was aware that Price was a union
supporter and would probably turn the situation into a union
incident. After acknowledging Price’s good driving record,
Harmeier told Price that he would be given a formal warning.
Nonetheless, Price lost 3 days’ pay.
Price admitted that, if he had hit a tree, he would have re-
ported it. Overnite’s proof at the hearing convinces me that he
did hit the tree and that the damage was sufficient enough that
he would have known that he hit the tree and tore off a corner
of the trailer. Particularly unconvincing was Price’s explanation
that he was “sort of immune to tree limbs.” Nor do I believe his
belated recollection on redirect examination that he had his
radio “booming” that day. He had never told management that
there was any reason that he was unable to hear (no less feel)
the contact with the tree.
In sum, I find that Price hit the tree, he knew that he hit the
tree, he knew that he was required to report to Overnite that he
hit the tree, and he did not report the accident. The only issue
here is whether Respondent disciplined Price disparately by
suspending him for 3 days. Four years before, Overnite gave a
final warning to, but did not suspend, a newly hired driver who
had reported an accident to the police, but failed to report it to
Overnite until he returned to the terminal 4 hours later. Over-
nite distinguishes that incident on the ground that at least he
reported the accident, while Price did not. That is arguably so
and persuasive enough to indicate that, even had Overnite
based its discipline on Price’s union activities—and I do not
find that it did, and I find that there was not even a prima facie
case of a violation here—Respondent showed that it would
have taken the same action, even if Price had not been a union
supporter. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983); Manno Electric, 321 NLRB 278 (1996).56 Accordingly,
I dismiss this allegation.57
56 Harmeier, who thought there was sufficient evidence to terminate
Price, became the service center manager in December 1991, after the
earlier warning had been given.
57 There were a number of other unfair labor practices alleged in the
complaint, but I could find no evidence to support them; and the Gen-
eral Counsel’s brief did not refer to them. Thus, to the extent that no
findings have been made, the allegations are dismissed for lack of
proof.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032
4. The objections
As found above, Local 89 filed a petition for an election in
Case 9–RC–16508 (now Case 18–RC–15814) on January 24,
1995. An election was held on March 17, 1995, which the Un-
ion lost, 85 to 83, with one ballot challenged but not determina-
tive of the results of the election. The Union filed timely objec-
tions,58 and the Acting Regional Director issued an order direct-
ing a hearing on many of the issues that mirror the unfair labor
practice complaint, including, among others, the March wage
increase, threats of futility, and discriminatory removal of cam-
paign materials. As found above, the record supports the Un-
ion’s Objections 1, 2, 11, 12, 13, and 15. I have previously
found lacking in merit the underlying substance of Objection 3,
and I specifically find in the evidence supporting that objection,
no creation of fear and coercion that destroyed the laboratory
conditions for the election. There was no evidence elicited to
support Objection 7.
The employees normally entered the facility through a gate,
which Overnite locked for approximately 1 hour on the morn-
ing of the election. Employees were let into the facility by
Mark McGloghlin, but there was no evidentiary support for
Objection 4’s charge that he campaigned. Even assuming that I
were to disregard the reasons that Overnite alleged that it
changed its policy on election day, I find that, under these facts,
the mere change of the employees’ entrance to the facility
could not affect the laboratory conditions for the election. No
one was precluded from voting. Accordingly, I reject this
objection. Candle-Lite, Inc., 180 NLRB 1072, 1073 (1970). I
find, however, that Objection 8 is meritorious, even though the
facts on which it is based, Buntain’s removal of Birch from the
voting place, did not constitute an unfair labor practice. There
was no agreed-upon release schedule; and, despite
Respondent’s agreement to the time for voting all day, it
plucked voters from the line, when under the agreement of the
parties all employees were entitled to vote, and removed them
from the polling place, all in front of other voters. That
destroyed the laboratory conditions for the election. Roney
Plaza Mgt. Corp., 310 NLRB 441, 447–448 (1993), relied on
by Respondent, is inapposite. There, the employer did not
interfere with the election when its attorney told an employee
who had been in the polling place to vote quickly and leave.
The employee voted. Here, Buntain did not permit Birch and
others to vote, despite the fact that the polls were open.

C. Norfolk
1. Majority status
From January 24 through February 8, 1995, there were at
most 91 employees in the appropriate unit. As in Lawrence-
ville, the Teamsters used petitions, in the form quoted above in
section III, A, 1, and the General Counsel’s handwriting expert
Schipp established that 65 signatures on the petitions, well
more than half, were authentic. There is no issue, as there was
dealing with the Lawrenceville case, of the authenticity of the
signatures or whether the top of the petition contained writing,
but there are many issues relating to the circumstances of the
signing of the petitions by 29 employees and, particularly,
whether the petitions were folded.

58 The Union, however, filed no brief in support of its objections.
Labeeb Salaam Sr. signed a petition, filling in all the spaces,
but he testified that, although he saw all the writing on the peti-
tion, he was working and had to hurry, so he signed it without
ever reading it and did not know its purpose. However, he knew
there was a union organizing campaign going on and that
George Buck, who asked him to sign, was a union supporter.
Buck testified that he asked Salaam to read the petition and told
him that it was about being represented by the Union at Over-
nite. Salaam did not deny Buck’s testimony, and I do not find,
as Respondent contends, that Buck was an unreliable witness.59
The petition clearly stated that Salaam authorized the Union to
represent him in collective bargaining, and I will count his sig-
nature.60
Rick Williams (R. Williams) testified that he asked Frank
Shuman to read the petition and then asked him if he under-
stood what he was being asked to sign. Shuman replied he un-
derstood it, he supported getting the Union as the collective-
bargaining agent, and he would sign the petition. Shuman,
while admitting that he had “signed a lot of stuff” or “several
different things” or “a couple of different things,” remembered
only filling out the little block on the petition, which had no
writing at the top. I do not trust his rather shaky memory, and I
find it improbable that Shuman had to sign “stuff” so he could
get propaganda that was readily available at the service center.
Furthermore, Shuman talked with union supporters about the
Union being a possible help in obtaining for him full-time
status (he was then part-time), overtime, and better pension
benefits and attended a union meeting. He also feared that be-
ing found out as a union supporter would hurt his chance to
become a full-time employee, so he would have been careful to
look at the entire contents of any document that he was being
asked to sign. I find that he was well aware of what the petition
stated and will count his authorization.61
Respondent objects to counting the petition allegedly signed
by Joseph Small on the grounds that the handwriting expert
could not verify Small’s signature and that, at least according to
the legal authority cited by Respondent, Buck, the solicitor of
the petition, did not see the petition signed or the petition was
not returned to him by Small. I reject the latter contentions.
Buck gave employee the petition to Small to read and sign and
told him that it was a “a petition for the Union to be represent-
ing us as far as workers” and that at least half the employees
were needed in order to be represented by the Union. He saw
Small sign the petition. The mere fact that Buck may have had
trouble recalling the precise place that Small signed is inconse-
quential. I will count his signature.
59 Respondent makes much of some inconsistencies between Buck’s
testimony and the investigatory affidavit that he gave to the Regional
Office. His lack of clearly recalling, among other facts, whether a paper
was folded or whether Salaam gave him back the petition that same
day, had nothing to do with what Salaam testified to—that Salaam did
not know what he was signing, even though he saw all the writing on
the petition.
60 Buck’s affidavit stated, “[W]ith respect to the people I solicit I
told each of them the petition was so that we could have an actual vote
to get the Union in. I did not tell anyone that this was the sole purpose
of the petition.” Salaam never stated that Buck even mentioned any
purpose for the petition.
61 Shuman testified that he signed another piece of paper when he
was told that the Union needed between 60 and 70 names to get a vote.
Because the unit consisted of only 91 employees, and the Board re-
quires only 30 percent to support a showing of interest, I do not believe
that anyone would have told him that that number was required.

OVERNITE TRANSPORTATION CO. 1033
Charles Bruner testified that employee David Copp (not
Buck, who testified that he did; David Copp is referred to as D.
Copp) asked him to sign the petition if he did not want another
Johnny Glass, a particularly disliked, previous service center
manager, to come in to the facility and that D. Copp never said
anything else about the petition’s purpose. Bruner signed with-
out reading it, but read the petition minutes later and never
crossed off his name or revoked it. It makes no difference
whether I believe Buck or not. I am persuaded that Bruner
signed precisely what he intended to sign.62
Paul George and George Upton never signed the petition.
What they signed was the right half of the petition, which had
been previously torn from the left half, and later the left half
was taped onto it. So, even if they saw the words written on
top, and they both denied it, and even if Bill Moore explained
what they were signing, and they both denied that, the words on
the right side of the document would not make sense. Similarly,
the words on the left half of the petition, signed by Arthur Har-
rington,63 would have no meaning. What they signed are no
better than blank pieces of paper and may not be used to sup-
port the Union’s majority status. I will not credit their petitions.
While making no credibility findings as to these two peti-
tions, I was impressed with the candor of Moore’s admission
that he gave only the right hand portion of the petition to
George and Upton, and that forms part of my basis for crediting
two of the other petitions that he obtained, from Richard High
and Troy Freeman. Although Respondent attacks Moore’s
credibility, I find High, who testified that he was 95 percent
sure that there was nothing on the top of the petition (at least,
that he could read) and that Moore told him only to sign the
petition to “get the ball rolling,” less than credible. Moore testi-
fied that nothing was hidden from High’s view, and I believe
him; and I do not believe that an employee would merely sign a
document, in the calm of his house, without inspecting the
document, and only for the purpose of getting the ball rolling. I
will count his petition, noting that Nissan Research & Devel-
opment, 296 NLRB 598, 598–599 (1989), cited by Respondent,
is distinguishable because the authorization card there was
ambiguous. There is no ambiguity here.
Freeman’s testimony on direct examination was that Moore
telephoned and asked to meet at a parking lot and that he went
because Moore said something about $17 an hour. When there,
Moore gave him something that looked like a raffle ticket,
something you would tear off, perhaps in a little black booklet,
and there was no other writing, because it “looked like the box
that [he] signed.” Freeman denied that Moore said anything to
him, particularly Moore’s testimony that he told Freeman that
the employees were trying to get a union to be their bargaining
agent and asked him to read the top of the petition. On cross-
examination, some new facts emerged, such as the fact the
Freeman drove 25 minutes to meet Moore, a lengthy journey to
sign such a meaningless paper as a “raffle ticket.” Freeman
admitted that others had signed the petition, indicating that he
was shown more than just the box that he signed. He admitted
using Moore’s notebook as a hard surface to write on; but, if
one folds the petition so that only one box appears, the writing
surface is hard enough to write on without the use of a note-
book, so Freeman must have seen more of the petition than he
was willing to admit. Freeman also remembered that Moore
asked him to meet him in the parking lot to fill out “a piece of
paper” so he could get better wages if he had the Union repre-
senting him. Finally, he admitted that he did not pay attention
to the language at the top of the page and did not remember
seeing it, an acknowledgment that it could have been there. It
was, and I am convinced that Freeman was looking to raise his
wages from his current $13 hourly rate to the union hourly pay
rate of $17. As he testified, he wanted to get better wages and
that would be possible if the Union represented him. It was
important that he go to the parking lot, and he did what he had
set out to do. In any event, even if Freeman did not read the
language at the top of the petition, his petition is still valid. Ona
Corp., 261 NLRB 1378, 1410 (1982), enfd. in relevant part 729
F.2d 713 (11th Cir. 1985).

62 Overnite contends that, from Bruner’s testimony, I should draw a
series of conclusions which should essentially negate all of the cards
that Buck solicited. I find no factual or legal basis for its position.
63 The General Counsel’s brief does not mention Harrington, and I
am unclear that his petition is offered in support of the Teamsters’
majority.
R. Williams testified that, when he solicited employees to
sign the petition, he told them to read the petition, made sure
they understood what they read, filled out the block, and
signed, dated, and returned it. He solicited the signatures of
employees A. A. Armstrong Jr., Bryan Yates, and Gregory
Holman, who wanted to know what the petition was for. He
explained the employees were trying to start an organizing
drive to get collective bargaining at the terminal and to get the
Union as their representative and asked what they thought
about it.
Despite the testimony of both R. Williams and David Spaugh
that they each presented to Bryan Yates the petition in evi-
dence, testimony which, without further explanation, is patently
erroneous (at least as to one of them), Yates’ signature was
authenticated by the expert handwriting witness, and Yates
conceded that it was his signature on the petition. The principal
issue is whether Yates, who testified that he received the peti-
tion from Roadway driver and Teamsters business agent, Bill
Haley, and signed only one petition, was talking about the same
document that is in evidence. Yates explained that Haley told
him that if he signed the paper, it would be one way to get rid
of Glass, who was then the terminal manager, and have an elec-
tion. However, at the time that the petition is dated, January 23,
1995, Glass had not been the terminal manager for 2 months,
having left in late November or very early December 1994
(Mendenhall became the service center manager on December
4). Thus, the petition in evidence could not possibly be the
document that Yates was testifying about. I find, therefore, that
no proof has been submitted to question the integrity of the
petition, and I will count his signature.
It is undoubtedly strange if Gregory Holman signed a peti-
tion on the same day as and between two other employees who
were solicited by Rudy Copp, yet R. Williams testified that he
solicited Holman. Be that as it may, and I will discuss credibil-
ity below, Holman identified his signature; and, although he
had no recollection of this particular petition, testified that he
always read any documents that he signed and that he wanted to
sign for union representation. Thus, there is no material fact
that is at all persuasive that his petition should not be counted;
and I will count it.
Gus Armstrong, by his own admission, signed the petition,
but did not recall who gave it to him or that it had writing on
the top. He recalled only that there were, at the time he signed,
other employees’ signatures on the petition and that he was
asked to sign the petition to get the Union to come in and talk

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1034
to the employees. Armstrong expressed some confusion in
thinking that Glass was still the terminal manager when he
signed, and he did not know if the union organizing campaign
had yet started. I find it improbable that solicitors would ac-
tively engage in convincing employees to sign petitions so that
the Teamsters could talk to the employees. There is nothing in
this record to indicate any reluctance by the Union to do so. It
appears more probable that the reason for the petition given to
Armstrong was to get the Union to come in and represent the
employees, and I credit R. Williams. Accordingly, I will count
Armstrong’s signature.
Spaugh solicited signatures from a number of employees,
and in his investigatory affidavit given to the Regional Office
stated that he might have told a person that the petition was “to
secure an election process.” He explained during his testimony
that that was a wrong choice of words, which I found uncon-
vincing; but he also explained that what that was intended to
convey was that, if the Teamsters received enough signatures of
the petitions, then the Teamsters could petition to secure an
election. Had Spaugh stated in his affidavit that he may have
told all the employees the quoted remark about the election
process, I may have found that statement shifted the burden to
the General Counsel to produce the various employees to whom
Spaugh spoke. However, the sentence is by no means clear, and
at most it might cause me to discount one signature.
Spaugh testified that he told employees whom he solicited to
read the top and that the petition was intended to authorize the
Teamsters to bargain for the employees; and Spaugh believed,
but was not sure, that he did not tell any employees that the
only purpose of the petition was to get an election. The only
witness whom Respondent called was Robert Smith, who testi-
fied that, although it was his signature on the petition, the paper
he signed was half the size of a postcard, with nothing else on
it—no handwritten portions, no fold marks, and no language at
the top. He recalled that the person told him that he was collect-
ing signatures to get a union to organize or to get a union in-
volved in talking for the people. If I credit Smith, there is no
explanation for the manner in which Smith’s signature ap-
peared on the petition. He had to have seen some paper other
than what he testified to. I will not credit him. I find, therefore,
that Smith signed the petition and knew of its contents. I will
count his petition. DTR Industries, 311 NLRB 833, 841 fn. 39
(1993).
The General Counsel’s expert witness could not authenticate
the signature of Clyde Kennedy, but Spaugh testified credibly
that he asked Kennedy to read the top of the page and fill out
the information and sign it, which Kennedy did, in Spaugh’s
presence, using the wall of the bathroom as his writing surface.
I will count Kennedy’s signature.64
Alvin Davenport could not remember whether there was
writing at the top of the petition or what the language said or if
he read it. Davenport signed the petition because he was un-
happy with management at the terminal, so it seems probable
that he read the language and knew precisely what the intent of
the petition was. Because D. Copp did not say anything that
negated the written language at the top of the petition nor did
he say that the only purpose of the petition would be for an
election, Davenport’s signature is valid and I will count it. Id. at
842.

64 I have not counted the signature of Johnny Taylor, who did not
testify and whose signature was also not authenticated by the expert
handwriting witness.
Although Jeff Stewart testified that D. Copp told him the pe-
tition was for an election, I do not find that was so. Rather,
Stewart had heard that there was a petition being circulated,
which (he says) he thought was for an election, and so, know-
ing what its purpose was, he did not read it. Instead, he was
summoned to the shop where D. Copp worked:

And he had pulled this out, you kind of knew what it
was for, people, you know, you had heard kind of, that the
card is being signed and stuff. So, I just went down and he
was like, “Oh, yeah, just sign this,” or fill out your name,
address and stuff and sign.

Stewart had been unhappy with Glass and was anxious to sign
the petition. As a result, I find that D. Copp made no represen-
tation to Stewart, and that, assuming that he did not read what
was on the petition, his signature should be nonetheless be
counted. Id. at 841 fn. 39.
D. Copp gave Danny Murphy the petition and asked if he
was going to sign the paper now. Murphy asked who else had
signed it, and D. Copp replied just about everybody else. Mur-
phy then signed the petition. That D. Copp said nothing about
the purpose of the petition and Murphy’s lack of recall whether
there was writing on the top of the petition provide no basis for
invalidating his petition. Id. at 841. Frank Shuman’s petition is
clearly valid. The fact that he may have been told that a certain
number of signatures were needed does not negate the clear
written authorization of the petition. Id. at 842. Respondent
objects to the petition of Donald Munden on the ground that D.
Copp said nothing to clear up the “latent ambiguity” inherent in
the petition. But the petition is not ambiguous. Furthermore, to
the extent that Munden could not recall what was written on the
petition, that proves nothing but a lack of recall. To the extent
that he was “rushed” to sign it, that was his fault. D. Copp
asked whether he had time to sign it. I will count Munden’s
petition.
I find the testimony of Earl Myers Jr. so incredible that I be-
lieve the opposite of what he said. His position was that D.
Copp told him that the purpose of signing the petition was to
find out whether he was for or against the Union and that he
signed the petition to designate that he was opposed, even
though he knew D. Copp was obtaining signatures on the peti-
tion to get the Union in as the employees’ bargaining represen-
tative. In addition, even if I credited Myers’ testimony that the
petition as given to him was attached to a clipboard, the main
body of the writing at the top of the petition could still be read.
Myers’ petition should be counted.
Jonathan Gibbs signed the petition in response to D. Copp’s
representation that the purpose of the petition was “for the un-
ion to come in to see if everyone was being treated fairly.”
Despite denying that he saw the top of the petition, it was
Gibbs’ understanding that the petition was “a vote.” And that is
what he effectively did, “voted” for the Union. Finally, I have
trouble agreeing with Gibbs that the document was handed to
him in the manner he described, because the folds do not ap-
pear to coincide with his description. I find that Gibbs was well
aware of what he was signing and credit his petition.
Earl Myers III signed a petition, in response to D. Copp’s
sole explanation that the purpose of the petition was: “[D]id we
want to vote the union in or out.” Why he signed the petition
was left unexplained, which is particularly troubling because he

OVERNITE TRANSPORTATION CO. 1035
considered himself a nonunion person and preferred that Over-
nite thought of him that way not only as of the day he testified
but also as of January 1995. I do not believe him, as I did not
his father. The son’s testimony, and only the son’s, was re-
markably similar to his father’s. I find, to the contrary, that he
viewed the entire petition and signed it because he then be-
lieved in the Union. I will count his petition.
David Nordwall’s insistence that the only time that he signed
a document was when Glass was the service center manager
persuades me that he confused some other document for the
petition in evidence, dated January 23, 1995, which Nordwall
concededly signed, almost 2 months after Glass left. In light of
the fact that Nordwall went to some union meetings, and the
fact that the document that he said that he signed bore no rela-
tionship to the petition, I find that he was merely trying to pro-
tect Overnite, and I do not credit him. I will count his petition.
Dennis Shea testified that D. Copp represented that the peti-
tion that he signed was just to get a head count and that D.
Copp kept hidden the top portion of the petition, which Shea
did not read. D. Copp did not testify, but Shea’s name was in-
cluded as a member of the Teamsters’ in-plant organizing
committee. The list of the members of the committee was
posted on the Union’s bulletin board, and there is no evidence
that Shea asked that his name be removed from that list. I do
not believe Shea and will count his signature.
The principal factual issue presented by Stanley Hall’s testi-
mony is whether the solicitor, Brian Metz, deliberately folded
the petition in such a way so that Hall could not see the writing
at the top. Hall was not definitive, answering that the petition
was given to him folded; and he did not remember if he un-
folded it. He did not pay any attention to any other writing, if
any, that may have been on the document and just signed the
block. Finally, according to Hall, Metz represented that, if over
50 percent of the employees signed petitions, the Union could
get an election. On cross-examination, however, he did not
recall precisely what his conversation was, but he knew that the
Union was trying to become the employees’ bargaining repre-
sentative and that there were petitions circulating for employees
to sign. I conclude that his petition should be counted. I find
that, even if the petition was folded, it was not folded to con-
ceal something and that Hall had the opportunity to unfold it.
Furthermore, Metz did not tell him that the sole purpose of the
petition was to get an election. Once again, that Hall chose not
to read all the language on the petition (which I doubt) does not
invalidate it.
Michael Smith was given the petition as a whole page, not
folded. However, Metz told him, Smith testified, that the pur-
pose of the petition was “to try to get the union in so we could
have a bigger vote, I mean to have a real vote. It was just to see
whether or not enough people were interested in actually hav-
ing a union.” When asked whether any reference had been
made to any of the writing on the petition, Smith answered:
“Just, the only thing that he really mentioned was, you know, it
would have been more pay per hour and time and a half. Just
like better, I guess better retirement.” Smith testified that he did
not remember the language printed at the top of the page. I
conclude that Metz and Smith had a longer conversation than
Smith was willing to admit,65 and that their conversation related
to Smith’s authorization of the Union as his representative.
Smith knew there was an ongoing organizing campaign and
that was its purpose. Clearly, Metz never told Smith that the
sole purpose of the petition was to have an election. Smith was
free to, and probably did, read the rest of the petition. Accord-
ingly, his signature should be counted. Id.

65 On Respondent’s re-direct examination, Smith testified that Metz
told him “that by signing this, if we get enough people interested, that
we would have an election so that we have union representation.”
When Respondent’s counsel then asked whether Metz used the word
“representation,” Smith then denied that Metz did, insisting that he
(Smith) simply threw that in.
Respondent’s attempt to invalidate the petition of Johnny
Johnson utterly fails. What appeared to question the petition in
evidence was actually a blue document signed when Glass was
still terminal manager. What is in evidence was the petition that
Johnson signed at an early organizational meeting for the Un-
ion. I will count his petition.
Walter Pratt signed the petition, but testified that the solicitor
of his signature said nothing. In addition, the petition was
folded so he could not see the other names and it also had
something else positioned so he could not see some other
names; but he could see a portion at the top. He did not read the
language at the top, because, he testified, he already knew what
it was. Although he testified that he thought that the petition’s
purpose was to get an election, other reasons that he signed
were to obtain job security and get better wages and pension
benefits. I find nothing here that questions the validity of his
petition, except perhaps his own misunderstanding, which I
doubt. Contrary to Respondent’s contention, there was no con-
certed effort to cover the top, which Pratt could have looked at.
I will count his petition.
Keith Walker remembered little about signing the petition,
except that one of the other drivers gave him the petition and
said that the employees were trying to get a vote for the Union
and asked whether he would mind signing the petition. Walker
could recall no names; could not recall any more of the conver-
sation, such as, if he had been asked to read the document be-
fore signing it; could not recall the petition, did not know what
writing, if any, was on the petition; and did not remember if he
read the document before signing it. On cross-examination,
Walker testified that he signed a paper in order to get enough
signatures for a vote when Johnny Glass was still the terminal
manager, so he may have been confused about the document he
signed. He testified that it was his practice most of the time to
read documents before signing them. I find nothing here that
indicates that his petition should not be counted. The petition
sets forth its purpose, and there is no credible evidence that the
petition was intended solely for another purpose, such as a
vote.66
E. Allen Cooper remembered little of the circumstances of,
but admitted signing the petition, of which he recalled almost
nothing else. His signature did not appear out of nowhere. He
signed the document, and the document has on its face the writ-
ing authorizing the Union to represent him; and his petition is
valid. Respondent’s contentions that the language on the peti-
tion must be disregarded and employees must be orally advised
about what they are signing is frivolous and contrary to law.

66 There is no issue as to folded petitions or crease marks here, ex-
cept the one raised in Respondent’s brief by counsel, which has no
basis in the record. It is obvious that these petitions were carried around
by some of the solicitors in their pockets and had to be folded to get
there. Merely because there are crease marks does not mean that every
single employee was presented with a document folded in such a way
that the heading was concealed.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1036
Finally, to the extent that Respondent questions the legiti-
macy of various signatures because the solicitor of the petitions
so lacked credibility that none of the petitions he solicited
should be credited, I find no basis for that contention. I have
found that only one petition, containing three names, ought not
be credited towards a union majority. Thus, the Union had a
clear majority as of the period from January 24 to February 8,
1995.
2. Credibility
I have found that Respondent committed most of the viola-
tions alleged in the complaint. One of my reasons is that I
found Spaugh particularly credible and honest. He quit his job
shortly before the election, being obviously upset with the un-
ion campaign, not only what he perceived as management’s bad
treatment, but even with himself, getting so upset at Manager
Mendenhall one meeting that he later apologized for his own
behavior. He had absolutely nothing to gain by fabricating his
testimony, which I credit. To the contrary, for reasons I have
stated above, my judgment of Respondent’s witnesses was less
complimentary. In particular, one dialogue between counsel for
the Union and Mendenhall was telling for pointing out the low
esteem he held for adherents of the Union: they were disruptive
and not team players. Indeed, filing a petition for a Board-
conducted representation election is not commonplace in a
nonunion company and employees should not engage in that
kind of disruption. It was “odd” that employees should think
about a union while working at Overnite. Thus, it is likely that
he told an employee on about February 20 that he would lose
credibility in his eyes, a statement that Mendenhall fervently
denied making. By misstating the truth about that incident, he
lost credibility in my eyes, and I have found that, despite his
denials, he frequently violated the Act.
3. The unfair labor practice allegations
There are a few allegations regarding threats to employees
that, if they obtained union representation in the upcoming
election, they would lose the announced March 5 increase. Bill
Moore67 testified that Supervisor Nat Williams (N. Williams)
told him on about February 13 that the employees were going
to get a 55-cent-an-hour raise but, if the Union was voted in,
they would lose it. N. Williams denied it, but did recall that, in
a conversation with a small group of employees, including
Moore, an employee asked what would be the effect of the
upcoming election on the new pay raise. N. Williams testified
that he answered that the pay raise would be prior to the new
election, so the pay raise would not be affected; but he admitted
saying that the unionized employees in Kansas City would have
to negotiate their pay raise. For a variety of reasons, I do not
believe N. Williams, who admitted that in the same conversa-
tion he told the employees of a number of bad consequences
that could occur, including loss of hours and freight. He in-
sisted that he was discussing only the results of a “strike,” but
that was pointedly omitted from the investigatory affidavit he
gave to the Regional Office. In that affidavit, he also said: “No
employee ever approached me to ask what would happen to the
March 1995 raise if this terminal voted in the union.” Strictly
speaking, he was not approached in the conversation at issue,
but N. Williams explained that an employee asked that question
in a group conversation, and that the question was not asked
directly of him, despite the fact that he was the only supervisor
at that session. I find it incredible that one employee should be
asking that question of another employee, and not the supervi-
sor. I credit Moore and find a violation. Jordan Marsh Stores
Corp., 317 NLRB 460, 463 (1995).

67 All references to “Moore” in the remainder of this section are to
Bill Moore.
At Norfolk, consistent with the practice at all other locations
where there was an election campaign going on, management
held a series of weekly mandatory meetings (except for 1 week,
when there were two series). Moore testified that, at one meet-
ing, Mendenhall said that the employees in Kansas City would
not be getting the 55-cent-wage increase because they voted the
Union in. Mendenhall recalled, however, only a discussion in
the lounge area with some employees, including Buck, about
what would happen if any terminal were unionized prior to the
raise, to which Mendenhall commented that the employees
there would have to negotiate in order to receive that raise,
which was consistent with what later appeared in The Over-
niter. Buck denied Mendenhall’s version, and I find that
Mendenhall never explained the reason that the Kansas City
employees were not being given the increase his position. Even
Respondent’s brief concedes that he left the impression that the
Norfolk employees might not receive their increases if they
similarly unionized. I conclude that Respondent violated Sec-
tion 8(a)(1) of the Act.
Respondent had three bulletin boards, on one of which em-
ployees posted cartoons and personal notices, such as restaurant
menus and post cards and sales of cars, dogs, boats, and mobile
homes. The material remained on the board indefinitely, often
until the item for sale was sold or until the person who posted it
took it down because it was stale. In early 1995 R. Williams
posted a union leaflet on the bulletin board. It remained posted
only 1 day. Moore posted a different leaflet in March around
midnight. Around 3 a.m., Supervisor Bill Norvell removed it.
Moore and Buck observed other union literature posted on the
bulletin board, but none remained more than a day. To the con-
trary, Rudy Copp said that the literature remained posted for
weeks. With Mendenhall’s admission that he cleaned off the
bulletin boards weekly, I do not fully credit Copp’s version; but
it may be that the union literature remained posted longer than
the other employees were willing to admit. Nonetheless, for the
first time, with the possible exception of obscene notices, litera-
ture was removed; and that was union literature. Although em-
ployees do not have a statutory right to post literature on em-
ployer bulletin boards, when an employer has permitted em-
ployees to post personal material, it may not remove union-
related materials from its bulletin boards and direct employees
not to post union literature on the bulletin boards. Jordan
Marsh Stores, 317 NLRB at 462. I conclude that Respondent
violated Section 8(a)(1) of the Act by removing union literature
from employee bulletin boards made available for employees’
general use. Bon Marche, 308 NLRB 184, 185 (1992).
One removal of literature led to different unfair labor prac-
tice allegations. Spaugh posted a copy of an NLRB form on the
bulletin board on February 16 around 8 or 8:15 a.m. After
Spaugh punched out that day, around 5:45 p.m., he walked
down to the shop where employee D. Copp was present. The
form was still posted. Mendenhall then came into the shop with
the form in his hand and asked Spaugh angrily who posted it.
Spaugh replied that he knew, but he would not tell. When Men-
denhall repeated his question and Spaugh repeated his answer,
Mendenhall said, “people could get fired for this,” and left the
shop.

OVERNITE TRANSPORTATION CO. 1037
Mendenhall admitted that he took down the notice, but testi-
fied that he did so to show to George Sparrow, the shop man-
ager, to find out if he had seen it. Sparrow’s regular workday
ended at 5 p.m., so either Mendenhall fabricated the reason that
he removed the notice or was so angry that he did not think
about when Sparrow was to leave. At any rate, he denied
Spaugh’s narration, admitting only that he asked both employ-
ees if they had ever seen this notice, and, when he left the shop,
he replaced the notice on the bulletin board. But Mendenhall
conceded that “it came down eventually. The bulletin boards
were clean.” I do not credit Mendenhall. The bulletin boards
were not cleaned before the union campaign, and Spaugh did
not concoct this incident. I conclude that Mendenhall interro-
gated the employees about their union and other protected,
concerted activities and threatened them with discharge if they
engaged in such activities, in violation of Section 8(a)(1) of the
Act.
On about February 20, there was a lengthy, sometimes tu-
multuous meeting68 between Mendenhall and the employees,
numbering about a dozen at the beginning but growing to 25 or
so at its conclusion. Respondent claims that the meeting was
arranged by the employees to set up Mendenhall for some un-
pleasant questioning, but the employees insisted that Menden-
hall wanted to meet with them. I find the resolution of that issue
unimportant. No one forced Mendenhall to make the statements
he did.69 Mendenhall began the meeting by stating that the Un-
ion had filed a petition for an election and that any of the
terminals, like Kansas City, that voted in the Union before
March 5 would not receive the wage increase scheduled to be
effective that day, because the wage increase could not be
established until a contract was agreed to. He noted that the
service center in Chicago had not had a contract after 13 years
of negotiations.70 R. Williams interjected that the NLRB might
have something to say about the terminals being denied a raise
just because they voted for representation.
Mendenhall warned that friendships would be stressed be-
cause of the union campaign. He talked about the different
terminals that were voting on union representation and said
that, if the Union won, the relationship between employees and
supervisors would change because unions have their rules and
the employees would have to abide by those rules. Overnite
could not operate with as much flexibility if the Union won.
Most companies preferred not to use union carriers and if “we”
became a union carrier, “we” could possibly lose business.71 He
mentioned a million dollar account that he thought could be lost
if the terminal went union. Mendenhall said that Overnite was
trying to start a new era with its employees and that good things
were planned for the employees and the Company; but things
that Overnite had planned would have to be postponed because
they would need to divert the funds to keep Overnite nonunion.

68 The narration of this meeting is not intended to portray the precise
order of the statements made.
69 In so finding, I dismiss Respondent’s seventh defense, which is
based on a theory of entrapment.
70 Mendenhall, while admitting that he mentioned the Chicago ser-
vice center, said that he did so in answer to an employee’s question. I
find it improbable that any employee would have asked a question
about that subject.
71 Mendenhall also said that his discussion of loss of customers re-
sulted from a question from an employee. I cannot imagine an em-
ployee at this meeting asking whether Overnite would lose customers.
Buck asked how Overnite would feel if he voted for the Un-
ion, and Mendenhall replied that he would lose his credibility
with the Company. Buck asked why Overnite would look at
him differently; he was the same person he was before.
Mendenhall did not reply. R. Williams said he had known sen-
ior dispatcher Jim Dickerson for 16 years and asked whether
Mendenhall thought that Dickerson would look at him differ-
ently because of his role in the union campaign. Mendenhall
replied he had not known R. Williams that long but it would go
towards his opinion of R. Williams.
Finally, Mendenhall gave some instructions about the way
the union campaign was to be run. He stated that he had re-
moved a piece of union literature from the bulletin board and
that he would not stand for any union literature on his bulletin
board. He would not tolerate conversations while employees
were working or at any workplace, and the employees would
have to be off the workplace.72 If they did not comply with that
policy, they had better be careful.
Respondent violated Section 8(a)(1) of the Act in numerous
ways: (1) by threatening that, if the employees voted in the
Union, they would not get the March 5 pay increase, Jordan
Marsh Stores, 317 NLRB at 463; (2) by using the 13-year bar-
gaining history in Chicago to threaten that it would be futile for
the employees to select the Union as their collective-bargaining
representative; (3) by threatening employees with loss of busi-
ness and customers, without an objective basis, if they selected
the Union as their collective-bargaining representative, Reeves
Bros. Inc., 320 NLRB at 1083; (4) by threatening employees
that Overnite would withhold future plans for them if they se-
lected the Union as their collective-bargaining representative;
(5) by stating that employees lose their credibility if they vote
for the Union, Reno Hilton, 320 NLRB at 207; and (6) and by
limiting the use of the bulletin board and restricting union con-
versations and threatening unspecified retaliation for any
breach of that policy, Jordan Marsh Stores, 317 NLRB at 462;
Industrial Wire Products, 317 NLRB 190 (1995).
Within the week after the dock meeting, Spaugh went to
Mendenhall’s office to apologize for his conduct at the meet-
ing. He was wearing his union hat, and Mendenhall told him
that, if a customer called and requested that Spaugh not wear
the union hat, he could ask Spaugh to remove it, and that if he
did not, he could be discharged for insubordination. Spaugh,
being the principal spokesman for the union committee at the
dock meeting and having been somewhat outspoken and loud in
his advocacy of the Union, asked Mendenhall, if the Union did
not win, how long it would be before he was fired. Mendenhall
answered: “Everyone will be held accountable.” Mendenhall’s
threat of unspecified retaliation because Spaugh engaged in
union and other protected, concerted activities violated Section
8(a)(1) of the Act.
On March 14, R. Williams and Spaugh distributed union lit-
erature to employees as they were coming to attend a manda-
tory meeting and then, although scheduled to attend a drivers’
meeting the next day, went to the meeting that was not intended
for them. They did so because they believed that the prounion
employees were kept in separate meetings and that the anti-
union employees were not getting a chance to hear the prounion
72 The policy prior to the organizing campaign was that employees
could talk to one another as long as their conversation did not interfere
with their job.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1038
employees’ point of view.73 Mendenhall made part of his pres-
entation and was talking about the March pay raise and the fact
that the employees in Kansas City were not going to get the
raise at all, when R. Williams interrupted that he did not feel
that both sides of the story were being presented, that he had
spoken with the shop steward in Kansas City, and that Overnite
and the Union were trying to work out a way for the raise to be
given. Mendenhall said that was not true and that they were not
supposed to be at the meeting. Just before Respondent started to
show a videotape, R. Williams and Spaugh left the meeting,
because they were scheduled to punch in for work, and Men-
denhall followed them out. Mendenhall told them they were not
supposed to be at that meeting and that they knew it. He was
not going to stand for insubordination, the meetings were not
going to be interrupted, disrupting the employees’ concentra-
tion on the message that he was trying to get across, and it was
not going to be tolerated. Mendenhall then said that, since he
had been there, their personality had changed. R. Williams
asked how so, and Mendenhall replied that he had become an
agitator. He added that he liked them both and did not want to
see anything bad happen because of the union campaign. They
should be careful, reaching over and fanning some union lit-
erature on Spaugh’s clipboard. One of the employees said that
sounded like a threat, but Mendenhall said that it was not, but
that he was concerned for their well-being.
The employees were not invited to and had no right to barge
into the meeting that Mendenhall was holding with other em-
ployees. An employer has the right to hold its own meetings,
without interference. Mendenhall properly reprimanded them
for their behavior, but went too far, by telling them that they
were agitators because of their union sympathies and activities,
by threatening them with unspecified retaliation if they contin-
ued to engage in union activities, and by telling them to be
careful about engaging in union activities. Reno Hilton, 320
NLRB at 207.
Also on March 14, Norvell, in the presence of Supervisor N.
Williams told Moore that he had nothing personal against the
employees for wanting a union, but he was afraid for himself
and Overnite if the Union got in. He expressed his concern that
Respondent would not be able to pay Teamsters’ scale and that
the employees should look at the union companies that had
gone out of business and at such companies as Carolina Freight,
which were struggling. When Moore told him about many of
the union benefits, Norvell feared, without further explanation,
that they would lose their company 401(k) plan. Based on these
findings, which result from my determination of what was ac-
tually said, rather than what the witnesses testified to, I con-
clude that Norvell threatened Moore, without objective evi-
dence, with the loss of the 401(k) plan, in violation of Section
8(a)(1) of the Act. The other comments were merely expres-
sions of his fear that Overnite could not afford what the Team-
sters might ask for, and not threats that Overnite would termi-
nate its business.
About 2 weeks before the election, hats with “Vote No”
printed on them were made available to employees in the dis-
patch office.74 Moore went there and asked N. Williams for
one, but N. Williams said that he could not have one until the
employees who were going to vote against the Union had their
chance. He could have a hat, however, if he voted no. Moore
got a hat the next day. N. Williams offered hats to employees
on the dock and in the office.75 dispatcher Carroll Ward Jr.,
Norvell, and Dickerson, in addition to N. Williams, asked em-
ployees to wear “Vote No” hats and pins. I conclude that Re-
spondent, by asking them to wear a “Vote No” hat, violated
Section 8(a)(1) of the Act. That constitutes interrogation of
employees about their union sympathies. Houston Coca-Cola
Bottling Co., 256 NLRB 520 (1981).

problem with management.

73 I did not fully credit any of the witnesses who testified about this
event.
74 That appeared to be a well-known fact to all but Norvell, whose
denial that he saw them there I do not believe.
The complaint alleges a variety of violations Mendenhall
committed at the mandatory meetings, but the witnesses were
unable to identify the particular meetings at which the state-
ments were made. Nonetheless, one of his themes was the fa-
miliar one that voting for the Union really would not help. In
the 13 years that the Union had represented the employees at
the Chicago service center, there was never a contract; and
Overnite could continue to operate without having a contract.
Norfolk would be just like Chicago: Overnite would negotiate
in good faith, but the employees would never get any further
than their vote. Instead, Overnite’s interests would change; and
there could be proposals that were worse than the current
conditions, including stricter rules, an absenteeism and
tardiness policy, and a management-rights clause. Even though
Overnite would deal in good faith, it did not mean that there
would be a contract; because Overnite did not have to agree to
anything. The only options were for the Union to accept the
Company’s proposal, which could be less than what the
employees were then making, or to go on strike. In the latter
instance, Overnite had applications on hand for replacements,
or companies that could supply replacement workers had
already sent paperwork to him. Families could suffer with no
paychecks, and the Union was broke and unable to pay strike
benefits. Perhaps, Overnite would end as unhappily as Eastern
Airlines. Even without bargaining, conditions would change for
the worse. Communications between supervisors and
employees would change, and the open-door policy would no
longer be in existence. Instead of going to a supervisor, the
employee would have to make his complaint to a shop steward,
who would in turn take up the
The “carrot and stick” approach was certainly evident.76
Mendenhall threatened that if the Union won, more than likely
Overnite would have to pay time and one-half after 40 hours;
that the overtime would eat up half of the profits that Overnite
made in 1994 ($63 million); and that Overnite would not be
able to buy trucks or build new terminals or expand in any way.
Mendenhall held up (but did not show to the employees) a letter
75 In so finding, I have discredited Williams’s testimony that he told
Moore that he could have a hat, but only after the procompany employ-
ees had the opportunity to get theirs. Williams was an unreliable wit-
ness. Witnesses, as everyone else, make mistakes, and there are often
times that their mistakes may be overlooked. But, sometimes, they
concoct unbelievable answers to explain their mistakes, and there they
engage in not merely mistakes, but purposeful misrepresentation of
fact. Thus, Williams testified that he never offered hats to employees,
in direct contradiction to his affidavit, which stated that he “offered hats
to employees.” His explanation was that hats were available. I find his
answer disingenuous.
76 There was mention that Mendenhall also threatened that, if the
Union was elected, the March raise would probably not go through.
That may have been said at an early meeting, but it certainly was not
repeated later, when in fact Respondent began paying the increase,
effective about March 16.

OVERNITE TRANSPORTATION CO. 1039
from DuVall (or DeValle) Corporation, a company from the
Midwest, that had discontinued its $1 or 2 million account with
Overnite because it was reluctant to do business with a union
company and the Kansas City terminal had voted for represen-
tation. A loss of that size account locally should be of grave
concern. There were some local companies (he did not identify
their names) that also did not want to do business with union
companies, and they had said that they would pull their ac-
counts. As if those consequences were not enough, Mendenhall
threatened that, if the terminals voted for representation, the
business would be re-routed around them, and the employees’
hours might be cut. He cited as an example the experience at
Kansas City, where word was that that was what was happen-
ing.
The complaint also alleges that Mendenhall did not give the
prounion employees the same opportunities to speak at the
mandatory meetings as the antiunion employees. A Baltimore
road driver who attended meetings when Rudy Copp was pre-
sent was given opportunities to talk about how he had been a
Teamster and that the benefits were not what he thought they
would be. On the other hand, Mendenhall cut short employees
who made prounion comments or asked questions for clarifica-
tion. When Copp tried to explain to the group that employees
themselves would vote whether to go on strike, Mendenhall cut
him short and said it was time to move on.
I conclude that Overnite violated Section 8(a)(1) of the Act
by threatening employees with customer loss and diversion of
work and, by implication, loss of pay, if they selected the Un-
ion as their bargaining representative; by telling employees that
strikes would be inevitable if they selected the Union and in-
forming its employees that it would be futile for them to select
the Union as their bargaining representative; and by disparately
prohibiting employees from talking about the Union or other-
wise engaging in activities on behalf of the Union. Reeves Bros.
Inc., 320 NLRB 1082, 1083 (1996); Jordan Marsh Stores, 317
NLRB 460, 463 (1995).
During the period from mid-February, when Moore returned
from vacation, through March, Norvell and N. Williams con-
stantly “watched [him] like a hawk” and stayed within listening
distance. Norvell, contrary to his practice prior to the union
campaign, even came to the lunchroom to eat lunch. In addi-
tion, although before the union organizing campaign, Overnite
had no rules restricting conversations with fellow employees at
work, Moore’s supervisors broke up conversations he had with
other employees while employees who were against the union
were allowed to talk to other employees without interruption.
Obviously, I have credited Moore, finding that he would not
and did not concoct these incidents. I distrust the supervisors,
noting that N. Williams testified that he did not know that
Moore was a union supporter until the end of March, despite,
among other evidence, the Union’s letter of February 27 which
identified Moore as a union committee member. The complaint
alleges that these facts constitute a creation of an impression of
surveillance. I conclude that there was actual surveillance and
monitoring in violation of Section 8(a)(1) of the Act. Capitol
EMI Music, 311 NLRB 997, 1006 (1993), enfd. mem. 23 F.3d
399 (4th Cir. 1994).
Moore testified that at 3 a.m. on February 13, he heard
Norvell tell a group of 11 or 12 employees that, if the Union
got in, they would lose their jobs, and that, if the employees
went on strike, they would lose their jobs and the Company
probably would not call them back. Spaugh testified that, in
March, he heard N. Williams tell a group of dockworkers, in-
cluding Moore, that if the Union won the election, Overnite
would not have the volume of freight it presently had. Norvell
denied that he made the statement attributed to him. N. Wil-
liams testified that employees were worried about freight be-
coming slack if the Union got in, and he told them that they
were overwhelmed with freight from other carriers because of
the then ongoing Teamsters strike against the union carriers;
and that what happened to the other carriers could happen to
them, i.e., that Overnite’s freight could be covered by other
carriers. He said that if Overnite went union, a strike was possi-
ble; that the Company would lose freight; and that, instead of
cutting manpower, Overnite would cut back hours. I find, even
if N. Williams’ narration was accurate, he still had no objective
basis for claiming that there would be a strike and loss of
freight and hours. Similarly, because I do not believe Norvell, I
conclude that his comments, too, violated Section 8(a)(1) of the
Act by threatening employees with loss of work if they selected
the Union as their bargaining representative.
In early March, Ward told Spaugh that he knew that Spaugh
did not get along with his dispatcher, Jim Dickerson. Ward
asked, if Spaugh had to deal only with Ward, would he change
his mind about the Union. Spaugh replied no. Ward, while ad-
mitting that he had a conversation about the relationship of the
two, testified that it was unrelated to the union campaign, seal-
ing his argument by noting that he did not even know that
Spaugh was a union supporter until March. However, Ward
was a witness to the February dock meeting, at which Spaugh
was the principal prounion spokesman, and he had seen Spaugh
wear his union hat. So, it was likely that Ward made his offer
because he was trying to win Spaugh’s vote, a conclusion that
becomes more probable because Ward knew for 6 months that
Spaugh had not been been getting along well with Dickerson;
and it was only at the time of the union campaign that he pro-
posed help. I believe Spaugh and conclude that Overnite vio-
lated Section 8(a)(1) of the Act by promising Spaugh that he
would have to deal only with Ward if he would change his
prounion sympathies.
Finally, the complaint alleged several other solicitations in-
volving Donnie Moore (D. Moore), then the Baltimore service
center manager and the former manager at Norfolk, who came
to the Norfolk terminal to help out with the antiunion cam-
paign. About 2 weeks before the election, D. Moore asked
Buck what he thought about what was going on. Buck replied
that he always tried to understand both sides of the story and
that was what he was doing with the union campaign. D. Moore
said that Douglas was what he expected him to be and was
working on improving the workplace and benefits and that
there were some good things on the table to improve the Com-
pany.
At probably the same time, D. Moore also asked R. Williams
how he was doing and if the Company was treating him all
right. When R. Williams replied that it was, D. Moore said they
were trying to get a meeting together with a group of employ-
ees to discuss with some executives from the Company how
they could straighten “some of this out and get things settled”
so that they could get to an end of the organizing drive. D.
Moore suggested that R. Williams, Copp, and Spaugh meet
with John Fain, senior vice president of operations. R. Williams
replied that Overnite had adequate opportunity to take care of
matters earlier and had neglected to do so. D. Moore countered
by saying that the Teamsters would not do any good because

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1040
Overnite did not want anything to do with the Teamsters, whom
he called crooks, adding that the Teamsters wanted only the
employees’ dues money. D. Moore asked, rhetorically, what
would happen if a strike occurred, saying that it was inevitable
it would happen. He answered himself, saying that employees
would have trouble paying their bills and mortgage, and if they
tried to go to work, they would have to cross the picket line and
possibly get beaten up. R. Williams replied that all that re-
mained to be seen. D. Moore asked him to think about the
situation and opined that all the problems could be over “just
like that”; and he snapped his fingers.
In yet another conversation, D. Moore talked to Copp, asking
him how he was doing. Copp asked if he wanted the truth or a
lie, and D. Moore said the truth. Copp said that they had a bad
terminal manager when D. Moore left, that nothing he did did
any good, that people were working hurt and quitting, and that
Overnite would not listen to the employees. D. Moore asked
what would it take for Copp to change his mind about voting on
the Union. Would it help if Johnny Glass were fired? Copp said
no, that would not do it.
D. Moore essentially denied everything that the employees
testified to, but stated that he was sent to Norfolk by one of
Overnite’s attorneys and that some of his purposes in coming to
Norfolk were to be available if any employee had questions, to
make sure the employees had a complete understanding of all
the facts, and to answer any questions that they might have. The
problem was that D. Moore went a little beyond those purposes,
soliciting complaints and trying or promising to resolve them
and suggesting the formation of an employee committee to
present grievances, in violation of Section 8(a)(1) of the Act.
Capitol EMI Music, 311 NLRB 997, 1007 (1993). In addition,
he told employees that Douglas was working on improvements
of the workplace and benefits, an implied promise of those
improvements; impliedly promised the termination of Glass, if
that would change employees’ prounion sympathies; and in-
formed employees that strikes were inevitable, all in violation
of Section 8(a)(1) of the Act.77
4. The objections
Local 822 filed a petition for an election in Case 5–RC–
14153 (now Case 18–RC–15812) on February 9, 1995. An
election was held on March 31, 1995, which the Union lost, 29
to 58, with ballots challenged but insufficient in number to
affect the results of the election. The Union filed timely objec-
tions, and the Regional Director issued an order directing a
hearing on the issues that mirror the unfair labor practice com-
plaint, including, among others, the March wage increase. To
the extent that I have found that Respondent violated Section
8(a)(1) of the Act between February 9 and the election, I find
that the objections are meritorious.
D. Bridgeton
1. Majority status
In early 1994, Overnite had one service center in the St.
Louis area, at Hall Street, and decided to expand its facilities to
Bridgeton, 19 miles away, which would be manned with Hall
Street employees on a voluntary basis. It posted notices on
October 25 for employees to sign, and on November 30 posted
the final list of transfers. The Bridgeton service center opened
on December 19, staffed entirely by employees transferred
from Hall Street. Of the 29 cards offered by the General Coun-
sel to prove a majority of the 49 employees in the appropriate
Bridgeton bargaining unit, as of January 17, 1995, only 5 had
not been signed while the employees had still been employed at
Hall Street.78

77 Before he testified, D. Moore was sent a copy of a transcript of
testimony. He should not have been. However, that transcript did not
relate to his testimony, and I have not considered the breach of the
sequestration rule in assessing his credibility.
Overnite contends that the cards signed by then Hall Street
employees should not be counted. I disagree. It was Overnite
that decided that the Bridgeton facility was going to be manned
with Hall Street employees. It was Overnite that posted notices
for the Hall Street employees to sign. Those were the employ-
ees who were transferred to Hall Street, as Overnite had said,
and the employees understood, they would be. Thus, the em-
ployees who authorized the Union to represent them knew well
that they were going to be employed in Bridgeton. Except for
location and the identity of supervision, nothing changed. The
employees continued to perform the same work for the same
employer with the same pay and benefits. Under a variety of
theories, their cards should be counted, even though they signed
while not formally employed at the new facility. In Raley’s
Inc., 227 NLRB 670, 670 fn. 1, 672 (1976), enfd. 587 F.2d 984
(9th Cir. 1978), the Board relied on the union membership of
employees of the employer prior to their transfer to a new store.
The Board has held that authorization cards are valid for per-
sons who had been hired but had not actually started working.
Riviera Manor Nursing Home, 200 NLRB 333 (1972), enfd.
mem. in part 487 F.2d 1405 (7th Cir. 1973). There is nothing to
show that any of the Hall Street employees who signed up for
transfer to the Bridgeton facility were not transferred. Finally,
in Burns successorship cases, the Board has found majority
status based on the fact that the employees of the predecessor
were represented by a union. Derby Refining Co., 292 NLRB
1015 (1989), enfd. 915 F.2d 1448 (10th Cir. 1990); Cincinnati
Bronze, 286 NLRB 39 (1987).
I find that the cards authorize the Union to represent the em-
ployees at Bridgeton. In the circumstances of this proceeding,
they did not limit the Union to represent them only at Hall
Street, especially because they were soon to transfer to the new
service center. As a result, I reject Overnite’s contention and
will count the cards that were dated prior to the opening of the
Bridgeton service center. In doing so, I also reject the following
additional contentions made in Respondent’s brief: (1) That,
from the Union’s actions, the Union knew that the cards solic-
ited from employees while still employed at Hall Street were
invalid. There was no proof of the reason that the second card
of Dan Chilese was obtained. The first card of Ralph Renschen
was allegedly lost, and there is no proof that the Union, as op-
posed to an employee, made any statement about the first card
being invalid. The second card of Freeman Robinson was
signed because he was unsure that his first card had been turned
in. (2) That eight cards “clearly and unambiguously authorize
the Union to represent the signer at Hall Street.” (Emphasis in
original.) The cards merely recite Overnite’s address where the
employee was then employed. They are not limited to represen-
tation at that one address.
Scott Cannon’s testimony was inconsistent and contradic-
tory, in part caused by his lack of absolutely vivid recollection,
78 Daniel Chilese signed two cards, first while at Hall Street and
later, after he transferred to Bridgeton. I have counted his second card
among the five.

OVERNITE TRANSPORTATION CO. 1041
and in part by his too quickly and easily answering “yes” in
response to some questions posed by Respondent’s counsel,
who speaks very rapidly and sometimes, particularly in this
instance, asked a new question before Cannon had a full oppor-
tunity to think out his answer. I was impressed by Cannon’s
original answer, from which his testimony quickly went down-
hill, that his card was “the authorization card for the Teamsters
to represent us,” which is what he had been told. Although, on
cross-examination, he answered “yes” to the question whether
the union representatives had told him that the purpose of the
card “was just to get an election,” he immediately clarified that
he really could not remember. And, although on cross-
examination, he answered affirmatively that he was told that he
would not have to pay initiation fees and that, if the Union won
the election, his dues would never increase, on redirect by the
Union, he changed again and could not remember exactly what
was said, except perhaps that the employees would not be re-
quired to pay either dues or initiation fees until the Teamsters
signed a contract with Overnite. This is not enough to taint his
card, and I will count it.
The objection to William Ott’s card is that he signed on the
same date as Cannon and must have been at the same meeting
and thus heard the same promises as Cannon did. But Cannon
could not clearly recall whether he signed his card at a meeting,
and I cannot make the finding that Respondent seeks. I will
count his card. Ralph Renschen signed two cards, the first in
the fall of 1994, after employee Forrest Chapman told him that
“you simply need to sign this card to have an election,” and the
second, on January 19, 1995, to “submit them to the Teamsters
for a vote.” Although Renschen testified that he probably read
some of the card before he signed it and the solicitor of the first
card could have said more about what the card meant, and he
also understood that the Union was trying to organize Overnite
employees because the Union was interested in representing
them for purposes of collective bargaining, there is insufficient
proof that he was told anything but that the cards were intended
to get an election. I will not count his card. Levi Strauss & Co.,
172 NLRB 732 (1968).
Thomas Sethaler signed a card, according to the handwriting
experts who testified on behalf of both the General Counsel and
Respondent. However, Respondent’s expert disputed the date
having been written by Sethaler, and there is nothing in the
record—the testimony of the solicitor or Sethaler or the
writer—to demonstrate that the date placed on the card, which
may have been written with the same pencil, was the date that
the card was signed. Instead, the General Counsel wants me to
assume that it must have been signed the same day, based on
the unproven fact that the same writing instrument was used,
other cards were dated accurately by persons other than the
signer, and the evidence does not conclusively establish that
Sethaler did not date the card himself. I find that insufficient. In
the circumstances of this proceeding, Zero Corp., 262 NLRB
495, 499 (1982), enfd. mem. 705 F.2d 439 (1st Cir. 1983), is
distinguishable. The specific issue of the date of the card was
raised by Respondent, which made Sethaler available to testify,
but all other parties declined the offer and did not call other
witnesses to testify about the date of the card. I will not count
his card. To hold otherwise would permit a union to obtain
cards far later than the relevant period and backdate them.
The card of Harold Luster is dated December 8, 1995, but
Mark Wieczorek testified that the card was signed prior to the
election. I find that it was signed on December 8, 1994. Al-
though the exemplars used to test the authenticity of the signa-
ture of Jack Franklin indicated that he may not have signed the
card attributed to him—Respondent’s expert was definite that it
was not Franklin’s signature; the General Counsel’s expert
testified that it was probably not his signature—Franklin testi-
fied that it was. I find that he had no reason to lie about his
support of the Teamsters by signing the card and credit it.
I have not counted 2 of the cards submitted to prove the Un-
ion’s majority. That leaves 27 valid cards. Because there are 49
employees, the Union has a majority.
2. Credibility
Once again, I find that the General Counsel’s witnesses did
not make up from thin air the incidents about which they testi-
fied. For example, driver Kirk Ridenhour was strong and stead-
fast in his adherence to the Union and equally strong and stead-
fast in his testimony. He was not paranoiac and simply did not
fabricate his testimony that Bridgeton service center manager
Walter Grimes shadowed him from the moment he began wear-
ing Teamsters’ buttons, hat, and T-shirts. Nor did the Team-
sters’ supporters concoct that their prounion propaganda was
pulled from the bulletin board by Grimes almost as soon as it
was posted. Grimes’s denials, therefore, that he neither shad-
owed Ridenhour nor removed literature make Grimes the fabri-
cator of facts and the unbelievable witness.
As a further example, almost all parties to this proceeding
were aware of the function of the troubleshooters during the
union campaign. They were present to find out what was trou-
bling the employees and to ensure that those problems would
be relayed to their supervisors, so that the problems could be
solved. But when the troubleshooters came to Bridgeton,
Grimes did not think that the object of their disaffection was the
Union or its adherents. Despite the fact that the troubleshooters
went riding with the employees daily, Grimes thought that
Richmond headquarters was after him. He had no other idea
what the troubleshooters’ functions were. I find that he was in a
wonderland; and, if anyone were paranoiac, he was. But, in
fact, he was not. He assuredly knew, as all knew, that the trou-
bleshooters were present to help Overnite overcome its union
problems. Finally, the testimony of Robert Hoffman is particu-
larly damning. Hoffman, during much of the union campaign,
was a supporter of Overnite’s position and, thus, became
somewhat of a confidant of Grimes. However, for whatever
reason, Hoffman changed allegiance, and his testimony was
contrary to that of Grimes in some of the most critical disputes.
Hoffman had no reason to misstate the facts. Grimes did. He
had his job on the line.
3. The unfair labor practice allegations
From mid-January 1995, when Ridenhour began wearing
Teamsters’ buttons, cap, and T-shirt, Grimes shadowed him at
the terminal, following behind Ridenhour (even checking the
bathroom) in the morning before he left on his route and in the
evening after he returned from his route, but always staying
within listening distance, from a few feet to 10 feet away.
Around the beginning of February, District Sales Manager
Mark Pluff took over these shadowing duties from Grimes. The
shadowing continued only to the time of the election.79

79 Admittedly, Pluff went to the hospital on the eve of the election
and stayed there two weeks. When he returned to work, he was in the
field, away from the service center.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042
Grimes’ and Pluff’s efforts were directed to ensuring that
Ridenhour, as well as Mark Wieczorek, who were the first and,
early in the union campaign, the only two open and active un-
ion supporters and became the most open and active union
supporters at the service center, were not engaging in such law-
ful activities. Grimes told Hoffman in late January or early
February that he needed “to get that son-of-a-bitch (Mark
Wieczorek) off the dock and on the street so he would quit
talking to people.” Grimes told a supervisor at least four or five
times to get Wieczorek’s paperwork prepared and tell him to
get out on the street. Grimes took the same action against Rid-
enhour; and, when open union supporters were talking to other
drivers, they would be smothered by management. In contrast,
Hoffman, who was then a company supporter, as well as other
antiunion employees, was free to talk to the employees on the
dock during the organizing campaign without interference from
Grimes or any other supervisor.
Overnite contends that the fact that Grimes and Pluff spent
more time walking the docks during the organizing campaign
was only coincidental with the move to and the problems en-
countered at the new service center. However, they did not
follow Ridenhour when he initially started working at Bridge-
ton in December, but only when he started wearing union in-
signia in mid-January. I conclude, therefore, that Respondent
engaged in illegal monitoring of employees’ union activities in
violation of Section 8(a)(1) of the Act.
Grimes removed, almost daily, pro-Teamsters literature
posted in the employee breakroom on the same bulletin board
as was posted antiunion literature and personal notices. In addi-
tion, Grimes also removed prounion literature left on tables in
the break room and in the employee bathroom,80 while anti-
Teamsters literature was allowed to remain in all places. Over-
nite contends that the literature was removed only from the
bulletin boards used for the posting of governmental notices
and other company material. Although there was confusion in
some of the testimony, it is clear that the General Counsel’s
witnesses were not referring to Overnite’s bulletin board, either
the open one or the one that was eventually enclosed in glass.
That was the reason that Grimes confided to employee Freeman
Robinson that he was concerned about the unfair labor practice
charge that had been lodged against him for removing the lit-
erature from the bulletin board, because he was the one who did
it. And Hoffman saw him do it: Grimes said, while removing
the pro-Teamsters literature, that he “[didn’t] like to see that
shit hanging on his board.” And employee Brian Aslin posted a
prounion notice on the bulletin board and stepped outside the
break room for a few minutes. When he returned, the notice
was in the trash can. The only person who went into the break
room during this time was Grimes.81 I conclude, as I have
above, that Respondent violated Section 8(a)(1) of the Act by
removing the union literature from the boards where employees
had posted personal notices. There is no evidence, however, to
support the complaint’s allegation that Overnite installed a
locked bulletin board and removed the employee bulletin board,
and I dismiss that allegation.
The remaining alleged unfair labor practices committed at
the Bridgeton service center relate to promises of benefits and
solicitation of grievances. The troubleshooters arrived in the St.
Louis area about February 5 and stayed until February 14,
shortly before the election. They rode with all the drivers, with
the notable exception of Ridenhour and Wieczorek, who un-
doubtedly were considered too strong Teamsters’ supporters to
be swayed to Respondent’s cause. Andy Hamilton rode with
Brian Aslin, who was assigned a different tractor by the dis-
patcher because his tractor only had one seat in it. Hamilton
said that he was working for director of operations Morgan and
was seeking employees’ ideas throughout the Company. Doug-
las was a people’s person, Overnite was trying to turn itself
around, it wanted to make its employees happy and accommo-
date them, and it wanted to improve its benefits and have more
input from employees. That was the reason that he and the
other troubleshooters (Hamilton referred to them as “riders”)
were working for Morgan and were doing this throughout the
Company. Hamilton then asked what Aslin thought could make
Overnite better. Aslin asked about time and one-half, which
was the overriding issue in the election campaign at Bridgeton;
and Hamilton said that it was in the works, but he really could
not answer that until the benefits came out in January, but Aslin
should not be surprised about the improvements of the benefits.
Aslin also raised the issue of uniforms, and Hamilton replied
that that was another big concern of the employees that he had
spoken with. Aslin also suggested that Respondent form an
employee committee to have input into the benefit package
rather than just telling employees what their benefits would be.
Hamilton thought that that was an excellent idea and he would
look into it.82 At the end of the day, Hamilton told Aslin that he
was a good representative for Overnite and “we don’t need a
third party at Overnite.”

80 Although the complaint alleges only the removal of items from the
bulletin board, the removal from other places was fully litigated.
81 There was another entrance to the break room; but, in light of the
other testimony, it is probable that Grimes was the culprit.
Hamilton, by asking for Aslin’s suggestions for improve-
ments for the Company and coupling that with his statements
that Overnite was looking into ways to improve benefits and
that overtime benefits were in the works, solicited grievances
and promised to remedy those grievances in violation of Sec-
tion 8(a)(1) of the Act. I find that Hamilton83 and Parks84 en-
gaged in similar conduct in violation of Section 8(a)(1) of the
Act with many of the other drivers at the Bridgeton service
center.
Complaints about the lack of overtime pay was also a subject
at Overnite’s mandatory meeting of about 15 employees on
February 14. Morgan responded that they just had a change in
upper management with Douglas taking over. He stressed how
people-oriented Douglas was and that Douglas was going to
look into these problems and come up with solutions for them,
but he could not promise anything because of the ongoing or-
ganizing campaign.
The General Counsel relies on the testimony of Hall Street
road driver Tom Henley that, during a conversation between
Douglas and some Bridgeton dock employees Douglas stated to
employees, “What if we gave you overtime at say, over 45, 48
hours, but we maybe lessen something here” and that they were
82 This was before Douglas made a similar offer to employees Ad-
ams and Carpinez in Lawrenceville.
83 Hamilton had similar talks as a rider with Hoffman, asking him
what he would change if he could change anything about the Company.
When Hoffman identified benefits and overtime pay, Hamilton said that
he thought those things were in the works.
84 Respondent admitted that Larry Parks, one of the troubleshooters,
solicited employee grievances and promised, at least by implication, to
remedy those grievances.

OVERNITE TRANSPORTATION CO. 1043
looking into other medical benefits. Henley’s testimony was
clearly out of context, as shown by his admission that he ar-
rived at a time that the conversation was already going on.
Douglas testified that, in talking about pay for overtime, he
stressed that there were both bad and good things about it. He
noted that customers do not pay premiums for the extra hours
worked and that Overnite would of necessity try to manage its
work and thus reduce overtime in order to avoid extra costs.
Even though Douglas told the employees that he was not mak-
ing any promises, this conversation was about promises. Doug-
las raised the possibility of overtime after a certain number of
hours, a benefit that employees never had and one that Douglas
was later to refer to as a “reward.” I find and conclude that
Douglas and Morgan violated Section 8(a)(1) of the Act.
Raley’s, Inc., 236 NLRB 971, 972 (1978), enfd. mem. 608 F.2d
1374 (9th Cir. 1979).
Moreover, in late January or early February, Grimes asked
Hoffman what the employees wanted. Hoffman responded
overtime and better benefits. Grimes responded, “They are in
the works.” This constitutes solicitation of grievances and an
express promise to remedy them, in violation of Section 8(a)(1)
of the Act. In February 1995, in a discussion among employees
and Wichita service center manager Woods and Morgan, Rob-
inson asked if Overnite was looking into overtime. Woods re-
plied that it was, but he could not make any promises. He con-
tinued that he had been talking with someone in management
(he could not tell who) and it was “almost a sure thing . . . al-
most a done deal.” Insisting that he could not promise anything,
he nonetheless said that he was “pretty sure” that it was going
to happen and that the employees should wait until January to
see what Woods was talking about.85 Then he added that the
Union “would not work within the Overnite environment” be-
cause Overnite would lose its flexibility and “the gains that
Overnite is trying to make at this point with the improvements
that they said they were going to make on the medical benefits
and the time and a half issue . . . we’d lose all that.” With that,
Woods urged the employees to give the new management a
chance. Although insisting that no promises are being made is
often enough to ensure the lawfulness of a statement, what
Woods was imparting here was a promise, and a promise that
would be kept only if there was no Union. I find his statements
violate Section 8(a)(1) of the Act. Id.
Much of the Bridgeton service center hearing involved al-
leged unfair labor practices committed at Hall Street. The Gen-
eral Counsel had two theories: first, that the violations per-
tained to its proof of a national conspiracy to engage in the
violations of law; and, second, that, because of the proximity of
the two centers and the fact that the employees at Bridgeton
came from Hall Street and disseminated the various violations,
such would have an effect on the Bridgeton employees and
support the grant of a bargaining order. With respect to the first
theory, those violations which were not disseminated do not
support a bargaining order and allege the same type of viola-
tions seen at so many locations. They would generally support
my conclusions in section I of this decision, but finding addi-
tional violations would be merely cumulative.

85 Jeff Woods told Aslin a week before the election that overtime
was being implemented and that the employees would be totally sur-
prised with Overnite’s benefit package in January.
Regarding the alleged violations that were disseminated,86
most deal with soliciting grievances and promising to resolve
them. In February, Morgan asked Henley what kind of changes
he would like to see. Henley wanted better mileage, medical
benefits, and overtime. Morgan said that he could not promise
anything, but Overnite was looking into other options to see
what could be done and added that all Henley had to do was to
give “the man [Douglas] a chance.” In another conversation,
Morgan asked Henley if wearing the Union hat he was wearing
would get him anything better. Henley stated that he did not
know, but that he did not see Overnite doing anything. Morgan
told Henley to give “them” a chance and added that he did not
think that the Union would get the employees what they wanted
right now.
In the first 2 weeks of February, Woods asked a few drivers,
including city driver Mark Frederick, what could be done to
stop this. Frederick asked what he meant, and Woods said that
he knew Overnite had screwed up, and that Frederick knew,
too, and what could Overnite do. Frederick answered that
Overnite should give overtime, better insurance, and everything
else the employees had been talking about. Woods said that
Overnite was looking into overtime and better insurance, and
the employees were going to get a good raise out of this. Fre-
derick asked why Overnite was just started looking into it and
did not do so a half year or year before. Woods responded that
Overnite finally realized it had screwed up, and now it was
going to cost Overnite a lot of money; but the employees would
be better off sitting down with the Company rather than giving
all their money to the Union.
Similarly, after a meeting on February 14, Morgan ap-
proached four or five employees who were walking back to
work and asked them what could be done to stop this, saying
that he did not think it was too late. He asked what the prob-
lems were. Frederick said that companies like Spartan, Central,
and CCX were paying time and one-half and more money per
hour, and their insurance and uniforms were paid for 100 per-
cent. The funny thing, he added, was that these companies were
not union, that Overnite could not catch the union ones or the
nonunion companies, and that Overnite’s profit was more than
all the others combined. Morgan said that those were the kinds
of questions they needed to ask Douglas, that they ought give
Jim a chance, and that Overnite was working on the problems.
Morgan’s and Woods’ statements constitute unlawful solicita-
tion of grievances and implied promises of benefits, rendering
representation by the Teamsters unnecessary. I conclude that
Respondent violated Section 8(a)(1) of the Act.
In February, city driver Virgil Thomas, in a small group of
three other drivers and sales representatives, asked Douglas
why Overnite did not pay overtime. Douglas asked what Tho-
mas meant by overtime, and Thomas replied anything over 8
hours a day or 40 hours a week. Douglas responded by asking
“how about” after 45 or 48 hours a week, because he was not
going to pay overtime after 40 hours a week, and the employees
were not going to get it. On about February 16. Douglas, in a
meeting with about 20–25 employees, said that he wanted to
know what was on the drivers’ minds and that he was trying to
change things for the better. The employees asked him about,
86 Shawn Gill told Bridgeton employees only that Morgan had said
that premium pay was going back to the drawing board and Overnite
was reviewing different options. Whatever the complaint alleges vio-
lated the Act in the Gill-Morgan conversation was not relayed to the
Bridgeton employees. Terry Ditzler could not recall whom he spoke to.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1044
among other things, Company-paid uniforms, sick days, and
medical benefits; and in response to a question about overtime,
Douglas responded by asking the drivers, who he said were
currently working an average of 43 hours a week, what they
thought about overtime after 45 to 48 hours. Douglas also said
that he was looking into other aspects of the medical benefits
and other companies that were paying for the employees’ uni-
forms. Douglas then said that Overnite could take care of their
own and did not need any third-party interference.
On about February 21 or 23, Frederick met Douglas, who
asked what questions he might have. Frederick said that he had
one question: everybody was talking about time and one-half,
and what was the problem with Overnite giving it. Douglas said
he was looking into it right now; that there should not be a
problem with it, except when to give it. He said that 47 to 48
hours would be beneficial for the employees and Overnite as
well. Frederick objected that with 47 hours, an employee was
working 6 days, not 5, and one had to come in a seventh day to
be paid overtime. Douglas replied only that that is what he was
looking at. The issue of overtime was the most important one to
the Bridgeton employees, who had never been paid overtime.
Douglas, while making clear sometimes that he had no inten-
tion to pay overtime after 8 hours a day or 40 hours per week,
suggested a compromise of premium pay after 45 or 48 hours, a
benefit that the employees never had. That constitutes an im-
plied promise of benefits, which was frequently the result of his
own unlawful solicitations. I conclude that Respondent violated
Section 8(a)(1) of the Act.
4. The objections
Local 600 filed a petition for an election in Case 14–RC–
11501 (now Case 18–RC–15768) on January 17, 1995. An
election was held on February 28, 1995, which the Union lost,
24 to 22, with two ballot challenged but not determinative of
the results of the election. The Union filed timely objections,
and the Acting Regional Director issued an order directing a
hearing on many of the issues that mirror the unfair labor prac-
tice complaint, including, among others, the announcement of
the March wage increase. As found above, the record supports
the Union’s Objections 1, 3, 4, and 11 (only as to Parks). There
was no evidence elicited to support Objections 2, 7, 8, and 9.87
Objection 5 and 6 recite, respectively, that Overnite “made
statements misrepresenting employees’ legal rights” and “made
threats of plant closing and that employees would earn less
money, work less hours and that more people would be hired if
the Union won the representation election.” I have no idea what
either objection refers to88 and will dismiss them.
IV. 1996 WAGE INCREASE
Management Consultant Kearney’s studies in the first half of
1995 proposed numerous operations changes that would result,
it predicted, in savings of approximately $65 million. Some
proposals, involving closing of service centers and resultant
loss of jobs and daily changes of employees’ routes and equip-
ment and resultant loss of hours and thus wages, would not be
received well by the employees. But, by June, Douglas was
convinced that the changes had to be made, and soon. By Au-
gust, Overnite began to implement some other recommenda-
tions at various locations, testing the changes, refining them,
and obtaining the input of employees, with the hope of com-
pleting implementation by the end of the year.

87 There was no Objection 10.
88 The Union filed no brief in support of its objections.
With the oncoming implementation, management attempted
to develop a strategy to communicate the changes so that its
managers and employees would understand the necessity for
them and feel that the changes were best for the Company and,
thus, them. And it had to be communicated in a way that would
avoid alienating the unrepresented employees, particularly road
drivers and strong supporters of Overnite, causing them to seek
union representation, and would satisfy, so Respondent con-
tends, its bargaining obligation with the Teamsters under the
Act. That was not going to be easy, for yet another reason.
Overnite, for the first time, was losing money; and it would be
difficult for the employees to happily adopt what could ulti-
mately hurt them, while not giving them the increase in their
wages that they expected. And so the strategy evolved to give
the employees their normal wage increase, from 40 to 60 cents
per hour, a decision that was made by early to mid-October.
On October 17, Douglas, Goodwin, and other officials of
Overnite (John Fain; Dave Tuttle, chief financial officer; Dan
Avramovich, senior vice president of sales and marketing; and
Steven Enright, vice president of human resources) met with
Lewis, Executive Vice President Matthews, and other Union
Pacific officers, Carl Van Bernuth, general counsel; Charles
Billingsley, vice president and corporate controller; and Dick
Davidson, then-president and chief operating officer. The meet-
ing concerned Overnite’s plan to reduce its costs, improve ser-
vice, and maintain employee flexibility, thus improving its
operation and increasing Overnite’s value, but “not increas[ing]
union presence,” for example, in the southeast region, which
included pockets of employee dissatisfaction and very loyal,
pro-Company employees with the most longevity. The partici-
pants recognized that the Teamsters was an impediment to uni-
laterally changing the employees’ terms and conditions of em-
ployment and that Overnite’s ability to deal directly with the
employees was much more effective than having to deal with a
bargaining representative. Finally, the participants perceived
that Overnite’s labor situation was “a disaster” and at least
Lewis was willing to throw the proverbial caution to the winds:
“Company [Overnite] worth only $150 million and nothing to
stock price; therefore Drew willing to take more risk in getting
tough with the Teamsters (could even spin portions or all out of
Corporation and let it go bankrupt).” Davidson was equally
blunt: “Do you have an evaluation system to get the bad apples
out?”89
Overnite planned to manage possible adverse reaction with
an “[e]mployee communication plan” and a “[s]trategy to man-
age employee reaction.” The essential elements included an
“Aggressive Roadshow to Manage Employee Reaction” and a
compensation package of wage increases and buyouts that was
“Equal Or Better Than Key Competitors.” The consensus was
that communication was the key and should be tied “directly to
individual impact.” If the employees felt that the changes
would increase Overnite’s value, the changes would not in-
crease the Teamsters’ presence or employee unrest. There was
discussion of the advantages and disadvantages of a wage in-
crease, which was recommended by Overnite to be 40 cents, at
89 Respondent’s attempt to deflate the seriousness of Lewis’ threat as
merely a reflection of his frustration of the lack of progress in negotia-
tions is hardly consistent with Davidson’s attempt to rid Overnite of
Teamsters’ adherents.

OVERNITE TRANSPORTATION CO. 1045
a minimum. Matthews suggested 50 cents to “sweeten the pot”
in exchange for productivity improvements at all facilities,
especially including the Teamsters-represented service centers,
because it was necessary to have the productivity changes in
place at all facilities; and, to do so, either the Teamsters had to
agree to Overnite’s proposed changes or the parties had to bar-
gain to impasse.
On November 15, Lewis wrote Douglas that he wanted
Overnite to address at the upcoming November 27 budget
meeting, among other things, turnaround plans for 1996; ac-
complishments since the October 17 meeting and “[u]pdate on
Teamster organizing campaign, plans to take out labor and
other labor issues.” By November 20, Douglas had determined
to increase wages by 50 cent-an-hour (he so told Mike East-
man, the manager of the terminal operations improvement pro-
ject), and to pay for overtime after an employee worked 47
hours (but Overnite’s managers were not to schedule overtime).
The wage increase would be paid for through significant pro-
ductivity changes that would affect all facets of the employees’
jobs. Notwithstanding what Douglas told Eastman, according to
Douglas, he had not finalized the amount; and, when Union
Pacific and Overnite management met again on December 1 to
discuss the proposed budget, Overnite proposed only a 40
cents’ wage increase.90
By December 7, the plan was set. Then, Overnite conducted
conferences by satellite with managers from all its service cen-
ters to brief them on certain productivity changes that would be
implemented during 1996 and provided a lengthy guide to use
in presenting the productivity changes to the employees. It was
very important to Douglas that the employees hear first about
the productivity changes in a way that Overnite had determined
was the best for them. On December 11, Respondent made its
presentation to all its employees, with certain exceptions de-
tailed below, of the 1996 wage increases and the productivity
changes. That included the showing of a videotape of Douglas;
and the employees were given supporting documents and then
participated in a question and answer session with their manag-
ers, all in an effort to maximize the likelihood that the employ-
ees would “buy in” to the proposed changes.
As of this time, the Board had certified, and Overnite had
recognized and commenced bargaining with various Teamsters
locals as the representative of units (recognized units) of em-
ployees at Chicago, West Sacramento, Kansas City, Blaine,
Indianapolis, Grand Rapids, Miami, and Tucson. In about Oc-
tober, the Teamsters formed a national committee to coordinate
bargaining with Overnite, consisting of, among others, its
chairman, Frank Busalacchi, Thomas Nightwine, and commit-
tee counsel Kurt Kobelt. Thereafter, the committee bargained
with Overnite, represented by attorneys Pollard and John Raud-
abaugh, at various locations where a Teamsters local repre-
sented Overnite employees, with the understandings that coor-
dinated bargaining would not alter the scope of the represented
units and that any agreements reached would apply only to the
single facilities.
On November 21, in Indianapolis, the day after Douglas told
Eastman that there was going to be a 50-cents-an-hour-increase,
Pollard told the committee: “Overnite typically makes im-
provements at the first of the year if it is to make improve-
ments, it depends on the conditions. We hope to make that de-
cision by the first week of or week of December whether [there
would be] any improvements.” He asked whether the commit-
tee wanted to bargain any improvements, if made. Kobelt re-
plied that the committee would get back to Overnite, which he
did, in a letter, dated November 30: “It is the Union’s position
that this wage increase is an established past practice of Over-
nite, and that, as you are obligated to maintain the status quo
pending a collective-bargaining agreement, the wage increase
must be extended to employees represented by Teamster lo-
cals.” The national committee maintained this position
throughout negotiations.

90 I have doubts about Douglas’ narration, because Respondent de-
clined to produce all the documents relating to the alleged December 1
meeting. Nonetheless, this testimony is not determinative of the result
that I reach.
The videotape announcing the 1996 increase was not shown
to the employees at the recognized units. Instead, on December
11, Pollard sent a packet of material to Busalacchi, by over-
night mail, to support Overnite’s proposed 1996 productivity
agreement. The proposal applied to the recognized units and six
other units for whom the Board had certified Locals, but Over-
nite refused to recognize them,91 or where the Board certifica-
tions were pending92 (nonrecognized units). Overnite proposed
that the agreement would be effective on January 1, 1996, ret-
roactive to January 1 if signed by February 15, or on the date of
execution if after February 15. Among Overnite’s proposals
were to increase wage rates by 50 cents-per-hour, together with
a commensurate mileage increase; enhancements to medical
and life insurance benefits;93 no increase for employees of their
cost of medical insurance for 1996; and, effective July 1, 1996,
overtime pay of time and one-half for hours worked in excess
of 47 hours per week.
In exchange, Overnite sought the national committee’s
agreement that Overnite would have the right, within certain
limitations, to “[s]et, change and cancel days and hours of
work” for all job classifications; and, within certain limitations,
to “[s]et . . . schedules, routes and running times for road driv-
ers and city drivers.” The limitations would be inapplicable in
the event of “extraordinary circumstances such as slowdown,
strike, unanticipated fluctuations in freight volumes and/or
employee unavailability.” Overnite further proposed that it
would have the right to “[a]ssign and reassign work and equip-
ment” with the understanding that employees who were tempo-
rarily assigned to a different job classification would be paid at
the higher of the employee’s regular or temporary rate, and
bidding for runs by seniority would be conducted no more than
four times each year. In addition, it proposed that it would have
the right, within certain limitations, to “[i]nvoluntarily separate
within job classifications by Company seniority at each service
center to effectuate productivity improvements and/or in re-
sponse to productivity improvements.” The limitations would
be inapplicable, up to a certain percentage of the persons em-
ployed in the job classification, in “extraordinary circumstances
causing larger separations, such as full or partial service center
closure, consolidation, relocation or substantial or unanticipated
reduction of freight volumes for any reason.”
Overnite further proposed that it would have the right, within
certain limitations, to “[c]ontract for casual or temporary per-
91 St. Louis, Milwaukee, and Rockaway.
92 Romulus, North Canton, and Atlanta.
93 The benefits included preventative care coverage, an employee as-
sistance program providing counseling services for various stressful
situations, a catastrophic medical plan, and additional dependent life
insurance.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046
sonnel to effectuate productivity improvements and/or in re-
sponse to productivity improvements and/or to handle seasonal
fluctuations in freight volumes.” The limitations would be in-
applicable in the event of “extraordinary circumstances causing
extraordinary contracting needs, such as slowdown, strike,
substantial or unanticipated increases in freight volumes for any
reason and/or employee unavailability.” Finally, Overnite pro-
posed that it would have the right, within certain limitations, to
“[d]ivert freight within the linehaul operation to alternative
modes and carries to effectuate productivity improvements
and/or in response to productivity improvements and/or to han-
dle seasonal fluctuations in freight volumes.” The limitations
would be inapplicable in “extraordinary circumstances causing
extraordinary diversion needs, such as slowdown, strike, sub-
stantial or unanticipated freight volume fluctuation, employee
unavailability, full or partial service center closure, consolida-
tion or relocation, linehaul redesign, or changes in state or fed-
eral regulation.”
Also enclosed with Pollard’s December 11 packet was a let-
ter from Douglas, dated December 5, which stated that, despite
having suffered a loss of approximately $10 million, and de-
spite facing a tough economic environment and rigorous com-
petition, Overnite was granting employees a 50-cents-an-hour
increase and a commensurate mileage increase to be effective
the pay period starting on December 31. Douglas announced
that Overnite was also enhancing other benefits. Finally, Doug-
las advised that, absent significant volume gains, a reduction of
the work force would be likely. Pollard also enclosed proposed
new wage rates by classification, an explanatory booklet con-
cerning new health benefits, an explanation of the proposed
productivity agreement, and a videotape containing Douglas’s
explanation of the productivity agreement. The written explana-
tion and videotape repeated and expanded on the contents of
Douglas’s December 5 letter.
Pollard sent the December 5 letter and the health benefits
booklet only to Busalacchi. Pollard sent both Busalacchi and
the employees in the nonrecognized units the remaining docu-
ments, except that the title and introductory paragraph of its
explanation of the productivity agreement were modified in the
document that was sent to the employees. He also sent substan-
tially identical cover letters and proposed productivity agree-
ments to all of the Teamsters locals that Overnite did not rec-
ognize and offered to bargain with them solely about the pro-
ductivity agreement, without recognition that they represented
the units. He also sent them the other documents that he had
sent to Busalacchi.
On December 13, 2 days after Pollard mailed his packages,
and 1 day after the Union received the proposal, Respondent
held meetings at the 14 service centers represented by the
Teamsters, represented by Busalacchi, or certified by the
Board. The meetings had the same format as those Overnite
held on December 11 at all the other service centers, which
included those which are the subjects of Gissel bargaining order
requests in this proceeding. Negotiations continued on Decem-
ber 15 in Chicago, where Pollard asked if the committee
wanted to respond to Overnite’s proposed productivity agree-
ment. Busalacchi replied that he was not prepared to respond
that day, that he would do so when the parties next met in Min-
neapolis, and that the committee would discuss Overnite’s pro-
posal in the context of an overall agreement, a position that the
committee repeatedly restated and never changed. The parties
next met in Minneapolis on December 18 and 19 and discussed
fully the productivity agreement, the committee asking ques-
tions, among others, about the proposal’s effect on the Blaine
terminal. Pollard responded that he did not know what the ef-
fect would be, but Overnite needed flexibility and needed to
implement the proposal. He added that the productivity agree-
ment would replace all past practices and that one difference
between the proposal and current practice was that employees
would have the right to exercise seniority rights and change
service centers.
In Kansas City shortly before Christmas, Overnite’s negotia-
tors told the committee that the productivity agreement could be
negotiated on a location-by-location basis. One of the Union’s
negotiators said that the committee was unwilling to negotiate
that agreement until Overnite responded to a forthcoming infor-
mation request, which was supplied on January 12, 1996, when
Busalacchi stated that the national committee was bargaining for
all 14 units. By letter dated January 26, the committee stated that
it could not engage in meaningful bargaining without the re-
quested information and reiterated its position that it would dis-
cuss productivity improvements only as part of an overall con-
tract. On February 15, Pollard supplied some of the requested
information; and, in a letter the same day, stated that Overnite
would furnish the additional information upon execution of an
agreement to keep that information confidential. That led to ex-
tensive negotiations over the scope of a confidentiality agree-
ment, culminating in agreement on March 1, the furnishing of the
balance of the requested information, and the compliance with
the committee’s request to allow its consultant to examine Over-
nite’s books.

From early 1996, the parties continued to talk around, if not
about, Overnite’s proposed productivity agreement. Once
again, by letter dated February 26, the national committee ad-
vised Overnite that it preferred to discuss productivity issues as
part of an overall agreement, and that position applied equally
to the eight units that Overnite recognized and those six that it
did not. Whether Overnite continued to press its productivity
agreement separately, as Raudabaugh testified that it did at
each negotiating session, or, according to Nightwine, never
mentioned it again, and I am inclined to believe Raudabaugh,
makes little difference. The parties continued to meet, but the
lines were clearly drawn: Overnite wanted to bargain the pro-
ductivity agreement alone concerning the six units that it re-
fused to recognize, but the national committee continued its
position that it would negotiate productivity improvements as
part of an overall agreement for all the units. Finally, at
negotiations in Chicago on July 30 and August 1, at which time
Overnite had begun to consolidate the facilities, with two of the
contested units, Rockaway and North Canton, already closed,
Pollard advised the national committee (confirmed by letter of
August 2) that, because no bargaining had taken place as a
result of the Teamsters’ position on overall bargaining, Over-
nite declared an impasse and intended to unilaterally implement
the productivity agreement for the six nonrecognized units,
effective August 4.
The complaint94 alleges that (1) Overnite bypassed the Union
and engaged in direct dealing by holding meetings with and

94 Respondent seeks to reargue the propriety of my consolidation of
this unfair labor practice complaint in this proceeding. The record ade-
quately protects Respondent’s rights, and I will not burden this Deci-
sion with a repetition of what I have already disposed of, with the ex-
ception of noting the Board’s decision in Service Employees Local 87

OVERNITE TRANSPORTATION CO. 1047
explaining the productivity agreement to the employees in the
Teamsters-represented units, before or without adequately ne-
gotiating with the Teamsters; and (2) that Overnite unilaterally
changed its employees’ terms and conditions of employment by
not giving the wage, mileage, and fringe benefit improvements
to the employees in the recognized units and by implementing
the terms of the productivity agreement for the employees in
the six nonrecognized units.
The obligation to bargain collectively requires the “recogni-
tion that the statutory representative is the one with whom
[Overnite] must deal in conducting bargaining negotiations, and
that it can no longer bargain directly or indirectly with the em-
ployees.” General Electric Co., 150 NLRB 192, 194 (1964),
enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965
(1970). What Overnite did here was to send by overnight mail
its productivity agreement to the Union, wait 1 day, and then
make its presentation to the employees directly, 2 days before
negotiations were to or did resume. That bypasses the Union in
the same way as if Respondent never made any proposal at all
to the Union, and Respondent certainly gave the Union no ade-
quate opportunity to digest the proposal or to respond or to
begin discussion. Detroit Edison Co., 310 NLRB 564 (1993).
There is no record support for Respondent’s contention in its
brief that its announcement on December 13 was intended “to
quell rumors about the status of represented employees vis-a-
vis” the presentation given to the unrepresented employees 2
days before. In light of the care taken by Respondent and its
decision on October 17 to present the proposal in the way it
wanted, Respondent’s claim is improbable, at best. Nor is there
support for Overnite’s contention that it wanted the Teamsters’
cooperation: it never consulted with the Teamsters before mak-
ing its offer, even though it began testing Kearney’s recom-
mendations as early as August.
The violation is particularly egregious because Overnite
knew, no later than December 7, 1995, when it briefed and
prepared its service center managers, what it was going to pro-
pose and had been working on the productivity changes since
prior to its meeting with Union Pacific on October 17, at the
latest. Overnite and Union Pacific leadership also concluded
that it would be “much more effective” to make the productiv-
ity package palatable by dealing directly with the unionized
employees rather than having to deal only with their bargaining
representatives; and so the conscious effort was made to bypass
the national committee.95 That Respondent wanted to present its
proposal directly is shown by the failed attempt of Darryl Con-
nell, an organizer for Teamsters Local 200, the certified repre-
sentative of a unit in Milwaukee, to attend the meeting where
the productivity agreement was being presented, Service Center
Manager Michael Jeske insisting that he would call the police
unless Connell left. It was also meant to pressure the employees
at the recognized facilities by indicating that whether they re-
ceived the wage increase was in the hands of their Union. Thus,
Kelly Washler, a bargaining unit employee at the Indianapolis
service center and a Teamsters’ alternate steward, asked Man-
ager John Jennings at a meeting whether the Indianapolis em-
ployees would receive the wage increase in January. Jennings
responded that the employees would have to consult their Un-
ion. Another employee asked if the increase would be retroac-
tive, like the last increase, which was not paid when the other
employees were paid. (That was paid pursuant to the settlement
agreement.) Jennings again referred the employee to the bar-
gaining representative. I conclude that, regarding the recog-
nized units, Respondent violated Section 8(a)(1) of the Act.

(Cresleigh Management), 324 NLRB 774 (1997), which further sup-
ports my ruling during the hearing.
95 During a question-and-answer period following the presentation of
the productivity package by Schager in Atlanta, an employee com-
mented that the Teamsters would file charges concerning what Overnite
was doing. Another employee asked what Schager would be charged
for. Schager answered: “Because we didn’t notify the Union that we
were having this meeting. We don’t, we won’t notify the Union any
more on anything. That’s the whole point of this on the productivity
package and so forth. We now will make changes as we see ‘em so we
can get our company back to profitability.”
Since 1980, Overnite had a regular practice of granting
across-the-board annual wage and mileage increases to all its
employees. That was never broken.96 From 1984 to 1990,
Overnite paid the increase at the beginning of July; from 1992
to 1996, at the beginning of the year. Although it deliberately
withheld the March 1995 increase from the four certified units,
that increase was not the regular increase. The increase the
previous January was, and, even then, Respondent increased the
wages of all its employees, despite the fact that certifications
had issued in West Sacramento and Kansas City. Similar in-
creases have historically been granted after notice to the bar-
gaining representative at Overnite’s represented facility in Chi-
cago. These system-wide, across-the-board increases, consis-
tent within each job classification,97 have become an estab-
lished employee term or condition of employment.98 Dyna-
tron/Bondo Corp., 323 NLRB 1263 (1997), citing Daily News
of Los Angeles, 315 NLRB 1236 (1994), enfd. 73 F.3d 406
(D.C. Cir. 1996); Fieldcrest Cannon, Inc., 318 NLRB 470, 471-
472 (1995), enfd. in part 97 F.3d 65 (4th Cir. 1996); L & M
Ambulance Corp., 312 NLRB 1153 fn. 2 (1993).
The duty to bargain in good faith, protected under Section
8(a)(5) of the Act, is defined by Section 8(d) as the duty “to
meet . . . and confer in good faith with respect to wages, hours,
and other terms and conditions of employment.” “[A]n em-
ployer’s unilateral change in conditions of employment under
negotiation is . . . a violation of § 8(a)(5), for it is a circumven-
tion of the duty to negotiate. NLRB v. Katz, 369 U.S. 736, 743
(1962). Overnite could not unilaterally change that established
term, and its doing so violated Section 8(a)(5) and (1) of the
Act. Rocky Mountain Hospital, 289 NLRB 1347, 1348 (1988);
NLRB v. Katz.99 Respondent’s arguments, when carefully ana-
lyzed, are nothing more than arguments previously rejected by
96 Respondent contends that no increase was given in 1991. That is
true, but was caused by Respondent’s decision to delay the regular
October 1991 increase for 3 months, until January 1992. Except for
that one 15-month period, increases have been given every 12 months.
97 Except for the year in which PIP was instituted, the increase for a
city driver varied between 30 and 50 cents.
98 The General Counsel contends that Respondent admitted as much
in its answer. If the complaint alleged that the yearly increase was an
established term and condition of employment, I might agree. But the
complaint alleged only that the increase of wages and mileage, fringe
benefit improvements, overtime, and nonwage improvements were all
terms and conditions of employment; and I find Respondent’s admis-
sion of that allegation did not intend to concede the underlying fact on
which this allegation was based.
99 The Board has indicated that it will be “particularly vigilant in
scrutinizing bargaining when an employer proposes to change terms of
employment during initial contract negotiations, recognizing that such
changes can jeopardize the efficacy of a newly certified union.” Central
Maine Morning Sentinel, 295 NLRB at 379.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048
the Board and by the majority of the circuits. Indefiniteness of
the amounts of the otherwise regular yearly increase and “a
flavor of discretion” do not prevent them from becoming terms
and conditions of employment. Eastern Maine Medical Center
v. NLRB, 658 F.2d 1, 8 (1st Cir. 1981). For example, in Central
Maine Morning Sentinel, 295 NLRB 376 (1989), the Board
held annual wage increases established practices, despite the
fact that they varied from 4 to 8.9 percent.
Respondent contends that the manner in which it decided on
increases varied from year to year, but Douglas testified from
his experience that a salary survey was performed at least every
other year, either directly by Overnite’s human resources staff
or using a formal survey prepared by the American Trucking
Association, in which Overnite participated, to get data by job
class about other carriers. The survey by the Association was
conducted in even years, but companies would supply data
about that year and make projections about what they intended
to do the following year, making the survey useful for 2 years.
In addition, Douglas stated that Overnite missed a survey dur-
ing his tenure only in 1993. Finally, because competition is so
important in the trucking industry, it is probable that companies
would attempt to remain competitive in their pay rates, to avoid
the very problem that Douglas claimed (although I found
falsely) prompted the March increase. Accordingly, I conclude
that Overnite, although obviously using discretion, generally
used the same kind of statistics in formulating its final decision
of an appropriate yearly increase.
Overnite’s brief claims that it had no practice for pay in-
creases in years that it lost money, but that did not stop its deci-
sion to grant the March increase, despite the fact that that in-
crease would cause it to lose money. Furthermore, Respondent
could have granted no increase in 1996, but it did so for 92
percent of its service centers, continuing its established practice
of yearly increases and holding back on only the ones that had
voted for the Teamsters.100 If Overnite really had problems, it
could have availed itself of Bottom Line Enterprises, 302
NLRB 373 (1991), enfd. mem. sub nom. Master Window
Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994), which
holds that:

[W]hen, as here, parties are engaged in negotiations for a col-
lective-bargaining agreement, an employer’s obligation to re-
frain from unilateral changes extends beyond the mere duty to
provide notice and an opportunity to bargain about a particu-
lar subject matter; rather it encompasses a duty to refrain from
implementation at all, absent overall impasse on bargaining
for the agreement as a whole.

In Bottom Line, the Board noted two exceptions to this gen-
eral rule: when a union engages in tactics designed to delay
bargaining and “when economic exigencies compel prompt
action.” Id. at 374.101 What Respondent did was in reverse. It
had a duty to refrain from unilateral changes. That meant that it
could not carve out from its approximate 174 service centers 14
whom it would not give the established yearly increase. Be-
cause the 160 service centers were nonunion, it had the right to
impose on the employees any changes it wanted, including all
of the productivity agreement’s provisions for changes of em-
ployment. But, regarding its unionized facilities, if it thought
that those provisions were compelled by economic exigencies,
as it insisted in this proceeding, then Bottom Line provided a
method for immediate bargaining and, upon impasse, piecemeal
implementation. Overnite did not do so, preferring to put the
pressure and the blame on the Union by withholding the wage
increase, demonstrating that blame and the Teamsters’ cam-
paign were more important than the alleged compelling reasons
for the change. Accordingly, I reject Respondent’s contention
that it fulfilled any bargaining obligation that it had.102

100 Record evidence demonstrates that Respondent granted another
increase of 45 cents in 1997.
101 See also RBE Electronics of S.D., 320 NLRB 80 (1995).
On the other hand, while the General Counsel proved Over-
nite’s historical practice of granting yearly wage increase, there
was no proof that Overnite had any established practice relating
to fringe benefit improvements. All that the record reveals is
that in some years Overnite improved its benefits. Without
proof of a practice and consistency in granting them—and there
is no pattern of the type of benefit improvement or the time of
the year or the interval between improvements—a change of
the benefits cannot be an established term and condition of
employment. I conclude that Respondent violated Section
8(a)(1) of the Act only with respect to the failure to give the
wage and resultant mileage rate increases and will dismiss that
portion of the complaint that alleges that the failure to grant the
fringe benefit improvements violated the Act.
Respondent gave all the rest of its employees the wage in-
creases and imposed the “productivity improvements.” How-
ever, if the certifications of the certified, but not recognized,
units, are eventually upheld, Respondent would not have been
entitled to change the terms and conditions of the employees
there, because Respondent was required to bargain with the
Locals (or the committee) before making any changes to their
terms or conditions of employment. It acted at its peril in doing
so while challenging the Teamsters’ status as the exclusive
bargaining representative. Mike O’Connor Chevrolet, 209
NLRB 701, 703 (1974), enf. denied 512 F.2d 684 (8th Cir.
1975). Although Overnite offered to negotiate its proposed
productivity agreement, it otherwise refused to recognize and
bargain with the exclusive representative; and its offer, which
was rejected by the national committee, constitutes conditional
bargaining that the Board does not condone. Dickerson-
Chapman, Inc., 313 NLRB 907, 943 (1994); Specialized Living
Center, 286 NLRB 511, 514–515 (1987), enfd. 879 F.2d 1442
(7th Cir. 1989).
Accordingly, I conclude that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing the terms
and conditions of employment of the employees at the non-
recognized units, assuming, of course, that the certifications are
ultimately approved by the appropriate legal body. Further-
more, the same legal theory applies to the various service cen-
ters where the General Counsel is seeking Gissel orders in this
proceeding. As found below, Overnite was obligated to recog-
nize and bargain with the Teamsters in the four units that are
the subject of this portion of the bargaining order case; and I
conclude that Respondent bypassed the Teamsters and directly
dealt with the employees at those units and unilaterally changed
their terms and conditions without bargaining. I will withhold,
however, an order on the Gissel cases that I have yet to hear in
this proceeding pending determination of the Union’s majority
102 To the extent that Respondent relies on Stone Container Corp.,
313 NLRB 336 (1993), and American Packaging Corp., 311 NLRB
482 (1993), see the Board’s discussion in Daily News of Los Angeles,
315 NLRB at 1240–1241.

OVERNITE TRANSPORTATION CO. 1049
status and whether there were unfair labor practices committed
that would justify the recommendation of a bargaining order.
To that extent, I will retain jurisdiction of this issue.
There are two additional unfair labor practices alleged in the
complaint. One charges that Respondent withheld the increases
from the recognized units because it intended to discriminate or
retaliate against them, in violation of Section 8(a)(3) and (1). I
agree, for the reasons expressed above relating to the March
1995 increase. Just as the merit increases in Daily News of Los
Angeles were held to be established terms and conditions of
employment that could not be unilaterally changed, these are,
too. For example, under the merit-pay program there, the “sal-
ary increase, if any, is based on merit, and may range from no
increase to a substantial increase depending on the perceived
efforts and ability of the employee, and his or her value to the
[employer]. The amount of the increase, if any, is totally discre-
tionary.” 304 NLRB 514. Here, the wage increase was based on
the factors that Overnite looked at each year, including what its
competitors were paying, and the amount of the increase de-
pended on how Respondent’s management assessed Respon-
dent’s performance and the economic climate, which included
increases in the cost of living. With the exception of the one 3-
month delay and the unsatisfactory PIP program, Overnite paid
increases based on its yearly evaluation, a pattern and practice
of the Company. Indeed with the announcement of the March
1995 increase, The Overniter advised the employees that the
March increase would not result in the regular wage increase
being moved to March, rather than keeping it in January: “The
wage adjustment does not change the company’s plan to con-
sider a general wage increase effective January, 1996.” As in
Central Maine Morning Sentinel, 295 NLRB 376, 378 (1989),
“Given the consistency of the Respondent’s practice, the work
force was surely entitled to regard [the raise] as a permanent
element in their wage structure program.”
In fact, the employees expected and anticipated the increase.
Thus, when Douglas described the mood in the fall of 1991, he
stated that a pay increase was “expected” by the employees in
October, just as an increase had been given, according to Doug-
las’s memory, for the prior seven years. Douglas testified that
the rationale for the amount of the lump-sum, one-time pay-
ment in 1992 was “dollars and cents wise a full expected in-
crease.” He described the debate over the lump-sum payment
being caused by a concern that Overnite was changing its pay
practice: “Base wage increase[s] without any other frills or
incentives or lump sum bonuses or whatever you call them, that
is the history of the tradition . . . of Overnite and its pay prac-
tices.” Heaton was very concerned that departing from that
practice “would be difficult . . . for people to understand.” And
Douglas was concerned, too, for the payment was “a departure
from tradition.” In relating how he calculated the amount of the
March 1995 increase, Douglas testified that he looked at the
“normal increases” that the employees should have received
earlier. Even Pollard’s first, tentative announcement at negotia-
tions of the possibility of a forthcoming increase—“Overnite
typically makes improvements at the first of the year if it is to
make improvements, it depends on the conditions”—
demonstrates that Overnite had the practice that it now denies.
With Overnite’s tradition and its employees’ expectations,
even at Chicago, where the employees had designated the
Teamsters to represent them but were still paid their yearly
increases, at least a reason that Overnite withheld it from the
represented employees was to retaliate against them for their
union sympathies. Phelps Dodge Mining Co., 308 NLRB 985,
995–998, enf. denied 22 F.3d 1493 (10th Cir. 1994); L & M
Ambulance Corp., 312 NLRB at 1157–1157. In addition, Re-
spondent publicized the withholding of the increase to demon-
strate that voting for the Teamsters presented serious, adverse
consequences. Thus, Overnite distributed antiunion campaign
flyers stating that employees in the represented units were 50
cents per hour behind nonunion employees after the 1996 wage
increase and blamed the Union for refusing to allow the em-
ployees it represented to accept the increase and refusing to
bargain about the increase.103 As held above, the grant of bene-
fits to unrepresented employees and the withholding of those
benefits from represented employees, when accompanied by
statements encouraging employees to abandon collective repre-
sentation in order to secure the benefits, is “clear evidence of
unlawful 8(a)(3) motivation.” BF Goodrich Co., 195 NLRB
914, 915 fn. 4 (1972). I conclude that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
The second allegation complains that the “productivity in-
crease” offer to all the employees was intended to dissuade
them from their support of the Teamsters. Had Overnite in
March 1995 granted the array of extra benefits that it provided
in January of the next year, the complaint would plainly be
meritorious. After all, what Overnite provided touched on, at
least partially, grievances that Overnite had learned about as a
result of the troubleshooters’ illegal solicitations. For the first
time it addressed the lack of overtime, certainly one of the big-
gest sources of discontent. In addition, Overnite’s package
included provisions dealing with bidding for routes, requests
for time off, protections against subcontracting, and the use of
temporary or casual employees. When Overnite finally made its
offer, despite its net loss in 1995, it granted a wage increase and
added health insurance benefits, with no increase in costs to the
employees,.
The issue raised by the complaint is whether these changes
were intended for the unlawful purpose of dissuading employ-
ees from supporting the Teamsters, as the General Counsel
contends, or, as Overnite contends, to “buy” flexibility and
productivity improvements. My findings regarding the Bridge-
ton service center are helpful. There, Overnite promised repeat-
edly that the employees would see substantial improvements in
their 1996 conditions of employment. Furthermore, there is
ample evidence that the October 17 Union Pacific-Overnite
meeting was devoted to an attempt to offer employees a pro-
posal that would not tend to foster their support of the Team-
sters. However, a mere showing that Overnite lost money in
1995 does not prove that it would have disregarded its tradi-
tional yearly wage increase, and even the General Counsel
claimed (although I did not agree) that improvements of health
benefits was an established condition of employment. The re-
cord does not supply enough to persuade me that these changes
were linked with any illegal purpose. I thus find, under Wright
Line, 251 NLRB 1083, no prima facie case as to them. How-
ever, as to the remainder of the offer, there is ample proof that
the General Counsel has presented a prima facie case that the
offer was made for purposes unlawful under the Act.
To show under Wright Line that it would have made the
same offer, even without its unlawful motive, Respondent

103 Additional flyers, apparently issued after Respondent increased
wages in 1997, called attention to the fact that the nonunion employees
earned 95 cents more than those represented by the Teamsters.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
proved that it was proposing some drastic remedies, to close
and merge service centers (it closed 13 centers in 1996), result-
ing in the layoff of more than 2000 employees, and to alter,
fundamentally, the way many of the employees did their work,
potentially shortening their hours and changing their work as-
signments, with little advance notice. Many of the changes
about which the General Counsel complains were intended to
make the pain of those remedies less harsh and to give some
minimal protections to the affected employees; and I find suffi-
cient proof from the Kearney report that Respondent would
have provided them, as Kearney suggested, even in the absence
of its illegal motive. I do not find that to be so regarding the
overtime provision. Overtime was an issue that was widespread
in the campaign, and Respondent’s offer was an obvious re-
sponse to the complaints of the employees and, in fact, could be
anticipated from many of Douglas’ conversations with employ-
ees early in 1995. It would have been difficult for him to renege
on his promises without further erosion of employee support. In
that respect alone, I conclude that Respondent did not prove
that it would have made the offer, without its unlawful intent.
In so finding, Douglas’ explanation that he offered premium
pay for overtime as a “reward” to employees because “man-
agement discipline needed to increase rather dramatically” is
unreal.104 That Douglas may have told the employees in his
videotape that it was incumbent upon management to control
the amount of overtime it would require, may have warned
employees that management would be none too generous with
its assignment of overtime. Nonetheless, there was a new “re-
ward,” premium pay, that employees never before were
given.105
V. JOHNNIE’S POULTRY
While preparing for the hearing involving the Louisville ser-
vice center, counsel for Respondent interviewed employees at
the terminal and distributed an eight-page questionnaire. The
General Counsel does not dispute that counsel’s purpose was to
obtain information to assist in the hearing and that the method
and manner of the interviews comported with the procedural
safeguards required under Johnnie’s Poultry, 146 NLRB 770
(1964). Indeed, the General Counsel concedes that almost all
eight pages of questions asked about Respondent’s alleged
misconduct were potentially relevant to the allegations of the
complaints or the propriety of the Gissel bargaining order
sought by the General Counsel. (For example, the General
Counsel does not object to the questions: “Did management do
or say anything that threatened you? If so, what? If yes, did it
affect the way that you voted?” and “Did a wage increase affect
the way you voted?”)
However, the General Counsel alleges that five other ques-
tions “exceeded the limited scope of inquiry allowed for such
employee interrogations and, without justification, unlawfully
pried into union matters,” relying on Johnnie’s Poultry, supra at
774–775:

104 In June 1996, as a result of employees’ complaints, Overnite
changed its overtime policy again by allowing employees to “opt out”
of their entitlement to time and a half pay after 47 hours, thus permit-
ting them preference in being selected to work overtime, but at their
straight-time rate—further support that “management discipline” had
nothing to do with Douglas’ original decision.
105 Overnite asserted the attorney-client and other privileges with re-
spect to two documents (“Implementation challenge: balancing em-
ployee relations/labor law issues and productivity gains”) relating to the
October 17 meeting. Because it refused to submit these for my in cam-
era inspection, I cannot determine whether the privilege was properly
invoked. However, neither the General Counsel nor the Union has
urged that I make any adverse inferences.

[t]he employer must communicate to the employee the pur-
pose of the questioning, assure him that no reprisal will take
place, and obtain his participation on a voluntary basis; the
questioning must occur in a context free from employer hos-
tility to union organization and must not be itself coercive in
nature; and the questions must not exceed the necessities of
the legitimate purpose by prying into other union matters,
eliciting information concerning an employee’s subjective
state of mind, or otherwise interfering with the statutory rights
of employees. [Emphasis added.]

These are the questions:

(1) Did anyone ask you to sign a union card or petition?
Who? The General Counsel does not object to the first ques-
tion, but contends that asking the name of the solicitor ex-
ceeded the legitimate purpose of preparing a defense because
the inquiry delved into the union activities of other employees.
In Osco Drug, Inc., 237 NLRB 231 (1978), the Board found
that in a Gissel case, an employer was entitled to inquire “as to
whether and under what circumstances, individuals executed
union authorization cards.” Id. at 236. The Lawrenceville hear-
ing that preceded the Louisville hearing demonstrated the detail
in which counsel attacked the integrity of the authorization
cards, and the question “Who?” was an integral part of the sign-
ing process. For example, if it was found that one solicitor told
several signers that dues and initiation fees would be perma-
nently waived, counsel would legitimately want to know who
else that solicitor spoke with.
The General Counsel relies on Salvation Army Residence,
293 NLRB 944, 973 (1989), enfd. mem. 923 F.2d 846 (2d Cir.
1990), but there the employees were given no assurance that
they would be free from reprisal. Furthermore, although it is
true that the Board stated that the question violated Section
8(a)(1), it also stated that asking the employee whether he had
signed a card was also a violation; and the General Counsel
concedes that that was not. As to the objected-to question, it is
clearly in conflict with Osco Drug. See also Standard-Coosa-
Thatcher, Inc., 257 NLRB 304 (1981), enfd. 691 F.2d 1133
(4th Cir. 1982), cert. denied 460 U.S. 1083 (1983). Often, the
later date of a Board decision governs; but, here, in preparing
for a bargaining order case, there were a number of ways that
the General Counsel could have proved a majority, and one was
by the testimony of the solicitor of the card. For the purposes of
preparation for trial, the obtaining of the name of the solicitor is
well within the needs of the attorney and is a proper subject for
questioning. I conclude that the language in Salvation Army
Residence is too broad and that it is not a violation of Section
8(a)(1) to ask that question.
(2) If you didn’t sign the card or petition the first time
you were asked, why did you sign it when you were asked to
do so again? All this asks for is the operation of the em-
ployee’s mind, the subjective reasons for signing an authoriza-
tion card that are irrelevant in assessing whether to credit the
card to prove a majority. To the extent that Respondent con-
tends that it was looking for illegal promises and other state-
ments that may have invalidated the card, others of its questions
covered those areas. I conclude that this question violated Sec-
tion 8(a)(1) of the Act. ITT Automative, 324 NLRB 609 (1997).

OVERNITE TRANSPORTATION CO. 1051
(3) Who did you give the card or petition to after you
signed it? Either the card was signed or it was not. The circum-
stances of the signing are proper subjects for questions. The
card does not become invalid because of the identity of the
person to whom it was returned. The question merely seeks to
pry into union matters and the union activities of other employ-
ees and thus exceeds any legitimate purpose for asking it. I
conclude that this question violated Section 8(a)(1) of the Act.
ITT Automative; Plastic Film Products Corp., 238 NLRB 135,
145 (1978).
(4) Did anyone from the Union tell you it was important
for you to report to the Union or any employee any prob-
lems you had with the Company since the Union needed
unfair labor practice charges to help them overturn the
election? If yes, who? Respondent contends that this question
does not relate to activities protected under Section 7 of the Act
because it does not ask for conversation between employees.
First, it clearly asks for participation in union activities, and
that is protected. Second, “anyone from the Union” could mean
an employee who is representing the Union, so in that sense the
question asks for conversations between employees, protected
under Section 7. Finally, the subject of the inquiry is irrelevant
to anything under attack in the unfair labor practice complaint.
During the hearing, I found irrelevant the fact that the Union
may have fostered the filing of charges. Under the Act, anyone
may file a charge. What is relevant is the substance of the
charge, insofar as that becomes the subject of a complaint be-
fore an Administrative Law Judge. I conclude that this question
violated Section 8(a)(1) of the Act. ITT Automative.
(5) Have you given a statement to anyone else regarding
the election or the Company’s or the Union’s conduct? The
Union’s conduct was not a subject of the complaint. The Un-
ion’s conduct regarding the obtaining of authorization cards
was undoubtedly going to be a subject of the hearing, but the
question was not so limited. The Board appears to have ap-
proved a question asking whether an employee gave a state-
ment (but not the contents) in connection with the complaint
under investigation, and I would probably find not objection-
able a question related to a statement given to the Union about
the Objections that were the subject of this proceeding. How-
ever, the question goes far beyond that permissible area and
exceeded the limited scope of inquiry allowed for employee
interrogations. I conclude that this question violated Section
8(a)(1) of the Act. ITT Automative.
Miscellaneous Objections Cases
A number of additional objections cases were consolidated
with this proceeding only to the extent that the objections filed
in those cases alleged that Respondent interfered with em-
ployee freedom of choice in the elections by announcing, pre-
senting, or implementing the productivity improvements which
were the subject of the complaint in Case 18–CA–13916. Be-
cause I have found that Respondent violated the Act, as that
complaint alleged, I will recommend that the following elec-
tions be set aside and referred to the appropriate Regional Di-
rector for the setting of new elections at such times and places
as the Regional Director determines:
(1) Local 773 filed a petition for an election in Case 4–RC–
18747 on November 6, 1995. An election was held on Decem-
ber 14, 1995, which the Union lost, 6 to 16, with two ballots
challenged but not sufficient to affect the results of the election.
The bargaining unit was agreed upon, as follows:

Included: All full-time and regular part-time road
drivers, pick-up and delivery drivers, and platform work-
ers employed by Overnite Transportation Company at its
Bethlehem, Pennsylvania service center.
Excluded: Office clericals, sales employees, guards,
professional employees, and supervisors as defined in the
Act, and all other employees of Overnite Transportation
Company.

(2) Local 639 filed a petition for an election in Case 5–RC–
14213 on June 5, 1995. An election was held on November 29,
1995, which the Union lost, 14 to 25. The bargaining unit was
agreed upon, as follows:

All full-time and regular part-time dock workers (including
leadmen), yard workers, city drivers, over-the-road drivers,
OS&D clerks, and mechanics employed by Overnite Trans-
portation Company at the Landover, Maryland terminal; but
excluding all office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act.

(3) Local 651 filed a petition for an election at Respondent’s
Lexington, Kentucky, facility in Case 9–RC–16504 on January
23, 1995. An election was held on April 17, 1996, in which 127
votes were cast for the Union, and 123 against, with 5 ballots
challenged, sufficient to affect the results of the election. The
bargaining unit was agreed upon, as follows:

All full-time and regular part-time road drivers, city
drivers, dock workers, yard jockeys, line haul employees,
maintenance employees and janitors, but excluding all
other employees, all office clerical employees, profes-
sional employees, guards and supervisors as defined in the
Act.

(4) Local 651 filed a petition for an election at Respondent’s
Lexington, Kentucky, facility in Case 9–RC–16505 on January
23, 1995. An election was held on April 17, 1996, which the
Union lost, 9 to 42. The bargaining unit was agreed upon, as
follows:

All full-time and regular part-time motor mechanics,
parts room employees, tire chanter, pump attendants, shop
leadman and the shop maintenance employee, but exclud-
ing all other employees, all office clerical employees, pro-
fessional employees, guards and supervisors as defined in
the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I will order it to cease and desist from further
violations, except for the 8(a)(1) violations that have already
been remedied by the settlement agreement, and to take certain
affirmative action designed to effectuate the policies of the Act.
That involves a reconsideration of the General Counsel’s re-
quest for Gissel relief, preliminarily discussed above. The dis-
pute arises within the jurisdiction of numerous circuits, and, of
course, the Court of Appeals for the District of Columbia also
has jurisdiction. Skyline Distributors, 99 F.3d 403 (D.C. Cir.
1996), presents a problem, if ultimately an enforcement pro-
ceeding should be heard there, with respect to the Bridgeton
service center. The election at Bridgeton was held before Over-
nite announced in The Overniter not only the increase but also
the denial of the increase to those who had voted for the Union
in Board-conducted elections. In addition, the election was held
before the revision of the speed and mileage limits and rein-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
statement of the safety dinners. All that the Bridgeton case
concerns, therefore, in addition to the announcement or the
increase, were some bulletin board violations and promises of
better times to come. There was also some mention of the Chi-
cago bargaining, but not with the intensity exhibited at other
locations. As a result, the Bridgeton proceeding is by far the
closest to the kind of pure grant of wage increase case, without
the “negative acts of reprisal,” Skyline Distributors, 99 F.3d at
410, that so troubled the court of appeals. Indeed, the notion
that the violation is so serious that no fair election may be held
is undercut by the Union’s success the same day in its election
at Hall Street, only 17 miles away, from which many of the
Bridgeton employees came. Nonetheless, as Respondent recog-
nizes in its brief, an administrative law judge is bound by Board
law, unless and until the Supreme Court or the Board rules
otherwise. Hillhaven Rehabilitation Center, 325 NLRB 202 fn.
3 (1997), citing with approval Iowa Beef Packers, Inc., 144
NLRB 615 (1963), enfd. in part 331 F.2d 176 (8th Cir. 1964).
But the other three locations are distinguishable from Skyline
Distributors on the ground that Overnite made so clear that a
vote for the Union would mean the loss of future benefits. That
was the underpinning of Overnite’s campaign as it developed
and, when coupled with the various threats of closing and loss
of jobs resulting from the existence of the NMFA and the
Teamsters and from rerouting and loss of customers and busi-
ness, as well as the additional threat that, even if the Union
were chosen, bargaining would be futile, the meaning of the
threats could hardly be lost on the employees. Skyline Distribu-
tors, 99 F.3d at 411. And the threats were repeated and reem-
phasized, first, with the 1995 propaganda that the Teamsters-
represented service centers were lagging behind the nonunion
centers in pay and, second, with the 1996 increase, which not
only was a partial cure of the overtime grievance that was so
important in the campaign but also was by Overnite highlighted
as further evidence of how far behind in pay the Teamsters-
represented centers were.
More specifically, Respondent committed numerous other
violations of the Act at each of the service centers. At Law-
renceville, among the violations, it promised better benefits and
to form committees to help solve employees’ problems, threat-
ened the loss of the employees’ pension plan, threatened em-
ployees with discipline if they supported the Teamsters, invited
employees to quit, and threatened that Overnite would lose
business and close and that employees would lose work. At
Louisville, it solicited and promised to resolve grievances, it
actually resolved a grievance, it promised improved benefits, it
threatened that it would close if the Teamsters’ drive was suc-
cessful and would fire all its employees, and it threatened more
onerous working conditions. At Norfolk, it threatened diversion
of freight and loss of hours and customers and pay and the em-
ployees’ pension plan, it threatened employees with discharge
and unspecified discipline if they engaged in union activities
and supported the Teamsters, it threatened that they would lose
their credibility with management, it threatened the inevitability
of strikes, and it followed employees to ensure that they would
not engage in union activities. Accordingly, there are numerous
additional, serious unfair labor practices which support bargain-
ing orders at each of the three other service centers. St. Francis
Federation of Nurses & Health Professionals v. NLRB, 729
F.2d 844, 855 (D.C. Cir. 1984).
Respondent contends that no Gissel orders should issue be-
cause the Teamsters won elections subsequent to the unfair
labor practice found herein and that, therefore, the holding of
free and fair elections is more than a slight possibility. I have
previously denied Respondent’s motion to dismiss all the Gis-
sel cases, and there has been no change of facts that requires my
reconsideration of that order and no reason to burden further
this Decision. I note only that Respondent was aware, at the
time it imposed the productivity agreement, that the employees
might rebel against the changes that Respondent intended to
impose. It may well be that its attempt to get the employees to
“buy in” was unsuccessful and that they showed their discon-
tent by voting against the Company. It may also be that Re-
spondent’s promise to grant premium pay for overtime and its
subsequent partial removal of that extra “reward” convinced
employees that it was better to support the Teamsters. I would
not hazard a guess, but the Board’s rule of evaluating the situa-
tion as of the time of the commission of the unfair labor prac-
tices appears better than lengthy, additional hearings to deter-
mine employees’ subjective states of mind, with employees’
testimony having been influenced by their employer’s unfair
labor practices. Finally, a free and fair election is not the legal
equivalent of an election that a labor organization wins. A free
and fair election is one in which none of the participants utilize
unfair labor practices or objectionable conduct that may alter
votes. I deny Respondent’s motion for reconsideration.
Respondent contends that changed circumstances militate
against the issuance of Gissel bargaining orders, but the validity
of a bargaining order depends on the evaluation of the situation
as of the time the unfair labor practices were committed. Fun
Connection & Juice Time, 302 NLRB 740 (1991). In support of
its contention, Respondent cites the delay which has enveloped
this proceeding. Without blaming anyone, Respondent is aware
of the delay in setting the schedule for the hearing of the issues;
its request for a delay after the presentation of the General
Counsel’s case at each location so that Respondent could pre-
pare its case; its filing of 1399 pages of its principal briefs,
leaving aside its reply brief and numerous motions, some very
lengthy, to supplement the record; and the setting for hearing of
the numerous 8(a)(3) cases, the settlement discussions, and
even a 4-day hearing in Kansas City, before most of that por-
tion of the proceeding settled. Accordingly, although there was
certainly a delay, this is a proceeding with numerous issues of
extreme importance to the parties; and this kind of proceeding
takes time to prepare and try. Respondent should not take ad-
vantage of its own actions in order to plead that delay warrants
any lesser remedy than would ordinarily be granted.
Respondent contends that a variety of its principals have left
their positions: Douglas, Edwards, Harmeier, Mendenhall,
Lewis, Grimes, Carter, and Schager. The record fails, however,
to establish the complete turnover or replacement of Respon-
dent’s management, who, from top to bottom, are responsible
for the extensive antiunion campaign affecting all of Respon-
dent’s employees. Rather, as shown above, although Lewis
retired from Union Pacific, none of the other officers did; and I
have found that Union Pacific, as Respondent’s parent, had
more than a little to say about Respondent’s conduct. Further-
more, as a large corporation, with many service centers
throughout the United States, it appears likely that the many
officers and managers that remain will continue to enforce Re-
spondent’s institutional commitment to oppose any of its em-
ployees being unionized. For example, the troubleshooters have
been replaced with a more sophisticated internal corporate
group, originally called the “SWAT” team but later “PERT”

OVERNITE TRANSPORTATION CO. 1053
(positive employee relations team), whose duties are to stop
trouble (which, I infer, includes union organization) as soon as
it starts. In October 1995, Goodwin issued a “TEAMSTERS
ALERT,” notifying all service center managers that the Team-
sters had started organizing again and advising:

PLEASE CALL ME, PAUL HEATON OR YOUR ASSIGNED ATTORNEY
TO LET US KNOW IF THERE IS ANY KIND OF CAMPAIGN ACTIVITY
AT YOUR SERVICE CENTER. IF PAUL OR I ARE NOT AVAILABLE TO
TAKE YOUR CALL RIGHT AWAY, CALL THE ASSIGNED ATTORNEY
OR HIS BACKUP.

Goodwin, Heaton, and their legal advisers remain.
In approving the 1996 wage increase for all but its unionized
employees, in violation of the Act, Respondent has continued to
fail to comply with the Act’s requirements. There is also noth-
ing that demonstrates that Overnite will necessarily improve.
The threats found by the Board in 1989 in Overnite Transporta-
tion Co., 296 NLRB 669, and repeated years later, demonstrate
that Respondent has not learned as much as it should have.
Furthermore, as the Board has stated, violations “are likely to
‘live on in the lore of the shop,’ and to be passed on from old
employees or supervisors to new arrivals, thereby exerting a
continuing coercive influence.” DTR Industries, 311 NLRB at
847 fn. 51 (1993), citing Bandag, Inc. v. NLRB, 583 F.2d 765,
772 (5th Cir. 1978); Salvation Army Residence, 293 NLRB
944, 945 (1989).
Accordingly, I will recommend that, on request, Respondent
bargain with the four Locals that are the exclusive representa-
tive of its employees at its Louisville, Lawrenceville, Norfolk,
and Bridgeton service centers. I will also recommend that Re-
spondent make whole its employees there and in the bargaining
units at its service centers located in Kansas City, Blaine, Indi-
anapolis, West Sacramento, Grand Rapids, Miami, Tucson, St.
Louis, Milwaukee, Rockaway, Romulus, North Canton, and
Atlanta for the monetary losses suffered as a result of its failure
and refusal to grant them its wage and mileage increases, effec-
tive on December 31, 1995, as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), plus interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
At the request of the exclusive representatives of the unit
employees at Respondent’s service centers at Chicago, West
Sacramento, Kansas City, Blaine, Indianapolis, Grand Rapids,
Miami, and Tucson, Respondent shall rescind in whole or in
part the overtime portion of the productivity package. At the
request of the exclusive representatives of the unit employees at
Respondent’s service centers at St. Louis, Milwaukee, Rock-
away, Romulus, North Canton, and Atlanta, and, provided that
their certifications by the Board are upheld, Respondent shall
rescind in whole or in part the portions of the productivity
package that do not provide wage and mileage improve-
ments.106
Because the effect of the unfair labor practices found herein
affect all the service centers of Respondent, I will recommend
that notices be posted nationwide. Because a number of service
centers have been closed, the notices shall be mailed to the
employees who were formerly employed there. Aiken Under-
ground Utility Services, 324 NLRB 187 (1997), citing Indian
Hills Care Center, 321 NLRB 144 (1996). The date I have used
is the announcement on the March 1995 wage increase, which
is the first of the national allegations that would have affected
the service centers that have been closed. Excel Container, Inc.,
325 NLRB 17 (1997). Finally, I have continued in effect the
confidentiality agreement entered into by the parties during the
course of the hearing.107
[Recommended Order omitted from publication.]

ges.
106 I recognize that the Rockaway and North Canton facilities have
been closed, but this relief is granted should they reopen or in the event
that there is some other dispute regarding their status.
107 By letters dated January 31 and February 3, 1997, Kearney’s and
Respondent’s counsels, respectively, narrowed their claims of
confidentiality to a limited number of specific pa