USF Red Star, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1999

330 N.L.R.B. 53 (N.L.R.B. 1999)

USF RED STAR, INC. 53
USF Red Star, Inc., a U.S. Freightways Company and
Wayne Zakofsky and John M. Hayes

Local 118, International Brotherhood of Teamsters
(RMA/Kolko Corporation) and John M. Hayes

Local 118, International Brotherhood of Teamsters
(USF Red Star, Inc., a U.S. Freightways Com-
pany) and John M. Hayes. Cases 3–CA–19698,
3–CA–19739, 3–CB–6734, and 3–CB–6894
November 22, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
BRAME
On October 21, 1996, Administrative Law Judge
Raymond P. Green issued the attached decision. Re-
spondent USF Red Star, Inc., a U. S. Freightways Com-
pany (Red Star) and Respondent Local 118, International
Brotherhood of Teamsters (the Union) each filed excep-
tions with a supporting brief, and the General Counsel
filed an answering brief to the Respondents’ exceptions.
Red Star and the Union each filed a brief in response to
the General Counsel’s answering brief.
On May 2, 1997, the Board issued an Order remanding
the proceeding to the judge for him to make findings of
fact, including certain credibility resolutions, and conclu-
sions of law to determine whether, based on the Board’s
Wright Line test,1 John M. Hayes’ and Wayne Zakof-
sky’s discharges were unlawful as alleged in the com-
plaint. On May 30, 1997, the judge issued the attached
supplemental decision. Red Star and Teamsters each
filed exceptions with a supporting brief, and the General
Counsel filed an answering brief to their exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified below and to adopt the recommended Order.
The judge found that the Union violated Section
8(b)(1)(A) and (2) of the Act by its “efficacious demand”
that Red Star discharge Hayes from his job as a casual
truckdriver because of his internal union activities. He
further concluded that Red Star violated Section 8(a)(3)
and (1) by discharging Hayes pursuant to the Union’s
request and violated Section 8(a)(1) by discharging Za-
kofsky, its Rochester, New York terminal manager, for
refusing to follow orders by his superiors that he dis-
charge Hayes in violation of the Act. We adopt the
judge’s findings of these violations for the reasons stated
below.

1 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
2 Red Star and Teamsters have excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
Facts
The credited evidence shows that Red Star owns and
operates a trucking terminal in Rochester where Zakof-
sky worked as terminal manager for almost 11 years be-
fore his discharge on June 21, 1995. The Union repre-
sents about 30 drivers and dock employees at the Roch-
ester terminal.
Hayes, who has been a member of the Union since
1977, was employed for many years as a driver for Sex-
ton Foods until that company closed its Rochester opera-
tions in 1993. Hayes served as shop steward while em-
ployed at Sexton Foods. In December 1988, Hayes was
elected the Union’s recording secretary when he ran for
office on the same slate as Frank Posato who became
local president. Hayes won reelection as recording secre-
tary in 1991. In 1993, Posato named Hayes secretary-
treasurer on an interim basis to replace Tony Valenti,
who had left to take a position with the International Un-
ion.3 Thereafter, John Cantwell defeated Hayes in a spe-
cial election to determine who would complete Valenti’s
term as secretary-treasurer.4 In December 1994, Hayes
again ran for secretary-treasurer on a slate that included
Valenti, who had returned to the local and was running
for president. It is undisputed that the election campaign
was hotly contested with both sides criticizing their op-
ponents. The incumbents, Posato and Cantwell, pre-
vailed in the election.
After his defeat in the 1993 special election, Hayes ob-
tained employment as a casual driver for Red Star and
worked on an irregular basis until the summer of 1994.5
Hayes then worked for RMA/Kolko, which also had a
collective-bargaining agreement with the Union, until he
was laid off in October 1994.6 In January 1995,7 shortly
after his December 1994 election defeat, Hayes returned
to work at Red Star as the only casual driver on its pay-
roll. Hayes told Zakofsky that he thought the Union’s
leadership was out to blackball him because he had op-
posed the incumbents in the recent election. Zakofsky
3 Although the judge found that Valenti asked Hayes to accept the
job, the record shows that it was Posato who appointed Hayes to this
position.
4 Cantwell had been defeated as a candidate for secretary-treasurer in
the 1988 and the 1991 elections.
5 Employers who are signatory to the Union’s collective-bargaining
agreement employ casuals to replace drivers who are absent due to
vacation or illness. Casuals may be fired without regard to the contrac-
tual grievance procedure, unless they work 45 days in any 90-calendar
day period at which time they attain preferred status and become sub-
ject to the grievance provisions.
6 Hayes filed an unfair labor practice charge alleging that the Union
had caused this layoff, but the Region dismissed the charge.
7 All dates are in 1995, unless otherwise noted.
330 NLRB No. 15
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54
replied that he would not allow the Union to interfere
with terminal operations.
Between January and early March, Zakofsky had sev-
eral conversations with Cantwell, the Union’s secretary-
treasurer, in which Cantwell made derogatory remarks
about Hayes. Cantwell asked Zakofsky during a griev-
ance meeting held about this time why he was still using
that “scumbag,” referring to Hayes. Thereafter, Zakof-
sky received a phone call in early March from Ron
Morin, Red Star’s director of field services, asking who
Hayes was.8 Morin remarked that Cantwell had said that
Hayes was a “troublemaker.” Zakofsky replied that
Hayes had not caused him any trouble.
There was also evidence that, about this time, employ-
ees began speculating that the Union might be seeking to
“blackball” Hayes from his driver’s job. On one occa-
sion, Red Star driver Larry Palmensano asked the Un-
ion’s shop steward, Frank Sapienza, what was going on
with Hayes while implicitly referring to Hayes’ employ-
ment status. Sapienza replied that Palmensano should
stay out of it because Sapienza “didn’t want anything to
happen to you.”
Also in March, two freight companies closed their
Rochester terminals and moved their operations to Buf-
falo, New York. Zakofsky noted the moves and the re-
sulting jobs lost by the Union’s members. He concluded
that this would be an opportune time to discuss with the
Union the possibility of modifying the start-time provi-
sions in the Union’s local agreement with Red Star
which had been in existence for many years. These pro-
visions guaranteed drivers a start time between 7 and
8:30 a.m. and required Red Star to pay overtime to any
driver who began work before 7 a.m. and to pay any
driver who started after 8:30 a.m. as if the driver had
started working at 8:30 a.m. The Union previously had
rejected any changes in the starting time provisions when
Red Star sought them in order to increase its flexibility in
the assignment of work.9
Zakofsky subsequently raised this subject to Posato
and Cantwell during a meeting in mid-March. Posato
invited him to prepare a proposal for the Union’s consid-
eration. Zakofsky then drafted a proposal that he submit-
ted to Roy Liller, Red Star’s vice president, and to Morin
in late March or early April. Thereafter, Liller told Za-
kofsky during a conference call, in which Morin also
participated, that his proposal did not go far enough.
Liller said that Morin would handle these negotations
with the Union and that Morin would threaten to close
the Rochester terminal and move its freight operations to
Buffalo if the Union did not agree to Red Star’s propos-
als. In early April, after this conference call, Zakofsky

8 Morin was deceased at the time of the hearing in this case.
9 The record shows that the Union was the only local in the country
which retained the benefit of the starting time provision described
above.
received a phone call from Morin who told him that the
Union wanted Red Star to stop using Hayes. Zakofsky
ignored Morin and continued to use Hayes as a casual
driver because Zakofsky considered Liller to be his boss
and thought that Morin did not have the authority to give
him such an order.
On the morning of April 28, Morin visited the Roches-
ter terminal to discuss with Zakofsky the bid proposal
that Red Star would submit to the Union during a meet-
ing that afternoon. That same morning, Hayes had a mi-
nor accident when he backed his truck into an overhang-
ing steel beam at a customer’s dock. The collision
jammed the roll up door on the back of the truck so that
it would not open. Before returning to the terminal,
Hayes called Zakofsky and told him about the accident.
Hayes also reported the accident to Dave Tabor, the dis-
patcher, when he returned to the terminal. Zakofsky told
Tabor to transfer the freight to another truck and to have
Hayes fill out an accident report, but to keep the incident
quiet. After Red Star’s mechanic, Roswell Wood, pried
the truck’s door open, Hayes loaded the freight onto an-
other truck and completed the deliveries. Wood then
repaired the damaged rollup door by cutting a hole in the
roof and realigning the rollers. The repair job, which did
not require any new parts,10 took about an hour and cost
Red Star $15 at Wood’s rate of pay.
During the meeting with the Union on April 28, Red
Star’s officials presented a new start-time proposal and
threatened to close the terminal if the Union did not
agree to it. Posato told Morin at the conclusion of the
meeting, “Ron, you know what I want. If you want, if
you want to negotiate this type of contract, you know
what I want.” Morin and Posato then met privately for
about 5 to 10 minutes. After the meeting, Morin told
Zakofsky en route back to the Rochester terminal that
“Jack Hayes is gone.” When Zakofsky objected to
Hayes’ dismissal, Morin said that Red Star had no choice
and Hayes had to go if Red Star wanted a deal.
Zakofsky issued a written warning to Hayes for his
minor accident on April 28 and gave a copy of the warn-
ing to the Union’s shop steward. Zakofsky testified that
he issued a warning because he believed that a minor
accident involving minimal damage and cost did not war-
rant Hayes’ discharge. Although the Respondent con-
tends that it has a general unwritten policy to discharge a
casual driver who has a preventable accident, Zakofsky
credibly testified that terminal managers have discretion
in enforcing this policy and that he could overlook minor
accidents of the type in which Hayes was involved. Za-
kofsky took the accident report Hayes had prepared and
placed the document in the Rochester terminal’s person-
nel records. Contrary to the Respondent’s usual policy,
however, he did not enter the accident on Red Star’s cor-
10 Because the truck was over 10 years old, Wood did not attempt to
restore the vehicle to its original condition.
USF RED STAR, INC. 55
porate computer. Zakofsky testified that he did not enter
the accident because he feared Morin and Liller would
seize on the incident as a pretext to terminate Hayes.
After Zakofsky issued Hayes a written warning, Morin
called and asked him if he had started “weeding Hayes
out.” Zakofsky replied that he was not going to do this.
Later in May, Liller visited the Rochester terminal and
said that Zakofsky had to let Hayes go because of the
negotiations with the Union. Zakofsky protested that
Hayes’ discharge would constitute “illegal racketeering,”
but Liller insisted that Hayes had to go.
About this time, Zakofsky mentioned Hayes’ situation
to shop steward Frank Sapienza. After Zakofsky said
that he feared he was going to lose his own job over the
matter and requested that Sapienza attempt to resolve the
problem with Posato and Cantwell, Sapienza said that he
did not want to get in the middle of this problem.
The judge found that, following Liller’s visit, Zakof-
sky began using another casual driver even though Hayes
was available for work. Morin phoned Zakofsky at the
end of May and said that the Union had accepted the deal
and that Zakofsky should post the new bids for start
times. Liller’s diary showing phone calls that he made
and received, which was introduced into evidence at the
hearing, has the following entry for May 23 regarding a
call from Morin.

Ron Morin—3:33 PM
(a) P&D “sick” Rochester.
(b) Frank Prata. [sic]11
(c) Bid OK–60 days—10 hr. peddle, shuttles, varied
starts.
(d) W. Z. not using as we have asked!12

Liller admitted in his testimony that he did not learn of
Hayes’ accident until the following day, May 24, when
Morin called to tell him of this incident.13
The judge found that Zakofsky changed his mind
about “not using” Hayes later in May and again began
calling Hayes to work as a casual driver. On June 6,

11 It appears that Liller was referring to the Union’s president, Frank
Posato, and incorrectly spelled Posato’s last name in his phone log.
12 The judge found that item (c) of the log entry referred to the start-
ing time agreement with respect to its substantive terms. While ac-
knowledging that Hayes’ name did not appear in the May 23 log entry,
he found that item (d) referred to the Hayes situation. In this regard,
the judge concluded that Liller’s May 23 entry in his phone log was
consistent with Zakofsky’s testimony that Liller and Morin had previ-
ously told him to stop using Hayes and that Zakofsky at this point had
followed their orders. Thus, after reviewing that phone log entry, the
judge found that “it shows that on May 23, Morin called Liller and told
him that the Union had accepted the company’s proposal regarding the
starting times and that as per the previous requests of Liller and Morin,
Wayne Zakofsky was not using Hayes anymore.
13 Liller also testified that he had never heard of Hayes until May 24,
but the judge found that this claim “is contradicted by his diary entry of
May 23.”
Liller called Zakofsky and asked him why Hayes was
working again. Liller insisted that Zakofsky had to get
rid of Hayes, who Liller noted was only 4 days short of
attaining “preferred status” under the contract with ac-
cess to the grievance procedure. Later that day, Zakof-
sky sent Liller a four-page e-mail message in which he
refused to discharge Hayes because he believed that the
Union was attempting to “blackball” him.
On June 7, Liller again called Zakofsky and reiterated
that he had to get rid of Hayes. When Zakofsky ob-
jected, Liller said that he had a plane to catch and that
Zafofsky had 30 seconds to make up his mind to dis-
charge Hayes or else Liller would discharge Zakofsky.
Zakofsky immediately agreed to terminate Hayes. The
next day, when Hayes visited the terminal to get his pay-
check, Zakofsky said that Red Star was not going to em-
ploy him any longer.
On June 9, Liller phoned Zakofsky and asked why he
had not entered the accident involving Hayes into Red
Star’s computer.14 Zakofsky replied that he had not done
this because it was a minor accident involving minimal
damage that the mechanic had quickly repaired. Later
that day, Zakofsky sent an e-mail to Liller stating his
reasons for not entering Hayes’ accident into the com-
puter and complaining about Red Star and the Union
trading an employee’s job for more favorable work rules.
Thereafter, on June 12, Red Star’s president, Fred Rat-
ner, called Zakofsky and asked about Hayes’ accident.
When Zakofsky wanted to discuss the “racketeering
that’s going on,” Ratner said he knew nothing about
racketeering and hung up. Liller then went to the Roch-
ester terminal on June 21, and informed Zakofsky that
Red Star was terminating him for failing to report Hayes’
accident on the computer.
1. Red Star unlawfully discharged Hayes
In adopting the judge’s finding that Red Star unlaw-
fully acceded to the Union’s demand that it discharge
Hayes, we stress that Red Star had a difficult time find-
ing qualified drivers, such as Hayes, who were willing to
drive on a casual basis. Thus, Red Star hired Hayes as a
casual in 1994 and again in 1995 after RMA/Kolko laid
him off. The record shows that Red Star had no prob-
lems with Hayes’ driving before his minor accident on
April 28, described above.
On his return to Red Star’s employ in January 1995,
Hayes told Zakofsky that he thought that the Union was
attempting to blackball him because of his internal union
politics. Cantwell, who had defeated Hayes in the union
election, later made derogatory remarks to Zakofsky
about Hayes’ employment with Red Star that tended to
confirm Hayes’ view of the situation. Indeed, Cantwell
directly asked Zakofsky why he was still using that
14 Although the judge found that Liller and Zakofsky spoke on June
8, the record shows that this phone conversation actually occurred on
June 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56
“scumbag” while referring to Hayes. Morin, the Re-
spondent’s management official, later told Zakofsky that
Cantwell had described Hayes as a “troublemaker.”
Morin subsequently informed Zakofsky in early April
that the Union wanted Red Star to cease employing
Hayes as a casual driver.
We agree with the judge that, when Red Star and the
Union met on April 28 to discuss the Union’s proposal
regarding starting times, Posato implicitly referred to
Hayes’ discharge (in telling Red Star’s officials that they
knew what he wanted in return for the Union’s accep-
tance of Red Star’s proposals). We note that Red Star
has argued that Posato’s comment had nothing to do with
Hayes’ employment status. Red Star relied on Posato’s
testimony that, while conceding he made this remark, he
was referring to his desire to have the Rochester drivers
represented by his local haul freight all the way to Buf-
falo, providing them with additional work. We find that
the judge properly rejected this argument because the
evidence clearly shows that both Red Star and the Union
desired this change and that each side knew it. For this
reason, we do not find that the extension of the Rochester
drivers’ runs from Batavia to Buffalo was any kind of
concession on Red Star’s part to the Union.
Furthermore, Morin’s remark to Zakofsky on April 28,
after briefly meeting in private with Posato, that Hayes
“was gone” provides additional support for the judge’s
conclusion that Hayes’ discharge was the quid pro quo
for the Union’s agreement on starting times. We stress
that Morin subsequently called Zakofsky and asked if he
was “weeding Hayes out.” After Zakofsky objected to
doing this, Zakofsky’s direct superior, Liller, visited the
Rochester terminal and told Zakofsky that Hayes had to
go because of the negotiations. Although Liller’s diary
entry for May 23 that “W. Z. not using as we have
asked!” may not quite be “a ‘smoking gun’’’ as the judge
found, we do conclude from the timing of the events that
Liller’s written comment, occurring as it did shortly after
he visited the Rochester terminal and contemporaneous
with Zakofsky’s ceasing of Hayes’ services, also tends to
establish that Red Star wanted to discharge Hayes in or-
der to satisfy the Union.15 Thus, for the reasons stated

15 Red Star argues that Zakofsky testified that he did not stop using
Hayes until after Memorial Day (which was May 29) and therefore the
telephone log entry cannot be read as the judge did. The General
Counsel responds, however, that, if Zakofsky didn’t stop using Hayes
until after Memorial Day, the log entry “W Z not using as we have
asked!” was a veiled reference to Zakofsky’s refusal to phase out
Hayes. In either event, we agree with the General Counsel that the
term “not using” refers to Hayes and belies Liller’s contention that the
first time he heard of Hayes was on May 24, the day after this phone
log entry.
Red Star also argues that the judge’s reading of part (d) of the tele-
phone log as referring to Zakofsky’s not using Hayes is inconsistent
with his alleged finding that on May 24, Liller called Zakofsky to tell
him not to use Hayes. It is not clear, however, that the judge, in fact,
credited Liller that he had made such a call. However, we note that the
judge did find Liller’s testimony confirmed by a diary entry on May 24
here, we find that the General Counsel has established by
a preponderance of the evidence that Red Star agreed to
the Union’s demand that it discharge Hayes, who the
Union sought to retaliate against for his internal union
activities.
Nor do we find that the Respondent has satisfied its
burden of establishing its defense that it would have dis-
charged Hayes because of the accident on April 28 even
absent its unlawful motivation. Red Star contends that
its policy requires the discharge of casual drivers who
have preventable accidents. However, the judge credited
testimony that Terminal Manager Zakofsky had discre-
tion to overlook minor accidents involving casual driv-
ers. As explained below, we find that the documentary
evidence offered by Red Star also fails to establish that
the Respondent’s policy requires the discharge of a cas-
ual driver who has a preventable accident, or that the
policy has been so applied.
As noted above, the judge credited Zakofsky’s testi-
mony that although the Respondent had a general policy
that casual drivers involved in preventable accidents
were subject to discharge, Zakofsky and other terminal
managers had been given discretion in enforcing the dis-
puted policy, including the authority to overlook minor
accidents not involving property damage. The credited
testimony included testimony about a specific instance in
which Liller expressly condoned Zakofsky’s decision to
keep using a casual driver who had a preventable acci-
dent, telling Zakofsky it was his “call.”16 In addition to
this credited testimony, it is undisputed that no casual
driver had been discharged for having a preventable ac-
cident at the Rochester terminal in the 10 years before
the hearing.
With respect to the documentary evidence presented
by Red Star in support of its alleged policy, we note first
the partial and selective nature of its record search. Liller
testified that “we requested our payroll department to go
to payroll records of terminated personnel files, and pull
for us records of casual employees.” (Emphasis added.)

stating “(c) Talk with Wayne—Hayes accident?” In his supplemental
decision, the judge generally found “the testimony of Mr. Liller was not
accurate.” Also, on May 24, Zakofsky, who generally was credited, did
not testify that such a phone call was made. More importantly, it is
clear that the judge discredited Liller that May 24 was the first time that
he had heard of Hayes in light of the telephone log entry of May 23,
which we found referred to Hayes’ situation. Moreover, if Liller did
make a phone call to Zakofsky on May 24 instructing him not to use
Hayes, and if this phone call was triggered by Liller’s receiving infor-
mation about Hayes’ accident, the judge nonetheless found that “given
the sequence of events, it [is] clear to me that the decision to discharge
Hayes was made by Morin and Liller before May 23, 1995; this being a
time before they discovered that Hayes had the accident.”
16 Liller was formerly a terminal manager at Newark before he be-
came vice president for terminals. At the time of the hearing, Liller
was a consultant to Red Star under a severance agreement. Our dis-
senting colleague’s assertion that the judge implicitly discredited Za-
kofsky’s testimony regarding Liller’s remark fails to take into account
the judge’s discrediting of the Respondent’s witnesses to the extent that
their testimony conflicted with Zakofsky’s.
USF RED STAR, INC. 57
Liller did not enlist a search of records of “preventable
accidents” (the PIVAs, i.e., preventable injury vehicle
accidents) and then determine the nature, if any, of the
discipline imposed on the casual driver involved. Thus,
the very nature of this limited search confirms only that
some casual drivers have been discharged for “prevent-
able accidents,” a fact that is not in dispute. It does not
show that all casual drivers who have had such accidents
have been discharged.
Next, we note that even those documents that were en-
tered into evidence are of limited value in establishing
the existence of any policy requiring the discharge of
casual drivers involved in preventable accidents. Red
Star has approximately 32 terminals in the eastern United
States and the produced documentary evidence is from
only 13 terminals.
Further, of 36 incidents documented by Red Star, 4 in-
volve “probationary” employees.17 Two of the exhibits
consist only of an accident report with no indication of
either the driver’s employment status or reason for the
discharge. Another eight documents give either a reason
other than an accident or reasons in addition to an acci-
dent for the discharge. One from the Philadelphia ter-
minal indicates that the driver voluntarily resigned. One
from Syracuse notes the driver is “no longer available for
work.” One from the Hartford terminal records the cas-
ual driver’s discharge as due to the failure to report the
accident to the dispatcher, while a letter from the Re-
spondent to the driver cites both the failure to report the
accident and the driver’s failure to operate the vehicle in
a safe manner. One from the Respondent’s Boston op-
eration, states “better qualified applicants, preventable
accident.” Two state only that the driver “does not meet
TNT Red Star Express Standards.” One simply notes
“disqualified,” while another states only that the driver
has not worked since the accident.
Of the remaining 22 records indicating that the driver
was discharged for an accident or a “preventable acci-
dent,” 1 contains the qualification that the discharged
driver was a “new hire.” Fifteen of these reports, includ-
ing one recommending that the driver be rehired, concern
accidents involving either damage to a customer’s prop-
erty including fences, signs, guardrails, and equipment,
or accidents involving other vehicles. Only seven docu-
ments concern discharges resulting from damage to Red
Star’s equipment, and each of these accident reports de-

17 Two of these reports list the employment status as “contract” not
“casual,” and the written explanation for these discharges is
“[p]robationary employee terminated in accordance with Article 3,
Section 2 of the National Master Freight Agreement.” The third lists
the employment status as “regular full time” and the reason for termina-
tion as “failing to report an accident.” The fourth involves a
“[p]robationary employee” discharged for “unsatisfactory work per-
formance.”
tail damage more extensive and costly than the $15 in
labor costs to repair Hayes’ truck.18
We find that this evidence is insufficient to establish
that the Respondent had a policy of discharging all cas-
ual employees involved in preventable accidents, and
that it therefore would have discharged Hayes because of
his accident, absent his protected activity.
Accordingly, we find that Red Star’s reliance on
Hayes’ minor accident as the basis for discharging him
was pretextual. The real reason, as we have found, was
that Red Star had promised the Union that it would dis-
charge Hayes in exchange for the Union’s concessions
on the drivers’ starting time. There is no other explana-
tion for Red Star’s reliance on this minor incident as the
ground for discharging an otherwise satisfactory em-
ployee who worked in a job Red Star had difficulty fill-
ing. In reaching this conclusion, we reiterate that Red
Star has not shown that Liller and Morin even knew of
Hayes’ April 28 accident before Morin had agreed on
April 28 that the Respondent would discharge Hayes in
exchange for the Union’s concessions on starting time.
Indeed, as the judge found, the evidence shows that Lil-
ler and Morin had decided to discharge Hayes and that
Zakofsky had briefly stopped “using” Hayes before these
management officials learned of Hayes’ minor accident
on May 24. For these reasons, we reject Red Star’s ar-
gument that Hayes’ accident of April 28 provided an
intervening cause that enabled Red Star to discharge
Hayes for job misconduct without violating the Act. We
therefore conclude that Red Star has violated Section
8(a)(3) and (1) of the Act by effectuating the Union’s
demand that it terminate Hayes as a casual driver.19
2. The Union caused Hayes’ discharge
The same factors that we cited in finding that Red Star
unlawfully discharged Hayes also support our conclusion
that the Union caused this discharge in violation of Sec-
tion 8(b)(1)(A) and (2). In arguing for a contrary result,
18 Our dissenting colleague characterizes 4 of the 36 incidents docu-
mented by Red Star as “comparable” to Hayes’ accident. We disagree
with this characterization. The incident involving Oviatt resulted in
damage to his truck as well as to a customer’s property, namely; “pull-
ing a guardrail away from its post.” The incidents involving Smith and
Riley resulted in damage to their vehicles more costly than the damage
to Hayes’. Although the incident report involving Link notes that there
was no damage to his vehicle, Link describes the accident as “backing
into loading dock” while another vehicle tried to pass. Further, the
filing of an automobile accident report with the Respondent’s insurance
carrier suggests that both the driver and the Respondent expected an
insurance claim due to property damage resulting from the incident.
19 Red Star has also argued that the Board should deny Hayes’ rein-
statement because he did not list two of his previous employers on the
job application that he submitted to it. We note, however, that the
evidence shows that Hayes specifically mentioned to Zakofsky, Red
Star’s hiring official, that his application did not include all of his prior
employers during their job interview. Thus, it is clear that Zakofsky
accepted the application and hired Hayes knowing that his application
was missing this information. For this reason, we reject Red Star’s
argument that Hayes is not entitled to reinstatement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
the Union has stressed that the judge relied extensively
on statements made by Morin, Red Star’s agent, to sup-
port his finding that Hayes’ discharge was the quid pro
quo for the Union’s concessions on starting times. The
Union asserted that those adverse statements that Zakof-
sky attributed to Morin, who was unavailable as a wit-
ness due to his death, constituted objectionable hearsay
and therefore were inadmissible as evidence against the
Union. We reject the Union’s argument for the reasons
stated below.
Rule 801(d)(2)(E) of the Federal Rules of Evidence
permits the admissibility of Morin’s statements against
the Union if the evidence shows that Morin made them
“during the course and furtherance of [a] conspiracy”
between Red Star and the Union that resulted in Hayes’
discharge. We find that there is sufficient evidence here,
independent of the hearsay statements attributed to
Morin, of the Union’s animus towards Hayes to warrant
treating the Union as a co-conspirator in pursuing this
unlawful objective. In so concluding, we rely on the
derogatory remarks about Hayes that Cantwell made to
Zakofsky in early 1995, and in particular Cantwell’s in-
quiry concerning why Zafofsky was still using that
“scumbag.” We also stress the comments that Posato
made to Zakofsky and Morin at the end of the bargaining
session on April 28, when he told them that “you know
what I want” in return for the Union’s concessions on
starting times. We have concluded above that the most
logical inference emanating from Posato’s statement is
that the Union wanted Red Star to discharge Hayes as a
concession for relinquishing the longstanding restriction
on starting times. We therefore find that the conduct of
Union Agents Cantwell and Posato tends to establish by
a preponderance of the evidence that there was a conspir-
acy between the Union and Red Star to terminate Hayes’
employment.
Based on this evidence implicating the Union as a co-
conspirator in Hayes’ unlawful discharge, we find that
Morin’s statements to Zakofsky “in furtherance of the
conspiracy” are attributable to the Union as a participant
in this unlawful scheme under Rule 801(d)(2)((E). Thus,
the Union, as well as Red Star, bears responsibility for
Morin’s conduct as he sought to arrange Hayes’ dis-
missal in order to satisfy the Union’s bargaining demand.
We therefore adopt the judge’s finding that the Union
violated Section 8(b)(1)(A) and (2) of the Act by causing
or attempting to cause Red Star to discharge Hayes.
3. Red Star violated Section 8(a)(1) by discharging
Zakofsky
In adopting the judge’s finding that Red Star unlaw-
fully terminated Zakofsky, we stress that Red Star had
employed Zakofsky as the Rochester terminal manager
for 11 years and that, as the judge found, there was no
showing that he was anything but competent while work-
ing in this capacity. Further, as stated, the evidence
shows that Red Star informed Zakofsky that he should
use his own discretion in managing terminal operations.
We have concluded that Zakofsky thought that he was
acting pursuant to the discretion that Red Star had af-
forded him when he did not discharge Hayes after Hayes
had a preventable accident that involved a mere $15 in
damages. Zakofsky’s action also was consistent with the
comments made to him by the Buffalo and Syracuse ter-
minal managers that, in some instances, they would not
overlook minor accidents caused by casual drivers be-
cause of the difficulty in replacing them. We also note
that, as Zakofsky testified, this minor accident was ex-
actly the kind of event that, if Liller and Morin had
known about it, they would have utilized as a pretext to
terminate Hayes while fulfilling Red Star’s agreement
with the Union.20
For these reasons, we conclude that Red Star has failed
to demonstrate that Zakofsky engaged in any misconduct
that would have caused Red Star to discharge him for
legitimate reasons. Thus, we agree with the judge that
Red Star seized on Zakofsky’s failure to report the acci-
dent to mask the actual reason for Zakofsky’s discharge
which was his refusal to participate in the unlawful
scheme with the Union to get rid of Hayes. In reaching
this conclusion, we rely on the evidence that Zakofsky’s
discharge occurred less than 2 weeks after Red Star had
acceded to Hayes’ termination in violation of Section
8(a)(3). We also stress that, given Red Star’s failure to
assert at the time of Zakofsky’s discharge that his per-
formance as terminal manager was deficient in any other
respect, there can be no other reason that Red Star would
suddenly discharge a competent manager with 11 years’
tenure.21
Accordingly, we conclude that Red Star violated Sec-
tion 8(a)(1) of the Act by discharging Zakofsky because
he refused to participate in its unlawful conspiracy with
the Union to effectuate Hayes’ discharge. We find that
Zakofsky’s discharge in these circumstances was unlaw-
ful.
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusions of Law 3 and re-
number the subsequent Conclusion of Law.
“3. By discharging its terminal manager, Wayne Za-
kofsky, because he refused to follow orders requiring
him to discharge Hayes in violation of the Act, the Re-
spondent has violated Section 8(a)(1) of the Act.”

20 While Zakofsky failed to report the accident, that failure, as ex-
plained by the judge “was motivated by his refusal to be a part of the
illegal trade worked out between the Union and Morin for a start time
agreement in exchange for Hayes’ job,” and therefore was inextricably
tied to his justifiable belief that it would be used as a pretext to fire
Hayes.
21 Although Red Star has contended that, in any event, Zakofsky is
ineligible for reinstatement because he was derelect in his duties by
failing to report the accident, we find no merit to this position for the
same reasons stated above.
USF RED STAR, INC. 59
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, USF Red Star, Inc., a U.S.
Freightways Company, Rochester, New York, its offi-
cers, agents, successors, and assigns, and Local 118, In-
ternational Brotherhood of Teamsters, Rochester, New
York, its officers, agents, and representatives, shall take
the action set forth in the recommended Order.

MEMBER BRAME, dissenting.
Contrary to my colleagues, I would reverse the judge
and find that Respondent USF Red Star, a U.S. Freight-
ways Company (Red Star) has shown that it would have
discharged John M. Hayes even in the absence of his
internal union activities. Based on the evidence that
Hayes was a casual truckdriver who had a preventable
accident, I would find that Red Star lawfully terminated
Hayes, as fully discussed below, pursuant to its well-
established company rule that requires the discharge of
any casual driver causing such an accident. The judge’s
further findings that Respondent Teamsters (the Union)
violated Section 8(b)(1)(A) and (2) of the Act by its “ef-
ficacious demand” for Hayes’ discharge and that Red
Star violated Section 8(a)(1) of the Act by discharging
Terminal Manager Wayne Zakofsky because he refused
to participate in the alleged unlawful scheme to effectu-
ate Hayes’ termination are dependent on whether Red
Star unlawfully discharged Hayes and, as I would dis-
miss that allegation, I also disagree with the majority’s
and the judge’s findings of these additional violations.
The evidence shows that Red Star, a trucking com-
pany, rehired Hayes to work as a casual driver at its
Rochester, New York terminal in January 1995.1 Before
Hayes returned to Red Star, he was defeated as a candi-
date for secretary-treasurer of the Union by the incum-
bent, John Cantwell, in a hotly contested election. The
General Counsel presented evidence suggesting that
Cantwell, in particular, and also the Union’s president,
Frank Posato, were resentful that Hayes had run for of-
fice opposite their slate of candidates.
In March 1995,2 two trucking companies closed their
Rochester terminals resulting in jobs lost by the Union’s
members. Terminal Manager Zakofsky and Ron Morin,
Red Star’s director of field services, decided that in light
of this situation they would explore the possibility of
modifying the guaranteed starting time provisions for
drivers in the collective-bargaining agreement, which had
been in existence for years and which had greatly hin-

1 Hayes also had worked for Red Star as a casual driver the previous
year. Pursuant to Red Star’s collective-bargaining agreement with the
Union, Red Star can employ casuals to replace drivers, who are absent
due to vacation or illness, and may discharge casual drivers without
regard to the contractual grievance procedure, unless they work 45 days
in any 90-calendar day period at which time their discipline becomes
subject to the grievance provisions.
2 All dates are in 1995, unless otherwise noted.
dered Red Star’s ability to assign work on a cost-
effective basis.3 When Red Star raised this issue to the
Union, Posato invited Red Star to submit a bid for the
Union’s consideration. Red Star’s officials prepared a
bid proposal and scheduled a meeting with the Union, on
April 28, to discuss their proposal.
On the morning of April 28, Hayes had an accident
when he backed his truck into an overhanging steel beam
at a customer’s dock causing the rollup door on the back
of the truck to jam. Hayes immediately called Zakofsky
and reported the accident to him. When Hayes returned
to Red Star’s terminal, a mechanic pried open the truck
door and Hayes loaded the remaining freight onto an-
other truck to complete the deliveries. Zakofsky later
issued Hayes a written warning for the accident and gave
a copy of it to the shop steward. Although Zakofsky
placed a copy of the accident report that Hayes had pre-
pared in Hayes’ personnel record, in contravention of the
usual practice, he did not enter the accident on Red Star’s
corporate computer.
During the meeting on April 28, Morin and Zakofsky
presented a new proposal on starting times and threat-
ened to close the Rochester terminal if the Union did not
agree to it. The evidence may suggest that the Union
was willing to accept Red Star’s proposal if Red Star
terminated Hayes as a casual driver. It also appears that
Morin, who was deceased at the time of the hearing, was
willing to approve Hayes’ dismissal as the quid pro quo
for the Union’s concessions on starting times. Zakofsky
testified at the hearing, however, that he objected to the
proposed agreement because he thought that Red Star’s
discharge of Hayes in these circumstances would consti-
tute illegal racketeering.
In May, Morin phoned Zakofsky and asked whether he
had started “weeding Hayes out.” Red Star’s vice presi-
dent, Roy Liller, visited the Rochester terminal later in
May and instructed Zakofsky that he had to terminate
Hayes because of the union negotiations. On both occa-
sions, Zakofsky protested the orders directing him to
dismiss Hayes. Nonetheless, following Liller’s visit,
Zakofsky began using another casual driver even though
Hayes was available for work.
Some time thereafter, however, Zakofsky again as-
signed Hayes work as a casual driver. On May 24,
Morin phoned Liller and informed him of Hayes’ acci-
dent that Zakofsky had not reported. I am satisfied that
the judge found that on that day Liller called Zakofsky
and told him not to use Hayes.4 Red Star has a company
rule requiring that terminal managers automatically dis-
charge any casual driver who has a preventable accident.
3 These provisions guaranteed drivers a start time between 7 and
8:30 a.m. and required Red Star to pay overtime to any driver who
began work before 7 a.m. and to pay any driver who started after 8:30
a.m. as if the driver had started working at 8:30 a.m.
4 The judge found that Liller’s testimony on this point was “con-
firmed” by an entry in his diary for May 24.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60
Red Star also presented evidence at the hearing showing
over 30 instances in which it had discharged casual driv-
ers because they had preventable accidents. Thereafter,
on June 6, Liller called Zakofsky and insisted that he had
to get rid of Hayes. After another conversation on June 7
in which Liller threatened Zakofsky with discharge if he
failed to follow orders on Hayes, Zakofsky told Hayes
the following day that Red Star was discharging him.
Red Star later terminated Zakofsky on June 21, because
he violated company policy by failing to report Hayes’
accident on Red Star’s computer.
Assuming arguendo there is evidence here suggesting
that Red Star and the Union had agreed to an unlawful
scheme that would have caused Hayes’ discharge, I
would find that the accident Hayes had on April 28 was
an intervening occurrence that provided Red Star with a
lawful reason to discharge him. Here, there is no dispute
that Hayes had a preventable accident when he backed
into the customer’s dock that day. It is also clear that
Red Star, as the majority and the judge have conceded,
has an established policy requiring the discharge of any
casual driver who has a preventable accident. Thus,
Hayes’ preventable accident provided Red Star with a
lawful reason to discharge him notwithstanding any evi-
dence that Red Star was in the process of “weeding [him]
out” for reasons violative of the Act.5 My colleagues’
and the judge’s reliance on evidence that Red Star may
have decided to discharge him before learning of the
accident is misplaced in this case where, through his own
negligence, Hayes had a preventable discharge that
would have caused his discharge in any event.6
Furthermore, as stated, Red Star introduced into evi-
dence at the hearing over 30 accident reports of prevent-
able accidents involving casual drivers, along with
change of employment status reports showing that these
preventable accidents had resulted in the causal driver’s
termination in every case. Despite this overwhelming
evidence demonstrating the consistency of Red Star’s

5 In passing, I note that my colleagues and the judge interpret Liller’s
diary entry of May 23 as establishing that the Respondent had stopped
using Hayes as a casual driver before Liller and Morin learned of
Hayes’ accident the following day. I have some misgivings about this
finding based on the factual controversy in the record as to the exact
date that the Respondent ceased employing Hayes. Thus, Zakofsky
himself testified that he stopping giving Hayes any work assignments
“right after Memorial Day,” which was May 29 that year. I also note
that the General Counsel, in his reply brief to the Respondent’s original
exceptions, suggested a different interpretation of the May 23 diary
entry by asserting that Liller’s comment that “W. Z. not using as we
have asked!” was a veiled reference to Zakofsky’s refusal to phase out
Hayes. For these reasons, although it is not critical to my decision in
this case, I do not find that this record neatly establishes the timeline
that it necessary for the finding of a violation under the majority’s and
the judge’s view of the case.
6 See Mission Valley Ford Truck Sales, 295 NLRB 889, 892–895
(1989), in which the Board adopted the judge’s finding that the em-
ployer lawfully discharged a mechanic for failing to perform assigned
work 1 day after the employer threatened him with discharge because
of his union activities.
practice with respect to casual drivers, the judge found
that Red Star had failed to establish “whether every cas-
ual driver having a preventable accident was invariably
discharged.” The judge, in effect, required Red Star to
prove the negative.7 Red Star, however, satisfied its bur-
den by introducing evidence of its inflexible rule and 30
instances of consistent enforcement. The General Coun-
sel introduced no specific evidence that Red Star ever
ignored, forgave, or declined to act on any preventable
accident by a casual driver.8 Indeed, the Board has found
that an employer has acted consistently with its past
practice in discharging an employee based on much less
supporting evidence than exists here.9 In short, Red
Star’s evidence fully supported the negative proposition
that it allowed no exceptions to its general policy of dis-
charging every casual driver who has a preventable acci-
dent. The General Counsel had the opportunity to pre-
sent evidence of exceptions but failed to provide it. Al-
though my colleagues conclude that Red Star’s defense
7 In finding that the Respondent had not met its burden here, the
judge engaged in what one might call the “fallacy of fairness,” a prac-
tice whereby those who both decide a case and also establish the evi-
dentiary burden that a party must satisfy to win, first satisfies the re-
quirement of fairness by fixing an evidentiary burden, which just hap-
pens to exceed a party’s ability to satisfy it from the record, and then
“impartially” finds that the party must lose because of its failure to
meet this burden. This fallacy is akin to what Thomas Sowell has
called the “precisional fallacy”: “the practice of asserting the necessity
of a degree of precision exceeding that required for deciding the issue
at hand. Ultimately there is no degree of precision—in words or num-
bers—that cannot be considered inadequate by simply demanding a
higher degree of precision.” Thomas Sowell, Knowledge and Deci-
sions, 291 (HarperCollins, 1980, 1996) (emphasis in original).
8 My colleagues claim that the “credited testimony included testi-
mony” that, in one instance, Liller allowed Zakofsky to decide whether
to retain an unnamed casual driver who had a preventable accident.
Although the judge credited significant aspects of Zakofsky’s testi-
mony, I note that, contrary to the majority’s intimation, the judge did
not credit Zakofsky’s testimony regarding this alleged incident. In-
deed, the judge failed to discuss this evidence that my colleagues rely
on in either of his decisions here. Nor can my colleagues claim that the
judge credited Zakofsky on all his testimony. For example, Zakofsky
initially testified that he had discretion not only not to discharge casuals
with preventable accidents but also not to report such accidents. He
later recanted such testimony and the judge found he had no discretion
to fail to report accidents. I further note that the judge specifically
found that “this type of situation has not arisen” at either the Respon-
dent’s Rochester or Buffalo terminals for the past 10 years. For all
these reasons, including Zakofsky’s failure to provide any specific
information regarding the casual driver he purportedly did not termi-
nate, I find that the judge either implicitly discredited Zakofsky’s testi-
mony on this point or the incident Zakofsky was referring to happened
so long ago that it is no longer relevant here.
9 Merillat Industries, 307 NLRB 1301, 1303 (1992) (employer justi-
fied discharge by demonstrating that it had discharged one other em-
ployee for theft even though the circumstances were not “on all fours”
with the situation there). See also West Covina Disposal, 315 NLRB
47, 63–64 (1994) (no unfair labor practice found in Carrillo’s discharge
where the employer had discharged one other employee who had an
“at-fault” accident during the same time period); Norbar, 267 NLRB
916, 918 (1983), modified on other grounds 752 F.2d 235 (6th Cir.
1985) (employer lawfully discharged driver Tucker based on evidence
showing that it had discharged four other drivers for similar accidents).
USF RED STAR, INC. 61
was pretextual based on Zakofsky’s vague testimony that
he and two other terminal managers may have ignored
accidents by casual drivers because of the difficulty they
had in finding qualified casual drivers, I stress that Za-
kofsky did not provide even one specific example of an
instance in which they purportedly made exceptions to
Red Star’s general policy. I also find it immaterial that
Hayes’ preventable accident resulted in only minor dam-
age to the vehicle absent evidence that Red Star’s policy
differentiates among accidents according to the gravity of
such accidents.10 Therefore, contrary to the judge and
my colleagues, I would find that Red Star has shown that
the asserted reason for Hayes’ discharge was not pretex-
tual based on the evidence that it has a uniform practice
of discharging casual drivers who have preventable acci-
dents.11
For these reasons, I would find that, although the Gen-
eral Counsel may have presented a prima facie case that
Red Star unlawfully discharged Hayes, Red Star demon-
strated that it has consistently discharged other casual
drivers who have preventable accidents and that its dis-
charge of Hayes was consistent was that practice. Ac-
cordingly, I would conclude that Red Star satisfied its
burden under Wright Line in this case when it established
by a preponderance of the evidence that it would have
discharged Hayes even in the absence of his union activi-
ties. Because as litigated by the General Counsel the
remaining allegations involving Hayes and former Ter-

10 Although my colleagues try to blur this issue by scrutinizing the
Respondent’s records of these accidents and raising concerns that even
the General Counsel did not raise (and thus denying the Respondent the
opportunity to respond), my own examination of the records discloses
that a number of these accidents were no different in degree and kind
than Hayes’ incident, particularly considering the size of the vehicles
involved. For example, the Respondent discharged casual driver James
Riley for striking the truck’s left front bumper on a store retaining wall
and scratching the bumper-fender light. In another instance, the Re-
spondent terminated casual driver Donald Link for a preventable acci-
dent that apparently caused no damage to Link’s truck or anyone else’s
property. While Link’s employee data change authorization form indi-
cates that he “[d]oes not meet company requirements [accident]”, it
seems to me that the Respondent was simply explaining that Link had
been discharged for violating its policy regarding casual drivers who
have preventable accidents. In another case involving a casual driver,
the Respondent discharged George Oviatt after he “scrape[d]” the tires
of his truck on a snowy day in a “[d]elivery area that had not been
plowed” causing minor damage to the customer’s guardrail. Finally,
the Respondent discharged casual driver Alfred Smith, with a notation
on the accident report identical to that Link received on his, because his
truck incurred damage to the right door and mirror, even though Smith
claimed on the accident report that he was not driving the vehicle when
the accident occurred. In short, Hayes’ accident was comparable to
those of Riley, Link, Oviatt, and Smith, which also had warranted dis-
charge under the Respondent’s policy on such incidents.
11 See Transcon Lines, 259 NLRB 1424 (1982), in which the Board
similarly found that the employer had shown that it uniformly followed
its practice of discharging casual drivers who have preventable acci-
dents; and Synergy Gas Corp. v. NLRB, 19 F.3d 649, 653 (D.C. Cir.
1994), modifying in relevant part 309 NLRB 179 (1992) (employer
consistently followed its practice of discharging drivers involved in
serious accidents).
minal Manager Zakofsky are, as stated, dependent on the
lawfulness of Red Star’s termination of Hayes, I would
dismiss the complaint in its entirety.

Doren Goldstone, Esq., for the General Counsel.
Paul M. Sansoucy, Esq. and Subhash Viswantathan, Esq., for
the Respondent Employer.
Michael T. Harren Esq., for the Respondent Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Rochester, New York, on July 8–11, 1996. The
following charges were filed against the Respondent, USF Red
Star, Inc., a U.S. Freightways Company,1 in Case 3–CA–19698
was filed by Zakofsky on October 20, 1995, and an amended
charge was filed by him on November 6, 1995. The charge in
Case 3–CB–6734 was filed by Hayes on January 17, 1995. The
charges in Cases 3–CA–19739 and 3–CB–6894 were filed by
Hayes on November 20, 1995.
On April 30, 1996, the Acting Director for Region 3 of the
National Labor Relations Board (the Board) issued an amended
consolidated complaint alleging as follows:
1. That in or about, September 1994, the Union by a junior
shop steward, promised John Hayes a good job with benefits, if
he would withdraw his candidacy for a union office.
2. That from March 1995 until June 8, 1995, the Union had
repeatedly requested that Red Star discharge Hayes.
3. That the reason the Union requested the discharge of
Hayes was because of his protected intraunion activities and for
reasons other than his failure to tender uniformly required ini-
tiation fees and periodic dues.
4. That on June 8, 1995, the Respondent, Red Star, acceded
to the Union’s request and discharged its employee Hayes.
5. That on or about June 21, 1995, Red Star discharged its
Terminal Manager Wayne Zakofsky because he refused to
commit an unfair labor practice, to wit: refusing to discharge
Hayes in a manner that would conceal the Company’s unlawful
motive.
6. That by requesting and obtaining the discharge of Hayes
the Union violated Section 8(b)(1)(A) and (2) of the Act.
7. That by acceding to the Union’s request for the discharge
of Hayes, the Company violated Section 8(a)(1) and (3) of the
Act.
8. That by discharging Supervisor Zakofsky because he re-
fused to participate in or coverup an unfair labor practice, the
Company has violated Section 8(a)(1) of the Act.
FINDINGS OF FACT
I. JURISDICTION
It is admitted and I find that the Company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
1 Although the original caption of the case indicated that the Em-
ployer’s names was TNT Red Star Express, Inc., the correct name of
the Company is USF Red Star Inc., a U.S. Freightways Company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62
II. ALLEGED UNFAIR LABOR PRACTICES
The Company is engaged in the freight business and operates
about 32 trucking terminals in the eastern United States. Each
terminal has a manager who is in charge of its operations and
supervises various categories of employees including, drivers,
dockmen, mechanics, clerical employees, sales people, and
other nonmanagerial employees. In Rochester, the terminal
was managed by Wayne Zakofsky who had been employed in
that capacity for 11 years. At this terminal, there were about 30
drivers and dockmen, plus, 3 clericals and 1 mechanic. John
M. Hayes, at two separate times, was employed as a casual
truckdriver at the Rochester terminal.
The Company is party to the National Master Freight
Agreement with the International Brotherhood of Teamsters,
Chauffeurs and Warehousemen of America and the employees
at the Rochester terminal are represented by Teamsters, Local
118. At appendix B of the agreement (G.C.Exh. 4 at p. 226),
there is a local arrangement covering starting times between the
Company and Local 118 which affects the Rochester operation.
Without going into details at this point, it is noted that this
provision becomes important later in this story.

Hayes has been a member of Local 118 since 1977 and was
employed by a company called Sexton Food until it closed its
Rochester operations in 1993. In February 1994, Hayes ob-
tained employment as a casual driver for Red Star and worked
on an irregular basis until the summer of 1994 when he ob-
tained employment at another local company called
RMA/Kolko which also had a contract with Local 118. Hayes
was laid off at Kolko in October 1994. After this layoff, Hayes
complained to the NLRB’s Regional Office that the Union had
caused his termination and this allegation was dismissed by the
Regional Director who stated, inter alia:

[T]he investigation revealed that you were hired as a tempo-
rary driver under the terms of the collective-bargaining
agreement between the Employer and Local 118. At the end
of the Employer’s busy season when drivers returned from
vacations and disability leaves, your temporary employment
was terminated. At the time of your termination, the em-
ployer also terminated another seasonal employee for the
same reasons.

In January 1995, Hayes returned to work at Red Star as a
casual drive.2 Both Hayes and Zakofsky testified that Hayes
told Zakofsky that he believed that the Union’s leadership was
out to blackball Hayes because he had recently run for union
office. Zakofsky assured him that he would not be pressured
by the Union. Hayes worked at Red Star until June 8, 1995,
when he was fired. As noted above, the General Counsel con-
tends that Hayes was discharged as a result of the Union’s de-
mands for his discharge and that Zakofsky was, thereafter, dis-
charged because he opposed the Company’s decision to dis-
charge Hayes. The Respondents contend that Hayes was dis-
charged because he got into a preventable accident while on
2 Pursuant to the terms of the collective-bargaining agreement (at p.
150), a casual employee is one who may be used by the Employer to
cover jobs caused by vacation, sickness, absenteeism, etc. A person
employed as a casual may be terminated without recourse to the griev-
ance procedure. If a casual employee works 45 days in any 90-calendar
day period, his status is changed to someone with preferred status and
becomes subject to the grievance/arbitration procedures of the contract.
duty and that Zakofsky was discharged because he failed to
report Hayes’ accident as required by company policy.
At this point, it is necessary to backtrack to discuss the rela-
tionship between Hayes and Local 118.
While employed at Sexton, Hayes had been a union shop
steward. In December 1988, Hayes ran for the position of re-
cording secretary on the same slate as Frank Posato who ran for
president. Both were elected. Hayes was reelected to this posi-
tion in 1991. In 1993, the Union’s secretary-treasurer, Tony
Valenti, left to take a position with the International Union and
Valenti asked Hayes to take his place until a new election could
be conducted. In the spring of 1993, Hayes lost a special elec-
tion to John Cantwell who became the Union’s secretary-
treasurer. (In the 1988 elections, Cantwell had run and lost for
the position of secretary-treasurer on a slate opposed to Posato
and Hayes. In 1991, Cantwell had lost to Valenti for this same
position.)
Another round of elections were scheduled for December
1994 and in September, Hayes started to campaign for the posi-
tion of secretary-treasurer on a slate that included Valenti who
had returned to the local union and was running for the position
of president. According to the testimony of Posato, this elec-
tion campaign was vigorous and both sides were throwing dirt.
He described the campaign as hotly contested and more so than
in the past. In any event, the elections were held in December
1994 and Posato and Cantwell retained their positions, while
Hayes and Valenti were defeated.
Hayes testified that in September 1994, a junior union shop
steward, Michael Villarealle, spoke to him and said that if he
would back out of the election, Cantwell would see that Hayes
would get a full-time job with benefits. Villarealle denied this
statement. He did however testify that during a conversation he
had with Hayes, he expressed his disgust at the negative tone of
the election campaign and urged Hayes not to tear down his
opponent. Thus, without making any conclusion as to who was
slinging the most mud, Villarealle’s version of this conversa-
tion confirms that the election campaign was heated and could
easily have aroused personnel hostilities among the campaign-
ers.
As noted above, Hayes obtained the job at Red Star in Janu-
ary 1995 and obtained Zakofsky’s assurance that he would not
accede to any attempts by the Union to blackball him. It is
noted that Hayes and Zakofsky are not related and did not have
any social connections apart from their employment at Red
Star.
Zakofsky testified that on several occasions during January,
February, and early March 1995, Cantwell made adverse re-
marks about Hayes and asked if he was still employed by the
Company. Zakofsky testified that he responded that Hayes was
doing his job and that he did not want to get involved in union
politics. Cantwell denies making the disparaging statements
about Hayes and denies asking Zakofsky to discharge him.
At about this time, there was talk amongst the shop employ-
ees and speculation that the Union might be out to blackball
Hayes. For example, John Backman, the salesman, testified
that on a couple of occasions, Wayne Zakofsky told him that
there seemed to be blackballing going on with respect to Hayes
and that Zakofsky did not want to be a part of it. Also, com-
pany driver, Larry Palmensano, testified that when he asked
Shop Steward Frank Sapienza what was going on with Hayes
(everyone thinking that he was being blackballed); Sapienza
USF RED STAR, INC. 63
said that he should stay out of it; that he “didn’t want to see
anything happen to you.’’
According to Zakofsky, in early March 1995, he received a
phone call from Ron Morin, the Company’s director of field
services who asked who Hayes was. Zakofsky testified that
Morin further stated that he had spoken to Cantwell who said
that Hayes was a troublemaker. Zakofsky states that he told
Morin that he had no trouble with Hayes. As Morin is de-
ceased, neither the Company nor the Union could rebut this
testimony. For purposes of this decision, I will assume that
Morin would have denied it. Although Roy Liller, then the vice
president, testified that he believed that Zakofsky’s allegation
that the Union was seeking Hayes’ discharge was made up of
whole cloth, Backman testified that Zakofsky told him that
Hayes’ discharge was being made a quid pro quo for something
else and that Ron Morin had told him not to use Hayes any-
more.
In March 1995, two other unionized companies moved their
freight terminals from Rochester to Buffalo. Zakofsky, noting
the loss of union jobs in the area, surmised that this might be an
opportune time to press the Union to make some concessions in
the contract; specifically the provisions governing start times,
which were peculiar to those companies having contracts with
Local 118. In this regard, the contract guaranteed employees
represented by this Local, a start time between 7 and 8:30 a.m.
and required the Company to pay overtime rates to anyone who
was scheduled to begin work before 7 a.m., irrespective of how
many hours that person worked during that day. Moreover, if
the Employer wanted to schedule an employee to start after
8:30 a.m., it could do so, but would be required to pay the em-
ployee as if he began at 8:30 a.m. Needless to say, the Com-
pany viewed the start-time provisions as being a hindrance to
its ability to have flexibility in the assignment of employees.
This was becoming increasingly important because of the com-
petition from other companies who were offering next day de-
livery, which could not be matched unless the Company had
more flexibility in making assignments.
Zakofsky testified that he met with Cantwell and Union
President Frank Posato in early March 1995 and told them that
he wanted to talk about modifying the start time provisions of
the contract. He states that Posato said that if Zakofsky pre-
pared a proposal, he would consider it. In a letter dated March
16, 1995, Zakofsky wrote to Posato as follows:

It was a pleasure meeting with you recently concerning
the future growth of TNT Red Star and the cooperation
which is needed by both Union and Management to ensure
our success.
Frank, as I explained, the overnight service is a must
for TNT Red Star to be competitive in our market place.
We can no longer operate the same today as we did over
the years. The industry has changed and is changing every
day.
Your willingness to listen, and talk to the men about
some of the issues is appreciated. As we agreed, I will
come up with a tentative plan, and hopefully we can work
together to improve TNT Red Star’s future success in
Rochester.

According to Zakofsky, after his meeting with the Union, he
spoke to Roy Liller, the Company’s vice president in late
March or early April 1995. Zakofsky states that he obtained
authorization to draft a proposal. This he did and sent copies to
Liller and Ron Morin. After reviewing the draft, Liller told
Zakofsky during a conference call also participated in by
Morin, that his proposal did not go far enough and that the
Company was going to “go the full 9 yards.’’ Liller further told
Zakofsky that Morin was going to handle the negotiations with
the Union and that Morin was going to make it plain to the
Union that unless they agreed to the Company’s proposals, the
Rochester freight operations would be closed and moved to
Buffalo.
In this regard, Liller testified that although he would have
prepared to keep the Rochester facility open to take care of
local customers, he was prepared to close it if the Union did not
give substantial concessions on the start-time issue as these
changes were needed to coordinate Rochester’s nonlocal deliv-
eries with the other terminals of the Company. As a conse-
quence of these discussions, Zakofsky sent a letter to Posato on
April 6, 1995, wherein he stated that there would be a delay in
forwarding the Company’s proposals.
Zakofsky testified that at some point after the conference call
and before he sent the April 6 letter, he received a phone call
from Morin who said that the Union wanted the Company to
stop using Hayes. According to Zakofsky, he ignored this re-
mark and continued to use Hayes as a casual employee when
needed. He states that he considered Liller to be his boss and,
therefore, felt that Morin had no authority to give him an order
to cease using Hayes.
April 28 1995 was quite a day for the participants in this
case.
On the morning of April 28, Morin came to the terminal to
go over with Zakofsky the bid proposal that they were going to
present to the Union that afternoon. Morin brought with him
various documentary materials to use to bolster the Company’s
argument. Before leaving for the meeting, Morin telephoned
Liller to review the Company’s goals.
Also on the morning of April 28, Hayes reported at his nor-
mal time and took out a truck on a delivery run. Noting that
Morin was at the terminal, Hayes testified that he was a “nerv-
ous wreck.” In any event, Hayes backed his truck into an over-
hanging beam at a customers loading dock and this resulted in
the rollup door on the back of the truck being jammed. Before
returning to the terminal, Hayes called and spoke to Zakofsky
about the accident. When Hayes returned to the terminal, he
reported the accident to dispatcher Dave Tabor. Zakofsky told
Tabor to transfer the freight to another truck, and to have Hayes
fill out an accident report but to keep the accident quiet. (At
the time, Morin was physically at the terminal.) The back door
was opened by using a motor and a pry bar but it would not
close. Hayes filled out the accident report and Tabor put it on
Zakofsky’s desk. Hayes then took another truck to complete
his deliveries. Thereafter, the door was “fixed’’ by mechanic
Roswell Wood who cut a hole in the roof and realigned the
rollers on which the door slid up and down. This took very
little time and at Wood’s rate of pay, cost about $15. As the
truck was over 10 years old and was otherwise banged up, no
further repairs were attempted on the truck and it was put back
in service.
Zakofsky decided not to discharge Hayes but to give him a
warning for this accident, which he viewed as being a prevent-
able accident. Zakofsky did not forward the accident report as
he was required to do and his reason for this was that he be-
lieved that if he did, his superiors, Liller and Morin, would use
this as a pretext to discharge Hayes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64
On the afternoon of April 28, Morin and Zakofsky met with
Union Representatives, Posato and Cantwell. At the outset of
the meeting, when the Company presented its proposal and
threatened to close the terminal, Posato took a tough posture
and responded that for all he cared, the Company could move
to Buffalo. Cantwell intervened and said that he was interested
in saving jobs; this leading to more fruitful discussions. Zakof-
sky testified that at the conclusion of the meeting, Posato said,
“Ron, you know what I want; if you want to negotiate this type
of contract, you know what I want.” According to Zakofsky,
Morin and Posato then met privately. He states that when he
and Morin were returning to the terminal, Morin said, “Jack
Hayes is gone.” Zakofsky states that when he objected, Morin
said that they had no choice and that if the Company wanted a
deal, Hayes had to go.
Frank Posato concedes that he did say to Morin, “[Y]ou
know what I want.’’ But, he explains that this remark was not
in any way associated with Hayes but rather was intended to
convey his message, that in consideration for the Company’s
proposed new starting time bids, he wanted the Rochester driv-
ers to be able to take loads all the way to Buffalo instead of the
current practice of dropping them off in Batavia and having the
loads picked up by Buffalo drivers. According to Posato, there
ultimately was an agreement on start times but that he was not
involved in that decision which was made by Cantwell.
Cantwell’s testimony corroborated Posato to the extent that
he also indicated that the quid pro quo sought for the Com-
pany’s proposal was having the Rochester drivers being able to
deliver loads all the way to Buffalo. However, he testified that
the ultimate agreement was made not by him, but by Posato.
With respect to asserted the quid pro quo, the testimony of
Liller, Posato, and Cantwell makes it abundantly clear that the
Company, as much as the Union, was desirous of having the
Rochester drivers be able bring their loads to Buffalo instead of
dropping them off at Batavia. This was not viewed by the
Company as a concession on its part but rather as an additional
benefit. In fact, the only potential obstacle to this arrangement
was the Union’s sister local in Buffalo that might object. Thus,
the Union’s alleged quid pro quo was not a concession that was
obtainable from the Company, but was one that had to be ob-
tained from the Buffalo local of the Teamsters union. As such,
it makes little sense for me to conclude that the Union was
willing to agree to a change in the start times only if the Com-
pany was willing to agree to something that was not within the
Company’s power to offer.
If the asserted quid pro quo was not what the Union claims,
then if there was one, what was it?
On May 4, 1995, Zakofsky issued a written warning to
Hayes. He states that he decided to issue a warning because he
felt that the accident did not warrant his discharge. Zakofsky
testified that he believed that as terminal manager, he had dis-
cretion in this matter. Zakofsky gave a copy of the warning to
Shop Steward Sapienza and placed the accident report in the
terminal’s personnel files. Zakofsky did not, however, log the
accident in the Company’s computer system and this was con-
cededly a breach of company policy. No doubt, Zakofsky in-
tended to hide the accident from his superiors, Liller and
Morin, because he suspected that if they found out about the
accident, they would have a good excuse to discharge Hayes.3

3 David Taber, who was a dispatcher in Rochester when these events
occurred, testified that the Company was continually looking for casu-
Zakofsky testified that after the May 4 warning, Morin called
him and asked if he had started “weeding Hayes out.” Zakof-
sky states that he told Morin that he disagreed with the Morin’s
position on Hayes and that he was not going to follow these
orders.
According to Zakofsky, Liller visited the Rochester terminal
in May and told him that because of the negotiations, Hayes
had to be let go. Zakofsky testified that he protested that this
would be illegal racketeering, but that Liller insisted that Hayes
had to go. This conversation is denied by Liller who also de-
nied making a trip to Rochester at this time. In any event, Za-
kofsky testified that after this conversation with Liller, he caved
in and began using another casual driver at times when Hayes
was available. He testified that he spoke to the dispatchers and
told them not to use Hayes because Hayes was being black-
balled by the Union. Dispatcher Taber testified, however, that
Zakofsky never told him that Hayes was being blackballed.
Zakofsky also testified that in May, he spoke to Shop Stew-
ard Sapienza and after telling him that he was probably going to
lose his job, asked Sapienza to talk to Posato and Cantwell and
call them off. Sapienza, according to Zakofsky, said that he did
not want to get in the middle of this. In this regard, Sapienza
essentially corroborated Zakofsky’s testimony, stating that
Zakofsky told him that he should talk to the Union about the
blackballing claim and that he responded that he did not want to
because it would be embarrassing.
Zakofsky testified that at the end of May, he received a call
from Morin who told him that the Union had accepted the deal
and that he should post the new bids. In this respect, Liller’s
diary has the following entry for May 23, 1995 at item 15:

Ron Morin—3:33 p.m.
(a) P&D “sick” Rochester.
(b) Frank Prata.
(c) Bid OK—60 days—10 hr. peddle, shuttles, varied
starts.
(d) W. Z. not using as we have asked!4

Item (c) of the entry refers to the starting time agreement
with respect to its substantive terms. Although Liller testified
that item (d) meant that Wayne Zakofsky was supposed to
monitor the agreement, such a meaning is not consistent with
the words used. Rather, it is my opinion that the language “W.
Z. not using as we have asked’’ is consistent with the testimony
of Zakofsky that he had previously been told by Morin and
Liller to stop using Hayes and that he had, at least, at this point
succumbed. Thus, looking at the diary entry, it is my opinion
that it shows that on May 23, 1994, Morin called Liller and told
him that the Union had accepted the Company’s proposal re-
garding the starting times and that as per the previous requests
of Liller and Morin, Wayne Zakofsky was not using Hayes
anymore.
According to Liller, the first time he heard the name of
Hayes was on May 24, 1994, when Ron Morin called him and
told him that Hayes had had an accident and that it had not been

als who were needed to fill in for drivers who were out for sickness,
vacations, days off, etc. He testified that the Company had a hard time
finding people who were qualified. With respect to Hayes, he testified
that he felt that Hayes was a marginal employee. Taber also testified
that he could not understand why Zakofsky would protect Hayes and
that it seemed crazy to him.
4 According to Liller, because no telephone number is listed on this
entry, this means that the call originated from Morin.
USF RED STAR, INC. 65
reported. According to Liller, after receiving this phone call
from Morin, he called Zakofsky and told him not to use Hayes
anymore. This is confirmed in his diary entry at item 4 for May
24, which states: “(c) Talk with Wayne—Hayes accident?”
The point here is that Liller’s claim that he first heard of Hayes
on May 24 is contradicted by his diary entry of May 23, if the
earlier entry is construed as meaning that Wayne Zakofsky had
agreed not to use Hayes as previously asked. (I recognize that
Hayes’ name does not appear on the May 23 entry.)
Between May 24 and early June, Zakofsky changed his mind
and used Hayes again as a casual driver. He testified that on
June 6, Liller called and asked why he was using Hayes again
and said that Hayes had only 4 days left before becoming a
preferred casual. According to Zakofsky, Liller told him to get
rid of Hayes. Later that day, Zakofsky sent an e-mail letter to
Liller stating that he would not discharge Hayes whom he be-
lieved was being blackballed by the Union.
On June 7, Liller called Zakofsky and told him that he had to
get rid of Hayes and that he had 30 seconds to make up his
mind. Zakofsky agreed to discharge Hayes and he did so on
June 8, 1995.
On June 8, Liller phoned Zakofsky and asked why the Hayes
accident had not been entered into the computer. Zakofsky
replied that it was a minor accident involving minimal damage
and cost. On the following day, Zakofsky sent an e-mail mes-
sage to Liller setting forth his reasons for not reporting the ac-
cident. He also said that he did not think it was fair that a
change in work rules was obtained by trading for a man’s job.
On or about June 12, the Company’s president, Fred Ratner,
called Zakofsky about the Hayes accident. When Zakofsky
tried to bring up the blackball claim, Ratner said he knew noth-
ing about that and hung up.
On June 21, 1995, Liller told Zakofsky that he was fired for
failing to report Hayes’ accident.
With respect to Hayes, the Company asserts that the only
reason it discharged him was because it has a strict policy to
not employ any casual driver who has a preventable accident.
Notwithstanding this assertion, such a policy has never been
written down and Zakofsky testified that although he was aware
that casual drivers should not ordinarily be retained if they have
preventable accidents, he understood that as terminal manager
he had some discretion in enforcing this policy which he did in
the case of Hayes.
I have no doubt that the general policy of the Company was
not to retain casual employees who get into preventable acci-
dents. The two questions here are: (a) whether that policy has
been uniformly applied without exception and regardless of
circumstance and/or (b) whether that policy was actually ap-
plied in the case of Hayes.
The Company put into evidence records showing the dis-
charges of some casual employees who had gotten into pre-
ventable accidents. Nevertheless, these records do not show the
obverse; to wit whether every casual driver having a prevent-
able accident was invariably discharged. For another thing, the
evidence indicates that this type of situation has not arisen at
the Buffalo or Rochester terminals for at least 10 years. At the
Binghamton, New York terminal, the last such incident oc-
curred at least 8 years ago when a casual driver was discharged
after he jack knifed a tractor-trailer on the highway.
Moreover, given the sequence of events, it clear to me that
the decision to discharge Hayes was made by Morin and Liller
before May 23, 1995; this being a time before they discovered
that Hayes had the accident. Thus, as it is my opinion that the
evidence shows that the reason for that decision was to accom-
modate the Union’s demands for his discharge, the subsequent
discovery of the minor accident was, to my mind, a pretext used
to justify the earlier decision.
In view of the foregoing, and consistent with Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), I conclude that the Company
violated Section 8(a)(3) by acceding to the demand of the Un-
ion to have Hayes discharged because of his internal union
activity. And in this regard, it seems to me that there is more
than sufficient circumstantial evidence to establish that the
Union did, in fact, demand, Hayes’ discharge.
While I conclude that the Union did in fact demand the dis-
charge of Hayes as the quid pro quo of reaching an agreement
on modifying the start time arrangements, the Union argues that
it cannot be found to have violated the Act because there is no
evidence that it engaged in any conduct within the Act’s 10(b)
statute of limitations period. The charge in Case 3–CB–6734
was filed by Hayes on January 17, 1995, but this alleged con-
duct by the Union while he was employed by RMA/Kolko
Corporation, and did not allege any attempt to cause Red Star
to discharge Hayes. The charge in Case 3–CB–6894 was filed
by Hayes on November 20, 1995, and, therefore, the 10(b)
period commenced on May 20, 1995.
A defense based on Section 10(b) is construed by the Board
as an affirmative defense which must be plead in the answer or
at the hearing. As this was not raised until the briefs were filed,
this defense can have no merit. Public Service Co., 312 NLRB
459 (1993). Moreover, as the discharge of Hayes took place on
June 8, 1995, well within the 10(b) period, the Union’s causa-
tion of his discharge also took place within the 10(b) period
even if its demands for his discharge were made earlier. I,
therefore, conclude that the Union by its efficacious demand for
the discharge of Hayes violated Section 8(b)(1)(A) and (2) of
the Act. San Jose Stereotypers (Dow Jones & Co.), 175 NLRB
1066 fn. 3. (1969).5
With respect to Zakofsky, the Company asserts that he was
discharged because he failed to follow company policy by fail-
ing to report the Hayes accident. While it is true that Zakofsky
did not report the accident, the reason he refused to do so was
because he reasonably believed, based on his previous conver-
sations with Morin, that had he done so, this would have given
the Company a pretext to discharge Hayes as demanded by the
Union.
The Board in Parker Robb Chevrolet, 262 NLRB 402, 402–
404 (1982), set out the parameters of those circumstances under
which the discharge of a supervisor will violate the Act. It
stated:

Notwithstanding the general exclusion of supervisors
from coverage under the Act, the discharge of a supervisor
may violate Section 8(a)(1) in certain circumstances, none

5 In San Jose Stereotypers, the Board stated:
The Trial Examiner held that “if Respondent’s objections [to
Anderson’s transfer] had amounted to no more than a simple re-
quest, this might not have satisfied the term ‘cause or attempt to
cause’ as used in the Act. We do not agree. In accordance with
our previous holdings, we hold in this case that a union’s effica-
cious request that an employer discriminate against an employee
is unlawful. . . . We do not find it necessary, therefore, to deter-
mine whether the Respondent’s request was fortified by a threat.’’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66
of which are present here. Thus, an employer may not dis-
charge a supervisor for giving testimony adverse to an
employer’s interest either at an NLRB proceeding or dur-
ing the processing of an employee’s grievance under the
collective-bargaining agreement. Similarly, an employer
may not discharge a supervisor for refusing to commit un-
fair labor practices, or because the supervisor fails to pre-
vent unionization. In all these situations, however, the
protection afforded supervisors stems not from any statu-
tory protection inuring to them, but rather from the need to
vindicate employees’ exercise of their Section 7 rights.

. . . .

In the final analysis, the instant case, and indeed all
supervisory discharge cases, may be resolved by this
analysis: The discharge of supervisors is unlawful when it
interferes with the right of employees to exercise their
rights under Section 7 of the Act, as when they give testi-
mony adverse to their employers’ interest of when they re-
fuse to commit unfair labor practices. The discharge of
supervisors as a result of their participation in union or
concerted activity—either by themselves or when allied
with rank-and-file employees—is not unlawful for the
simple reason that employees, but not supervisors, have
rights protected by the Act.

In Delling v. NLRB, 869 F.2d 1397 (10th Cir. 1989), the
court held that the employer illegally violated the Act by dis-
charging a supervisor who refused to falsify employee termina-
tion slips in an attempt to establish a pretextual reason for the
discharges. The court, after reviewing a number of other deci-
sions, stated:

In the instant case, Kelly was discharged because he refused
to falsify termination slips showing pretextual reasons for
employee discharges which, if made, would have tended to
thwart the discharged employees’ efforts to obtain redress un-
der the Act.

In Howard Johnson v. NLRB, 702 F.2d 1, 4 (1st Cir. 1983),
the court upheld the Board’s finding that the employer violated
the Act by discharging a supervisor who refused to engage in
spying on union activities. Similarly, in Gerry’s Cash Market
Inc. v. NLRB, 602 F.2d 1021 (1st Cir. 1979), the court agreed
with the Board’s conclusion that the employer violated the Act
by demoting a supervisor because he refused to enforce an
overly broad no-solicitation rule.
In the present case, Zakofsky had been the Rochester termi-
nal manager for 11 years. Liller described Zakofsky as being an
inordinately loyal employee, in part because Liller had helped
him out when Zakofsky was ill. There is no evidence that Za-
kofsky did not perform his job well and the fact is that without
his initiative, the modification of the contract’s restrictions on
starting times would never have occurred. Whether Zakofsky
was an exemplary employee is not known by me. But there is
nothing to indicate that his performance of his job was anything
other than competent.
Given his past history with the Company, his loyalty and ini-
tiative, I simply cannot accept that the real reason that he was
discharged was because he failed, on one occasion, to file an
accident report. Moreover, as the evidence shows that Morin
was demanding that Hayes be phased out, Zakofsky’s refusal to
file the report was motivated by his refusal to be a part of the
illegal trade worked out between the Union and Morin for a
start time agreement in exchange for Hayes’ job. As such Za-
kofsky’s failure to file the report was inextricably tied to his
justifiable belief that it would be used unlawfully as a pretext to
get rid of Hayes.
In my opinion, the facts show that Zakofsky was discharged
because of his objections to the orders by his superiors to dis-
charge Hayes and his foot dragging in carrying out such orders.
As such, it is my opinion that the motivation for his discharge
was unlawful under the cases cited above.
The complaint in Case 3–CB–6734 alleges that the Union
violated Section 8(b)(1)(A) of the Act when, in September
1994, its junior shop steward, approached Hayes and said that
Cantwell would get Hayes a steady job with benefits if he
would drop out of the race for union office. I credit Hayes’
version of these events but this raises a somewhat arcane legal
issue.
Section 8(b)(1)(A) makes it an unfair labor practice for a un-
ion to restrain or coerce employees in the rights guaranteed by
Section 7 of the Act. In this respect, it is unlike Section 8(a)(1)
of the Act which prohibits an employer from engaging in con-
duct to “interfere with, retrain, or coerce’’ employees in their
Section 7 rights. The fact that Section 8(b)(1)(A) omits the
word “interfere’’ has generated some differences of opinion as
to whether this section of the Act is a correlative to Section
8(a)(1) and prohibits the same type of conduct.
In National Maritime Union, 78 NLRB 971 (1948), the
Board stated:

Nothing in the legislative history indicates that a union which
refused to bargain is to be considered as having per se “re-
strained’’ or “coerced’’ employees in the exercise of their
rights guaranteed in Section 7. . . . Nor is there any suggestion
in the legislative history of Section 8(b)(1)(A) that “coercion’’
and “restraint’’ may be found to flow automatically from a
union’s violation of Section 8(b)(2).

In NLRB v. Drivers Local 639 (Curtis Bros.), 362 U.S. 274
(1960), the Supreme Court construed Section 8(b)(1)(A) nar-
rowly and stated:

Section 8(b)(1)(A) is a grant of power to the Board
limited to authority to proceed against union tactics in-
volving violence, intimidation, and reprisal or threats
thereof—conduct involving more than the general pres-
sures upon persons employed by the affected employers
implicit in economic strikes.

Nonetheless, the Supreme Court in Garment Workers (Bern-
hard-Altmann) v. NLRB, 366 U.S. 731, 738 (1961), stated, inter
alia:

In the Taft-Hartley Law, Congress added Section
8(b)(1)(A) to the Wagner Act, prohibiting, as the court of
Appeals held, “unions from invading the rights of employ-
ees under Section 7 in a fashion comparable to the activi-
ties of employers prohibited under Section 8(a)(1).’’ . . . It
was the intent of Congress to impose upon unions the
same restrictions which the Wagner Act imposed on em-
ployers with respect to violations of employee rights.

In the context of representation election campaigns, the
Board has uniformly held that employer promises or grants of
benefits, such as wage increases, are violative of Section
8(a)(1) of the Act when they are timed to affect an election and
are not consistent with the employer’s past practice. NLRB v.
USF RED STAR, INC. 67
Exchange Parts Co., 375 U.S. 405 (1963); and Baltimore Ca-
tering Co., 148 NLRB 970 (l964). In such cases, the grant or
promise of a benefit such as a wage increase is something that
is within the employer’s power to unilaterally accomplish and
constitutes interference with employee rights to select a bar-
gaining representative.
In NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), the Court
held, in the context of a representation election case, that a
waiver of union initiation fees for only those employees signing
union cards before an NLRB election, was objectionable con-
duct as it constituted a grant of a benefit by a union designed to
influence voters. The Court expressly did not decide whether it
would be an unfair labor practice for a union to promise a spe-
cial benefit to employees as an inducement to sign up for a
union.
There are, to my knowledge, only two cases, where the
Board has found that a union’s grant of a benefit is violative of
Section 8(b)(1)(A) of the Act. Both cases were decided after
Savair.
It appears that the issue of whether a union’s grant of a bene-
fit consitituted an unfair labor practice was first addressed in
Flatbush Manor Care Center, 287 NLRB 457 (1987). In that
case the Union paid out a total of $2241 to 48 employees in
amounts ranging from $4.80 to $114. Most of these payments
were made after an election petition was filed and before the
election was actually held. The Board adopted the administra-
tive law judge’s conclusion that such payments were designed
to influence the outcome of the NLRB election and it con-
cluded that they therefore tended to “restrain and coerce em-
ployees’’ to vote against one of the two competing unions. In
reaching this conclusion, the judge rejected the Union’s argu-
ment that a grant of benefit, at most, constituted “interference’’
and did not rise to the level of “restraint or coercion.’’ He
quoted from the court’s decision in Helton v. NLRB, 656 F.2d
883 (D.C. Cir. 1981), revg. 248 NLRB 83 (1980), where the
court reviewed some of the legislative history of this section of
the Act and stated:

Omission of the words “interfere with’’ from Section
8(b)(1)(A) was not intended to indicate that union conduct
should be measured against a less demanding standard
than employer conduct. The legislation as originally pro-
posed contained these words. They were deleted because
it was feared that they would unduly restrict union organi-
zation campaigns; they might be “construed to mean that
any conversation, any persuasion, any urging on the part
of any person, in any effort to persuade another to join a
labor organization, would constitute an unfair labor prac-
tice.’’ . . . Senator Taft agreed to the deletion because he
was convinced it would have no effect on the application
of Section 8(b)(1)(A):

I have consulted with the attorneys and they tell me that
elimination of the words “interfere with’’ would not, so far as
they know, have any effect on the court decisions. Eliminat-
ing those words would not make any substantial change in the
meaning.

Flatbush Manor, supra, was followed by Teamsters Local
952 (Pepsi Cola Bottling), 305 NLRB 268, 275 (1991), where
the Board held that the Union violated Section 8(b)(1)(A) by
refunding initiation fees to certain employees shortly before a
decertification election in circumstances where the Union was
aware that a number of employees were dissatisfied with the
Union because they felt that the initiation fees were too high.
The Board concluded that this granting of a benefit was calcu-
lated to influence the outcome of the vote.
The two cited cases dealt with actual grants of benefits de-
signed to influence voters in elections being conducted by the
National Labor Relations Board to choose whether employees
wished to be represented by a labor organization. In the present
case, we are dealing with a single promise by a junior shop
steward to induce a candidate for union office to withdraw from
an internal union election. Unlike the grants of benefits in the
cited cases, which were made to many of the potential voters,
the situation in the present case is more like the kind of deal
making that is hardly unknown in political or union elections.
In my opinion, a finding that the Union violated Section
8(b)(1)(A) on these facts would risk putting the Board directly
into the business of regulating internal union elections and the
election campaigning and deal making that are attendant to
them. That is a function that the Department of Labor is au-
thorized to carry out under the Landrum-Griffin Act.
This is not a case where union representatives have engaged
in physical intimidation or threats thereof; conduct which
clearly would be unfair labor practices under Section
8(b)(1)(A) of the Act. Nor was this promise the type of con-
duct, which adversely affected Hayes’ current job or existing
benefits. And in this respect, I have concluded above, that when
the Union’s conduct did affect his job, that conduct violated the
Act in the manner previously described.
Accordingly, for the reasons stated above, I shall recommend
that this allegation be dismissed.
CONCLUSIONS OF LAW
1. By causing or attempting to cause USF Red Star, Inc. to
discharge John M. Hayes because of his union activities, Local
118, International Brotherhood of Teamsters, has violated Sec-
tion 8(b)(2) of the Act.
2. By discharging John M. Hayes pursuant to the Union’s re-
quest, the Company has violated Section 8(a)(1) and (3) of the
Act.
3. By the aforesaid conduct, the Company and the Union
have engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having discriminatorily discharged John Hayes and Wayne
Zakofsky, the Employer must offer them reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). In relation to John Hayes, the Employer
shall be jointly and severally liable for backpay.
The Union, having caused the Employer to discriminate
against John Hayes, it is required, jointly and severally with the
Employer, to make him whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of dis-
charge to the date that the Union requests his reemployment,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68
less any net interim earnings, as prescribed in F. W. Woolworth
Co., supra, plus interest as computed in New Horizons for the
Retarded, supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, USF Red Star, Inc., a U.S. Freightways
Company, Rochester, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for engaging in union activities or other concerted activ-
ity for mutual aid and protection.
(b) Discharging a supervisor because of his or her refusal to
follow orders requiring him to commit an unfair labor practice.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Wayne
Zakofsky and John Hayes full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Wayne Zakofsky and John Hayes whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges and notify the
employees in writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Rochester, New York, copies of the attached notice
marked “Appendix A.’’7 Copies of the notice, on forms pro-
vided by the Regional Director for Region 3 after being signed
by the Employer’s authorized representative, shall be posted by
the Employer immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Employer to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the tendency of these proceedings, the
Employer has gone out of business or closed the facility in-

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
volved in these proceedings, the Employer shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since June 8, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
The Respondent, Local 118, International Brotherhood of
Teamsters, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Causing USF Red Star, Inc., a U.S. Freightways Com-
pany, or any other employer to discriminate against employees
in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, notify USF
Red Star, Inc., a U.S. Freightways Company, in writing that it
has no objection to the employment of John Hayes and that it
requests USF Red Star, Inc., to return Hayes to the employment
from which he was discharged.
(b) Make John M. Hayes whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days after service by the Region, post at its of-
fice in Rochester, New York, copies of the attached notice
marked “Appendix B.’’8 Copies of the notice, on forms pro-
vided by the Regional Director for Region 3, after being signed
by the Union’s authorized representative, shall be posted by the
Union immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees and members are customarily posted.
Reasonable steps shall be taken by the Union to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial.
(d) Mail to the Regional Director for Region 3 signed copies
of the attached notice marked “Appendix B’’ for posting by the
Employer, at its premises in Rochester, New York, in places
where notices to employees are customarily posted.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Union has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

Doren Goldstone Esq., for the General Counsel.
Paul M. Sansoucy Esq. and Subhash Viswantathan, Esq., for
the Respondent Employer.
Michael T. Harren Esq., for the Respondent Union.
SUPPLEMENTAL DECISION
RAYMOND P. GREEN, Administrative Law Judge. On Octo-
ber 21, 1996, I issued a decision in the above-captioned cases in
which I found that the Respondents had violated certain sec-
tions of the Act with respect to Wayne Zakofsky and John M.
Hayes. I found that the Union, as a condition of agreeing to the
8 See fn. 7, supra.
USF RED STAR, INC. 69
Company’s request for a change in a contractual provision re-
garding start times, insisted that the company discharge and not
use John M. Hayes as a driver. I also found that the employer
agreed to this demand and that it instructed Terminal Manager
Wayne Zakofsky not to use Hayes any longer. I concluded that
the fact that Hayes got into a minor accident was used as a pre-
text to discharge him. And I finally concluded that the Com-
pany decided to discharge Zakofsky because he was reluctant to
carry out his orders to discharge Hayes.
On May 2, 1997, the Board remanded this matter to me for
the purpose of making specific credibility resolutions insofar as
the conflicting testimony of Wayne Zakofsky and witnesses,
Posato, Cantwell, Liller, Tabor, and Cannistra.
I note at the outset that I was impressed by the demeanor of.
Zakofsky and Hayes, whose testimony, in my opinion, was
consistent with the record as a whole. On the contrary, I was
not impressed with the demeanor of union witnesses Posato and
Cantwell whose testimony, as pointed out in my earlier deci-
sion, was contradictory. (Each claimed that the other made the
final agreement regarding the start times.) Moreover, I pointed
out that their assertion that the quid pro quo regarding the start
time agreement was the Company’s agreement to have the
Rochester drivers bring their loads to Buffalo did not make
much sense since this was not a concession by the Company
but rather something that the Company itself was seeking to
accomplish. Thus, not believing their testimony that this was
the quid quo pro, I came to the conclusion, consistent with the
testimony of Zakofsky, that the quid quo pro for changing the
start times was that Hayes be discharged.
I also was convinced that the testimony of Liller was not ac-
curate, and as pointed out in the earlier decision, I noted that
although he testified that he had never heard of Hayes before
May 24, 1994 (when Ron Morin called him to tell him of
Hayes’ accident), Liller’s diary shows that he made an entry on
May 23, 1995, which I construed as meaning that Wayne Za-
kowfsky was not going to use Hayes as we have asked. If my
reading and understanding of Liller’s diary entry is correct, this
entry comes as close to being a “smoking gun” as I have per-
sonally seen in a Board case.
Dick Cannistra and Dave Taber testified that the Company
had a policy of discharging any casual driver who has a pre-
ventable accident. However, they were not in a position to state
that this policy, which is nowhere in writing, was uniformly
carried out on a companywide basis, and without exception.
Cannistra could testify about his handling of such situation in
his own terminal (Buffalo), and Taber did not have any direct
knowledge of the procedures that Zakofsky used while he was
the Rochester manager. There is no dispute about the fact that
the Company has a policy of discharging casual drivers who
have preventable accident. There is also no dispute that Hayes
had a preventable (albeit a minor) accident on April 28, 1995.1
What hasn’t been shown to my satisfaction, is that this is a
policy that has no exceptions and about which a terminal man-
ager, such as Zakofsky, has absolutely no discretion. Zakofsky

1 Finally, there is no dispute that Zakofsky failed to file the accident
report regarding the Hayes accident. It is clear to me that Zakofsky
knew that his failure to file the accident report was wrong and he acted
this way because he believed that this would lead to Hayes’ discharge
as part of the deal between the Company and the Union.
credibly testified that he believed that he did have such discre-
tion.
To the extent that the testimony of Zakofsky conflicted with
the testimony of Respondents’ witnesses, I credit Zakofsky.
Specifically, I make the following findings:
1. I credit Zakofsky’s testimony that in the late winter or
early spring of 1995, Cantwell asked him, during the course of
a grievance meeting, why he was still using that “scumbag,”
Jack Hayes.
2. I credit Zakofsky’s testimony that in early March 1995,
Morin called him and related that Cantwell said that Hayes was
a troublemaker.
3. I credit Zakofsky’s testimony that in early April 1995, he
received a phone call from Morin who said that he had spoken
to Cantwell and that the Union would make concessions but
wanted Hayes fired.
4. I credit Zakofsky’s testimony that at the end of the meet-
ing with the Union on April 28, 1995, Posato said that if the
company wanted negotiation on changing the start times, “you
know what I want.”
5. I credit Zakofsky’s testimony that after the April 28 meet-
ing Morin told him on the way back to the terminal, that Hayes
was gone; that they had no choice and had to get rid of him in
order to get negotiations going.
6. I credit Zakofsky’s testimony that in May Morin called
him and asked if he was phasing Hayes out and that he re-
sponded that he was not going to do that.
7. I credit Zakofsky’s testimony that in May 1995 Liller told
him that because of the negotiations, he had to let Hayes go. I
also credit his testimony that he told Liller that he thought this
was illegal and didn’t like it.
8. I credit Zakofsky’s testimony that on June 6 Liller called
him and asked why he was using Hayes again; that there were
only 4 days left before Hayes became a preferred casual; and
that Zakofsky should get rid of him. I further credit Zakofsky’s
testimony that he objected to this instruction.
9. I credit Zakofsky’s testimony that he sent an e-mail to
Liller saying that he would not let Hayes go and that on June 7
Liller told him that he had read the e-mail message and gave
Zakofsky 30 seconds to make a decision to get rid of Hayes, “or
else.”
10. I credit Zakofsky’s testimony that on one or more occa-
sions, he had conversations with Dick Cannistra, about the
difficulty of finding enough good casual drivers and that if a
casual driver had a minor accident, they would overlook it.
In accordance with Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), I reaffirm my previous findings and conclusions that
the Respondent has not met its burden of showing that it would
have taken the same actions against Hayes and Zakofsky, not-
withstanding their protected and concerted activities;
Accordingly, I reaffirm my earlier decision that the Union
violated the Act by causing or attempting to cause USF Red
Star, Inc., to discharge John M. Hayes because of his union
activities, Local 118, International Brotherhood of Teamsters,
has violated Section 8(b)(2) and (A) of the Act.
I also reaffirm my earlier decision that the Employer has vio-
lated Section 8(a)(1) and (3) of the Act by discharging John M.
Hayes pursuant to the Union’s request, and that the Employer
has violated Section 8(a)(1) of the Act by discharged Wayne
Zakofsky.