Pacific Intermountain Express

National Labor Relations Board - Board Decisions

Aug 7, 1980

250 N.L.R.B. 1451 (N.L.R.B. 1980)

PACIFIC INTERMOUNTAIN EXPRESS
Pacific Intermountain Express and Teamsters Local
70, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 32-CA-1262 and 32-CA-1285
August 7, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENEI. I O AND TRUESDAI E
On November 6, 1979, Administrative Law
Judge Richard D. Taplitz issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge found, inter alia,
that employees Edward Perry, Donald Desper, and
Betty Anderson were unlawfully discharged be-
cause of their union activities in violation of Sec-
tion 8(a)(l) and (3) of the Act.2 Contrary to the
Administrative Law Judge, we find that the Gener-
al Counsel has failed to establish by a preponder-
ance of the relevant evidence that the three em-
ployees were discharged because of their union ac-
tivities rather than for cause.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge also found, and we agree, that Re-
spondent violated Sec. 8(a)(1{ of the Act by interrogating its sales repre-
sentatives concerning their union activities. by impliedly promising bene-
fits and the redress of grievances if they rejected the Union and reprisals
if they selected it, and by removing customer accounts from employee
Desper and telling other employees it had done so, because of the cus-
tomers' demand that union sales representatives not service them.
We also agree with the Administrative Law Judge that Respondent
violated Sec. 8(a)(1) of the Act by McHatton's statement to Desper that
"[j]obs were cropping up all the time." However, we do not find, as he
did, that the statement constituted a threat of decreased promotional op-
portunities to Desper if he engaged in union activities but rather that it
constituted a promise of benefit to Desper. McHatton referred to the pos-
sibility of promotions in the course of his antiunion speech. He told
Desper that many supervisory jobs "were cropping up all the time"
while at the same time soliciting his help in defeating the Union The
clear implication was that Desper could expect a better job if he did not
support the Union
250 NLRB No. 180
The relevant facts, as found by the Administra-
tive Law Judge and recited more fully in his Deci-
sion, are as follows:
Respondent is a trucking company with about
8,000 employees, most of whom are unionized.
However, nationwide only six of Respondent's
sales representatives are represented by a union and
they are all located in Chicago. The employees in-
volved in this case are sales representatives who
worked at Respondent's Emeryville, California,
terminal. At that terminal, most of the 200 employ-
ees are represented by a union. The drivers and
dockmen are represented by the Charging Party,
herein called the Union.
On July 18, 1978,3 the Union filed a petition for
an election in a unit consisting of all sales repre-
sentatives at the terminal. Pursuant to a Stipulation
for Certification Upon Consent Election an elec-
tion was held on September 15 in which three em-
ployees voted for the Union and two against. Re-
spondent acknowledges that it knew after the
voting that the three employees who voted for the
Union were the alleged discriminatees, Perry,
Desper, and Anderson. On October 9, Perry,
Desper, and Anderson were discharged. The com-
plaint alleged and the Administrative Law Judge
found that the employees were unlawfully dis-
charged for their union activities. We find merit in
Respondent's exceptions to this finding.
James Munson became sales manager at the
Emeryville terminal in January and instituted a
program under which the sales representatives
were to report to the terminal every day at 8 a.m.
to prepare for the day. By 9 a.m. the sales repre-
sentatives were instructed to be out meeting cus-
tomers. The sales representatives were told that the
prime selling hours were between 9 and 11 a.m.,
and between 2 and 4 p.m., at which times custom-
ers were most available. Munson placed great im-
portance on the sales representatives being out sell-
ing during those hours and, at sales meetings, ad-
vised the sales representatives that the American
Trucking Association's Marketing Council survey
had established that the above hours were prime
selling hours, and stated that those were the hours
he felt that the representatives should be out sell-
ing. Munson also told the sales representatives that
if they spent any time whatsoever doing anything
outside their normal work routine, when they were
supposed to be working, they were to ask permis-
sion before taking that time off. At various times
the sales representatives asked for time off and
such requests were granted.
In the beginning of each week the sales repre-
sentative submit to Respondent a sales plan and ac-
3 All dates hereinafter are in 1978 unless otherwise indicated.
1451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivity report or "SPAR" which shows their intend-
ed calls for that week. At the end of the week a
second copy of the "SPAR" report is submitted
showing the calls that the sales representatives ac-
tually made. In addition, the sales representatives
hand in an expense report which is supposed to be
correlated with the sales representatives' activities
for the week as shown in the "SPAR" report.
Munson told the sales representatives at sales meet-
ings that it was highly important that the reports
they submitted were accurate and timely. Munson
used the reports to monitor the sales representa-
tives' activities and, in this way, insured that they
were utilizing their time and expenses as efficiently
as possible.
Before their discharge, both Desper and Ander-
son were considered excellent employees and
Perry, according to his most recent evaluation, was
an average employee who was dependable. That
evaluation, which was dated March 27, indicated
that Perry was considered fair in certain categories
and satisfactory in others but that his attitude
needed improvement. Perry had difficulty getting
along with his immediate supervisor, Munson, and
was outspoken in his criticism of Munson and cer-
tain company policies. Respondent had engaged in
a campaign to obtain certain "letterhead" and
"lockup" accounts which required sales representa-
tives to obtain letters from customers receiving in-
bound freight which the Company could use to
obtain new business. Perry openly criticized the
campaign and obtained very few letters. Munson
counseled Perry about his attitude several times.
In early October, Terminal Manager McHatton
received a telephone call from Bach, the terminal
manager for Ringsby Truck Lines in San Jose,
California. Bach said that Perry was a friend of his
and asked how he was. McHatton replied that he
was having problems with Perry because of his
poor attitude. Bach said that he was not surprised
and asked McHatton whether he had ever smelled
Perry's breath when Perry came back to the termi-
nal. Bach added that Perry was probably hanging
around barrooms rather than working. McHatton
related this conversation to Sales Manager Munson
and told Munson that he thought they should have
Perry followed. On October 4, Munson hired a pri-
vate detective firm to follow Perry. On October 5,
Private Investigator Kay Kimble went to Respond-
ent's terminal and located Perry's car in front of
the office. She followed Perry who left the termi-
nal and went to a coffeeshop called Nikko's located
outside his sales territory. Shortly after Perry ar-
rived at Nikko's both Anderson and Desper joined
him. The three sales representatives remained
inside the coffeeshop from 9:30 to 11:20 a.m., and
then stood outside the restaurant until 11:30 a.m.,
when they went different ways. Kimble then fol-
lowed Perry's car until she lost it in traffic some-
time later. She made a report of her observations
of that day to her employer who in turn reported it
to McHatton. On October 6, Kimble again fol-
lowed Perry from the terminal. He again went to
Nikko's where Desper was waiting for him. They
remained there from 9:30 to 11:30 a.m. Kimble fol-
lowed Perry when he left Nikko's and lost him in
traffic in Oakland about noon. Her report was
again given to McHatton.
Later that day McHatton made arrangements to
have Perry followed on Monday, October 9, by
Claude Glenn, a different private investigator. On
October 9, Glenn followed Perry from 9 a.m. to
12:43 p.m. Perry left the terminal at 9 a.m. and ar-
rived at Nikko's shortly thereafter. Desper's car
was already at the restaurant and Anderson arrived
a few minutes later. The three came out of the res-
taurant at or about 10:35 a.m. and spoke outside to-
gether for a few minutes. Perry then reentered the
restaurant at 10:52 a.m. and came out again at 10:55
a.m. Thereafter Perry drove to various locations
and had a take-out lunch in his car. Glenn suspend-
ed the surveillance at 12:43 p.m. and reported to
Williard Johnson, Respondent's regional manager
and director of labor relations for the Western
United States. None of the sales representatives had
requested permission to go to the coffeeshop on
any of the above days or to take any time off.
Meanwhile on Monday morning, October 9, Re-
gional Director Johnson, Terminal Manager
McHatton, and Sales Manager Munson met to dis-
cuss the situation. They reviewed the "SPAR" and
expense reports submitted by the sales representa-
tives for the prior week. The "SPAR" reports indi-
cated that the three sales representatives had each
made the normal number of calls on the dates that
the representatives had spent a substantial part of
the morning's prime selling time at the coffeeshop.
Perry's expense report showed a lunch with a cus-
tomer in Richmond on October 6. However, the
managenient officials knew that Perry had been
seen going off an off ramp of the freeway in Oak-
land at or about noon on that day and that Oakland
was about 12 or 15 miles from Richmond. They
also knew that it would be difficult to make the re-
ported calls in light of the amount of time the three
employees had spent in Nikko's.
Early in the afternoon Johnson received Glenn's
report which showed that the three sales repre-
sentatives had again spent a substantial part of the
morning's prime selling time at the coffeeshop. The
management officials met again and decided that
Munson should question the sales representatives
about their activities during the prior 3 working
days. It was also decided that the employees would
1452
PACIFIC INTERMOUNTAIN EXPRESS
be discharged if they did not provide adequate ex-
planations for their actions.
Thereafter, on October 9, Munson. in the pres-
ence of Johnson, attempted to question all three
employees. Perry and Desper completely refused
to give an explanation about their activities on the
days in question while Anderson lied to Munson
about her activities. After refusing an opportunity
to resign, all three employees were discharged.
Respondent argues that the three sales repre-
sentatives were discharged for stealing company
time, refusal to cooperate in an investigation, and
suspected falsification of company records, and
that the decision to follow Perry was motivated by
his deteriorating work performance and the infor-
mation which had been received from Bach rather
than by any union animus. Respondent further as-
serts that the surveillance thereafter caught Desper
and Anderson, in addition to Perry, in egregious
misconduct which justified their discharge. In con-
trast, the General Counsel contends that Respond-
ent hired a private detective to follow Perry in
order to find a pretext to fire him and that all three
employees were discharged because of their union
activities.
The Administrative Law Judge concluded that
"the General Counsel has established a strong
prima facie case of discrimination." In support of
this conclusion, the Administrative Law Judge
noted that Respondent knew that the alleged dis-
criminatees were the union supporters in the elec-
tion; that Respondent was hostile toward employ-
ing union slades representatives; that within 2
weeks after the election, Respondent discriminator-
ily removed work assignments from Desper and a
week later assigned a private detective to tail Perry
"under circumstances where an inference was war-
ranted that Respondent was seeking a pretext to
discharge Perry because of Perry's union sympa-
thies"; that "before the election Respondent consid-
ered Desper and Anderson to be excellent employ-
ees and considered Perry to be an average one";
and that within 3 weeks of the election, Respond-
ent discharged all three. The Administrative Law
Judge examined Respondent's defense in light of
these findings and concluded that the discharges
were motivated at least in part by Respondent's
union animus. As noted previously, we disagree.
The Administrative Law Judge's conclusion that
the discharges were unlawful is premised on his
finding that Respondent hired a private investigator
to follow Perry in order to find a pretext for dis-
charging him. Having so found, the Administrative
Law Judge concluded that in light of the tainted
motive for the surveillance the fruits of that sur-
veillance were tainted and the three discharges
were consequently unlawful.
However, contrary to the Administrative Law
Judge, we find that the General Counsel has not
carried his burden of proving that Respondent's
surveillance of Perry was for the above purpose. It
is undisputed that Perry's work attitude was bad, as
evidenced by his refusal to follow Respondent's
procedures with respect to obtaining letters from
customers receiving inbound freight which Re-
spondent used to obtain new business. This proce-
dure was of considerable importance to Sales Man-
ager Munson. Respondent thereafter was advised
by Bach, another terminal manager and a friend of
Perry, that he spent substantial portions of his day
at a bar when he should have been working. The
Administrative Law Judge discounted Respond-
ent's reliance on Bach's disclosure as "mere
rumor." However, there is nothing in the record to
indicate that Bach was not a reliable source.
Indeed, McHatton testified without contradiction
that he had known Bach for about 2-1/2 years
before the hearing and that Bach had formerly em-
ployed Perry. In these circumstances, we conclude
that Respondent justifiably took Bach's comments
seriously and attempted to ascertain whether Perry
in fact was not working when he should have
been.4 In this regard, it is important to note that
company records with respect to the number of
calls a sales representative made in a day were
based wholly on information which was provided
by the sales representative himself. Furthermore,
the sales representatives were generally unsuper-
vised throughout the day. Management could only
calculate what the representative had done by ex-
amining the "SPAR" and expense reports. Thus,
by falsifying those records, a sales representative
could paint a totally inaccurate picture of his activ-
ity.
On the basis of the above, we find that Respond-
ent has shown that it had a reasonable basis for
keeping Perry under surveillance, and further, that
the General Counsel has not presented sufficient
evidence to warrant a finding that the surveillance
was carried out for an ulterior motive. Having so
found, we also find that the surveillance did not
taint the discharges of Perry, Anderson, and
Desper. Accordingly, we find that the premise on
which the Administrative Law Judge based his
findings that the discharges were unlawful does not
support such a finding.
The General Counsel contends, however, that in
any event the misconduct of the three employees
was not the basis for their discharges but was a
4 We ;alI, not, Ihal Rcpoidenll did nlrt unldcrl;ake .uriillancc of
either [)Deper or Anderson. allhough It hblievcd that Ihc. as . ,ell a,
Perry. had voltd for Ihe Itnin in the cletllon Ihh i facl further %upplrls
Rep.ondert', claim thail Perry Aa' F,, llowcd hb.aluse Rcsporldent he-
lieved he ";l, not llulllg \orkirlg time hii nlk;le cJl Oall CLIstomer
1453
I) ECISIONS OF NATIONAl I ABOR REI.ATIONS B()ARD
mere pretext and that the real motivation for the
terminations was the sales representatives' union
activity. We disagree.
It is undisputed that the private investigators as-
signed to follow Perry ascertained that he had met
with Desper and/or Anderson in a coffeeshop on
three separate occasions over a 5-day period. Thus,
on October 5 all three representatives were at the
coffeeshop from 9:30 to 11:30 a.m., on October 6
Desper and Perry met from 9:30 to 11:30 a.m., and
on October 9 all three employees again were at the
coffeeshop from 9 to approximately 10:50 a.m. It is
further undisputed that these meetings occurred
not only on working time but during the hours
when the sales representatives were expected to be
most active in calling on customers. Finally, the
record establishes that Respondent acted promptly
upon receiving the investigators' reports and ques-
tioned each employee on October 9 about his or
her activities the preceding week. Desper and
Perry refused to answer questions, while Anderson
gave untruthful responses.
In these circumstances, it is clear that Respond-
ent had ample reason to discipline the three em-
ployees. The General Counsel argues, however,
that Respondent treated these employees disparate-
ly inasmuch as it granted permission to the two
sales representatives who opposed the Union, Hub-
bell and Freeman, to hold a meeting during work-
ing hours the day before the election. We find no
merit to this contention. According to the uncon-
tradicted testimony of Munson, Hubbell and Free-
man sought and received permission to hold a
meeting for all the sales representatives. Clearly,
this one meeting does not establish that Respondent
engaged in disparate treatment of Perry, Desper,
and Anderson. 5
In light of all the foregoing, we conclude that
the General Counsel has failed to establish by a
preponderance of the evidence that Respondent's
asserted reason for the discharges was not the real
reason. In reaching this conclusion, we note the se-
riousness of the charged offenses relied upon by
Respondent, the total lack of cooperation of the
employees in the investigation of those charges, the
fact that Respondent discharged the employees
promptly after learning of their actions, and the ab-
sence of any evidence showing disparate treatment
for similar offenses. Accordingly, we shall dismiss
' We also note that, as found by Ihe Administrative l.aw Judgc, Itwo
drivers were discharged in August anid Septemher fior, respectlvely.
taking 15 minutes extra on a coffee hreak anid .pendinlg 9() minutes ill
coffee,hop while on overtime Althlough the drivers were suhsequently
reinstated through the gricanlce procedure. %re note, ai. did the Admiis-,
trative Iawf Judge. that no~ grievance procedure was applicable Io the
sales representatives anld that, in any ccnl. their orfencss. inlvolvinlg sev-
eral hours of working time and falslification of their woxirk reports, could
reasonably have heen considered by Respolndenr to he far more seriolus
than the abuse of conipany time by the txwo drivers
the discharge allegations in the complaint. Cf. Con-
tinental Chemical Company, 232 NLRB 705, 707
(1977); Vogt-Conant Co., 248 NLRB 500 (1980);
Tartan Marine Company, 247 NLRB No. 73 (1980);
JLG Industries, Inc., 243 NLRB No. 92 (1979).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Pacific Intermountain Express, Emeryville, Califor-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the Administrative
Law Judge's recommended Order, as so modified:
I. Delete paragraph l(a) and paragraphs 2(a), (b),
and (c) and reletter the subsequent paragraphs ac-
cordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoT ICE To EMPI OYIHI-S
PosIrr:D RN ORDEIR OF THE
NATIIONAI. LABOR RmIi.A'TIONS BOARD
An Agency of the United States Government
WE Wi l. NOT coercively interrogate em-
ployees about their union activity on behalf of
Teamsters Local 70, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
HIelpers of America, or any other labor organi-
zation.
Wi WIL.L NOI promise benefits to employ-
ees if they reject that Union.
WE Will NOt threaten employees with re-
prisals if they select that Union to represent
them.
WE WIl.. NOT threaten any employee with
reduction in promotional opportunities if he se-
lects the Union to represent him.
WE WILLI NOT remove sales accounts from
any employee because he is a union member.
WE WIL l. NOT tell employees that another
employee was removed from sales accounts
because those accounts did not want a union
sales representative calling on them or tell
those employees that the same thing would
happen to them if their accounts made the
same request.
WE WIl.L NOT in any like or related manner
interfere with, restrain, or coerce employees in
1454
PACIFIC INTERMOUNTAIN EXPRESS
the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
PACIFIC INTERMOUNTAIN EXPRESS
DECISION
SIATEMENT OF THE CASE
RICHARD D. TAPI.rIiZ, Administrative Law Judge:
This case was heard at Oakland, California, on March
14, 15, and 16, and May 15, 1979. The charges in Cases
32-CA-1262 and 32-CA-1285 were filed respectively on
September 28 and October 10, 1978, by Teamsters Local
70, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union. An order consolidating those cases and a
complaint issued thereon on November 17, 1978. The
complaint, as amended at the hearing, alleges that Pacific
Intermountain Express, herein called Respondent, violat-
ed Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(1) of the
Act between about July 31 and October 3, 1978, by coer-
cively interrogating employees concerning union activi-
ties; by threatening repri als including the reduction of
benefits and the loss of promotional opportunities if em-
ployees selected the Union; by promising to improve
working conditions to discourage union activity; and by
threatening to and by removing sales accounts from em-
ployees because of union activities.
2. Whether Respondent violated Section 8(aX3) and
(I) of the Act on October 9, 1978, by discharging sales
representatives Edward Perry, Donald Desper, and
Betty J. Anderson because of their union activity.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally,and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record' of the case, and from my ob-
servations of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation with an office
and principal place of business in Emeryville, California,
is engaged in the warehousing and transportation of
goods. During the 12 months preceding issuance of com-
plaint, Respondent purchased and received goods or
services valued in excess of $50,000 directly from suppli-
ers located outside California. The complaint alleges, the
answer admits, and I find that Respondent is an employ-
In his brief. counsel for the General Counsel requests that I reverse
an evidentiary ruling rejecting certain notes taken by an employee of the
State of California Employment Development Department (GC. Exhs.
31 and 46). That motion is considered in full below
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
1l. THE LABOR ORGANIZATION INVOL VII)
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
nI. I HE A I EGIED UNI AIR I ABOR PRAC ICES
A. Background and Undisputed Facts
Respondent is in the trucking business. It is the sixth
largest regular route common carrier in the United States
and maintains about 125 terminals located throughout the
country. It employs about 8,000 employees, most of
whom are unionized. Some 190 of its employees are sales
representatives whose prime responsibility is to secure
business. Only six of Respondent's sales representatives
are represented by a union and they are all located in
Chicago. Respondent employs about 3,000 employees in
the 11 western States. Between 90 and 95 percent of
these employees are unionized.
The incidents involved in this case occurred at Re-
spondent's Emeryville, California, terminal. About 200
employees are employed at that location. Most of those
employees are represented by unions. The drivers and
dockmen are represented by Teamsters Local 70, the
Charging Party in the instant case.
There were five sales representatives at that terminal.
On July 18, 1978, the Union filed a petition for an elec-
tion in Case 32-RC-420 in a unit of all sales representa-
tives employed at the Emeryville terminal. Shortly there-
after, a number of Respondent's supervisors spoke to the
sales representatives in an effort to dissuade them from
voting for the Union. 2 Pursuant to a Stipulation for Cer-
tification Upon Consent Election, an election was held
on September 15, 1978, in which three of the employees
voted for the Union and two against. Respondent ac-
knowledges that it knew or had reason to believe that
the three employees who voted for the Union were sales
representatives Edward Perry (the Union's observer at
the election), Donald Desper, and Betty J. Anderson.
Respondent contends that it obtained that knowledge
when the Board agent conducting the election put the
ballots in the ballot box in the order in which the em-
ployees voted and then removed them and counted them
in reverse order. Respondent filed objections to the elec-
tion on the ground that the secrecy of the ballot had
been compromised. 3
On September 27, 1978, some 12 days after the elec-
tion, Respondent removed certain sales accounts from
Desper because those accounts had told Respondent that
' The General Counsel contends that in the course of those conversa-
lions Respondent coerced employees in violation of Sec 8(taHI) of the
Act. Respondent contends that the conversations were expressions of
opinions under Sec 8(c) of the Act
' On October 13. 1q78. the Regional Director recommended that the
objections be overruled On May 24. 1979. the Board adopted that rec-
ommendation and certified the Union On June 11. Respondent moved
for reconsideration and on June 21. 1979. the Board rejected that motion
On September 28. 1979. the Board granted a motion for summary judg-
ment in Case 32 CA-1920 (reported at 245 NLRB Noe 97) and foeund
that Respondent violated Sec 8(aXS) and (I) of the Act by refusing to
bargain with the Union
1455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they did not want a union sales representative calling on
them. On October 9, 1978, Perry, Desper, and Anderson
were summarily discharged. The General Counsel con-
tends that the discharges were motivated by the union
activity of those employees. Respondent contends that
the discharges were solely motivated by lawful business
considerations,
B. The 8(a)(1) Allegations
I. Credibility findings
Six of Respondent's officials, ranging from the local
sales manager to Respondent's executive vice president
spoke to the sales representatives as part of Respondent's
antiunion campaign. They were William R. Tickle, ex-
ecutive vice president; A. Gordon Shelfer, vice presi-
dent, administration; Williard A. Johnson, regional man-
ager for northern California and Nevada and director of
labor relations for the western United States; Gerald L.
Lyons, regional sales manager for the Pacific region;
Alfred L. McHatton, terminal manager, Emeryville; and
James L. Munson, sales manager, Emeryville.4 The three
discharged sales representatives (Perry, Desper, and An-
derson) testified to various conversations with those su-
pervisors, the subject matter of which is alleged in the
complaint to be violative of Section 8(a)(1) of the Act.
The supervisors testified to versions of those conversa-
tions that were substantially different from those of the
alleged discriminatees. Though the circumstances sur-
rounding the discharges were such as to shed doubt on
the candor of some of the supervisors when they testified
concerning their motives for the discharge, I believe that
the supervisors' testimony was more reliable than that of
the alleged discriminatees with regard to the actual con-
versations. Many admissions against Respondent's inter-
ests were admitted by the supervisors in such a way as to
indicate candor. The demeanor of Perry, Desper, and
Anderson was less impressive than that of the supervi-
sors. All three of the alleged discriminatees appeared
prone to exaggeration and so anxious to make a case that
they tended to be less than exact in their testimony.
Perry's testimony was particularly suspect. At one
point he testified that he had not received any warnings
or reprimands concerning his work. Later he acknowl-
edged that he had been often criticized for not doing
that part of his job which called for him to solicit and
obtain certain letterhead and lockup accounts.5 His
credibility was also not bolstered by his open acknowl-
edgment that he often used bogus restaurant receipts and
showed customers that he had taken out to lunch on his
expense account when he in fact had not taken those
customers for lunch. 6 His testimony that a number of su-
pervisors kept telling him to trust them was also difficult
to believe. None of the other alleged discriminatees indi-
cated that the supervisors made similar remarks to them.
4 Respondent admits and I find that all were supervisors within the
meaning of the Act
' These involved obtaining letters from the receivers of goods asking
that their suppliers use Respondent to ship goods
, I specifically do not credit Perry's teslimony that Munson directly or
impliedly authorized that type of action or that he saw Munson filling
out phony restauranl receipts I also do not credit the implications in the
testimony of Desper and Anderson that fakle reports were knowingly Iol-
erated by Respondent.
Desper's lack of candor was illustrated by his testimo-
ny concerning his conversation with Munson and John-
son at the time of his discharge. He testified that he was
not told the reason for his discharge. However, in a
statement he gave to the Board he acknowledged that he
told the California department of unemployment that at
that meeting he was informed the reason for termination
was his abuse of company time. His attempt at the hear-
ing to reconcile his testimony with that statement was at
best evasive.
Anderson's testimony concerning her meetings with
Perry and Desper in Nikko's restaurant, at a time when
she was supposed to be working, shed doubt on her
credibility. She averred that she met with them for 30 or
40 minutes each on October 5 and 9, 1978. As shown by
the testimony of the other alleged discriminatees and by
independent evidence described below, she was there for
a much longer period. In her testimony she tried to give
the impression that during those meetings they were dis-
cussing company business and sales accounts. Desper ac-
knowledged that, in fact, there was much discussion
about Board proceedings.
In sum, where there is a conflict between the testimo-
ny of the alleged discriminatees and the supervisors with
regard to the conversations that are alleged as 8(a)(l)
violations of the Act, I credit the supervisors.
2. The statements made by the supervisors
a. William R. Tickle
(1) Findings
Paragraph Vl(a), (g), and (h) of the complaint alleges
that in various conversations on July 31 and September
13, 1978, Respondent's Executive Vice President Tickle
interrogated and threatened employees in violation of
Section 8(a)(l) of the Act.
Before becoming a sales representative, Anderson had
been Tickle's secretary. He knew her well and consid-
ered her a friend. On July 31, 1978, he spoke to her in
her company car about the Union. He told her he was
not there to threaten, intimidate, or promise her anything
and he asked her to give him some insights into the basic
problems that existed. He said that he had tried to build
a professional sales organization, that he did not feel the
needs of the sales organization would be best met with
the people belonging to the Union and that he could not
understand why she or anyone else should consider join-
ing the Union. He also told her that the Company had
good salary and benefits. She replied that the manage-
ment at the terminal was less than professional and that it
was insensitive. He said that he would look into it and
she replied that she did not think anything would
change. Tickle asked her to vote against the Union and
she replied that she had not made up her mind. 7
' These findings are based on the testimony of Tickle. Where Ander-
,on's testimony conflicts with that of Tickle. I credit Tickle. Tickle's
original testimony indicated that when he asked her to vote against the
Union she replied that she had not made up her mind He Ilter testified
that he again asked her a similar question on September 11 1978, and at
that tiime she said ihat she had not mnade up her mind He averred that he
did not think she responded one way or the other when he asked her that
Continued
1456
PACIFIC INTERMOUNTAIN EXPRESS
On September 13, 1978, Tickle met with Anderson and
a customer for lunch. As the customer was leaving,
Tickle said that he was going to remain behind with An-
derson because he wanted to brainwash her. The custom-
er then left. Tickle told Anderson that the Company's in-
terests would best be served by the sales people staying
out of the Union. He said he felt very strongly about her
sales ability and he was concerned about some of the
things that may have motivated her or anyone else to
take the steps that they had. He also told her that she
might not be fully aware of the part he had played in
getting her the job as sales representative. She replied
that nothing had changed with regard to problems with
Munson and McHatton. He said that she might think
them unprofessional because she was used to working
with top management. He again asked her to vote
against the Union and she again told him that she had
not made up her mind. He told her that she could be in-
fluential with the others and he requested her to speak to
the other employees on behalf of the Company's point of
view.8
On September 13, 1978, Tickle had a conversation
with Sales Representative Desper while in a company
car near a customer's facility. Tickle began by telling
Desper that he was not there to try to interrogate him,
threaten him, or promise him anything. He went on to
say that the operation they were trying to build in the
Company could best be served with nonunion sales
people. He spoke of the excellent salary benefits and ob-
vious promotion opportunities the Company offered and
he explained why Desper had not received all the raises
that Desper had wanted. He made reference to the fact
that Munson had been sales manager for a period of time
and that Munson had been selected over Desper for the
permanent position. With regard to that matter, he said
that Desper should not think it was the end of the line or
that he would never receive another promotion. In con-
clusion, Tickle said, "Don, I hope we can count on you
to vote against the Union," and Desper replied, "Yes,
you can count on me." 9
(2) Conclusions
On July 31 Tickle asked Anderson for insights into
basic problems. He told her that he could not understand
why she or anyone else would want the Union and he
asked her to vote against the Union. On September 13,
he again asked her to vote against the Union. On the
same day he told Desper that he hoped they could count
on Desper's vote against the Union. All of those remarks
were made in the course of conversations in which the
question on July 31, 1978 Anderson testified that at the first meeting she
told Tickle that she would not take a stand or tell him how she planned
to vote I credit Anderson in that regard
I These findings are based on Tickle's testimony Where Anderson's
testimony differed I credit Tickle Tickle testified that he probably told
her that she could be influential with others and requested her to speak to
the others on behalf of the Company's point of view Anderson testified
that he did make such remarks. To that extent I credit Anderson. Tickle
testified that he did not recall making the remark about brainwashing but
that he may have said something to that effect in jest because he wanted
to talk to Anderson alone Anderson testified that he did in fact make
that remark On that matter I also credit Anderson
g These findings are based on the testimony of Tickle Where Desper's
testimony conflicts with that of Tickle, I credit Tickle
employees could reasonably feel that a response on their
part was called for. Anderson replied by describing
problems she had with the Company and by saying that
she had not made up her mind about the Union. Desper
responded by saying that the Company could count on
him to vote against the Union. Tickle's remarks implied-
ly solicited responses and responses were in fact made.
In the context in which Tickle's remarks were made,
they amounted to an interrogation of those employees
concerning their attitude toward the Union. It remains to
be considered whether or not that interrogation was co-
ercive.
In Struksnes Construction Co., Inc., 165 NLRB 1062
(1967), the Board held:
In oiur view any attempt by an employer to ascer-
tain employee views and sympathies regarding un-
ionism generally tends to cause fear of reprisal in
the mind of the employee if he replies in favor of
unionism and, therefore, tends to impinge on his
Section 7 rights. As we have pointed out, "An em-
ployer cannot discriminate against union adherents
without first determining who they are." [Cannon
Electric Company, 151 NLRB 1465, 1468 (1965).]
That such employee fear is not without foundation
is demonstrated by the innumerable cases in which
the prelude to discrimination was the employer's in-
quiries as to the union sympathies of his employees.
In that case the Board held that a violation would be
found in a polling situation unless the purpose of the poll
was to determine the truth of the union's claim of major-
ity; that purpose was communicated to the employees;
assurances against reprisal were given; the employees
were polled by secret ballot; and the employer had not
engaged in unfair labor practices or otherwise created a
coercive atmosphere. The Board has applied these
Struksnes criteria to interrogation cases where no poll
was taken. R & H Masonry Supply. Inc., 238 NLRB 1044
(1978); Lorraine Urbauer d/b/a Kimmel's Shop Rite, 213
NLRB 440, 466 (1974). Even "friendly" interrogation
can be coercive. Quemetco, Inc., a subsidiary of RSR Cor-
poration, 223 NLRB 470 (1976). As the Board held in
Paceco. a Division of Freuhauf Corporation, 237 NLRB
399 (1978), "An inquiry into an employee's views toward
a union . . . reasonably tends to interfere with the free
exercise of an employee's Section 7 rights, regardless of
the employee's subjective state of mind." No proof of an-
tiunion bias or coercive intent or effect is necessary for a
finding of an 8(a)(1) violation where the employer en-
gages in conduct which, it may reasonably be said, inter-
feres with the free exercise of employee rights under the
Act. Dover Garage II, Inc., 237 NLRB 1015 (1978), en-
forcement denied 607 F.2d 998 (2d Cir. 1979).'0 Situa-
tions may exist where the totality of circumstances sur-
rounding the interrogation preclude any possibility of co-
'o As the Board held in HIanes Hovierv. Inc.. 219 NLRB 338
We long have recognized that the test of interference. restraint, and
coercion under Sec. 8(a)(l) of the Act does not turn (on Respondent's
motive. courtesy. or gentleness, or on vw hether the coercion succeed-
ed or failed The test is whether Respondent has engaged in conduct
which reasonably tends t(, interfere with the free exercise of employ-
ee rights under the Act
1457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erciveness. Penasquitos Village. Inc. v. N.L.R.B., 565 F.2d
1074 (9th Cir. 1979). That is not the situation in the in-
stant case. The interrogation was by a high-ranking offi-
cial of Respondent, its executive vice president, and was
part of a campaign that must be viewed in its entirety.
As found below, Respondent engaged in a number of
unfair labor practices. The interrogation was part of that
pattern and was not an isolated occurrence.
On September 13, 1978, Tickle told Anderson that she
could be influential with other employees and he request-
ed her to speak to the other employees on behalf of the
Company's point of view. Section 8(c) of the Act gives
employers the right to express any views, arguments, or
opinions as long as those expressions contain no threat of
reprisal or promise of benefit. Tickle could lawfully at-
tempt to induce employee Anderson to refrain from sup-
porting the Union. However, his attempt to recruit her
to speak to the other employees against the Union is an
entirely different matter. As the Board held in The Cono-
Ion Corporation, 175 NLRB 27 (1969), enforcement
denied in part 431 F.2d 324 (9th Cir. 1970):
We perceive no substantive difference in the instant
situation from those cases which have held that so-
licitation of employees to influence other employ-
ees' views on union activity by an employer or its
agent which necessarily places the solicited employ-
ee in a position where he must reveal his views as
to union activity is coercive and violative of Sec-
tion 8(a)(l).
Tickle put Anderson squarely in such a position when he
asked her to influence other employees against the
Union.
In sum, I find that Respondent, through Tickle, coer-
cively interrogated Anderson and Desper concerning
their union sympathies in violation of Section 8(a)(l) of
the Act.
Tickle, in substance, asked Anderson for insights into
the basic problems that caused the union movement.
When Anderson indicated some problems with the Com-
pany, Tickle said that he would look into it. In another
conversation he spoke of brainwashing Anderson. He
pointed to the good salary and benefits enjoyed by em-
ployees and told her that it would be in the interests of
the Company to be nonunion. He told her that he had
been helpful to her in obtaining her job. In a separate
conversation with Desper he also said that the Compa-
ny's best interests would be served by being nonunion
and he pointed out the good benefits paid. In the context
of his antiunion remarks he said that it would not be the
end of the line for promotions for Desper. Taking these
remarks together, Anderson and Desper could reason-
ably have assumed that Tickle was implying that the
Company would treat them better if they remained non-
union and would treat them worse if the employees se-
lected the Union to represent them. I find that Respond-
ent, through Tickle, violated Section 8(a)(1) of the Act
by impliedly promising Anderson and Desper benefits if
they rejected the Union and by threatening reprisals if
they selected the Union to represent them. Arrow Molded
Plastics. Inc., 243 NLRB No. 181 (1979); Coca-Cola Bot-
tling Company of Miami, Inc., 237 NLRB 936 (1978);
Raley's, Inc., 236 NLRB 971 (1978).
b. A. Gordon Shelfer-facts and conclusions
Paragraph VI(j) of the complaint alleges that on or
about September 14, 1978, Respondent's vice president of
administration, A. Gordon Shelfer, unlawfully interrogat-
ed an employee.
On September 14, 1978, the day before the election,
Shelfer spoke to Desper about the Union while they
were at the Edgewater Hyatt House in Oakland. Desper
testified that among other things Shelfer said that the
sales people had respect for Desper, that Desper had in-
fluence, and that he (Shelfer) would like to have Desper
do what he could for the Company in putting down the
Union. Shelfer, in his testimony, specifically denied
asking Desper to use his influence with other people. I
credit Shelfer over Desper and I therefore recommend
that that allegation of the complaint be dismissed.
c. Williard A. Johnson-facts and conclusions
Paragraph VI(f) of the complaint alleges that on or
about September 13 Respondent's regional manager for
northern California and Nevada and director of labor re-
lations for the western United States, Williard A. John-
son, threatened an employee with reprisals. Paragraph
VI(i) alleges that on the same date Johnson and Re-
spondent's terminal manager, Alfred L. McHatton, un-
lawfully promised an employee improved working con-
ditions.
On September 13, 1978, Johnson discussed the Union
with Desper at the Edgewater Hyatt. Desper testified
that Johnson told him that things were going well at the
terminal; that he (Johnson) could not work with the
Union at the terminal and that he would like Desper to
support the Company; and that he would like Desper to
influence the other employees not to vote for the Union.
According to Desper he replied that he did not want to
get involved and Johnson asked him to be an observer
for the Company at the election. Desper also testified
that Johnson told him that he (Desper) had made a tre-
mendous mark on the Company and the Company had a
lot of plans for him. Johnson testified that he told Desper
he was not there to threaten him, question him, or make
promises; that the Company felt that unionization would
have an adverse effect on the Company; and that he
asked Desper to be a company observer. He specifically
denied asking Desper to influence others and he also spe-
cifically denied that he spoke of any future plans that the
Company might have for him. I credit Johnson over
Desper and I therefore recommend that paragraph VI(f)
of the complaint be dismissed.
On September 13, 1978, McHatton and Johnson met
with Perry at the Holiday Inn in Emeryville where they
discussed the Union. Perry testified that Johnson said
they were very upset with the union situation and he
asked Perry to reconsider; that Johnson said the union
thing would not work at the terminal; that Perry asked if
there was any other way they would suggest; that John-
son replied he did not know of any other way, but Perry
should trust him and things would change and be differ-
ent; that McHatton said he could not work with a union
1458
PACIFIC INTERMOUNTAIN EXPRESS
sales force, his hands would be tied and he could not talk
with the people; that Perry once again asked if there was
some other way and McHatton said to trust him and
things would be different; that Perry said he did not like
Sales Manager Munson and McHatton answered that his
hands were tied at that point but, if Perry voted no,
things would change at the terminal; that McHatton said
that he would like to have Perry's vote of confidence
with a no vote; and that Perry said he would give it
thought. Johnson's version of that conversation was sub-
stantially different. Johnson testified that he told Perry
they were not there to threaten, promise, or interrogate
him and they wanted to explain the Company's position
about organizing the sales force; that Johnson said it
would be detrimental to the terminal's profitability; that
Perry said he thought Munson's tactics were childish and
he could not work with him; that Johnson said Munson
was doing a good job; that McHatton said he would like
to have Perry support the Company at the election; and
that Johnson also asked Perry to support the Company. I
credit Johnson over Perry and I therefore recommend
that paragraph VI(i) of the complaint be dismissed.
d. McHatton
(1) Facts
Paragraph VI(b) of the complaint alleges that Re-
spondent's terminal manager for the Emeryville terminal,
Alfred L. McHatton, violated Section 8(a)(1) of the Act
on or about September 6, 1978, by interrogating and
threatening an employee.
On September 6, 1978, McHatton met with Desper at
the Blue Dolphin in San Leandro where they discussed
the Union. McHatton said that he was not there to
threaten, interrogate, or promise Desper anything. He
told Desper that he was hurt when he received a tele-
gram from the Union rather than hearing it from Desper,
and that if Desper had a problem at the terminal he
should have come and told him about it. McHatton said
that he did not think a union would work with the sales
representatives and that it would hurt business. He said
that he (McHatton) might quit if the Union came in. He
also said that he wanted Desper's support when Desper
was in the voting booth. Desper complained about
Munson and said that things were better at the terminal
before Munson came. McHatton replied that Munson
was brought in because of his experience and that the
Company did not feel that Desper was ready for the su-
pervisory position at that time. He also told Desper that
it did not mean the end of the world and that there were
jobs cropping up all the time. The meeting ended with
McHatton asking Desper to vote for the Company when
he went into the booth and Desper replying that he did
not even tell his wife how he would vote. ''
iI These findings are based on the testimony of McHatton Desper tes-
tified to a substantially different sersion of the conversation and averred
among other things that McHatton said that he wanted Desper to tell
him he would vote against the Union and that McHatton said that he
(Desper) would blow his chances at promotion if he joined the Union
McHatton specifically denied asking Desper how he was going to vote
and specifically denied saying anything about Desper blowing his
chances for the job I credit McHatton over Desper where their testimo-
ny conflicts However. Desper did testify that McHatton spoke about
quitting his (McHatton's) job if the Union came In and McHatton testi-
(2) Conclusions
McHatton told Desper that he wanted Desper's sup-
port when Desper was in the voting booth and he ended
the conversation by asking Desper to vote for the Com-
pany when he went into the booth. Desper responded by
saying that he would not tell McHatton how he would
vote. In the course of that conversation McHatton indi-
cated the strength of his antiunion feeling by saying that
he might quit if the Union came in. He also referred to
the possibility of promotions for Desper by saying that
jobs were cropping up all the time. McHatton's request
for Desper's support impliedly solicited a response and a
response in fact was made. Though it was in a veiled
form, McHatton was interrogating Desper concerning
Desper's union sympathies. In the context of the entire
conversation and in view of the other violations found
herein, I find that the interrogation was an integral part
of Respondent's efforts to undermine the Union and was
coercive. Also, in the context of McHatton's forceful an-
tiunion remarks I find that his statement to Desper that
jobs were cropping up all the time constituted a threat of
decreased promotional opportunities if Desper engaged
in union activities. In sum, I find that Respondent,
through McHatton, violated Section 8(aX1) of the Act
on September 6, 1978, by coercively interrogating
Desper concerning his union sympathies and by implied-
ly threatening him with decreased promotional opportu-
nities if he engaged in union activity.
e. Lyons
(I) Facts
Paragraphs VI(d), (e), and (n) of the complaint alleges
that in various conversations on September I I and 13
Respondent's regional sales manager for the Pacific
region, Gerald L. Lyons, made unlawful threats and
promises to employees and coercively interrogated them.
On September 12, 1978, Lyons met with Perry at
Trader Vic's in Oakland and discussed the Union. He
asked Perry to give him an opportunity to find out what
the problems were so that he could attempt to resolve
them. He said, "Give me a chance to find out what's
going on, if you will, and let me see if I can attempt to
do anything about it." He said that in exchange for that
he would hope Perry would see fit to vote against the
Union. Lyons asked Perry to vote in favor of the Com-
pany. Perry replied that he could not make any promises
about the way he would vote. Perry also said that he
was upset about a driver program in which sales repre-
sentatives had to go back on the dock and wait for the
drivers to come so that they could talk to them. Lyons
asked whether Perry thought that was difficult and
Perry replied that it was childish and that he did not
want to talk about it any more.' 2
fled that he did not remember such a remark but that he might have said
it In that regard I credit Desper It is noted that McHatton acknowl-
edged in his testimony that he told his superior at the Company that he
might quit if the Union came in because he thought he had not done a
good job if the employees kwanted a union
12 These findings are based on the iestimony ot L_,ons. Where the tes-
timony of Perry differs from that of Lyons, I credit Lyons
1459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 13, 1978, Lyons spoke to Desper at the
Holiday Inn in Emeryville about the Union. Lyons said
that he understood that Desper felt there was some need
to have a bargaining unit. Lyons said, "I don't know
what those reasons are, but if you give me an opportuni-
ty to dig into these matters, perhaps I can be in a posi-
tion, I won't say, but maybe do something about the
problems." Desper did not mention any problems. Lyons
went on to say that Desper had compiled a very good
record with the Company and that he had been consid-
ered for jobs with more responsibility. He mentioned a
national account sales job and said that Desper was being
considered for it. He asked Desper to vote for the Com-
pany and he also asked Desper whether Desper had
made any decision along those lines. Desper replied that
he did not know. t3
(2) Conclusions
Lyons in substance solicited both Perry and Desper to
name the grievances that caused the employees to sup-
port the Union and told them that he would try to solve
those problems. He specifically told Perry that in ex-
change for that he would hope Perry would see fit to
vote against the Union. He asked both of them to vote
against the Union and he specifically asked Desper
whether Desper had made a decision with regard to his
vote. In the context of his antiunion remarks, he told
Desper that Desper was being considered for a promo-
tion. The remarks aboat correcting grievances and
Desper's promotion, in the context of that entire conver-
sation, were not very veiled promises of benefit if the
employees rejected the Union and threats of reprisal if
they selected it. I find that Respondent, through Lyons,
violated Section 8(a)(1) of the Act by coercively interro-
gating Perry and Desper, by impliedly promising them
benefits if they rejected the Union, by threatening repri-
sals if they selected it and by threatening Desper with
loss of promotional opportunities if the Union were se-
lected.
f. Munson-facts and conclusions
Paragraph VI(c) of the complaint alleges that on or
about September 11, 1978, Respondent's Emeryville sales
manager, James L. Munson, unlawfully promised an em-
ployee improved working conditions.
On September 12, 1978, Munson spoke to Perry in Re-
spondent's Emeryville conference room about the Union.
Perry testified that Munson said he could not work with
a union because he would be too restricted in trying to
run the sales department and there were too many union
rules; that Munson asked whether Perry had noticed he
had shortened up sales meetings; that Perry said they
were still too long; that Munson said to trust him and
things would be different; and that Munson urged Perry
to vote no. Munson testified that he told Perry he was
not able to interrogate, threaten, or promise him any-
thing; that there was progress being made at the Compa-
ny and he wanted Perry to vote for the Company and
continue the progress; that Perry spoke of various com-
plaints against the Company including long sales meet-
a" These findings are based on the testimony of L.yons Where
Desper's testimony contradicts that of Lyons. I credit L yons
ings; that Munson said they were becoming shorter; and
that Munson asked Perry to vote for the Company. I
credit Munson's version of the conversation rather than
Perry's. Munson's remark about continuing the progress
is too ambiguous to support the allegation in paragraph
VI(c) of the complaint that Munson promised an em-
ployee improved working conditions in order to discour-
age union activities. I therefore recommend that that al-
legation be dismissed.
3. The allegations relating to the removal of sales
accounts from Desper
a. Facts
Paragraph Vl(m) of the complaint alleges that Re-
spondent violated Section 8(a)(l) of the Act by removing
certain sales accounts from an employee because of his
union membership. Subparagraphs (k) and (I) allege
8(a)( ) violations through remarks supervisors made
about the removal of those sales accounts.
It is part of a sales representative's job to solicit con-
tinued business from, and to service, existing customer
accounts. Two of Desper's regular accounts were Gener-
al Foods and Continental Warehouse. Continental Ware-
house does about $60,000 per year worth of business
with Respondent.
On September 27, 1978, Respondent took away those
two sales accounts from Desper because representatives
of those accounts informed Respondent that they did not
want union sales representatives calling on them and that
they would withdraw their business if unionized sales
representatives continued to call on them. 4 Those ac-
counts were taken over by supervisors.
The removal of those accounts did not affect Desper's
compensation. He was paid a salary. He was also paid on
the basis of an incentive plan, but that plan was based on
the Company's business at the terminal rather than on
the individual sales activity of a particular sales repre-
sentative.
On September 27, 1978, Munson told Desper that the
General Foods and Continental Warehouse company ac-
counts were being taken away from him because repre-
sentatives of those companies had told Respondent they
did not want a union sales representative to call on them
and they threatened to take away their business.
In late September McHatton met with all the sales rep-
resentatives. He told them that the Company was taking
the sales account away from Desper because the custom-
ers did not want a union sales representative calling on
them. He also told them that if they heard of any other
accounts that were being lost because of a similar situa-
4 These findings are based on the credited and uncontradicted testi-
mony of McHatton, Tickle, and Munson A third sales account. Bur-
roughs Welcome. was also taken away, from Desper Munson credibly
testified that the removal of that account had nothing to do with any
union activity and that he took away the account because the customer
was displeased with Ihe way Desper handled ii. Earl Lee, a branch man-
ager for Burroughs Welcome, credibly testified that he told Munson that
he was not satisfied with the way Desper handled a billing problem and
that he wanted to talk to someone else. Lee also credibly testified that he
did tlot ask that the account he removed because of a union problem I
d i not credit Desper's testimony that Munson told him that the Bur-
roughs Welcome account was removed because that comlipany did not
want a union representative calling on it
1460
PACIFIC INTERMOUNTAIN EXPRESS
tion they should bring the matter to his attention and he
would make other arrangements to keep the freight.
b. Conclusions
Respondent removed part of Desper's work responsi-
bilities when it took away the General Foods and the
Continental Warehouse accounts from him. Respondent
took away those accounts because Desper was a union
sales representative and it was afraid it would lose those
accounts if he continued to call upon them. The loss of
those accounts is alleged in the complaint as a violation
of Section 8(a)(1) of the Act. The legality of Respond-
ent's action in this regard does not turn on the question
of antiunion bias or motive. The test is whether or not
the action may be reasonably said to interfere with the
free exercise of employee rights under the Act. Dover
Garage II, Inc., 237 NLRB 1015 (1978), enforcement
denied 607 F.2d 998 (2d Cir. 1979); Hanes Hosiery. Inc.,
219 NLRB 338 (1975). In the circumstances of this case
the removal of those accounts from Desper did tend to
interfere with Desper's right to self-organization under
Section 7 of the Act and therefore violated Section
8(a)(1) of the Act. Desper was told in effect that the ex-
ercise of his right to join a union had resulted in a loss of
some of his work. Whether or not he actually lost com-
pensation by that loss of work, Respondent's action did
have the reasonably foreseeable effect of dampening
Desper's desire to remain a union member. Respondent's
actions gave Desper reasonable cause to fear that the
same situation might occur with other accounts that he
serviced to a degree that he would no longer be needed
by Respondent. Respondent interfered with Desper's
Section 7 rights and Respondent cannot justify that inter-
ference by a claim that it made good business sense. If
Respondent was under pressure from its customers to
violate the Actis then it had a duty to resist that pres-
sure and it cannot use that pressure as a valid defense to
its unlawful conduct. Swain and Morris Construction Co.,
168 NLRB 1064, 1066 (1967), enfd. 431 F.2d 861 (9th
Cir. 1970); Ref-Chem Company, 153 NLRB 488, 492-493
(1965). 1 find that Respondent violated Section 8(a)(l) of
the Act by removing the General Foods and Continental
Warehouse accounts from Desper because he was a
member of the Union.
In late September 1978 McHatton told all the sales
representatives that the accounts had been taken from
Desper because the accounts did not want a union sales
representative to call on them and he indicated that simi-
lar measures would be taken against other sales repre-
sentatives if other customers complained about being
called on by union sales representatives. By in effect tell-
ing those employees that Respondent would bow to de-
mands of customers that union sales representatives not
call on them, Respondent interfered with the Section 7
rights of those employees and therefore violated Section
8(a)(1) of the Act. Respondent also violated Section
8(a)(1) by telling other employees that Desper had been
removed from sales accounts because those accounts did
15 This does imply Ihat the customer itself was violalinlg Ihe Act by
making the request Locul No, 447,
U
ntitd .4voisritaon of Journcym,n and
Apprenticc of Mhe Plutnhling and Pipofiuring Induvtry of the !Unifed Slurah
and Canada, 1. -ClO (tlalhoaJ Landcaptc ConitruciroriO. 172 NL RH 128,
129 (19h8)
not want a union sales representative calling on them. R.
J. Causey Construction Co., 241 NLRB 1096 (1979).
C. The 8(a)(3) Allegations
1. Factual findings
a. Background
Anderson worked for the Company in various capaci-
ties from November 1971 until she, along with Desper
and Perry, were discharged on October 9. 1978. In 1973
she became executive secretary for Executive Vice Presi-
dent Tickle and from July 26, 1976, until the date of her
discharge she was a sales representative. Respondent ac-
knowledges that before the incident involved in this case
it had considered her to be a fine salesperson. She was
the recipient of Respondent's presidential sales club
award for the second quarter of 1977 and she had been a
nominee for the salesman of the year award. Respondent
gave no indication that it was dissatisfied with her work
until the interview on October 9, 1979, during which she
was discharged.
Desper was employed as a sales representative for
about 2 years before his discharge. Until the events in-
volved in this case Respondent considered him to be an
excellent employee. He was often complimented for his
work and he received Respondent's "impact award" for
good performance in 1977. For a period of time he had
been acting sales manager. Respondent's performance ap-
praisal reports on Desper show that he was a good
worker.
Perry was employed by Respondent as a sales repre-
sentative for about 2 years. Terminal Manager McHatton
testified that Perry's most recent evaluation showed that
he was an average salesman who was dependable. That
evaluation, which was dated March 27, 1978, indicated
that Perry was considered fair in certain categories and
satisfactory in others but that his attitude needed im-
provement. Perry had difficulty in getting along with his
immediate supervisor, Munson, and he was outspoken in
his criticism of Munson and certain company policies.
Respondent had engaged in a campaign to obtain certain
"letterhead" and "lockup" accounts which required sales
representatives to obtain letters from customers receiving
in-bound freight which the Company could use to obtain
new or retain old business. Perry thought little of that
campaign. He openly criticized it and he obtained very
few of those letters. Munson frequently criticized Perry
because Perry was not obtaining those letters. At one
point Perry had a dispute with Munson concerning a re-
quirement that Perry sign a performance review because
that review pointed out some deficiencies in his work.
Respondent did not consider Perry more than an ade-
quate employee but Respondent does not contend that he
was discharged for the level of his work performance
prior to the incidents involved in this case, which are set
forth in full below.
Respondent's sales representatives do not punch a ti-
meclock. They are required to entertain customers
during lunchtimes, evenings, and weekends. A substantial
amount of their worktime is spent outside of normal
work hours. Munson became sales manager at the Emer-
1461
I) ECISIONS OF NATIONAl. I.AB()R RELATIONS BO)ARI)
yville terminal in January 1978. He instituted a program
under which the sales representatives were to report at
the terminal at 8 a.m. each day where they were to pre-
pare for the day's work. At 9 a.m. the salesmen were to
be out on the street meeting the customers. The sales
representatives were told that the prime selling hours
were between 9 and 11 a.m. and between 2 and 4 p.m.,
during which hours the customers were most available
for successful sales. ' i
In the beginning of each week the salesmen hand in to
Respondent a sales plan and activity report (referred to
as a SPAR report) showing what their intended sales
calls are for that week. At the end of the week a second
copy of the SPAR report is handed in showing the calls
that the sales representative has actually made. In addi-
tion, the sales representatives turn in an expense report
which is supposed to be correlated with that sales repre-
sentative's activities for the week as shown in the SPAR
report. Munson told the sales representatives at sales
meetings that it was highly important that the reports
they submitted were accurate and timely. 17 Munson
monitored the SPAR reports to see to it that the sales-
men were utilizing their time to the best advantage. The
sales representatives were given written procedures with
regard to the filing of reports.
At sales meetings Munson told the sales representa-
tives that if they spent any time whatsoever doing any-
thing outside of their normal work routine when they
were supposed to be working, they were to ask permis-
sion before taking that time off. At various times all the
sales representatives have asked for time off for such
things as seeing a doctor and such time off has been
granted.
b. The private investigatorfollows Perry
In early October 1978 Terminal Manager McHatton
received a telephone call from a Mr. Bach, the terminal
manager for Ringsby Truck Lines in San Jose. Bach said
that Perry was a friend of his and he asked how Perry
was. McHatton replied that Perry's attitude was very
poor and they were having problems with him because
of that attitude. Bach said that he was not surprised and
he asked McHatton whether McHatton had ever smelled
Perry's breath when Perry came back to the terminal.
Bach went on to say that Perry was probably hanging
around barrooms rather than working. McHatton related
that conversation to Sales Manager Munson and told
Munson that he thought they should tail Perry. On Octo-
ber 4, 1978, Munson hired a private investigator and
gave instructions that Perry was to be followed. McHat-
ton testified that the decision to tail Perry had nothing to
do with union activity. Munson testified that Perry's fail-
ure to get the letterhead and lockup letters entered into
his decision to have Perry tailed and that he felt Perry
'1 Munson credibly testified that at sales meetings he told the sales
reprew'ntatives that studies by the American Trucking Association's Mar-
keting Council and other marketing studies showed that those were the
best hours to be in front of customers In this. as with the 8(a)(I) allega-
iions. I credit Munsonl where his testimony conflicts with that of Perry,
Desper, and Anderson.
" This finding is based on the credited testimony of Munson The tle-
timony orf Perry. Desper, and Anderson to the effect that Respondent
knowingly overlooked false reports iir actively encouraged false reports
is not credited
could not be performing to full capacity. However, there
is little reason to believe that tailing Perry with the use
of a private investigator would give Respondent any in-
sight into why he was not obtaining those letters. It ap-
peared likely that he was not obtaining the letters be-
cause he did not believe in the program and was not so-
liciting them rather than because he was not making his
calls on customers. Following him on his round would
not give any insights into his attitude when he spoke to
the customers. Respondent had never complained about
the number of customers that Perry saw. Respondent's
records for the 6-month period from April through Sep-
tember 1978 show that during that period Perry made
1,167 calls or an average of 9.9 per day; Anderson made
1.105 calls or an average of 9.8 per day; and Desper
made 1,202 calls or an average of 10.25 per day. Perry
made more calls than Anderson and Anderson was con-
sidered an excellent employee. The tailing could only
show what calls Perry actually made. The Company's
own records gave no basis for suspicion that Perry was
not doing a good job with regard to making calls and the
mere rumor that Perry drank does not appear to supply
a plausible reason to tail him to find out what calls in
fact he made. It was not Respondent's customary prac-
tice to have employees tailed by a private investigator.
McHatton testified that about a year and a half before
Perry was tailed he had used a private investigator to tail
another employee. There was no explanation as to why
that first employee was tailed.
Perry was a union adherent and had acted as the union
observer at the election. Respondent knew of Perry's
union sympathies because of his activities as an observer
and also, as is set forth fully above, because of the unusu-
al way in which the election was conducted. Respondent
was hostile toward such union activity as demonstrated
by the many violations of Section 8(a)(1) described
above. McHatton felt so strongly about the matter that
he spoke to his superior and to Desper about quitting his
(McHatton's) job if the Union came in. On or about Sep-
tember 27, 1978, Respondent violated the Act by remov-
ing certain sales accounts from Desper. Other sales rep-
resentatives were told that the same thing could happen
to them. Within a matter of days after that Respondent
hired a private investigator to follow Perry. The reasons
Respondent advanced at the hearing for having Perry
followed do not stand scrutiny. Under these circum-
stances the inference is warranted that Respondent
wanted to discharge Perry because of Perry's union ac-
tivity and it hired the private investigator to follow
Perry in the hope that a pretext for such a discharge
could be found.
Kay Kimble is a private investigator working for Cen-
tral Investigators of Walnut Creek. On October 4, 1978,
she was given instructions from her employer to do a
surveillance of Perry. On October 5, 1978, she went to
Respondent's terminal and located Perry's car in front of
the office. She then followed Perry. Perry left the office
and went to Nikko's coffeeshop, which is located outside
of his sales territory."' He arrived at Nikko's about 9:20
'" Nikko's is within Anderson's sales territory and Perry and Desper
would not have any business-related reason to be there
1462
PACIFIC INTIRMO()NTAIN EXPRESS
a.m. Shortly thereafter two other cars drove up to
Nikko's. They were driven by Anderson and Desper
who joined Perry inside Nikko's. They remained inside
the coffeeshop from 9:30 to 11:20 a.m. and then stood
outside the restaurant until 11:30 when they went differ-
ent ways. Kimble followed Perry's car but lost it in traf-
fic. She made a report of her observations of that day to
her employer who in turn reported it to McHatton. '"
On October 6, 1978, Kimble again followed Perry
from the terminal. He left and again went to Nikko's
where Desper was waiting for him. They remained at
Nikko's from 9:30 to 11:30 a.m. Perry then drove to the
Oakland Coliseum and from there to Oakland where
Kimble lost him in traffic about noon.2 0 Kimble's report
was again given to McHatton.
Later that day McHatton made arrangements to have
Perry followed on Monday, October 9, 1978, by a differ-
ent private investigator, Claude Glenn. On October 9
Glenn followed Perry from 9 a.m. to 12:43 p.m. Perry
left the terminal at 9 a.m. and arrived at Nikko's shortly
thereafter. When Perry's car arrived at Nikko's, Desper's
car was already there and Anderson arrived shortly
thereafter. The three of them came out of the restaurant
at 10:35 and they spoke together outside. Perry reentered
the restaurant at 10:52 and came out again at 10:55.
Perry then drove to various locations and had a take-out
lunch in his car. Glenn suspended the surveillance at
12:43 and reported to Johnson at about 1:15 p.m. 2 t
On Monday morning, October 9, 1978, Regional Man-
ager Johnson, Terminal Manager McHatton, and Sales
Manager Munson met to discuss the situation. They also
reviewed the SPAR reports and expense reports that the
sales representatives had submitted that morning which
covered the week ending Friday, October 6. They saw
that the SPAR reports showed that Desper, Anderson,
and Perry had each made about 10 sales calls each day
(which was about the normal number) on the dates that
those sales representatives had spent a substantial part of
the morning's prime selling time at the coffeeshop. They
questioned whether the sales representatives could have
made all those calls while taking so much time off. They
also discussed the fact that Perry had shown a lunch on
his expense account for October 6, which indicated he
had taken a customer to lunch in Richmond. They knew
he had been seen going off an off ramp of the freeway in
Oakland at about noon on that day. Oakland is about 12
or 15 miles from Richmond. None of the sales repre-
sentatives had requested permission to go to the coffee-
shop and take time off.
Early that afternoon Johnson received Glenn's report
which showed that Perry, Desper, and Anderson had
again spent a good portion of that morning's prime sell-
ing time at Nikko's. Shortly thereafter Johnson, McHat-
ton, and Munson met once again. They decided that
Munson should ask Perry, Desper, and Anderson about
IV These findings are based on the credited testimony of Kimble
Kimble did not know Anderson or Desper and she had not been told to
follow them. However, her description of the cars that they drove and of
the people she observed led McHanton to believe that they were Ander-
son and Desper. Both acknowledged that Ihey were with Perry at
Nikko's that morning
20 These findings are also based on the credited testimony of Kimble
a i These findings are based on the credited testimony of Glenn
their activities for the prior 3 working days and to dis-
charge them if they did not have an adequate explana-
tion. They also decided to have pay and expense checks
drawn for those employees so that they could be paid off
in full at that time if they were discharged. Those checks
were drawn up and signed .22
c. The interviews at the time of the discharges
Munson, in the presence of Johnson, met with Perry
about 2:30 p.m. on October 9, 1978. Munson told Perry
that he wanted to talk to him about what the Company
considered to be an abuse of company time. Munson
handed the SPAR report for the previous week to Perry
and asked him to explain which calls he had made in the
morning and which in the afternoon. Perry said that he
could not do it. Munson asked Perry to explain the calls
that he had made on Friday, October 6, which was the
last day Perry had worked that week. Perry took the re-
ports and started to walk out the door. Munson said that
he wanted an explanation and Perry said that he would
not give one. Munson then said he had information that
Perry was not making his calls and was abusing compa-
ny time. He said that if Perry did not cooperate he had
no choice but to terminate him. Perry again said that he
would not do it. Munson said that Perry was terminated
unless he wanted to resign and Perry refused to resign
Munson told Perry he was terminated and gave him his
final check. 23
About half an hour later Munson spoke to Desper in
the presence of Johnson. Munson began by saying that
he had reason to believe that there was a serious abuse of
company time and that he wanted Desper to explain. liHe
gave Desper the SPAR reports for the previous week
and asked Desper to tell which calls had been made in
the morning and which in the afternoon. Desper replied
that he would not do it and he asked whether Munson
had anything else to talk about. Munson said that they
knew Desper was in the coffeeshop and they had proof
that there was a serious abuse of company time. He of-
fered Desper an opportunity to resign and Desper re-
fused. Munson then told Desper that he was terminat-
ed.2 4
About a half hour later Munson met with Anderson in
the presence of Johnson. Munson said that they had
reason to believe that there was a serious abuse of com-
pany time and he gave Anderson the SPAR report for
the previous week. He asked her to explain which calls
had been made in the morning and which in the after-
noon. Anderson pointed to an entry she had made for
the previous Tuesday and said that it was a mistake be-
22 Johnson testified that he wanted the checks ready sO that the com-
pan) would not be in violation of California law He averred that the
Company was required by law to pay discharged employees in full at the
time of discharge. Whatever the situation with regard to local law II ap-
pears that those supervisors did expect to discharge the three employees
even before those employees were splken to I do not believe Respond-
ent would have prepared the checks unless it expected to use them
"' These findings are based on the credited testimoliy of Johnson To
the extent that Perry's testimony conflicts with that of Johnson I credit
Johnson.
14 These finding, are based o,t Ihe credited testimony of Johnson
Where Desper's testimony ionflics with that ol Johnson I credit John-
sOIlt
I)1:(.ISI()NS ()F NA FIONAL l.ABOR RELATIONS BOARD
cause she had phoned the account rather than calling on
it in person. Munson asked her whether she understood
that when a call was put down it was to be a physical
call and she replied that she knew it should not be there.
She then described a number of calls that she had made.
Munsor asked Anderson about the calls she had made on
Thursday morning, October 5. Anderson named four ac-
counts that she visited that morning. Munson knew that
she had been in the coffeeshop until 11:30 a.m. that day
and he concluded that she was lying. He told her that
they knew she was not making calls that morning and
that they were going to terminate her. He handed her a
check. She said that she felt she worked hard enough
and that she could take free time when she wanted.
Munson said that that was not the case.2 5
Johnson testified that all three were discharged for
stealing company time, for failing to cooperate with
them in the October 9 interview, and because of the sus-
picion that they had falsified their records.26 Johnson
averred that Anderson failed to cooperate during the in-
terview by not telling the truth.
d. The treatment of other employees
Executive Vice President Tickle testified that on var-
ious occasions a number of sales representatives were
discharged at Respondent's terminals other than Emery-
ville because of falsification of records. Though his testi-
mony established that the Company took very seriously
matters such as falsification of records, there is insuffi-
cient detail on the record to establish that those situa-
tions were sufficiently similar to the matters in this case
to warrant a valid comparison. In any event the compa-
ny officials who were responsible for those discharges at
the other terminals were different from the ones in-
volved here. Tickle did not participate in the decision to
discharge the alleged discriminatees.
Emeryville Terminal Manager McHatton credibly tes-
tified concerning two incidents that occurred at the
Emeryville terminal which do shed light on the Compa-
ny's policies at that terminal. On August 24, 1978,
McHatton observed a local driver named Duane Ran-
dolph in a coffeeshop for 30 or 35 minutes during work-
time when Randolph was only entitled to a 15-minute
coffeebreak. Randolph was a member of Local 70,
Teamsters, and was covered by a collective-bargaining
contract. McHatton discharged Randolph for stealing
company time even though Randolph claimed that he
had missed a 15-minute afternoon coffeebreak and was
taking the extra time to do paperwork in the coffeeshop.
Randolph had worked for Respondent for about 20
years. After the discharge the matter was taken up by
2' Thes findings are based on the testimony of Johnson. Where An-
derson's testimony conflicts with that of Johnson I credit Johnson An-
derson testified that when Munson first used the word termination she
said that it was easy to understand why it was happening and that
Munson replied that in spite of the union thing he wanted to make it
work I do not credit that testimony.
' In the case of Perry. Respondent's suspicions proLed accurate.
Perry acknowledged in his testimony that on his expense report for the
week preceding October 9. 1978, he listed three customers that he had
taken to lunch when in fact he had taken none of those customers to)
lunch He also acknowledged in his testimony that in his SPAR report
for October 6, 1978, he had show n that he had made a call on a particu-
lar customer when in fact he did not sec hall customer thIlt day
the union steward and at the first step in the grievance
procedure the discharge was changed to a written warn-
ing. That warning advised Randolph that future viola-
tions of that nature would be considered cause for dis-
charge. In late September 1978, McHatton was told that
a driver named James Huey had been seen on two sepa-
rate occasions in a coffeeshop while on overtime for a
total of about 90 minutes. McHatton spoke to Huey and
the union steward and then fired Huey. Huey had been
employed for 15 or 17 years. The Union filed a griev-
ance and the termination was reduced to a week's sus-
pension, with an admonition that any future violation
would result in his discharge.
McHatton's testimony does establish that Respondent
took any abuse of company time as a most serious
matter. Long-time employees were discharged for what
seems to be trivial offenses in situations where no pro-
tected activity was involved. Randolph and Huey were
reinstated but that occurred only after the Union inter-
vened through the grievance procedure. There was no
grievance procedure applicable to the alleged discrimina-
tees.
e. Respondent's post-discharge offer to recognize the
Union and resolve the discharges through the grievance
procedure
Perry, Desper, and Anderson were discharged on Oc-
tober 9, 1978. The following day the Charging Party
filed a charge alleging those discharges to be unlawful.
Within the following 2 weeks the alleged discriminatees
met on several occasions with representatives of Re-
spondent and the Union to discuss the situation. At the
final meeting an agreement was reached between Re-
spondent, the Union, and all three discriminatees under
which Respondent would withdraw its objections to the
election; Respondent would recognize the Union as the
bargaining agent for the sales representatives; the three
alleged discriminatees would be put back on the payroll
without being reinstated to their duties; and the validity
of the discharges would be determined through arbitra-
tion. Within 2 weeks after that agreement the alleged dis-
criminatees notified the Union that they did not want to
go ahead with arbitration. The Union notified Respond-
ent that it was backing out of the agreement and the
agreement was canceled.
The above findings are based on the credited and un-
contradicted testimony of Johnson. The General Counsel
objected to the testimony on the grounds of relevancy.
That objection was overruled on the ground that postdis-
charge events could shed light on the question of animus.
There was no objection on the ground that the testimony
related to settlement negotiations.
A serious argument can be made that Respondent's
willingness to recognize the Union as expressed in its
offer tended to show that it did not harbor the type of
animus toward the Union that would have motivated it
to discharge the alleged discriminatees because of their
union activity. Public policy encourages the settlement
of disputes and the free discussion of matters that can
lead to settlement. Rule 408 of the Federal Rules of Evi-
dence reflects that public policy by providing that evi-
dence of statements (other than admissions of fact) made
1464
PACIFIC INTFRM()UNI'AIN EXPRFSS
in compromise negotiations is not admissible. Such evi-
dence is not receivable as an admission of the validity or
invalidity of a claim. That rule is broadly stated and con-
tains several exceptions from which different interpreta-
tions can be made.2 7 However, parties to a settlement
discussion will not be inhibited by the knowledge that
their remarks and offers may be used to assist them in an
exculpatory manner and I do not believe that Rule 408
was intended to make such remarks inadmissible. 2'
f. The unemployment insurance records
Anderson filed a claim with the State of California
Employment Development Department on or about No-
vember 7, 1978. When she was at the office of that de-
partment she asked for and received a copy of a report
made by the unemployment insurance examiner. That
document consists of handwritten notes which in part
contain reference to a telephone conversation that the
unemployment insurance official had with John Holman,
Respondent's manager of corporate compliance. The
notes read in part: "Mr. Holman called back to state Clt
was fired for: (1) theft of company time (union organiz-
ing on company time. 2 hrs one time plus 1-1/2 hrs the
other time) .... " The General Counsel offered the ex-
hibit and it was rejected as being inadmissible hearsay. In
his brief the General Counsel requests that that ruling be
reversed and that the document be admitted. Rule 803(8)
of the Federal Rules of Evidence provides that certain
public records and reports are admissible as an exception
to the hearsay rule whether or not the declarant is avail-
able. That exception to the hearsay rule applies to "re-
ports . . . in any form, of public offices or agencies, set-
ting forth (A) the activities of the office or agency or (B)
matters observed pursuant to duty imposed by law as to
which matters there was a duty to report. ... -29
27 The rule reads as follows:
Rule 408.
COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (I) furnishing or offering or promising to furnish, or
(2) accepting or offering or promising to accept. a valuable consider-
ation in compromising or attempting to compromise a claim which
was disputed as to either validity or amount., is not admissible to
prove liability for or invalidity of the claim or its amount Evidence
of conduct or statements made in compromise negotiations is like-
wise not admissible, This rule does not require the exclusion of any
evidence otherwise discoverable merely because it is presented in the
course of compromise negotiations. This rule also does not require
exclusion when the evidence is offered for another purpose. such as
proving bias or prejudice of a witness, negativing a contention of
undue delay, or proving an effort to obstruct a criminal investigation
or prosecution.
zs Cf. Local 18. Bricklayers. Masons and Plasterers' Inlernaional Union
of America. AFL-CIO (Union Country Building Contractors .4sociation, et
al). 170 NLRB 8 (1968). enfd 407 F. 2d 1309 (3d Cir 1969). vshere Ihe
Board held that statements made by parties during a settlement discussion
are inadmissible, and may not be relied upon as evidelce of wrongdoing
in an unfair labor practice proceeding
29 That rule excepts from the hearsay rule
(8) Public records and reports. Records, reports, statements, or
data compilations, in any fiorm, of public offices or agencies, selling
forth (A) the actislties of the office or agency, or (B) matters oh-
served pursuant to duty imposed by law al to which matters there
was a duty to report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement personnel, or
(C) in civil actions and proceedings and against the Gosernment in
Upon reconsideration I believe that rule 803(8) applies
in the instant case and I therefore reverse my ruling and
receive in evidence General Counsel's Exhibit 31. :3°
However, the weight of that evidence must also be con-
sidered. We are concerned here with swritten notes of an
unemployment insurance investigator relating to an in-
vestigation undertaken by telephone. The notes appear to
be a summary of a conversation. Before the exhibit was
offered, Holman was called by the General Counsel to
testify about the same matter. He averred that he re-
ceived a phone call from a Mrs. Young of the Depart-
ment of Employment concerning an unemployment
claim by Anderson and that he told her there were three
reasons for the discharge: theft of company time, falsifi-
cation, and falsification of expense reports. He testified
that he did not say anything about union activity.
Holman appeared to be a credible witness and I am un-
prepared to discredit him on the basis of the bare notes
of the unemployment insurance investigator.
The General Counsel offered to prove that Perry also
received a similar report from the State of California
Employment Development Department (G.C. Exh. 46).
In that report the investigator stated that he spoke to
Holman on the telephone and Holman told him that
Perry and two others were meeting on company time to
draw up union contracts when they listed that they were
out entertaining customers. As the proffered evidence
was rejected the General Counsel did not have any op-
portunity to authenticate the document. However, even
if the document were properly authenticated and re-
ceived into evidence it would be entitled to little weight.
Holman credibly testified that he filled out an unemploy-
ment insurance form for Perry in which he stated "Dis-
charged for 1. theft of company time, 2. falsification of
records and 3. falsification of expense reports." At the
time he allegedly spoke to the unemployment insurance
investigator about Perry's drawing up the union contract
on company time all the parties in this case were think-
ing of litigation rather than contracts. The reference to
drawing up contracts seems so out of context as to make
it difficult to believe that Holman made a reference to
it."3 Under the circumstances, and in the absence of an
opportunity by the parties to examine and cross-examine
the unemployment insurance investigator, I do not be-
lieve that the notes are reliable.
In any event the two reports at best would indicate
that Respondent believed that the alleged discriminatees
were discussing union matters at the coffeeshop during
working time. The employees had no protected right to
discuss union activities during working time and Re-
spondent's repeated position was that the alleged discri-
minatees should have been working during working
time.
criminal cases, factual findings resulting irom ;al imnsestigalioi, made
pursuant to authority granted hb la,. unless tihe siturc s of intlforma-
tion or other circumstancis indicate lack oTf irusilsorthine,,
:"' Hodge Seiler. 558 F 2d 284, 288 289 (5thil Cir 1477), Duquesio
Electric, 212 NLRB 142, fn 1. enfd 518 F 2d 7(1 (I d Cir 1975)
:'I T'he General Counsel did not question Holniliall sith regard tol GC
Exh 46 As that proffered esidcnlce ssas reiclted. Resprndelt had no
need to. and in fact sould not haie been permitted Io, make inquir' into
that area
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Conclusions
The General Counsel has established a strong prima
facie case. Three of Respondent's five sales representa-
tives supported the Union. Those three were Perry,
Desper, and Anderson. Respondent found out their sup-
port for the Union on September 16, 1978, when Re-
spondent admittedly learned or had reason to learn that
they had voted for the Union in the Board election.
Perry not only voted for the Union but was the Union's
observer at the election and his union sympathy was par-
ticularly visible. Before the election Respondent consid-
ered Desper and Anderson to be excellent employees
and considered Perry to be an adequate one. Respond-
ent's hostility toward the Union was demonstrated before
the election by numerous violations of Section 8(a)(l), as
is set forth in detail in section B,2,a,d, and e above.
Those violations included coercive interrogation and un-
lawful threats and promises. Respondent's terminal man-
ager, McHatton, felt so strongly against the Union that
he spoke of quitting if the Union came in. After the elec-
tion Respondent began to single out the union adherents
for special treatment. On September 27, about 2 weeks
after the election, Respondent took away two sales ac-
counts from Desper because representatives of those ac-
counts informed Respondent that they did not want
union sales representatives calling on them. In late Sep-
tember, McHatton told all the sales representatives what
had happened to Desper and indicated that similar meas-
ures would be taken against other sales representatives if
other customers complained about being called on by
union sales representatives. As is set forth in detail in
section C,l,b above, on October 5, 6, and 9 Respondent
had Perry followed by a private investigator under the
circumstances where an inference was warranted that
Respondent was seeking a pretext to discharge Perry be-
cause of Perry's union sympathies. On October 9, less
than a month after Respondent learned of their union ac-
tivities, Perry, Desper, and Anderson were summarily
discharged. That constituted the elimination of 60 per-
cent of the employees in the bargaining unit and 100 per-
cent of the union adherents.
Respondent's defense must be viewed in the light of
that prima facie case. As a result of having Perry fol-
lowed Respondent knew that Perry, Desper, and Ander-
son had spent time in a coffeeshop when they should
have been working. On the morning of October 5 all
three were in the coffeeshop for about 2 hours and all
three were again in the coffeeshop for about 1-1/2 hours
on the morning of October 9. On October 6 Perry and
Desper were in the coffeeshop for about 2 hours. They
were in the coffeeshop during prime selling time and
they had been told that they should be making sales calls
during prime selling time. Respondent had a strong sus-
picion that all three had filed false reports to disguise the
fact that they had not been working during those hours.
At least with regard to Perry, Respondent had a reason-
able basis for suspecting that he falsified his expense ac-
count by showing that he took a customer out to lunch
when it was unlikely that he could have been at the re-
ported lunch location during that time. On October 9,
when Respondent's supervisors questioned Perry and
Desper concerning their whereabouts during the prior
week, Perry and Desper were completely uncooperative
in their replies. When Anderson was questioned Re-
spondent had a reasonable basis for believing that her an-
swers were not truthful. Respondent has discharged em-
ployees in the past for abusing company time where the
abuse was even less than that of Perry, Desper, and An-
derson. Driver Duane Randolph had been discharged for
exceeding a coffeebreak for 15 minutes even though he
was a 20-year employee. Driver Huey was discharged
for abusing company time for about 90 minutes over a 2-
day period. Huey had worked for the Company for 15
or 17 years. However, the situation is not completely
comparable because both Randolph and Huey were driv-
ers whose pay was keyed to the actual time they
worked. Though Perry, Desper, and Anderson were sup-
posed to be seeing customers during prime selling time,
their hours were not fixed the way the drivers' were.
Part of their job was to entertain customers in the even-
ings and on weekends. They were paid on a salary basis
and the number of hours could and did shift from week
to week depending on their entertainment commitments.
Both Randolph and Huey were reinstated pursuant to
the grievance procedure after the Union's intervention.
The Union has intervened by the filing of a charge in the
instant case but Respondent has consistently refused to
reinstate Perry, Desper, and Anderson to their former
duties. Respondent did offer to resolve the situation by
withdrawing its objections to the election, recognizing
the Union, putting the alleged discriminatees back on the
payroll without reinstating them to their duties, and re-
solving the discharges through arbitration. A serious ar-
gument can be made that Respondent would not have of-
fered to recognize the Union if in fact its hostility
toward the Union was so great as to motivate the dis-
charge of union adherents. On the other hand, it may
have been that Respondent did not have much confi-
dence in its objections to the election and thought it
likely that it would have to recognize the Union in any
event. It may also have been that higher ranking officials
of Respondent who had different perspectives became in-
volved after the charge was filed. In any event, no firm
inferences can be drawn from Respondent's offer to rec-
ognize the Union.
The key question is Respondent's motivation in dis-
charging the alleged discriminatees. The fact that an em-
ployer may be hostile toward employees who engage in
union activities does not in itself insulate an employee
from discharge where that employee engages in conduct
for which he would have been discharged with or with-
out the protected activity. In P. G. Berland Paint City,
Inc., 199 NLRB 927 (1972), enfd. 478 F.2d 1405-06 (7th
Cir. 1973), the Board held:
The mere fact that an employer may want to part
company with an employee whose union activities
have made him persona non grata does not per se es-
tablish that a subsequent discharge of that employee
must be unlawfuly discriminatory. If the employee
himself obliges his employer by providing a valid
independent reason for discharge-i.e., by engaging
in conduct for which he would have been dis-
1466
PACIFIC INTERMOUNTAIN EXPRESS
charged anyway-his discharge cannot properly be
labeled a pretext and ruled unlawful.
As the Ninth Circuit Court of Appeals held in
N.L.R.B. v. Ayer Lar Sanitarium, 436 F.2d 45, 49-50 (9th
Cir. 1970):32
Certainly in the absence of other circumstances
the employer has the right to discharge its employ-
ees . . . and the mere fact that an employee is or
was participating in union activities does not insu-
late him from discharge ....
On the other hand, the cases are legion that the
existence of a justifiable ground for discharge will
not prevent such discharge from being an unfair
labor practice if partially motivated by the employ-
ee's protected activity; a business reason cannot be
used as a pretext for a discriminatory firing....
The test is whether the business reason or the pro-
tected union activity is the moving cause behind the
discharge. ... In other words, would this employ-
ee have been discharged but for his union activity?
As the Ninth Circuit Court of Appeals pointed out in
Western Exterminator Co. v. N.LR.B., 565 F.2d 1114,
1118 (9th Cir. 1979),33 the courts of appeals are sharply
divided on the issue of the "quantum of animus" neces-
sary for an 8(a)(3) finding. However, the Board law ap-
pears clear. As stated in The Youngstown Osteopathic Hos-
pital Association, 224 NLRB 574, 575 (1976), enforcement
denied 574 F.2d 891 (6th Cir. 1978):34
Under Board precedent if part of the reason for
terminating an employee is unlawful, the discharge
violates the Act. As the Board and the courts have
so often indicated, the issue is not whether there ex-
isted grounds for discharge apart from union or
protected concerted activities. That the employer
has ample reason for discharging an employee is of
no moment. An employer may discharge an em-
ployee for any reason, good or bad, so long as it is
not for union or protected concerted activity. Even
if the discharge is based on other reasons as well, if
the discharge is partly in reprisal for protected con-
certed activity, it is unlawful.
In the instant case Respondent hired a private investi-
gator to follow Perry in order to find a pretext for dis-
charging him, when the real reason it wanted to get rid
of him was his union activity. The net that Respondent
threw to catch Perry fortuitously drew in the other two
union adherents, Anderson and Desper. Here Respond-
32 Cited by the Board in Florida Medical Center. Inc.. d/b/a Lauder-
dale Lakes General Hospital. 227 NLRB 1412 (1977). enid in part 576
F.2d 666 (5th Cir 1978)
33 In that case the court held:
It is a long-standing rule of law within our circuit that where a
discharge is motivated by both a legitimate business consideration
and protected union activity, "Itlhe test is whether the business
reason or the protected union activity is the moving cause behind
the discharge." . Stated conversely. "[w]here a party has two
motives. one permissible and the other impermissible. the better rule
is . that the improper motive must he shown to have been the
dominant one"
34 See also The Backstage Restaurunt. 232 NLRB 1082. 1083 (1977)
ent hired the private investigator in an attempt to pro-
vide a plausible reason for discharging Perry. The
motive for the surveillance was tainted and that taint car-
ries over to Respondent's actions with regard to the
fruits of the surveillance. Sourdough Sales, Inc., 246
NLRB No. 20 (1979).
Under all these circumstances set forth above, I find
that the discharges were motivated at least in part be-
cause of union considerations, that the moving cause
behind the discharge was such motivation, and that the
discharges violated Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section 111,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that it be ordered to
cease and desist therefrom35 and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Perry,
Desper, and Anderson in violation of Section 8(a)(3) and
(1) of the Act, I recommend that Respondent be ordered
to offer them reinstatement and to make them whole for
any loss of pay resulting from their discharges by pay-
ment to each of them of a sum of money equal to the
amount each normally would have earned as wages from
the date of his or her discharge to the date on which re-
instatement is offered, less net earnings during that
period. The amount of backpay shall be computed in the
manner set forth in F W. Woolworth Company, 90 NLRB
289 (1950), with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).36
Having found that Respondent violated Section 8(a)(1)
of the Act by removing the General Foods and the Con-
tinental Warehouse accounts from Desper I recommend
that Respondent be ordered to reassign those accounts to
him.
It is further recommended that Respondent be ordered
to preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
a, It is also recommended that Respondent be ordered to cease and
desist from in any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in them Set
7 of the Act flicknmolt Foods. Inc. 242 NLRB 1357 (1979)
:' See. generally, Isis Pluimbing d teating Co. 138 NLRB 716 (1962)
1467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) of the Act by:
(a) Coercively interrogating employees about their
union activity.
(b) Promising benefits to employees if they rejected
the Union.
(c) Threatening employees with reprisals if they select-
ed the Union to represent them.
(d) Threatening an employee with reduction in promo-
tional opportunities if he selected the Union to represent
him.
(e) Removing sales accounts from an employee be-
cause he was a union member.
(f) Telling employees that another employee was re-
moved from sales accounts because those accounts did
not want a union sales representative calling on them and
telling those employees that the same thing would
happen to them if their accounts made the same request.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Edward Perry, Donald Desper, and
Betty J. Anderson because of their union activities.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except as is set forth above, the General Counsel
has not established by a preponderance of the credible
evidence that Respondent has violated the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER'7
The Respondent, Pacific Intermountain Express, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for engaging in activity on behalf of
Teamsters Local 70, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica.
(b) Coercively interrogating employees about their
union activity.
(c) Promising benefits to employees if they reject that
Union.
(d) Threatening employees with reprisals if they select
that Union to represent them.
3' In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived foi all purposes.
(e) Threatening any employee with reduction in pro-
motional opportunities if he selects that Union to repre-
sent him.
(f) Removing sales accounts from any employee be-
cause he is a union member.
(g) Telling employees that another employee was re-
moved from sales accounts because those accounts did
not want a union sales representative calling on them or
telling those employees that the same thing would
happen to them if their accounts made the same request.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Edward Perry, Donald Desper, and Betty J.
Anderson immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them
whole for their loss of earnings in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Reassign the General Foods and the Continental
Warehouse accounts to Donald Desper.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due.
(d) Post at its Emeryville terminal copies of the at-
tached notice marked "Appendix." 3 8 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
:a In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
1468