INTERMODAL BRIDGE TRANSPORT

National Labor Relations Board - Board Decisions

Mar 3, 2020

369 N.L.R.B. 37 (N.L.R.B. 2020)

369 NLRB No. 37
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Intermodal Bridge Transport and International
Brotherhood of Teamsters. Cases 21–CA–157647
and 21–CA–177303
March 3, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On November 28, 2017, Administrative Law Judge
Dickie Montemayor issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Gen-
eral Counsel filed limited exceptions and a supporting
brief, and the Charging Party filed cross-exceptions and a
supporting brief. All parties filed answering briefs and
corresponding reply briefs.
The Respondent operates a logistics, drayage, and con-
tainer storage business servicing the ports of Los Angeles
and Long Beach, California. Its work involves transport-
ing, by truck, goods contained in shipping containers.
Some of the Respondent’s drivers own their own trucks,
while other drivers lease trucks from the Respondent.
This case involves only the drivers who lease trucks.1
Applying FedEx Home Delivery, 361 NLRB 610 (2014)
(FedEx),2 the judge found that the Respondent’s drivers
are employees under Section 2(3) of the Act, not inde-
pendent contractors. The judge further found that the Re-
spondent violated Section 8(a)(1) of the Act by misclassi-
fying the drivers as independent contractors and by mak-
ing various statements. The judge dismissed allegations
that the Respondent created an impression of surveillance
and unlawfully terminated or suspended driver Eddie
Osoy. After the judge issued his decision, the Board is-
sued its decision in SuperShuttle DFW, Inc., 367 NLRB
No. 75 (2019) (SuperShuttle), in which it overruled

1 The judge found that the drivers who own their trucks are not the
subject of this litigation, and no party has excepted to this finding. Un-
less otherwise specified, “drivers” herein refers to drivers who lease
trucks from the Respondent.
2 Enf. denied 849 F.3d 1123 (D.C. Cir. 2017).
3 The Respondent, the Charging Party Union, and the General Coun-
sel 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 re-
versing the findings. Accordingly, we adopt the judge’s dismissal of the
allegation that the Respondent, through Safety Assistant Vicky Rosas,
unlawfully created an impression of surveillance, since the Union’s
FedEx, supra, to the extent that the Board in FedEx “re-
vised or altered the Board’s independent-contractor test”
by holding that “entrepreneurial opportunity represents
merely ‘one aspect of a relevant factor that asks whether
the evidence tends to show that the putative contractor is,
in fact, rendering services as part of an independent busi-
ness.”‘ SuperShuttle, 367 NLRB No. 75, slip op. at 1
(quoting FedEx, 361 NLRB at 620 (emphasis in FedEx)).
The National Labor Relations Board has considered the
judge’s decision and the record in light of the exceptions,
briefs, and its recent decision in SuperShuttle and has de-
cided to affirm the judge’s rulings, findings,3 and conclu-
sions only to the extent consistent with this Decision and
Order.4 Applying SuperShuttle, we reach the same con-
clusion as the judge: the drivers are employees. However,
under our recent decision in Velox Express, Inc., 368
NLRB No. 61 (2019), the Respondent did not violate the
Act by misclassifying them as independent contractors.
We affirm the rest of the judge’s unfair labor practice find-
ings, with one exception: we reverse his finding that the
Respondent told the drivers that choosing the Union to
represent them would be futile.
I. THE RESPONDENT’S DRIVERS ARE EMPLOYEES UNDER
SECTION 2(3) OF THE ACT
The threshold question in this case is whether the driv-
ers are employees or independent contractors. Section
2(3) of the Act excludes independent contractors from the
definition of “employee” and thus from the Act’s protec-
tion. As the party asserting that the drivers are independ-
ent contractors, the Respondent has the burden of proving
as much. See, e.g., BKN, Inc., 333 NLRB 143, 144
(2001). To determine whether a worker is an employee or
an independent contractor, the Board applies the common-
law agency test, see SuperShuttle, 367 NLRB No. 75, slip
op. at 1 (citing NLRB v. United Insurance Co. of America,
390 U.S. 254, 256 (1968)), and specifically, the non-
exceptions to that dismissal rely on overturning the judge’s finding that
Rosas’ testimony was credible.
We also adopt the judge’s findings that the Respondent, by dispatcher
Marlo Quevedo, unlawfully interrogated and threatened drivers Osoy
and Jose Portillo and offered Osoy and Portillo more profitable work if
they abandoned the Union. The Respondent excepts to these findings on
the ground that the judge incorrectly found Quevedo to be an agent and
supervisor of the Respondent. We adopt the judge’s finding that Que-
vedo is an agent of the Respondent. Having done so, we need not and
do not pass on whether Quevedo is a supervisor under Sec. 2(11) of the
Act.
4 We have amended the judge’s conclusions of law consistent with
our findings herein. We have also amended the remedy and modified the
judge’s recommended Order consistent with our legal conclusions herein
and to conform to the Board’s standard remedial language, and we have
substituted a new notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exhaustive common-law factors set forth in the Restate-
ment (Second) of Agency § 220 (1958).5
The judge applied these common-law factors to the
facts of this case. Citing the Board’s decision in FedEx,
he then considered whether the drivers were rendering ser-
vices as part of an independent business. As noted, how-
ever, the Board has rejected FedEx’s addition of the “in-
dependent business” factor to the common-law test. Su-
perShuttle, 367 NLRB No. 75, slip op. at 1, 7–12. The
Board found that FedEx improperly “limited the im-
portance of entrepreneurial opportunity by creating a new
factor (‘rendering services as part of an independent busi-
ness’) and then making entrepreneurial opportunity
merely ‘one aspect’ of that factor.” Id., slip op. at 1. As
the Board has since reaffirmed, “[e]ntrepreneurial oppor-
tunity is not a separate factor in the independent-contrac-
tor analysis or a mere aspect of a separate factor; instead,
it ‘is a principle by which to evaluate the overall effect of
the common-law factors on a putative contractor’s inde-
pendence to pursue economic gain.’” Velox Express, 368
NLRB No. 61, slip op. at 3 (quoting SuperShuttle, 367
NLRB No. 75, slip op. at 9). And “[w]here a qualitative
evaluation of common-law factors shows significant op-
portunity for economic gain (and, concomitantly, signifi-
cant risk of loss), the Board is likely to find an independent
contractor.” SuperShuttle, 367 NLRB No. 75, slip op. at
11. Nevertheless, as required by the Supreme Court’s de-
cision in United Insurance, 390 U.S. at 256, the Board
considers all the common-law factors in the total factual
circumstances of a particular case and treats no one factor
or the principle of entrepreneurial opportunity as deci-
sive. SuperShuttle, 367 NLRB No. 75, slip op. at 11.
Accordingly, we will determine the drivers’ status un-
der the traditional common-law test as restated in Su-
perShuttle. For the reasons discussed by the judge and
those discussed below, we find that the Respondent has
failed to sustain its burden of establishing that the drivers
are independent contractors. We therefore find that they
are employees under Section 2(3) of the Act.
Viewing the common-law factors through the prism of
entrepreneurial opportunity, we find that the Respondent’s

5 The Restatement factors are
(a) the extent of control which, by agreement, the master may exercise
over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupa-
tion or business;
(c) the kind of occupation, with reference to whether, in the locality,
the work is usually done under the direction of the employer or by a spe-
cialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentali-
ties, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
drivers have little opportunity for economic gain or, con-
versely, risk of loss. Unlike in SuperShuttle, the Respond-
ent’s drivers have limited discretion to determine when
they work, less discretion to decide what loads to haul, and
no discretion to decide to work beyond the end of their
shift. Cf. id., slip op. at 12, 14 (finding that the discretion
of the franchisee-drivers in SuperShuttle to choose when
to work and which bids to accept provided them with sig-
nificant entrepreneurial opportunity and weighed in favor
of independent-contractor status). The drivers are able to
choose which days to work and what time to start, but the
Respondent assigns them to either the day or night shift
based on the availability of trucks for lease from the Re-
spondent. When they report for work they must choose,
for their first assignment of the shift, from between two
and four delivery assignments determined by the Re-
spondent’s dispatchers in their sole discretion. Thereafter,
the dispatchers control the flow of the drivers’ work for
the remainder of the shift by providing the drivers assign-
ments and controlling their contact with customers. The
drivers do not have their own routes, let alone a proprie-
tary interest in routes that they can sell or transfer, nor can
they hire employees to work in their stead. Cf. FedEx
Home Delivery v. NLRB, 563 F.3d 492, 502 (D.C. Cir.
2009) (“[T]his case is relatively straightforward because
not only do these contractors have the ability to hire others
without [the employer’s] participation, . . . they [also] own
their routes—as in they can sell them, trade them, or just
plain give them away.”).
In addition, the Respondent’s method for compensating
the drivers does not afford them entrepreneurial oppor-
tunity. They are paid a per-load rate, a fuel surcharge, and
a clean truck assistance payment each week. The amounts
of the fuel surcharge and clean truck assistance payments
are set by the Respondent, not negotiated by the drivers.
In addition, the clean truck payment is subject to forfeiture
if the driver does not correctly complete his manifest. The
per-load rate is also set by the Respondent, based on ne-
gotiations with its customers, not with the drivers.6 These
payments are offset by the daily lease rate for the trucks—
again, set by the Respondent, not negotiated with the
(h) whether or not the work is part of the regular business of the em-
ployer;
(i) whether or not the parties believe they are creating the relation of
master and servant; and
(j) whether the principal is or is not in business.
SuperShuttle, 367 NLRB No. 75, slip op. at 1–2.
6 The Respondent argues that the drivers negotiated their pay, but we
agree with the judge that these negotiations were a ruse. The Respondent
negotiated with the customers, set the drivers’ rate of pay per load, and
then engaged in sham negotiations with the drivers that resulted in
across-the-board pay increases for the drivers regardless of whether or
not they “negotiated” with the Respondent.
INTERMODAL BRIDGE TRANSPORT 3
drivers—and by the cost of the fuel used by the drivers,
which is deducted from their weekly check. Significantly,
the Respondent, in its sole discretion, may reduce the daily
lease rate on days when a driver’s work assignments were
insufficient to cover the regular lease amount. Because
the Respondent controls the drivers’ compensation and
expenses as well as their assignments, the drivers lack “the
independence to engage in entrepreneurial opportunities.”
Roadway Package System, Inc., 326 NLRB 842, 851
(1998). In such circumstances, “there is little room for the
drivers to influence their income through their own efforts
or ingenuity.” Id. at 852.
The drivers’ entrepreneurial opportunity is further lim-
ited by the fact that the principal instrumentality of their
work—the truck—is provided by the Respondent, not
owned or controlled by the driver. Moreover, the Re-
spondent leases the trucks to the drivers for just a half-day
at a time, for an assigned day or night shift, and requires
the drivers to return the truck at the end of their shift so it
can be leased to another driver for the next shift. The driv-
ers cannot use the vehicles to perform other work when
they are not working for the Respondent, and therefore a
driver has no opportunity to put the truck to use in “serv-
ing his or another business’ customers.” Id. at 851;
cf. FedEx Home Delivery v. NLRB, 563 F.3d at 502 (driv-
ers were independent contractors where, inter alia, they
owned their own routes). Additionally, the Respondent
only requires the drivers to pay for the use of its trucks on
the days that they choose to drive, and the drivers do not
have any fixed weekly or monthly fees that they must pay
to the Respondent for the right to use its trucks or service
its customers. Therefore, the drivers do not have to make
a significant initial investment or take on a serious risk of
loss to enter into a relationship with the Respondent. Cf.
SuperShuttle, 367 NLRB No. 75, slip op. at 12 (finding
that the drivers’ “significant initial investment in their
business” by purchasing or leasing a truck and entering
into an agreement requiring fixed weekly fees supported a
finding of independent-contractor status).
In sum, the record establishes that the Respondent’s
drivers themselves perform the work of hauling shipping
containers to the Respondent’s customers, as assigned by
the Respondent and not on routes in which they have a
proprietary interest, with only limited ability to select or
reject work, during shifts specified by the Respondent on
the days they choose to work, and, for performing those
services, they receive compensation at rates set by the Re-
spondent over which they have no real ability to negotiate.
On these facts, we find that the drivers do not have any
meaningful opportunity for economic gain (or run any
meaningful risk of loss) through their own efforts and ini-
tiative, which weighs heavily against a finding that they
are independent contractors. See Velox Express, 368
NLRB No. 61, slip op. at 4.
Moreover, many of the other common-law factors also
support a finding of employee status. The drivers have
little control over when they work (either the day or night
shift, as assigned by the Respondent) and even less control
over what loads they haul and which customers they ser-
vice (largely determined by the dispatchers), as detailed
above. Although the drivers are not subject to in-person
supervision—which would be highly impractical given
the nature of their work—the Respondent further controls
the details of their work through a variety of policies and
procedures, detailed in the judge’s decision, which the Re-
spondent enforces through a progressive discipline policy.
The Board has found that “even . . . occasional instances
of discipline indicate significant control” by an employer.
Sisters’ Camelot, 363 NLRB No. 13, slip op. at 2 (2015)
(citing Dial-A-Mattress Operating Corp., 326 NLRB 884,
892–893 (1998)). And, as the Board observed in Su-
perShuttle, “employer control and entrepreneurial oppor-
tunity are opposite sides of the same coin: in general, the
more control, the less scope for entrepreneurial initiative,
and vice versa.” SuperShuttle, 367 NLRB No. 75, slip op.
at 9. The Respondent’s extensive control over the drivers
and their attendant lack of entrepreneurial opportunity
clearly weigh in favor of employee status.
The judge also correctly found that the drivers are not
engaged in a distinct occupation or business and are not
rendering services as an independent business, and their
work is part of the regular business of the Respondent.
See NLRB v. United Insurance, 390 U.S. at 258–259 (one
of the decisive factors in finding that company’s debit
agents were employees was that “the agents [did] not op-
erate their own independent businesses, but perform[ed]
functions that [were] an essential part of the company’s
normal operations”). Moreover, the Respondent provides
drivers with almost all of their instrumentalities and tools,
as well as a place of work, which also weighs in favor of
finding employee status. Although driving a commercial
truck requires specialized skills, the drivers’ skills are in-
herent to the performance of the drivers’ duties in further-
ance of the employer’s business, consistent with the com-
mon-law definition of an employee. See Restatement Sec-
ond of Agency § 220(2) cmt. i (worker with special skills
is still inferred to be an employee where the worker per-
forms “an incident of the business establishment of the
employer”). Even more tellingly, the Respondent pro-
vided training to those drivers who needed it. See NLRB
v. United Insurance, 390 U.S. at 259 (another decisive fac-
tor in favor of finding employee status was that employer
provided training to new employees). Finally, more than
80 percent of drivers have been with the Respondent for
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at least 6 years, suggesting that the drivers function as a
permanent work force.
At first glance, the two remaining common-law fac-
tors—the method of payment and whether the drivers be-
lieved they were creating an independent-contractor rela-
tionship—appear to favor contractor status. The drivers
are paid by the assignment, and they are issued a 1099 tax
form, not a W-2. These factors often favor a finding of
contractor status. See Argix Direct, Inc., 343 NLRB 1017,
1021 (2004) (independent-contractor drivers were paid on
a sliding scale based on miles covered per day, and they
were responsible for paying their own taxes). In this case,
however, the Respondent established both the drivers’ rate
of compensation and the costs of operation, as discussed
above. Thus, the only opportunity the drivers had to in-
crease their compensation was to work more hours, and
“[t]he choice to work more hours or faster does not turn
an employee into an independent contractor,” since it
“does not mean that they enjoy an opportunity for entre-
preneurial gain.” Lancaster Symphony Orchestra, 357
NLRB 1761, 1765 (2011), enfd. 822 F.3d 563 (D.C. Cir.
2016).
As more fully explained in the judge’s decision, the fact
that the drivers signed various documents stating that they
were independent contractors also does not support a find-
ing of independent-contractor status, inasmuch as the Re-
spondent manufactured that evidence by directing drivers
to complete and backdate “Independent Contractor Appli-
cation” forms to obscure its prior acknowledgment that the
drivers were employees. See OS Transportation LLC, 358
NLRB 1048, 1063 (2012) (respondent’s idea to have driv-
ers incorporate was a “ploy by [r]espondent to insulate it-
self from having employees and the many implications the
employee-employer relationship carries”), reaffd. and in-
corporated by reference 362 NLRB 288 (2015).
In conclusion, after evaluating the facts of this case in
light of the common-law factors, applied within the frame-
work articulated in SuperShuttle, we find that the Re-
spondent has decisively failed to meet its burden of
demonstrating that the drivers are independent contrac-
tors. Accordingly, we affirm the judge’s finding that the
drivers are employees under Section 2(3) of the Act.7

7 In affirming the judge’s finding that the drivers are employees under
Sec. 2(3) of the Act, Member Kaplan does not rely on the judge’s rea-
soning that the Respondent assigned the drivers to either the day or night
shifts, that the drivers do not hire others to drive the trucks for them, and
that the drivers are required to clean the trucks and are assessed a fee for
not doing so.
8 In its brief on exceptions, the Respondent contests the judge’s find-
ing that Zea called the meeting. We agree with the Respondent that Zea
did not call a meeting but was approached by drivers opposed to the Un-
ion who asked Zea to speak with them. This error does not affect our
analysis of what Zea said to the drivers.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Misclassification Does Not Constitute a Stand-Alone
Violation of the Act.
The judge found that the misclassification of employee
drivers as independent contractors was a “per se” violation
of the Act because misclassification “serves to chill future
concerted activity” and “conceals available protections
these employees have under the Act.” Subsequent to the
judge’s decision, the Board in Velox Express rejected this
theory, finding that “it is a bridge too far for us to conclude
that an employer coerces its workers in violation of Sec-
tion 8(a)(1) whenever it informs them of its position that
they are independent contractors if the Board ultimately
determines that the employer is mistaken.” Velox Express,
368 NLRB No. 61, slip op. at 7. Accordingly, we dismiss
the complaint allegation that the Respondent violated Sec-
tion 8(a)(1) of the Act by misclassifying its drivers as in-
dependent contractors.
B. Allegations Regarding the February 16, 2016
Meeting in the Respondent’s Parking Lot
On February 16, 2016, Vice President Ozzie Zea spoke
to drivers in the Respondent’s parking lot.8 Zea told em-
ployees who wished to work for a union company that
they could leave, stating that there was a “big door” and
that “there are other trucking companies out there, the
doors are open.” According to driver Jose Portillo, Zea
also told the drivers that he “[did]n’t think the Union
would happen at the IBT [Intermodal Bridge Transport],”
and he asked the drivers who wanted to work per hour to
raise their hands. Portillo testified that drivers who did not
support the Union raised their hands, indicating that they
wished to continue their current, by-the-load system of
compensation. For the reasons stated by the judge, we
adopt his findings that the Respondent, by Zea, violated
Section 8(a)(1) by suggesting that prounion drivers leave
the company (thereby threatening them with unspecified
reprisals if they chose to remain) and by polling, i.e., in-
terrogating the drivers regarding their support for the Un-
ion. See Jupiter Medical Center Pavilion, 346 NLRB 650,
651 (2006).9
9 While Member Emanuel agrees with his colleagues and the judge
that the Respondent unlawfully polled employees about their support for
the Union, he does not agree that the Respondent, through its Vice Pres-
ident Zea, unlawfully threatened employees with unspecified reprisals by
telling them that if they wished to work for a union company, “there are
other trucking companies out there, the doors are open.” As discussed
below, Zea made this statement in the context of lawfully predicting that
the Union’s campaign to organize the Respondent’s drivers would not
succeed. Therefore, employees would not have reasonably believed that
Zea was threatening unspecified reprisals if they continued to support the
Union, but would have instead understood that Zea thought that they
INTERMODAL BRIDGE TRANSPORT 5
We reverse, however, the judge’s finding that Zea un-
lawfully expressed that the union campaign was futile.10
The Respondent has excepted to the judge’s factual find-
ing that Zea “told the workers present that the Union
wasn’t going to happen.” We find merit in this exception
as the record does not support the judge’s finding. Instead,
driver Pedro Miranda testified that, in response to Portillo
saying the drivers wanted to be IBT’s employees, Zea said
“that was not going to happen at his company” and that
Miranda also understood that to mean a union would not
happen. Portillo testified that Zea said IBT would “just
keep going with the same thing” and further stated, based
on his experience as a union member, that the Union
would “use you” and “just want[s] your money.” Zea con-
cluded: “There’s the door, the door is large, go look for
companies with a union, but I don’t think it’s going to hap-
pen at IBT.”
We need not resolve any discrepancies between Mi-
randa’s and Portillo’s versions of Zea’s statements be-
cause neither version constitutes a threat that unionization
would be futile. Rather, based on his experience in the
drayage business, Zea made a lawful prediction that the
Union’s campaign among the drivers would not succeed.
See NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969).
Even accepting the judge’s characterization of Zea’s
comments, we do not find in them a threat that unioniza-
tion would be futile. In response to an employee inquiry,
Zea discussed his experience as a union member and, ac-
cording to the judge, stated his opinion that the Union was
not going to happen. Not “it doesn’t matter if the Union
happens (because we won’t deal with it even if it does),”
but “the Union isn’t going to happen,” meaning its organ-
izing effort will not succeed. Zea’s expression of opinion
did not contain a “threat of reprisal or force or promise of
benefit,” so it is protected by Section 8(c) of the Act.
The precedent the judge relied on in finding a threat of
futility is distinguishable. In M.D. Miller Trucking & Top-
soil, Inc., 361 NLRB 1225, 1230 (2014),11 an employee
was told, “‘Go file a grievance. You’ll get nowhere.’”
The Board found that under the circumstances of that case,
the statement implied that the employer would ensure the
grievance went nowhere, and the Board observed that the
speaker subsequently did ensure it went nowhere by

would have to go elsewhere to gain union representation because he did
not think that the Union would successfully organize the Respondent’s
drivers. Additionally, Zea’s statement did not occur in an atmosphere of
numerous severe unfair labor practices that would have led employees to
reasonably read an implicit threat into Zea’s statement.
10 Member Kaplan does not reach the merits of the judge’s finding
that Zea unlawfully expressed that unionization would be futile. In his
view, the Respondent has not presented any substantive argument in sup-
port of its exception to that finding. Therefore, he would disregard the
unlawfully refusing to reinstate the employee as ordered
by the grievance panel. Id. at 1225, 1233. The statement
in M.D. Miller also undermined confidence in the effec-
tiveness of the bargained-for grievance procedure for re-
solving disputes. See Prudential Insurance Co., 317
NLRB 357, 357 (1995) (statements suggesting that the
contractual grievance procedure is ineffectual violate the
Act). In contrast, Zea’s comments did not suggest that the
Union, if selected, would be ineffectual. Accordingly, we
dismiss the allegation that the Respondent unlawfully ex-
pressed that the union campaign was futile.
C. Termination/Suspension of Osoy
Eddie Osoy was one of the most prominent and visible
supporters of the Union, giving interviews to newspapers
regarding the Union’s organizing drive and distributing
safety vests with a union logo for drivers to wear. Driver-
owner Jose Molina was a vocal opponent of the Union
who distributed safety vests bearing the Respondent’s
company logo. On May 25, 2016, Molina and Osoy got
into a verbal altercation while Molina was distributing
vests. During this argument, Osoy challenged Molina to
a fight by saying they should step outside and “kick the
mother out of each other.” Molina reported the challenge
to the Respondent. The next day when Osoy arrived at
work, he was escorted off the premises by security guards.
Other employees spoke to the Respondent on Osoy’s be-
half about what had happened, and Osoy emailed the Re-
spondent with his version of what had occurred. Three
days later, Osoy was called into work and told that alt-
hough he had challenged Molina to a fight, enough time
had passed that he would be allowed to return to work.
Applying Wright Line, 251 NLRB 1083 (1980),12 the
judge found that the General Counsel met his burden to
show that Osoy’s protected activity was a motivating fac-
tor in his discipline. Nevertheless, the judge dismissed the
allegation that the discipline was unlawful, finding that the
Respondent showed it would have taken the same adverse
action against Osoy even in the absence of his protected
activity. Id.
Even assuming that the General Counsel carried his in-
itial burden to prove that Osoy’s protected activity was a
motivating factor in his discipline, we affirm the judge’s
finding that the Respondent met its Wright Line defense
bare, unsupported exception and affirm the judge’s finding solely on this
procedural basis in accordance with Sec. 102.46(a)(1)(ii) of the Board’s
Rules and Regulations. See, e.g., Natural Life, Inc. d/b/a Heart & Weight
Institute, 366 NLRB No. 53, slip op. at 1 fn. 3 (2018); Holsum de Puerto
Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir.
2006).
11 Enfd. mem. per curiam 728 Fed. Appx. 2 (D.C. Cir. 2018).
12 Enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
burden. The judge credited the testimony of Molina that
Osoy challenged him to a fight. Molina reported the chal-
lenge to the Respondent, who then removed Osoy from its
premises for 3 days, affording time for the Respondent to
investigate and for hostility between Osoy and Molina to
cool. Furthermore, although the judge did not note it in
his decision, the record demonstrates that the Respondent
acted similarly in response to other incidents, one involv-
ing a threat and the other involving actual violence. On
June 1, 2016, shortly after the altercation between Molina
and Osoy, driver Anthony Patterson punched a picketing
prounion driver. Upon learning of the incident, Safety Di-
rector Brent Bradley immediately placed Patterson “out of
service” pending investigation. After Bradley received
statements from both Patterson and the security guards
who saw the incident, he conferred with Zea, and Patter-
son was terminated. In 2014, a driver referred to in the
record by his identification number was placed out of ser-
vice after he threatened a dispatcher. Specifically, he told
the dispatcher that he could reach through the window and
get him. While leaving the dispatch area, the driver dam-
aged a door. Zea immediately placed the driver out of ser-
vice.
There is no evidence that Osoy was treated disparately.
Indeed, the record shows that the Respondent took the
more severe action of discharging an antiunion driver
when that action was warranted by the driver’s violent
conduct. In contrast, Osoy’s act of challenging a coworker
to a fight resulted in the lesser sanction of a 3-day suspen-
sion, and Osoy was reinstated after tensions were allowed
to ease. Accordingly, we affirm the judge’s dismissal of
this allegation.
III. AMENDED CONCLUSIONS OF LAW
Delete paragraph 1(a) and 1(c) and renumber the para-
graphs within the judge’s Conclusions of Law accord-
ingly.
IV. AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, the Re-
spondent shall cease and desist from interrogating drivers
by polling them to ascertain who supports the Union,
threatening drivers with unspecified reprisals by suggest-
ing that they leave the Respondent if they want to work for
a union company, interrogating drivers about their support
for the Union, threatening drivers with company closure,
and promising drivers better work if they abandon their
support for the Union. The Respondent will also be re-
quired to post a remedial notice to employees in both Eng-
lish and Spanish.
We reject, however, the judge’s recommended notice-
reading remedy. Notice reading is an extraordinary rem-
edy, see, e.g., NLRB v. Ingredion, Inc., 930 F.3d 509, 519
(D.C. Cir. 2019), ordered where the unfair labor practices
are “numerous, pervasive, and outrageous,” Federated
Logistics & Operations, 340 NLRB 255, 256 (2003), affd.
400 F.3d 920 (D.C. Cir. 2005), or at least where they are
“sufficiently serious and widespread to warrant” such a
remedy, Homer D. Bronson Co., 349 NLRB 512, 515
(2007), enfd. mem. 273 Fed. Appx. 32 (2d Cir. 2008). See
also Ozburn-Hessey Logistics, LLC, 362 NLRB 1532,
1536 (2015) (ordering notice reading based on “serious
and widespread” violations in multiple cases), enfd. mem.
689 Fed. Appx. 639 (D.C. Cir. 2016); Allied Medical
Transport, Inc., 360 NLRB 1264, 1269 fn. 9 (2014) (or-
dering notice reading where employer, by a high-ranking
manager, committed 10 separate violations of Section
8(a)(1) and discharged two employees in violation of Sec-
tion 8(a)(3) and (1)), enfd. 805 F.3d 1000 (11th Cir. 2015).
The unfair labor practices in this case are limited to four
conversations: Zea’s conversation with drivers in the
parking lot, two conversations between dispatcher Que-
vedo and Osoy, and one conversation between Quevedo
and Portillo. Without minimizing the seriousness of the
Respondent’s unlawful conduct, we find that it does not
warrant the extraordinary remedy of notice reading.
ORDER
The Respondent, Intermodal Bridge Transport, Wil-
mington, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Polling employees to ascertain who supports the
Union.
(b) Threatening employees with unspecified reprisals
for supporting the Union by suggesting they leave the
company.
(c) Interrogating employees about their support for the
Union.
(d) Threatening employees with company closure.
(e) Promising employees better work for abandoning
their union support.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Wilmington, California, copies of the
INTERMODAL BRIDGE TRANSPORT 7
attached notice marked “Appendix”13 in both English and
Spanish. Copies of the notice, on forms provided by the
Regional Director for Region 21, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to phys-
ical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since May 16, 2015.
(b) Within 21 days after service by the Region, file with
the Regional Director for Region 21 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. March 3, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT poll you to ascertain if you support the
Union.
WE WILL NOT threaten you with unspecified reprisals by
suggesting you leave the company if you support the Un-
ion.
WE WILL NOT interrogate you about your support for the
Union.
WE WILL NOT threaten you with company closure.
WE WILL NOT promise you better work for abandoning
your support for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
INTERMODAL BRIDGE TRANSPORT
The Board’s decision can be found at
www.nlrb.gov/case/21-CA-177303 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940
Ami Silverman, Esq. and Sanam Yasseri, Esq., for the General
Counsel.
A. Jack Finklea Esq. and Donald J. Vogel Esq. (Scopelitits,
Garvin, Light, Hanson & Feary, P.C.), for the Respondent.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Julie Gutman Dickinson, Esq. and Hector De Haro, Esq., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DICKIE MONTEMAYOR, Administrative Law Judge. This case
was tried before me beginning on August 22, 2016, with trial
testimony concluding on December 7, 2016. Charging Party
filed a charge (the allegations which comprise Case Number 21–
CA–157647) on August 10, 2015, an amended charge was there-
after filed September 24, 2015. A second amended charge was
filed on March 15, 2015. Thereafter, another charge (Case Num-
ber 21–CA–177303) was filed on May 31, 2016. An amended
charge was filed on June 23, 2016. The charges alleged viola-
tions by Intermodal Bridge Transport (IBT) of Section 8(a)(1),
(3), and (4) of the National Labor Relations Act (the Act). A
consolidated complaint was filed on July 5, 2016. Respondent
filed an answer on July 18, 2016, to the complaint denying that
it violated the Act. After considering the matter (including the
briefs filed by the parties on May 1, 2017) and based upon the
detailed credibility findings and analysis set forth below, I con-
clude that Respondent violated the Act essentially as alleged re-
garding some but not all of the allegations presented.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and I find that
1. At all material times, the Respondent has been a Delaware
Corporation, engaged in the business of logistics, drayage, and
container storage services with a place of business located at
1919 East Pacific Coast Highway, Wilmington, California.
2. At all material times, Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.1
3. At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
4. At all material times the following individuals held the po-
sitions set forth opposite their respective names and have been
Supervisors and agents of Respondent within the meaning of
Sections 2(11) and 2(13) of the Act:
(A) Ozzie Zea- Assistant Vice President
(B) Brent Bradley-Safety Director
(C) Rod Kirkbridge-Operations Manager
(D) Christina Rivera-Supervisor Customer Relations
5. At all material times the following individuals held the po-
sitions set forth opposite their respective names and have been
Supervisors and agents of Respondent within the meaning of
Sections 2(11) and (13) of the Act:
A) Marlo Quevedo- Dispatcher
B) Veronica Chang-Assistant to the Safety Director
C) Vicky Rosas-Assistant to the Safety Director

1 In making this finding, I note that Respondent denied it was engaged
in commerce. Given IBT’s undisputed extensive commercial activity,
II. ALLEGED UNFAIR LABOR PRACTICES
Background
(1) Joint Stipulations
Prior to the start of the hearing the parties entered into the fol-
lowing joint stipulations:
(a) Ozzie Zea has from at least October 1, 2014 through the
present date been employed by Intermodal Bridge Transport as
its Assistant Vice President. Zea’s duties include overseeing
each of the IBT’s departments at its Wilmington, California fa-
cility and supervising employees. The parties stipulate that Zea
is a statutory supervisor within the meaning of Section 2(11) of
the National Labor Relations Act (the Act).
(b) Brent Bradley has from at least October 1, 2014, through
the present date been employed by Intermodal Bridge
Transport as its Director of Safety, Security and Maintenance
at the Wilmington, California facility. Bradley’s duties include
managing the process of contracting with drivers, managing
compliance with state and federal regulations, and supervising
employees. The parties stipulate that Mr. Bradley is a statutory
supervisor within the meaning of Section 2(11) of the Act.
(c) Mario Quevedo performs dispatching services for IBT at its
Wilmington, California facility as an employee of a temporary
services agency. Quevedo has performed dispatching services
since at least October 1, 2014, to the present, and his duties in-
clude coordinating freight movement for customers. Mr. Que-
vedo dispatches loads to drivers and works to meet customer
delivery needs, and performs these duties on behalf of IBT.
(d) Vicky Rosas has been employed by IBT in the safety de-
partment at the Wilmington, California facility since at least
October 1, 2014. Rosas assists Mr. Bradley by collecting
driver logs, entering new drivers into the system, and helping
with paperwork relating to accidents, and other administrative
and clerical tasks performed on behalf of IBT. Vicky serves as
a liaison between IBT and the drivers for matters such as hand-
ing out settlement checks, drug testing, collecting and monitor-
ing log books, and obtaining the drivers signatures on weekly
contracts with IBT.
(e) Veronica Chang was employed by IBT in the safety depart-
ment at the Wilmington California facility for the period Octo-
ber 1, 2014 until February 23, 2015. During that time she as-
sisted Bradley with administrative and clerical tasks performed
on behalf of Respondent.
(f) Rod Kirkbride was employed by IBT as operations manager
at the Wilmington, California facility for the period October 1,
2014 until September 2, 2015, the parties stipulate that Kirk-
bride was a supervisor within the meaning of Section 2(11) of
the Act until September 2, 2015.
(See Jt. Exh. 2.)
the performance of services valued in excess of $50,000, and its employ-
ment of personnel, I find no merit in Respondent’s denial.
INTERMODAL BRIDGE TRANSPORT 9
(2) Protective order
On December 7, 2016, a protective order was issued to protect
and control the production and use of Driver Confidential Mate-
rial, IBT Confidential Material, and other confidential material
collectively referred to as material “Confidential Under Protec-
tive Order.” (See Jt. Exh. 4.) which contains the protective order
itself along with a table listing the exhibits covered by the pro-
tective order).2
III. FINDING OF FACTS REGARDING IBT’S BUSINESS OPERATIONS
IBT provides drayage services and is in the business of mov-
ing goods contained within shipping containers and moving
empty shipping containers from various customer locations
around the Los Angeles/Ontario California area and in and out
of the Ports of Los Angeles and Long Beach and the ICTF and
BNSF rail hubs. To perform this work IBT utilizes trucks which
transport shipping containers that are fixed atop of a chassis and
are driven by drivers who own their own trucks or drivers who
lease trucks from IBT. The drivers who lease their trucks are the
subject of this litigation while the drivers who own their trucks
are not. The majority of the drivers that drive for IBT are drivers
who lease their trucks from IBT. The drivers who lease trucks
operate under IBT’s operating authority. IBT has both Federal
and State operating authority which is evidenced by State and
Federal numbering that appears on the trucks. IBT similarly has
agreements with the ports which allow its trucks to enter into the
ports.
Historically, IBT operated with drivers who owned their own
trucks. However, in 2008, the ports instituted the Clean Truck
Program. As a result of the Clean Truck Program, many drivers’
whose trucks did not meet the pollution requirements of the pro-
gram were no longer able to enter the ports for delivery. Many
former owners simply could not afford to purchase the newer
trucks that would comply with the Clean Truck Program. After
the disqualification of many trucks, IBT on its own accord leased
fifty trucks in order to continue its operations. IBT began to uti-
lize a staffing agency, Staffmark to provide it with drivers.
These drivers were employed by Staffmark but worked at IBT.
IBT itself was leasing trucks the Staffmark employees drove but
the drivers did not have to pay any leasing fees. IBT supplied
the work and the customers and Staffmark supplied the drivers.
In 2010, IBT decided to change its operating model to one in
which it secured driving services directly and cut Staffmark out
of the picture. Even though Staffmark was no longer used to
supply IBT drivers, the work drivers performed did not substan-
tially change. In fact, the driving that was done by the drivers as
Staffmark employees was identical to the work performed by
drivers under IBT’s new model. In general, the entire business
revolved around moving either empty containers or full contain-
ers from one location to another. Under this new model, IBT
charged drivers a daily lease rate for the trucks which the drivers
themselves would have to pay. The drivers would also be
charged for other expenses including fuel.

2 It should be noted that confidential materials, while fully considered
herein, if referenced are referenced in short form without direct quotation
to preserve the parties agreed upon request for confidentiality.
Generally, in order to work for IBT, drivers had to be at least
23 years of age and have fewer than two accidents or moving
violations in the preceding 3 years, have a commercial driver’s
license, a Transportation Worker Identification Card (TWIC), 2
years driving experience, 1 year of specialized experience in the
ports and were required to pass a driving proficiency test admin-
istered by IBT’s safety department. (Tr. 1705–1706.) Until
2014, IBT drivers were required to submit I-9 Employment Eli-
gibility Verification forms. (Tr. 2015–2017; U. Exh. 34.)3 IBT
however on occasion hires drivers with less than 1-year driving
experience and provides them with Entry-Level Driver Aware-
ness training. IBT also provides a HAZMAT test and HAZMAT
training.
IBT’s current driver work force is made up of approximately
95 drivers, 77 who lease trucks and 18 drivers who own their
own trucks. (Tr. 3859–3860.) Approximately 38 of IBT’s lease
drivers, or 50 percent, have been with IBT since 2010.
(a) The lease and transportation agreement
Drivers who lease trucks are required to sign a lease and trans-
portation agreement (LTA), and a weekly truck lease. The LTA
presented to the drivers upon the implementation of the new
business model were written in English and no translation ser-
vices were provided to the drivers who did not speak English
despite the fact that a large contingent of drivers did not speak
English and IBT knew they did not speak English. The drivers
who did not speak English were simply instructed where to date
and initial the documents. (GC Exh. 7.) This was done using
what IBT officials characterized as a “dummy copy” which was
essentially a sample copy with the blanks filled in so that drivers
could copy and fill in the blanks. (Tr. 3473.) The LTA docu-
ment was changed in 2014. In 2014, the non-English speakers
were similarly presented the new LTA document in English
without translation and told to sign the document in order to re-
ceive their checks. The 2014 version included a new appendix
E titled: “Independent Contractor’s Rights While Under Contract
with Carrier” which contained language that also appeared in the
Revised Independent Contractors Safety and Security Hand-
book. The language in appendix E contained 20 separate para-
graphs that set forth outright IBT’s position that the drivers were
independent contractors and not employees by describing the
drivers’ independence and discretion in performing the job. (See
GC Exh. 52 p. 26 U Exh. 15 p. 43 for the full text of the 20 pars.)
Seemingly cognizant of the issues raised by presenting drivers,
who IBT knew for certain did not understand the documents pre-
sented to them, IBT added two new documents to the LTA for
newly on- boarded drivers. The first document was an acknowl-
edgment form for the driver to sign and the second document
was a lease and translation acknowledgement form to be filled
out by Brent Bradley attesting that the LTA was explained to the
driver with the use of a Spanish interpreter. Upon on-boarding
IBT also provided drivers with a handbook which set forth its
safety policies and procedures. (GC Exhs. 71, 72, 73.) The
3 IBT stopped requiring the I-9 form in 2014.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
handbook is printed in English and IBT didn’t provide any trans-
lation of the handbook to non-English speakers.
(b) The weekly truck lease
The drivers are also required to sign a weekly lease agreement.
The lease agreement is a multipage document written in English
and presented to drivers to sign when they pick up their checks
on Friday. Drivers were advised that they must sign the agree-
ment in order to receive their check and that signing the agree-
ment is a requirement to work. The drivers are not given the full
weekly lease document but only the first and last pages (the
pages that require some initialing or signing). IBT also provided
a sample “dummy copy” which contained the blanks filled out
for the drivers to copy. (Tr. 909.) The sample included a provi-
sion relating to others driving the truck with the box checked
“no” to effectively preclude anyone else from driving the truck
leased by the driver or to preclude the driver from hiring others
to drive the truck they are leasing from IBT. Drivers do not ne-
gotiate the terms of the weekly lease agreement, and drivers also
do not negotiate the base rate they are paying for the truck—IBT
requires every driver to pay $60 for each day they use the truck
(for whatever shift IBT assigns them) except on Saturdays when
the lease rate is $20. IBT in its discretion may reduce the daily
rate if the diver’s work assignments are not enough to cover the
regular lease payment. (GC Exh. 128.)
(c) Customers of IBT
The customers IBT services are secured by IBT and not the
drivers. The rates the customers pay is negotiated directly by IBT
and not the drivers. The drivers do not work for any of IBT’s
customers exclusively. Simply put, the driver’s responsibility is
limited to activities related to driving the trucks and delivering
the containers. IBT provides the trucks it leases to drivers. IBT
or its customers (and not the drivers) provide the chassis which
attaches to the trucks that is required to move the goods.
(d) IBT required forms
IBT requires drivers complete a variety of forms relating to
their work. This includes Daily Inspection Reports for the
trucks, delivery slips, hours of service logs and daily manifests.
Much of this paperwork has IBT’s name on it. (Tr. 149; 419–
420; 541; 676–678; 1103; 943–645; 1410-13; 1103–1105; U.
Exh. 12.) The Daily Inspection Report that drivers complete is a
formal written inspection of the truck. This inspection form is
turned in to IBT daily. A driver is subject to IBT’s progressive
corrective action program (or progressive discipline program) if
they fail to complete this inspection. (Tr. 1855–1856.) All items
of disrepair which might be noted in an inspection report are re-
paired by IBT and not the drivers. IBT also provides drivers with
Hours of Service Logs which track how many hours a driver
works are turned in weekly and reviewed by IBT. Violations of
hours of service rules will subject drivers to IBT’s progressive
corrective action program including being taken out of service.
(Tr. 1807–1808; 1856–1857; 1901–1903, 3795; 3821.) (GC Exh.
78.) For some deliveries IBT requires that specific information
to be tracked on the driver’s manifest. If a driver fails to do so
IBT penalizes drivers by deducting ten dollars from that particu-
lar delivery. (Tr. 1537–1539; 2631–2633.)
(e) IBT required safety clothing
Drivers are required to wear a safety vest at IBT’s yard and at
the port. IBT provided drivers with free vests with the initials
“IBT” clearly delineated on them. (Tr. 2927–2928). Currently
IBT provides drivers with vests that do not contain the “IBT”
logo/designation. (Tr. 2397.)
(f) IBT required radio
IBT provides each driver a radio at the beginning of each shift
when the drivers pick up their keys. They are required to use the
radio to contact the dispatchers and must turn the radio in at the
end of their shift. (Tr. 3095–3096.)
(g) Driver shifts
IBT Drivers are not given a choice in their shift and instead
are assigned the shift they work and are not able to unilaterally
switch shifts without first requesting and receiving permission
from IBT. (Tr. 2931–2932; 1611; 1251–1252). The safety de-
partment kept a list of the drivers whose request for shift changes
were pending. (Tr. 1735–1736).
(h) Driver hours of work
Although drivers cannot choose their shift they choose which
days to work and what time to start. (Tr. 1515–1516; 1601–1602;
3015; 3019–3020; 4121; 4115–4116.) Even though dispatch
does not start until 6 a.m., most day shift drivers show up earlier
and start waiting at 4 or 5 a.m. (Tr. 3131; 3287–3288; 2885–
2887; 2931.) For many, the shift ends when the dispatcher ad-
vises that there is no more work. (Tr. 1519; 1171–1172; 2712.)
(i) The dispatching process
IBT has a team of approximately five dispatchers. The dis-
patchers generally work two shifts—the day shift dispatch starts
at 6 a.m. and the night-shift dispatch begins at approximately 4—
4:30 p.m.
Since 1999, IBT’s practice has been to allow the drivers to line
themselves up in the order of morning arrival and will dispatch
based upon the driver’s order of arrival. (Tr. 1004; 2940–2941;
2793–2795.) Once drivers approach the dispatch window, they
are given their keys and radio for the day, and are also given their
first assignments—typically one loaded container and one empty
container. (Tr. 165; 667; 1004–1009.)
Drivers are responsible for delivering the loads assigned by
the dispatchers. The drivers call in on the radio after they finish
the delivery and when they finish the assigned delivery, they are
given additional assignments by the dispatcher. (Tr. 2951–2954;
3332.)
After April 2015, IBT began to allow drivers to choose from
between two and four possible delivery assignments for their
first load. (Tr. 170–172; 480–483; 666–6667; 1091–1093; 1394–
1396; 2785; 3099–3100.) What loads are offered the drivers to
choose from is dependent entirely on the dispatcher’s discretion.
IBT tracks loads that are refused by drivers in a “Refusal Log.”
Dispatchers also inform drivers when one of their assignments
has an appointment time, either with a customer or at the Port.
These appointments are set by IBT and drivers cannot set the
appointments themselves. (Tr. 487–4890; 4129–4130; 172–174;
256–257; 939–941). Dispatchers are able to access the Ports’
INTERMODAL BRIDGE TRANSPORT 11
appointment system electronically to change appointments. (Tr.
3729; 3325–3326; 2054–2058). Drivers only contact dispatch re-
garding appointments, they do not communicate with the termi-
nals or with customers directly. (Tr. 3336–3338; 487–490;
1180–1181; 1407–1408; 672–674). When drivers miss an ap-
pointment, dispatchers have to ascertain a reason that can be
communicated to IBT’s customer by IBT. (Tr. 3291–3292.)
IBT does not typically instruct drivers what specific routes to
take when moving containers. (Tr. 1540; 1044; 2923–2224; 607–
608). Once drivers have finished the loads they are initially as-
signed, they must call dispatchers in order to receive more as-
signments. (Tr. 4157; 3374–3375; 4147–4158; 3527–3530.)
Dispatchers have sole discretion on what if any work to offer
drivers. Drivers maintain contact with dispatchers throughout
their day to get not only other deliveries but specific instructions
regarding deliveries. (Tr. 2951–2954.)
(j) Safety manuals
When IBT first began its leasing program and began onboard-
ing drivers, part of the onboarding process involved giving driv-
ers an “Independent Contractor’s Safety and Security Policies”
manual (“Policies Manual”). This manual was then updated in
2014. Along with some substantive changes, the new manual
was called the “Independent Contractor’s Safety and Security
Handbook” (“New Handbook”). The handbook and the manual
were only provided to drivers in English. (Tr. 1366–1367; 1064–
1065; 736–738.)
The amended version set forth rules drivers were recom-
mended to follow. Examples include: (1) Prohibitions against
contacting customers directly; (2) Prohibitions against drivers
taking loads home; (3) Specific instructions on handling cargo
including a prohibition of dropping off cargo without IBT per-
mission. Also including in the manual was a “General Rule for
All Customers” which specifically prohibited drivers from re-
solving disputes on location and mandated that IBT alone
through dispatch should resolve such conflicts. (GC Exh. 72 p.
42.)
(k) IBT mandated policies and procedures
Along with the Policies Manual and Handbook, IBT set forth
rules and practices and procedures that it expected drivers to
comply with in the form of memoranda and notices provided to
drivers with their paychecks on Fridays, and notices which were
posted next to the dispatch window. (Tr. 2011–-2014; 1439–
1444; 2554–2556; 3750; U. Exh. 48.)
Some examples include but are not limited to: (1) instructions
on filling out manifests and logs (GC Exh. 47, 48, 74, 75; U.
Exh.1, 3, 4, 6); (2) instructions regarding safety meetings for
drivers (GC Exh. 49, 76; U. Exh. 32); (3) instructions regarding
cleaning the trucks and turning in keys and radios on time (U.
Exh. 2, 5); (4) end of shift instructions (U. Exh. 33); and instruc-
tions regarding inspections and road checks. (GC Exh. 83, 96;
Tr. 1881–1883.)
IBT has also maintained “IBT Container, Cargo & Security
Procedures.” These procedures were spelled out in a separated
handout. (Tr. 2005–2007; U. Exh. 29). This document includes

4 For reasons that aren’t entirely clear, IBT allowed the driver to con-
tinue working after the initial termination decision.
procedures for drivers to follow including: 1) how to inspect a
sealed container; (2) how to check a chassis, policies regarding
loaded or unloaded containers; and prohibitions regarding unat-
tended cargo. (Tr. 2005–2007.)
(l) Failure to follow IBT policies results in discipline
IBT has established a progressive corrective action (or pro-
gressive discipline) policy for its drivers. The first step is a warn-
ing, the second step is 1 day out of service, the third step is 3
days out of service, and the fourth step is termination of the
driver’s contract. (Tr. 1807–1808; 3873–3874.) Unsafe driving
can result in “time off up to and including lease termination;”
fatigued driving will lead to “at least one day without work;” un-
fit operation will lead to “at least one day without work;” con-
trolled substance violation will lead to lease termination; vehicle
maintenance and cargo related violations will lead to “at least
one day without work,” and, generally, out of service violations
“can result in discipline up to and including termination of lease;
depending on their severity.” (GC Exh. 95.) There is at least one
instance of driver termination for “Breach of company rules” and
“dishonesty.”4 (Tr. 1989–1993.)
(m) Costs drivers must pay
he cost to lease a truck was $60 for the daily use of IBT’s
truck. This rate was set by IBT and not negotiated by the drivers.
The drivers would pick the truck up at IBT and return it to IBT.
They were not allowed to take the truck home. The trucks were
registered to IBT and IBT provided insurance coverage which
the driver paid for through a deduction based upon a percentage
of their income. The insurance cards provided with the trucks did
not reference any particular driver. (GC Exh. 93.) No driver that
leased a truck provided their own insurance. Nor did drivers ne-
gotiate with the insurer or IBT the cost of insurance. Drivers pay
for the fuel they use. IBT provides drivers a fuel charge card and
the costs associated with the charges on the card are deducted
from the driver’s check. Drivers must return their trucks with a
full tank of fuel when they return the truck at the end of their
shift.
(n) Payment of drivers
Drivers receive settlement checks every week. They are paid
a per load rate and a fuel surcharge, as well as a clean truck as-
sistance payment. (Tr. 2625–2627.) The clean truck assistance
payment is ten dollars but can be forfeited if drivers do no cor-
rectly complete their manifest. The fuel surcharge payment
amount is set exclusively by IBT and not negotiated by drivers.
IBT issues drivers 1099 tax forms. (R. Exh. 1, 11, 17, 24, 39,
36.) The decision to issue 1099s is made by IBT without driver
consent or input.
(o) Pay rates
Drivers receive payment for each container they move or in
some circumstances when they have to drive a truck from one
location to another without a load (a practice characterized in the
industry as “bob-tailing”). IBT unilaterally sets pay rates and pe-
riodically changed rates. A standardized rate sheet was given to
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
drivers upon onboarding. (GC Exh. 21.) Drivers are also paid
for time spent waiting. IBT unilaterally sets wait time rates and
drivers do not negotiate the specific rates they are paid for wait-
ing time. (Tr. 506–508; 869; 3096–3097.)
IV. IBT ATTEMPTS TO COVER ITS TRACKS
There are numerous examples in the record of IBT engaging
in what can be accurately described as a pattern of attempting to
manufacture a record that would color the facts in its favor. The
first example of this began with the “Driver’s Application for
Employment” which the drivers who were on boarded filled out
until mid-2014. In mid-2014, IBT changed the form’s title to
“Independent Contractor Application.” IBT then required the
drivers to not only transfer the information from the old “Appli-
cation for Employment” but also required the employees to back
date the new application to the date of the original. IBT then
destroyed the “Application for Employment” purging it from the
driver’s files. Brent Bradley testified that the requirement to
back date the applications was the result of a “miscommunica-
tion” with his assistant. (Tr. 1721.) I find this testimony wholly
unworthy of credence. Instead the evidence pointed to an affirm-
ative attempt to conceal the original (which referenced “employ-
ment”) and color the employment record of the drivers by de-
stroying the original and replacing it with the new “Independent
Contractor Application.”
While not an exhaustive list, some other examples of affirma-
tive attempts to color the record appear in other changes that IBT
made during the course of the business enterprise. One such ex-
ample includes the creation of a form in which Brent Bradley
attests that the LTA was translated in Spanish when in fact Rosas
testified that she never translated any LTA’s in Spanish. So too,
the so called rate “negotiations” with driver’s was an attempt to
color the record with what can accurately be described as “sham”
negotiations the purpose of which was simply to make it appear
that drivers had some ability to negotiate rates when in reality
they did not (see also footnote 10 infra). In some instances, the
language in the documents purporting to represent the independ-
ence of the employees did not represent the actual conditions un-
der which the employees worked. The most obvious example is
language in the LTA which suggests that drivers can work when-
ever they choose when in reality IBT made the shift assignments.
Regardless of the paper trail IBT was attempting to manufacture,
the basic duties of the drivers remained the same throughout the
relevant period in question.
V. EMPLOYEE VS. INDEPENDENT CONTRACTOR STATUS
The General Counsel alleged violations of various
provisions of the Act all of which are dependent upon
whether in fact the persons alleged to have been wronged
are in fact statutory employees protected by the Act. In
order to reach the questions presented regarding whether
Respondent violated various provisions of the Act, the
threshold issue that must be first resolved is whether the
drivers were in fact employees covered by the Act or, as
Respondent argues, individuals who are not statutory

5 IBT asserted that the burden should fall upon the General Counsel
and not Respondent. Assuming for the sake of argument that the proper
employees and therefore not entitled to the protections of
the Act.
A. Analysis Under Fedex
The party seeking to exclude individuals performing services
for another from the protection of the Act on the grounds that
they are independent contractors has the burden of proving that
status. BKN, Inc., 333 NLRB 143, 144 (2001).5 In FedEx, 361
NLRB 610 (2014), the Board clarified and refined its approach
to assessing independent-contractor status. Specifically, the
Board reaffirmed its reliance on common-law agency principles,
as guided by the nonexhaustive list of factors enumerated in the
Restatement (Second) of Agency §220 (1958). Those factors in-
clude: (1) the extent of control over the details, means, and man-
ner of the work; (2) whether the putative contractor is engaged
in a distinct occupation or business; (3) whether the work is done
under the direction of the principal, or by a specialist without
supervision; (4) the skill required; (5) who supplies the tools and
place of work; (6) the length of time for which the person is em-
ployed/contracted; (7) the method of payment, whether by the
time or by the job; (8) whether the work is part of the regular
business of the employer; (9) whether the parties believe they are
creating an employment or contract relationship; and (10)
whether the principal is in the same business. All the incidents
of the relationship must be assessed and weighed, with no one
factor being decisive. FedEx, supra, slip op. at 1, citing NLRB v.
United Insurance Co. of America, 390 U.S. 254 (1968); Road-
way Package System, Inc., 326 NLRB 842, 849 (1998) (Road-
way). In addition, the Board stated that it would consider the ex-
tent to which a putative contractor is, in fact, rendering services
as part of an independent business with an actual (not merely
theoretical) entrepreneurial opportunity for gain or loss. FedEx,
slip op. at 1. Applying the FedEx analysis here, I find that the
Employer has failed to establish that the truck drivers are inde-
pendent contractors rather than employees. Although there are
some aspects of the relationship between truck drivers that may
suggest the drivers are independent contractors, I find that those
aspects are outweighed by the factors showing that the truck
drivers actually are employees. In particular, I find that employee
status is demonstrated by the extent of IBT’s control over the
officials, the integral nature of the truck drivers’ work to IBT’s
regular business, IBT’s control of the work through the dispatch-
ing process, supervision and use of a progressive discipline pro-
cess, the method of payment, and the fact that the truck drivers
officials do not render their services as part of an independent
business.
1. Extent of control by employer
IBT has far-reaching control over the means and manner of
the driver’s work. The control begins at the initial on boarding
process. IBT chooses whether the driver will work the day shift
or the night shift. (Tr. 119–120, 445, 1304, 1361, 1489.) IBT
requires drivers to complete a driver’s proficiency test and a
written test for entry level drivers with less than 1-year experi-
ence. (U Exh. 20.) Entry level drivers have to complete entry
legal standard placed the burden upon the General Counsel, given the
sheer weight of the evidence in this case the same result would follow.
INTERMODAL BRIDGE TRANSPORT 13
level driver awareness training (U Exh. 21). IBT administers a
14-mile road driving test evaluating drivers on 120 different cri-
teria (U Exh. 22). For HAZMAT drivers IBT requires take tests
and complete HAZMAT training (U Exh. 24). On the job, IBT
maintains a variety of work rules, including rules that specifi-
cally control the driver’s job performance. For example, IBT had
in place rules regarding the California Safety Analysis which in-
formed drivers that they would be “disciplined” for various rule
infractions including speeding over 10 miles over the limit, and
for failing to cure defects in the trucks. (GC Exh. 95.) This stand-
ing alone supports a finding of employee status. See Friendly
Cab Co., 341 NLRB 722, 724 (2004), enfd. 512 F.3d 1090 (9th
Cir. 2008) (right to discipline supports employee status). See also
Restatement (Second) of Agency §§ 2(2) & 220(1) (master (em-
ployer) is someone who “controls or has the right to control” an-
other; and servant (employee) is “subject to the [employer’s]
control or right to control” (emphasis added)); NLRB v. Associ-
ated Diamond Cabs, 702 F.2d 912, 920 (11th Cir. 1983) (“courts
have noted that it is the right to control, not the actual exercise
of control, that is significant”). Cf. Sisters’ Camelot, 363 NLRB
No. 13, slip op. at 2 (2015) (even occasional instances of disci-
pline indicate significant employer control) (citing Dial-A-Mat-
tress Operating Corp., 326 NLRB 884, 889, 892–893 (1998)).
IBT requires the maintenance of trucks be performed by their
own hired mechanic Ted Moulder. (Tr. 1678.) Drivers are re-
quired to clean the trucks and are assessed a fee for not doing so.
(U Exh. 2.) IBT also prohibits smoking in the trucks. (U Exh.
2.) IBT required drivers to drain their air tanks at the end of
every shift. (U Exh. 33.) IBT required drivers to return radios
and keys at the end of each shift and if drivers did not comply
were assessed a fee for each day the radio wasn’t returned. (U
Exh. 5.) IBT had in place safety rules policies and procedures in
the form of a driver handbook which set forth the company’s
policies and procedures to be followed by the drivers. (GC Exh.
71, 72, 77, U Exh. 35.) The handbook also set forth loading and
accident procedures the drivers were required to follow as well
as customer service, safety, inspections, drug and alcohol testing,
and hours of service. (Tr. 1794–1796 GC Exh. 72.) IBT requires
drivers to comply with its Container, Cargo and Security Proce-
dures and inspect trucks. (U Exh. 29.) IBT requires drivers to
check sealed containers, tire pressure, brakes, mirrors, and tires.
(U Exh. 29.) IBT has rules forbidding the unloading of contain-
ers without prior authorization. (U Exh. 29.) IBT has rules that
require that logs be turned in on a weekly basis (Tr. 1804; 3404–
3405.) IBT chooses the customers the drivers service. Drivers
cannot choose which of these customers they would work for.
Drivers do not negotiate with IBT customers over pay or any
terms or conditions of IBT’s commercial relationships with its
customers. (GC Exh. 103, 104, U Exh. 46, 47.) IBT drivers do
not deliver to non-IBT customers. Drivers cannot contact cus-
tomers directly regarding scheduling. (Tr. 674.) IBT controls the
work that the drivers perform through the dispatch process and
work assignment process. In essence, the actual order of deliv-
ery, place and manner of the delivery of goods along with to
whom goods are delivered, as well as how much is charged for
the delivery is strictly controlled by IBT. Thus, when drivers
work, the most important aspects of the job are undeniably con-
trolled by IBT.
The drivers do have control over some aspects of the job. For
example, drivers (who it should be noted, routinely drive to the
same port and customer locations) have discretion in the selec-
tion of the delivery route. Drivers start time is determined by
them. Drivers are free to work or not work. Drivers decide when
to take breaks. Drivers choose how often and how long to work.
Drivers can reject or cancel loads. Drivers have a limited choice
of which loads to accept. Drivers have exclusive control of the
vehicles they are driving.
I find the drivers are akin to the canvassers found to be em-
ployees in Sisters’ Camelot, 363 NLRB No. 13 (2015). In Sis-
ters’ Camelot, the workers were free to work or not work as they
chose, but when they did choose to work, they were subject to
significant employer requirements. Although the drivers have
some discretion over important aspects of their work, IBT nev-
ertheless exercises “pervasive” control over their work. FedEx,
supra, slip op. at 12–13 (drivers’ discretion over aspects of their
work outweighed by employer’s requirements). In short, I find
that IBT’s control over the manner of work weighs in favor of
employee status.
2. Whether individual is engaged in a distinct occupation
or business
The fact that an individual holds a distinct occupation may in-
dicate independent contractor status in certain situations, partic-
ularly where the individual’s services are engaged temporarily to
accomplish tasks incidental to the employer’s regular business.
But in the circumstances presented here the drivers perform their
functions in furtherance of IBT’s core operations. See Restate-
ment (Second) of Agency § 220(2) cmt. I (observing that if the
occupation, even a highly skilled one, is considered part of the
regular business of the employer, there is an inference that the
individual is a servant). IBT simply would not be able to function
without the drivers. See United Insurance, 390 U.S. at 258–259
(considering as one “decisive” factor that employees’ functions
were an “essential part of the company’s normal operations”);
Slay Transportation Co., 331 NLRB 1292, 1294 (2000); The
drivers are also fully integrated into IBT’s operations. See Road-
way, supra, 326 NLRB at 851. IBT Lease drivers operate in the
name of IBT, drive trucks that have both the DOT and CA num-
bers displayed on the doors. IBT drivers utilize IBT’s insurance.
All drivers work solely for IBT and rely on IBT dispatchers to
obtain their assigned work. They do not hire others to drive the
trucks for them. They do not display their names or logos on the
trucks. Although in theory the drivers could work for other em-
ployers this is not controlling as part-time or casual employees
covered by the Act often work for more than one employer. Lan-
caster Symphony Orchestra, 357 NLRB 1761, 1765 (2011) (cit-
ing KCAL-TV, 331 NLRB 323, 323 (2000)), enfd. 822 F.3d 563
(D.C.Cir. 2016); see also Sisters’ Camelot, supra, slip op at 2
(“the ability to work for multiple employers does not make an
individual an independent contractor.”). I find that the drivers
were not engaged in a distinct occupation or business.
3. Whether the work is usually done under the direction of the
employer or by a specialist without supervision
IBT drivers have no direct supervision while driving. This
lack of direct supervision, however, reflects the nature of the job
itself, rather than suggesting independent-contractor status.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Restatement (Second) of Agency § 220(1) cmt. D (the full-time
cook is regarded as a servant although it is understood that the
employer will exercise no control over the cooking). Nonethe-
less, IBT controls the work that the drivers perform through the
dispatch process and work assignment process. Drivers receive
all the work they obtain throughout the day from IBT dispatch-
ers. They report to work, pick up keys to the trucks and radios.
They perform their work by receiving assignments through dis-
patch. These assignments are communicated to them throughout
the day by dispatchers and at the end of the day they return the
truck to IBT’s yard and turn in their keys and radio to IBT. IBT
requires that drivers comply with these and other policies and
procedures. For example, drivers are required to submit daily
manifests and inspection logs. Also, drivers are required deliver
to IBT customers and are required to comply with IBT’s agree-
ments with those customers in all respects ranging from the man-
ner in which the deliveries are made to the amount of money paid
for each delivery.6 In essence, the actual order of delivery, place
and manner of the delivery of goods along with to who goods are
delivered, as well as how much is charged for the delivery is
strictly controlled by IBT. The submission of the proper com-
pany paperwork as well as all deliveries is closely monitored by
IBT. Thus, the most important aspects of the job are undeniably
controlled and directly or indirectly supervised by IBT. See
FedEx, supra, slip op. at 13 (finding that “[a]lthough drivers are
ostensibly free of continuous supervision in their work duties,”
the supervision factor favored employee status because the em-
ployer essentially directed the drivers’ performance by enforcing
its rules, by requiring adherence to protocols regarding safety
and the performance of their work; see also Sisters’ Camelot, su-
pra, slip op. at 3 (despite absence of immediate in-person super-
vision, employer’s use of various oversight tools supported find-
ing that the supervision factor favored employee status).The
drivers’ on the other hand (who it should be noted, routinely
drive to the same port and customer locations) have discretion in
the selection of the delivery route. These factors favor employee
status.
4. Skill required in the occupation
It cannot be argued that some aspects of the job performed by
the drivers do not require specific specialized skills. Many of
the ordinary functions of driving are not particularly skillful and
are performed every day by many (including young drivers) in-
cluding such simple tasks as starting the vehicle, using turn sig-
nals, accelerating, and braking. Nonetheless, these drivers must
have particular skills relative to the type of large trucks that are
driven including the possession of a Class A license, a TWIC
card and a medical certification.7 But their level of skill does not
preclude finding them to be employees. Indeed, many types of
employees covered by the Act are highly skilled with expertise
in a particular field. As with all of the relevant factors, this factor
must be examined in the particular circumstances presented. I

6 One customer for example required specific “turn time” data to be
collected IBT required drivers to track this information and if they didn’t
drivers would have money deducted from their paycheck for that route.
(Tr. 1537–1539.)
7 In making this finding, I am not unmindful of the finding in FedEx
at p. 13 of a contrary finding regarding special skills. It is however not
find it significant that the drivers’ skills are integral to IBT’s abil-
ity to accomplish its core mission, which tends to show that they
are employees, rather than independent contractors providing
services on an intermittent basis. See Restatement (Second) of
Agency § 220(2) cmt. I. I also note that IBT itself provides En-
try-Level Driver training to drivers with less than one year of
experience. This training further suggests a connection distinct
from that of independent contractors and more common in em-
ployer and employee relationships. Sisters’ Camelot, supra, slip
op. at 3 (that employer provided workers with the training nec-
essary to perform the work supported finding employee status);
see also NLRB v. United Insurance Co., 390 U.S. at 258–259
(agents lacked prior experience and were trained by company
personnel, which supported employee status). For those reasons,
I find that this factor tends to favor employee status.
5. Whether the employer or individual supplies the instrumen-
talities, tools, and place of work
IBT provides the drivers with nearly all the necessary instru-
mentalities, tools and place of work. IBT provides drivers with
the trucks, the chassis, radios to contact dispatchers, delivery
slips, inspection reports, manifests, logbooks, fuel card, com-
mercial insurance and maintenance of the trucks. In addition,
IBT through its dispatch process controls the place of work and
through its requirement that drivers park in its yard controls the
place in which the leased trucks are stored. Roadway, 326
NLRB 842 (1998). Sisters’ Camelot, supra, slip op. at 3. But it
is also true, as IBT argues, that IBT does not supply all work
clothes,8 any tools that they bring with them in the truck as well
as personal cell phones or computers, printers or fax machines.9
On balance, the factors strongly favor employee status as the
most critical, important and necessary items to perform the job
are without question provided by IBT.
6. Length of time for which an individual is employed
It is undisputed in the record that many of the drivers have
worked for IBT for a substantial period of time on a regular and
continuing basis. More than a third worked for IBT for more
than 6 years, approximately another third for approximately 5
years. In fact, approximately 82 percent of the drivers had
worked for IBT since 2013. Some drivers work actually pre-
dated 2008. (GC Exh. 54.) The actual lease documents them-
selves do not provide a fixed term but rather offer an indefinite
duration which can be terminated by either party with 24-hour
notice, or immediately by mutual agreement. In practice, the
longevity of the driver’s employment provides strong evidence
that the drivers had an expectation of working for IBT over a
number of years and the majority of drivers in fact did so. This
factor strongly favors employee status as the drivers expected to
be retained and were in fact retained for an indefinite period of
time and not on a job to job basis.
clear whether the employees in FedEx were driving class A vehicles as
in this case.
8 The evidence established that IBT supplied and distributed safety
vests with the IBT logo to some drivers.
9 There is no evidence in the record to establish that cell phones, com-
puters or fax machines are required by drivers to perform the job.
INTERMODAL BRIDGE TRANSPORT 15
7. Method of payment
It is undisputed that the drivers are not paid at the completion
of every run, movement or load instead they receive weekly pay-
ment. This weekly paycheck set up when coupled with the lon-
gevity of the drivers and their expectation of continued employ-
ment as well as the expectation that they will receive weekly pay-
ment strongly resembles that of an employer employee relation-
ship. As for the actual amount of payment, IBT regulates and
controls the rates of compensation for delivery assignments, wait
time, fuel charges, rates charged to customers and discretionary
reduction of the leasing fees.10 It is noteworthy that the wait time
payment is an hourly rate granted at IBT’s sole discretion. Thus,
IBT controls matters governing the most essential terms of em-
ployment. Roadway Package Systems, Inc., 326 NLRB 842
(1998). Driver’s paychecks directly correlate to the assignments
which are given to them at dispatch and thus are directly con-
trolled by IBT. See Sisters’ Camelot, supra, slip op. at 4 (assign-
ing each canvasser to a strictly delineated area exhibits “tight
control” over his/her compensation).
IBT does not pay fringe benefits, paid holidays, sick days, va-
cation days or health insurance. The nonpayment of fringe ben-
efits however does not tilt the scales in favor of independent con-
tractor status as many statutory employees do not receive bene-
fits as a consequence of their employee status. Similarly, IBT
does not withhold any taxes and issues drivers 1099 tax forms.
IBT had full control over the tax documents it provides drivers
and because it unilaterally intended to categorize the drivers as
independent contractors does not in and of itself conclusively
make it so. This is especially true when as in this case there is a
wealth of other indicia which favors employee status. The Board
and the courts have routinely looked beyond the tax treatment in
making a determination of employee status for this very reason.11
See In Re Time Auto Transport, Inc., 338 NLRB 626 (2002). On
balance the method of payment favors employee status.
8. Whether the work is part of the regular business of the em-
ployer and whether the principal is or is not in the business
Respondent asserts that “services provided by drivers . . . do
not constitute the essential services necessary to IBT’s comple-
tion of its work for its Customers.” (R. Br. at 91.) Respondent’s
assertion is simply not supported by the overwhelming substance
and weight of the evidence of record and needs little analysis.
Respondent in its answer admitted that it “provides logistics,
drayage, and container storage services.” (R. Ans. at p. 2.)

10 There was some evidence that after drivers complained about rates
some increase in rates occurred. It appears that these rate increases were
orchestrated by IBT with awareness of the potential for litigation for the
purpose of creating the mere impression that IBT did not maintain strict
control of the rates of compensation. In reality, the rate increase ap-
peared to be a single effort of across the board rate increases in which
the rates increases were the same for all employees and even employees
who did not “negotiate” were given rate increases. Contrary to Respond-
ent’s contentions the facts surrounding the rate increases further supports
the conclusion that IBT exercises strict control over driver compensation
and thus weighs in favor of employee status.
11 The California Department of Labor Standards Enforcement
(DLSE) in Naranjo, Townsel and Sivveyra v. Intermodal Bridge
Transport, Case Nos. 05–62622 ;05–62704KR; and 05–664459 KR,
Respondent is without question “in the business.” Contrary to
Respondent’s assertions, the work that lease drivers perform is
undeniably integral to the regular business services that Re-
spondent admits it provides. The very heart of its regular busi-
ness involves drivers moving containers from one location to an-
other. The drivers are an integral part of that business. See, e.g.,
Lancaster Symphony, 357 NLRB 1761, 1765 (2011). IBT
simply could not perform its basic and core business operations
without the work of its lease drivers. These factors strongly sup-
port finding the drivers to be employees.12
9. Whether the parties believe they are creating an
independent-contractor relationship
Respondent points to various IBT created documents which
were unilaterally created by IBT the terms of which drivers had
no opportunity to negotiate which refer to drivers as “Independ-
ent Contractors.” The fact that those documents are unilaterally
created and imposed by IBT diminishes the weight to be given
them. See FedEx, supra, slip op. at 14. The weight given these
documents is further diminished by the simple fact that many
drivers lacked fluency in the English language and didn’t under-
stand the very documents which were presented them and were
able to fill in the blanks only after instructed by IBT officials on
how to do so. IBT officials were aware of the language compre-
hension issues and overcame it by placing a sample copy of a
Lease Agreement with all the blanks filled in as IBT would like
them filled in for the drivers to copy. Although drivers were in-
structed on which blanks to fill in and what information to in-
clude in the blanks many of the IBT Lease and Transportation
Agreement documents that appear in the record do not appear to
even be signed by any IBT official. See for example (GC Exhs.
21, 22, 31, 32). This calls into question the reliability of the very
“agreements” that IBT relies upon and further diminishes the
weight given them. What is most damaging to IBT’s reliance on
these documents is its attempt to change and backdate its own
other internal documents which are contradictory to their posi-
tion. In 2014 after drivers began filing wage claims, IBT’s
changed its “Application for Employment” to a document titled,
“Independent Contractor Application.” IBT required drivers to
backdate the new applications to the date of their original appli-
cations. IBT then destroyed the original applications that refer-
enced “employment.” (Tr. 1724–1726.) This backdating and
document destruction in order to attempt to cover up and manip-
ulate IBT’s employment records erodes the veracity of all of the
documents IBT presents as those reflecting the nature of its
made a similar finding, noting that reporting income with a 1099 form is
irrelevant to the question of employee status and, “merely the legal con-
sequences of an independent contractor status not a means of proving it.”
Id. at 19. (U. Br. Exh. 4).
12 It should be noted that in its decision finding that similarly situated
drivers of IBT were in fact employees, the California DLSE in Naranjo,
Townsel and Sivveyra v. Intermodal Bridge Transport, Case Nos. 05–
62622;05–62704KR; and 05–664459 KR, made a nearly identical find-
ing, noting, “Plaintiff’s work is the basis of Defendant’s business. De-
fendant obtains customers who are in need of delivery services and pro-
vides workers who conduct the service on behalf of Defendant. Without
drivers, Defendant would not be able to operate its business.” (Id. at 17)
(U. Br. Exh. 4).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
relationship with the drivers and further diminishes the weight to
be given these documents.
Balanced against these factors is the undisputed evidence of
record that many not only believe that they are employees but
have taken legal action to confirm these very beliefs.13 Some
filed with the California Department of Labor Standards En-
forcement (DLSE) and prevailed, others filed in state court.
More than 54 drivers joined in one of the known pending state
court actions. (GC Exh. 85 a-i, U. Exhs. 9, 10, 11, 51, 52, 53.)
Lastly, a majority of drivers presented a petition to IBT in which
they identified themselves as, “a majority of full-time and regu-
lar part-time employees working as drivers” at IBT. (GC Exh.
2.) I find this factor favors finding the drivers to be employees.
10. Whether the evidence shows the individual is rendering
services as part of an independent business
In addition to the factors listed in the Restatement, the Board
also considers the extent to which a putative contractor is, in fact,
rendering services as part of an independent business with an ac-
tual (not merely theoretical) entrepreneurial opportunity for gain
or loss. FedEx, supra, slip op. at 1. The Restatement of Employ-
ment Law Section 1.01(b)(Am. Law Inst. 2015), like the Board
in FedEx outlines similar factors noting that a person is “render-
ing services as an independent business person and not as an em-
ployee when the individual in his or her own interest exercises
entrepreneurial control over important business decisions, in-
cluding whether to hire or assign assistants, whether to purchase
and where to deploy equipment, and whether and when to pro-
vide service to other customers.”
The evidence established that lease drivers do not have control
over the most important business decisions of their work. IBT
retains total control over the selection of customers and negoti-
ating all terms with those customers including the costs of its
services. IBT through its dispatch process determines the order
in which items are delivered and where to deploy all of the equip-
ment. The lease drivers do not have any proprietary or owner-
ship interest in the equipment, routes, service areas or any exclu-
sive rights to any particular customers. Nor do any lease drivers
provide services to any customers other than IBT customers
while leasing trucks owned by IBT.
IBT argues that lease drivers have some indicia of entrepre-
neurial opportunity e.g., their ability to accept or decline assign-
ments, their ability to choose between a limited few assignments
and their ability to choose time of arrival to their designated shift.
Similar arguments were considered by the Board in Lancaster
Symphony. In that case, musicians were paid a set fee for a set
number of rehearsals and performances. The fees were

13 It is also true that a number of drivers called to testify by IBT tes-
tified that they believed they were employees.
14 Respondent placed much of the emphasis of its arguments regard-
ing this factor on the fact that driver Cabral at one point in time owned a
company which was incorporated as Baywater Logistics. Respondent
does not address the critical fact that when it was incorporated Baywater
Logistics provided brokerage but not drayage services. When asked di-
rectly Cabral testified as follows: Q. Okay. Does IBT—has IBT let you
know that they have a problem with you operating a business? A. No,
we have no conflict of interest. The type of work that I do IBT doesn't
do. (Tr. 3153.) The mere fact of incorporation at one time by Cabral of
unilaterally set by the Orchestra and there were no negotiations
over such fees. The musicians did not receive more or less based
how well or poorly they performed. The musicians like the IBT
lease drivers could decide not to work in a particular program.
The Board in considering the question noted,
The fact that the musicians can decide not to work in a particu-
lar program or request to work in more programs does not
mean that they enjoy an opportunity for entrepreneurial gain
suggesting a finding that they are independent contractors. The
choice to work more hours or faster does not turn an employee
into an independent contractor. To find otherwise would sug-
gest that employees who volunteer for overtime, employees
who speed their work in order to benefit from piece rate wages,
and longshoremen who more regularly appear at the “shape
up” on the docks would be independent contractors. We reject
that notion. 357 NLRB at 1764–1765 (internal citation and
footnote omitted). See also Sisters’ Camelot, supra, slip op. at
5 (the fact that canvassers could decide whether to work on a
given day and could increase earnings by making themselves
available for more work did not favor independent contractor
status, where they had no control over important business de-
cisions such as where they solicited donations or whether to
hire or subcontract the work).
Similar reasoning is applicable in this case. Also, despite the
fact that drivers can choose from a limited number of dispatch
choices IBT has complete control over the business decision of
which deliveries it offers them. This directly determines the
amount of time the delivery will take over which the driver will
have little or no control. Similar to the musicians in Lancaster
Symphony who had no ability to perform the concert “jobs”
faster, the inflexible duration of assigned deliveries does not pro-
vide any entrepreneurial opportunities to maximize efficiency
and increase income. 357 NLRB at 1765 fn. 8.
These considerations strongly support the conclusion that the
drivers do not, in fact, operate independent businesses with en-
trepreneurial opportunity within the meaning of FedEx and, in
turn, this factor supports the overall conclusion that the drivers
were employees.14
There are some factors of varying significance that to some
degree supported independent contractor status. On balance, the
factors set forth in FedEx overwhelmingly support that the driv-
ers were “employees” and thus entitled to the Act’s protections.
Stated differently, I find that on this record, under the facts of
this particular case, IBT failed to carry its burden, and therefore
I find that the drivers were “employees” protected by the Act
during the relevant period. FedEx, supra; Time Auto
a separate business entity unrelated to the driving Cabral does at IBT
does not immunize IBT. Many employees have second jobs or part time
jobs apart from the work they do for their primary employer. Lancaster
Symphony Orchestra, 357 NLRB 1761, 1765 (2011) (citing KCAL-TV,
331 NLRB 323, 323 (2000)), enfd. 822 F.3d 563 (D.C.Cir. 2016). As-
suming for the sake of argument that some relationship to his IBT work
could be established, I concur with General Counsel’s assertion that Ca-
bral was not representative of the other drivers who testified and more of
an “outlier.” There was no evidence that any other driver even arguably
operated as a distinct business.
INTERMODAL BRIDGE TRANSPORT 17
Transportation, 338 NLRB 626 (2002), affd. 377 F.3d 496 (6th
Cir. 2004); Slay Transportation Co., 331 NLRB 1292 (2000);
and Roadway Package System, 326 NLRB 842 (1998). See also
Green Fleet Systems, 2015 WL 1619964, Case 21–CA–10003
(2015); a case involving truck drivers with many strikingly sim-
ilar facts which resulted in a similar conclusion that lease drivers
were misclassified.
ANALYSIS
IV. IBT’S MISCLASSIFICATION OF THE LEASE DRIVER’S STANDING
ALONE IS A VIOLATION OF SECTION 8(A)(1)
After reaching the conclusion that the lease drivers were mis-
classified, the first question that arises is whether this misclassi-
fication is merely a mechanism which triggers the applicability
and protections of the Act or if the misclassification itself can
constitute a violation. General Counsel argues that an independ-
ent violation exists but cites no direct authority for the proposi-
tion. Instead, citing Parexel International, LLC, 356 NLRB 516,
519 (2011), General Counsel argues that the Board has held in
other cases that conduct similar to misclassification that serves
to chill future activity or can be used as a “preemptive strike” to
prevent employees from engaging in protected and concerted ac-
tivity violates Section 8(a)(1) of the Act because of its “chilling
effect” on employees’ future exercise of their rights. Without
question, by misclassifying, the employer intends, “the very con-
sequences which foreseeably and inescapably flow from his ac-
tions.” Erie Resistor, 373 U.S. 221, 228 (1963). From a practi-
cal standpoint misclassification not only serves to chill future
concerted activity as asserted by the General Counsel but essen-
tially deprives and conceals available protections these employ-
ees have under the Act. Interference and restraint of Section 7
rights flows directly from misclassification. As such, I find that
misclassification rises to the level of a per se violation of Section
8(a)(1).15
VII. OTHER UNLAWFUL PRACTICES
A. Interrogation, Surveillance, Promise of Better Work for
Abandoning Union Activity, Threatening Lease Drivers with
Unspecified Reprisals
(1) Interrogation
In determining whether an interrogation is coercive in viola-
tion of Section 8(a)(1), the Board applies a totality of the circum-
stances test which considers whether under all circumstances the
interrogation reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act. Bloomfield Health Care Cen-
ter, 352 NLRB 252 (2008). Relevant factors for consideration
were set forth by the Board in Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760

15 In making this finding, I am cognizant of the Board’s recognition
in Pennsylvania Interscholastic Athletic Assn., 365 NLRB No. 107 (
2017), that the Act’s Sec. 1 preference is for the inclusion of workers as
employees and that any interpretation requires that consideration be
given to, “the Act’s policy to “encourag[e] the practice and procedure of
collective bargaining and . . . protect[] the exercise by workers of full
freedom of association, self-organization, and designation of representa-
tives of their own choosing.” See also Holly Farms Corp. v. NLRB, 517
U.S. 392, 297 (1996) (“[A]dministrators and reviewing courts must take
F.2d 1006 (9th Cir. 1985), and derived by the Board from stand-
ards articulated by the court in Bourne Co. v. NLRB, 332 F.2d 47
(2d Cir. 1964). The underlying premise of the Board’s holding
in Rossmore House is that on many occasions, interrogations can
be completely lawful acts. Rossmore House sets forth factors to
consider in determining whether any particular interrogation
falls outside the bounds of a lawful interrogation. The factors
are as follows: (1) The background, i.e., is there a history of em-
ployer hostility and discrimination? (2) The nature of the infor-
mation sought, e.g., did the interrogator appear to be seeking in-
formation on which to base taking action against individual em-
ployees? (3) The identity of the questioner, i.e., how high was he
in the company hierarchy? (4). Place and method of interroga-
tion, e.g., was employee called from work to the boss’ office?
Was there an atmosphere of “unnatural formality?” (5). Truth-
fulness of the reply. See McClain & Co., 358 NLRB 1070
(2012), see also Camarco Loan Mfg. Plant, 356 NLRB 1182
(2011). Mediplex of Danbury, 314 NLRB 470, 472 (1994). Don-
aldson Bros. Ready Mix, Inc., 341 NLRB 958 (2004). Rossmore
House provides relevant factors for consideration however, the
factors are not meant to be “mechanically applied” and it is not
essential to a finding of a coercive interrogation that each and
every element of Rossmore House be met. The fundamental is-
sue is whether the questioning would reasonably have a tendency
to interfere with, restrain or coerce employees in the exercise of
their Section 7 Rights. This is an objective standard and does
not turn on whether the employee was actually intimidated.
Multi-Aid Service, 331 NLRB 1126 (2000), enf. 255 F.3d 363
(7th Cir. 2001).
(a) IBT’s Vice President Zea’s Interrogation, Threats of Un-
specified Reprisals, Expression of Futility of the
Organizing Campaign
The allegations surrounding IBT Vice President Zea’s actions
revolve around a meeting that took place on February 16, 2016.
The subject of the meeting was a flyer that the lease drivers dis-
tributed at a Target store. (GC Exh. 4.) The flyer asked Target
customers to “tell Target to stop hurting its truck drivers and our
families.” The flyer further asked Target to, “take responsibility
for your supply chain. Stop wage theft here in Los Angeles.”
(GC Exh. 4.) Zea was angry and upset about the flyer and called
a meeting to express his displeasure with the flyer and its poten-
tial to cause IBT to lose customers. Despite his denials and as-
sertions to the contrary, I find that during the meeting, Zea an-
grily told employees that if they wanted to work for a Union
company they could leave. There was a “big door” or “the doors
are always open” “there are other trucking companies out there,
the doors are open.”16 He also told the workers present that the
Union wasn’t going to happen and in response to a suggestion
care to assure that the exemptions from NLRA coverage are not so ex-
pansively interpreted as to deny protection to workers the Act was de-
signed to reach.”). Id. at fn. 6.
16 Zea admitted to making such statements. However, he suggested
that he followed up his doors are open statement with an invitation to
drivers to return to IBT after they left. (Tr. 3980.) His admission par-
tially corroborates what others testified he said. I find however that that
given his anger and the context in which the words were spoken the no-
tion that he invited employees to return simply unworthy of belief.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Zea fire the pro-union drivers, he conducted a poll asking
those who supported the Union to raise their hands.
Regarding the actions of Zea, it is important to set forth my
credibility findings regarding this incident. After having viewed
Zea’s testimony first hand, I am left with the firm impression that
the statements and actions attributed to him by others in the
meeting (as well as his own admissions) as set forth above were
in fact true. Zea’s testimony revealed that he had been one of the
most important figures in the growth of IBT. He started on the
ground floor and was a major contributor to the company. His
testimony and demeanor revealed his dedication and loyalty to
the company. He invested a great deal of his life skills and en-
ergy in an effort to make IBT successful and was personally re-
sponsible in large measure for its success. He was adamantly
against the very notion of a Union at IBT. Thus, the actions of
the Union regarding the Target flyer triggered his angry re-
sponse.
The Board has long held that statements like Zea’s that sug-
gest employees should leave instead of engaging in union activ-
ity violate the Act. See Jupiter Medical Center Pavillion, 346
NLRB 650, 651 (2006). So, to, the Board has held that expres-
sions of futility like Zea’s admonition that “the Union was not
going to happen” violate the Act. See M.D. Miller Trucking &
Topsoil, Inc. 361 NLRB 1225, 1225 (2014). Lastly, I find the
polling of employees coercive. Applying Rossmore, I find that
given: (1) the hostility of Zea toward the Union, (2) the fact that
he was the Vice President, (3) the fact that he was seeking the
identity of union supporters (4) as well as the context in which
the poll arose i.e., upon the suggestion that all Union supporters
be fired. The polling/ questioning would reasonably have a ten-
dency to interfere with, restrain, or coerce employees in the ex-
ercise of their Section 7 Rights thus was coercive and violated
the Act. In sum, I find that each of the above described actions
of Vice President Zea constitutes a separate 8(a)(1) violation.
(b) Dispatcher Quevado’s actions
Although denied by Respondent in its answer, I find Quevado
to be both a supervisor and an agent under Section 2(11) and (13)
of the Act. As noted previously, the parties stipulated that Que-
vado performed dispatching duties and “Mr. Quevedo dispatches
loads to drivers and works to meet customer delivery needs and
performs these duties on behalf of IBT.” (Jt. Exh. 2.) Section
2(11) defines a supervisor as an individual having authority to
“assign” “reward” or “direct” if such requires “the use of inde-
pendent judgment.” Quevado by virtue of his duties not only
assigned work, could reward drivers by giving them more lucra-
tive loads and had discretion in determining what work to assign
to whom meeting the definition of a supervisor set forth in the
Act.
Alternatively, as for Quevado’s role as an agent, the common
law rule traditionally applied by the Board is that of “apparent
authority.” Allegany Aggregates Inc., 1165 (1993). The test ap-
plied is whether “under all the circumstances, the employees
would reasonably believe that the employee in question was re-
flecting company policy and speaking and acting for manage-
ment.” Eihorn Enterprises, 279 NLRB 576 (1986), enfd. 843
F.2d 1507 (2d Cir. 1988). The determination is whether under
the circumstances the employee would reasonably believe that
the alleged agent was acting on behalf of management. United
Scrap Metal Inc., 344 NLRB 467 (2005).
The question is whether Respondent cloaked Quevado with
apparent authority to act on its behalf. By virtue of Quevado’s
undisputed actual authority to assign work and the use of his
judgment to decide what work to assign to whom, including his
ability to reduce lease amounts to drivers, it was reasonable for
drivers to conclude that Quevado was acting on behalf of man-
agement. Moreover, the fact that Quevado was the brother of
Vice President Zea clothed him with an additional layer of per-
ceived apparent authority. Accordingly, I conclude that he was
an agent of the Respondent within the meaning of Section 2(13)
of the Act.
(c) Quevado’s interrogation of Portillo
The allegations surrounding the alleged interrogation relate
back to an incident which occurred about a week after Jose Por-
tillo participated in a strike against the company. I credit Jose
Portillo’s version of the events. Quevado admitted that he had
such conversations with drivers. (Tr. 3764–3772.) The con-
versation occurred at the dispatch window approximately a
week after the strike ended. Portillo’s credible description of
the conversation is as follows:
Q. After the strike was over and you returned to the work, did
anyone at the company talk to you about the strike?
A. No. Well, yes, Mr. Marlo from dispatch.
Q. When did he talk to you? How soon after the strike?
A. About a week after, we can say.
Q. Where did this conversation take place?
A. At the window of his dispatch office.
Q. And about what time of day was it?
A. I remember that it was between 8:00 and 9:00 a.m.
Q. And who started the conversation?
A. Mr. Marlo.
Q. And what did he say?
A. He began to speak to me and asking me whether I believed
that what I was doing was good.
Q. And did you respond? What did you do say?
A. In the little bit of knowledge I had, yes. And he asked me,
"What are the arguments that you guys have?"
Q. What did you say?
A. We told him with were tired of so many retaliations, fa-
voritism, work for free. I'm getting old. I don't have benefits.
I'm not working my social. I want a retirement plan. I can't go
on paid vacations. And I feel like a slave to this job.
Q. Did Marlo respond to you?
A. "By doing this, do you think you're going to accomplish
that?" And I said, "Well, if I don't accomplish this, I will gain
something."
Q. Did he respond?
A. Yes. He said, “IBT, it’s been years that they’ve been op-
erating this way and they’re going to continue to do so. And
there’s not going to be anything that will change it.” And I said,
“Well, we shall see. We’re going to continue the fight with my
coworkers. We've started something and we’re going to keep
going until the end.” He said, “I tell you as a friend that this is
not right. You don't know the power that IBT has. They can
do—very simply just close, if they want.” And we’ll just be
INTERMODAL BRIDGE TRANSPORT 19
screwed, because your family eats from here. My family eats,
and all your coworkers outside eat. And I said, I understand
that perfectly, but my family no. I don’t have medical insur-
ance and in the same way that I’m telling you, I’ve told Mr.
Ozzie Zea, I want to retire with dignity, with my retirement.
Because when I retire, instead of getting retirement, if I con-
tinue to work the way I am, I'm going to have to get welfare.
Well, he said, keep going then and pay the consequences. And
I said, well, we shall see. Have a good day. (Tr. 700–702.)
Applying the Rossmore House factors, I find that the conver-
sation between Quevado and Portillo was an unlawful coercive
interrogation. Quevado was a dispatcher who could control the
amount and type of work given to drivers, the conversation took
place at the dispatch window, there was no valid reason shown
for his requesting the information he sought and there were
threats of reprisals interwoven within the conversation. Under
the totality of the circumstances, I find this type of questioning
would tend to coerce employees in the exercise of their Section
7 rights.
A separate violation is found in both Quevado’s threats of
“consequences” and threats of plant closure. See Tres Estrellas
de Oro, 329 NLRB 50, 51 (1999). See also National Steel Supply
Inc., 344 NLRB 973 (2005) (threats of job loss unlawful) see
also NLRB v. McCullough Environmentals Services, Inc., 5 F. 3d
923 (5th Cir. 1993); and Indiana Cal-Pro. Inc. v. NLRB, 863 F.
2d 1292, (6th Cir. 1988) threats of plant closure are “among the
most flagrant” instruments of coercion.
(d) Quevado’s interrogation of Osoy
Osoy testified to a similar conversation with Quevado at the
dispatch window which occurred after the first strike and after
drivers presented the petition to Vice President Zea. Osoy testi-
fied as follows
Q. This conversation with Marlo at dispatch, who spoke first,
and what was said?
A. Marlo spoke first.
Q. What did he say?
A. He said, oh, you are one of the ones that is on strike outside?
Q. And what did you say?
A. I told him, all of this is your fault because you have always,
always given me poor work.
Q. And what did he say in response, if anything?
A. Oh, is that the problem? If it's because of that then I can start
giving you good work starting today.
Q. What else did he say?
A. But you have to get out of that.
Q. Did he say what he meant by "that"?
A. From the Union.
Q. And did you respond?
What did you say?
A. And I said do we have to come to this where we are demon-
strating for you to listen to me?
Q. And what else was said during this conversation?
A. He said that's not a problem. I will give you good work. Just
get out of the Union.
Q. How long did this conversation last?
A. From five to ten minutes.
Q. Was there anyone else around during this conversation?
A. No.
Q. After this conversation, did Marlo give you better work?
A. Two weeks after, he began to give me good work.
He also testified he had a second conversation in which Que-
vado complained about him not abandoning the Union as fol-
lows:
Q. You said you had a second conversation with Marlo; is that
correct?
A. Yes.
Q. And where did this conversation take place?
A. Where he does the dispatch.
Q. And what was said during this conversation?
A. He said he kept seeing me wearing the vest, that I was not
listening.
Q. And did you respond? What did you say?
A. I said what's done is done. I cannot leave this now.
Q. And did he respond?
A. He just put his head down moving it from everywhere. (Tr.
203-208).
He further testified as follows:
Q. Do you remember Marlo making any comment about your
family during that conversation?
A. Yes.
Q. What did he say about your family?
A. He told me, do you know what you’re getting yourself into?
The company is a millionaire company. You're not going to
win. You have family. What are you going to support them
with? (Tr. 266.)
Applying the Rossmore House factors, I find that Quevado un-
lawfully interrogated Osoy in violation of the Act. As noted pre-
viously, regarding Quevado’s Interrogation of Portillo, Quevado
was a dispatcher who could control the amount and type of work
given to drivers, the conversation took place at the dispatch win-
dow, there was no valid reason shown for his requesting the in-
formation he sought and there were promises of benefits if he
abandoned the Union interwoven within the conversation. Un-
der the totality of the circumstances, I find this type of question-
ing would tend to coerce employees in the exercise of their Sec-
tion 7 rights. The promise of benefits in exchange for abandoning
the Union in and of itself is inherently coercive and supports a
finding of a violation standing alone. See NLRB v. Exchange
Parts Co., 375 U.S. 405, 409 (1964). So too, I find that the in-
herent threat of job loss which comes across loud and clear when
Quevado told Osoy, “You have family. What are you going to
support them with?” violated the Act. See Tres Estrellas de Oro,
329 NLRB 50, 51 (1999). See also National Steel Supply Inc.,
344 NLRB 973 (2005), (threats of job loss unlawful). It is im-
portant to note that in finding both Osoy and Portillo’s versions
of these conversations credible, I note the distinct similarities be-
tween the nature of the interrogation and the types of threats
which were implied especially the references directed to each
being unable to provide support for their families’ economic
wellbeing if they supported the union.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(2) Surveillance
The test for determining whether an employer unlawfully cre-
ates an impression of surveillance is whether under the circum-
stances, the employee reasonably could conclude from the state-
ment in question that his or her protected activities are being
monitored. Mountaineer Steel, Inc., 326 NLRB 787 (1998),
enfd. 8 Fed.Appx. 180 (4th Cir. 2001), see also, Frontier Tele-
phone of Rochester, Inc., 344 NLRB 1270, 1276 (2005). The
Board’s view is that an employer “creates the impression of sur-
veillance when it monitors employees’ protected concerted ac-
tivity in a manner that is “out of the ordinary” even if the activity
is conducted openly noting that, “employees should not have to
fear that “members of management are peering over their shoul-
ders” taking note of their concerted activities. Conley Trucking,
349 NLRB 308 (2007).
(a) Allegations Regarding Safety Assistant Rosas
General Counsel asserts that Safety Assistant Rosas created
the impression of surveillance, on May 3, 2016, by allegedly tell-
ing Osoy to “be careful” because IBT was recording the drivers
and listening to them. General Counsel also suggests that Rosas
not only told Osoy to “be careful” but also informed drivers who
wore union safety vests that they would be terminated. (GC Br.
170 fn. 157). If true, the allegations surrounding safety assistant
Rosas’ alleged actions could unlawfully create the impression of
surveillance. However, the entire allegation rests upon whether
I credit the testimony of Rosas. For her part, Rosas denied ever
making the statements like those attributed to her. When asked
directly she testified:
Q. Okay. Have you ever informed any of the drivers to be
careful because IBT is watching and recording everything they
say and do?
A. No.
Q Have you ever informed the drivers that IBT was aware of
which of them were filing legal actions against the company?
A. No.
Q. Have you ever told any contractor that IBT was recording
them?
A. No.
Q. Have you ever told any driver that IBT would get rid of
them if they engaged in any activities on behalf of the Union?
A. No.
Q. Have you ever told any of the drivers to watch out because
IBT was going to get them?
A. No.
Q. Anything like those statements?
A. No. (Tr. 3445).
I credit the testimony of Rosas regarding this particular issue.
At trial, she appeared to testify in an honest and truthful manner.
The picture painted of Rosas in the complaint as threatening un-
ion supporters with surveillance and termination simply didn’t
correspond to the person who testified at trial. The overall testi-
mony and demeanor of Rosas suggested that she was in fact nav-
igating the difficult terrain of remaining cordial with all employ-
ees knowing that there was some discord between those who
were union supporters and those who were not. Evidence of this
is found in her response to Osoy when he advised her that the
union was “filing against IBT” and she responded, “well what do
you want me to do or what do you want me to say.” (Tr. 3462.)
Rosas could very well have on the spot threatened Osoy. Instead,
her response is couched in some degree of neutrality and recog-
nition of her limited authority as a lower level safety official.
Rosas testified that she didn’t engage in the conduct attributed to
her and I believe her. Assuming for the sake of argument that
she told Osoy to “be careful” as alleged by the General Counsel,
this in and of itself is not persuasive. More to the point, General
Counsel neglects that Rosas is a safety official. I find that a
safety official’s suggestion to a driver to “be careful” without
other convincing evidence is insufficient to establish improper
surveillance or threats. Accordingly, I find that Rosas did not
monitor employees’ protected concerted activity in a manner that
is “out of the ordinary” and therefore find that these allegations
are not supported by the evidence of record and Respondent did
not violate the Act as far as these allegations are concerned.
(b) Termination/Suspension of Osoy
The factual background surrounding the termination suspen-
sion allegations are straight forward. Driver Molina credibly tes-
tified that on May 25, 2016, Osoy, an open union supporter, chal-
lenged him to a fight calling for Molina to step outside the gate
to fight him after a dispute arose about the distribution of safety
vests. Osoy also challenged other drivers to step outside the gate
to “kick the mother out of each other” and telling them in Span-
ish “let’s go outside you sons of whores.” (Tr. 2815, 2816,
2834.) Osoy in his testimony admitted inviting Molina outside
the gate and admitted he asked the guard to open the gate and
inviting other drivers outside also. (GC Exh. 6 p. 3.) Molina
reported the incident and IBT put Osoy on “hold” while IBT in-
vestigated. (Tr. 2352.) Vice President Zea thereafter instructed
that Osoy be escorted out by security the following day. On May
26, 2016, Bradley advised dispatchers that Osoy would not be
welcome at IBT until further notice. Bradley later summoned
Osoy to his office and advised him that he would be taken out of
service and presented him with a letter advising him of such. (Jt.
Exh. 1 (e), Tr. 1916.) He was thereafter escorted out by security
officers. Other drivers subsequently met with Bradley to plead
Osoy’s case and suggested that Molina should also have been
placed out of service. (Tr. 1937.) IBT thereafter distributed a
memo to drivers which reassured drivers that “IBT will take
every legal step available to ensure the safety of all individuals
on IBT’s premises.” (Jt. Exh. 1 (f).) Osoy, with the assistance of
the Union, drafted an email which chronicled his dissatisfaction
with being taken out of service and included his version of the
events. He sent this email to IBT officials. (GC Exh. 6.) After
IBT received the email, Osoy was invited to meet with Bradley.
Osoy met with Bradley and he was given a letter placing him
back into service. The letter stated in pertinent part, “through
our investigation, it has become clear that you challenged Mr.
Molina and others to a fight. That being said, our investigation
and the passage of time has led us to believe that the immediate
safety threat has dissipated substantially and is seemingly un-
likely to recur. As such, to the extent you refrain from challeng-
ing others to a physical confrontation, no matter what the cir-
cumstances, you are free to resume providing services to IBT
INTERMODAL BRIDGE TRANSPORT 21
effective immediately.” (Jt. Exh. 1 (g).) Osoy thereafter re-
sumed working for IBT.
In order to determine whether an adverse employment action
was effected for prohibited reasons, the Board applies the analy-
sis articulated in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management. Corp., 462 U.S.
393 (1983).
To establish an unlawful discipline under Wright Line, the
General Counsel must first prove, by a preponderance of the ev-
idence, that the employee's protected activities were a substantial
or motivating factor in the employer's decision to take action
against them. Manno Electric, Inc., 321 NLRB 278, 280 (1996).
The General Counsel makes a showing of discriminatory moti-
vation by proving the employee’s protected activity, employer
knowledge of that activity, and animus against the employee’s
protected conduct. Naomi Knitting Plant, 328 NLRB 1279, 1281
(1999). Proof of an employer’s motive can be based upon direct
evidence or can be inferred from circumstantial evidence, based
on the record as a whole. Ronin Shipbuilding, 330 NLRB 464
(2000); Robert Orr/Sysco Food Services, 343 NLRB 1183
(2004).
If the General Counsel is successful, the burden of persuasion
then shifts to the employer to show that it would have taken the
same action even in the absence of the employee's protected ac-
tivities. Wright Line, 251 NLRB at 1089; Septix Waste, Inc., 346
NLRB 494, 496 (2006); Williamette Industries, 341 NLRB 560,
563 (2004).
Once the General Counsel has met its initial burden under
Wright Line, an employer does not satisfy its burden merely by
stating a legitimate reason for the action taken, but instead must
persuade by a preponderance of the credible evidence that it
would have taken the same action in the absence of the protected
conduct. T&J Trucking Co., 316 NLRB 771 (1995); Manno
Electric, Inc., 321 NLRB at 280 fn. 12. In applying Wright Line
the Board has cautioned that, “a judge's personal belief that the
employer's legitimate reason was sufficient to warrant the action
taken [cannot be] a substitute for evidence that the employer
would have relied on this reason alone.” Ingramo Enterprise,
351 NLRB 1337, 13380 fn. 10 (2007), review denied 310
Fed.Appx. 452 (2d Cir. 2009). The Board has also reminded that
“[a]n employer has the right to determine when discipline is war-
ranted and in what form . . . . The Board’s role is only to evaluate
whether the reasons the employer proffered for the discipline
were the actual reasons or mere pretexts.” Cast-Matic Corp., 350
NLRB 1349, 1358–1359 (2007).
Applying the law to the facts of the case, I find that the Gen-
eral Counsel has established a prima facie case. Charging Party
engaged in protected and concerted activity when he engaged in
strikes, wore and distributed safety vests with the Union logo,
and spoke with his coworkers. See Chromalloy Gas Turbine
Co., 331 NLRB 858, 863 (2000), enfd. 262 F.3d 184, 190 (2d.
Cir. 2001). See also, Worldmark by Windham, 356 NLRB at
765. Thus, I find that the first element of the prima facie case has
been met.
The second element of the prima facie case is also met as it is
undisputed that the Employer was aware of Osoy’s Union activ-
ity. Osoy did not conceal his Union activity and in fact he
appeared in a Los Angeles business journal story about Union
activity wearing a shirt with a union logo. (GC Exh. 5.) He also
openly supported the union wearing a safety vest with a union
logo.
The third element of the prima facie case is also met as the
discipline took place within a time frame in which improper mo-
tives can be inferred. Osoy’s discipline was set in motion pre-
sumably over disagreement between him and another during a
time when he was actively engaged in union activity voicing his
displeasure with another regarding the distribution of safety
vests that didn’t contain a union logo. I find the timing of the
discipline sufficient to support an inference of animus. See Saw-
yer of Napa, 300 NLRB 131 (1990), Olathe Health Care Center,
314 NLRB 54 (1994), Daniel Construction Co., 264 NLRB 569
(1982), enfd. 731 F.2d 191 (2d. Cir. 1984).
Having concluded that the General Counsel satisfied his initial
burden under Wright Line, the burden shifts to the Respondent
to prove, as an affirmative defense, that it would have disciplined
Osoy even in the absence of his protected activities. This burden
may not be satisfied by proffered reasons that are found to be
pretextual, i.e., false reasons or reasons not in fact relied upon
for the discharge. Rather, as the Board has consistently held, a
finding of pretext defeats an employer’s attempt to meet its re-
buttal burden. Stevens Creek Chrysler Jeep Dodge, 357 NLRB
633, 637 (2011), enfd. sub nom. Mathew Enterprise, Inc. v.
NLRB, 498 Fed.Appx. 45 (D.C. Cir. 2012). Further, an employer
does not carry its Wright Line burden merely by asserting a le-
gitimate reason for an adverse action, where the evidence shows
it was not the real reason and that protected activity was the ac-
tual motivation. T&J Trucking Co., 316 NLRB 771, 771–773
(1995), enf. mem. sub nom. NLRB v. T&J Container Systems, 86
F.3d 1146 (1st Cir. 1996); Stevens Creek, supra at 637; Metro-
politan Transportation Services, 351 NLRB 657, 659–660
(2007).
Applying these principles, I find that the Respondent satisfied
its burden under Wright Line. In particular, Respondent con-
tends it took actions to temporarily place Osoy out of service for
3 days in order to investigate the allegations that in fact he threat-
ened physical violence against another driver. Respondent’s po-
sition is supported by the credible testimony of Molina, the
driver who was on the receiving end of the threats. I am not
persuaded by General Counsel’s assertion that IBT did not con-
duct a meaningful investigation nor that Respondent had “no
plausible rationale” for its action concerning Osoy. These asser-
tions fall flat in view of the totality of the evidence that Osoy was
allowed to return in 3 days after IBT had time to investigate and
consider information provided by Osoy himself and by Osoy’s
own admissions which corroborate the basis upon which Re-
spondent’s says its actions were predicated. (GC Exh. 6.) I there-
fore find that Respondent did not violate Section (8)(a)(3) as it
relates to these allegations.
(c) 8(a)(4) violation for termination of Osoy
The General Counsel also alleged that Respondent violated
Section (8)(a)(4) by temporarily placing Osoy off duty for 3
days. The same Wright Line analysis set forth above applies to
violations of Section (8)(a)(4). I therefore find that the above
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rationale applies equally to the (8)(a)(4) allegations and find that
Respondent did not violate Section (8)(a)(4).
CONCLUSIONS OF LAW
1. The Respondent Company engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act by:
(a) Misclassifying employees as independent contractors.
(b) Vice President Zea interrogating drivers by polling drivers
to ascertain who supported the Union.
(c) Vice President Zea expressing futility of the union organ-
izing campaign.
(d) Vice President Zea threatening drivers with unspecified
reprisals and suggesting that they leave the Company.
(e) Dispatcher Quevedo interrogating Jose Portillo about his
support for the Union.
(f) Dispatcher Quevedo threatening Jose Portillo with unspec-
ified reprisals.
(g) Dispatcher Quevedo threatening Jose Portillo with com-
pany closure.
(h) Dispatcher Quevedo interrogating driver Eddie Osoy.
(i) Dispatcher Quevedo promising Eddie Osoy better work
for abandoning his union support.
(j) Dispatcher Quevedo threatening employees with unspeci-
fied reprisals if they support the Union.
2. The Respondent Company did not otherwise violate the
Act as alleged in the consolidated complaint.
REMEDY
The appropriate remedy for the 8(a)(1) violations found is an
order requiring the Company to cease and desist from such con-
duct and to take certain affirmative action consistent with the
policies and purposes of the Act.
Specifically, the Company shall cease and desist from mis-
classifying its employees and take all affirmative acts necessary
to make employees whole for any losses of earnings and other
benefits including reimbursement for consequential harm as a re-
sult of their unlawful misclassification.
The company shall cease and desist from interrogating drivers
by polling drivers to ascertain who supported the Union, express-
ing futility of the union organizing campaign, threatening drivers
with unspecified reprisals and suggesting that they leave the
Company interrogating drivers about their support for the Union,
threatening drivers with company closure, promising drivers bet-
ter work for abandoning union support.
Consistent with Board policy and precedent, the Company
will also be required to post a notice to employees, in both Eng-
lish and Spanish, stating that it will not continue to engage in the
same or any like or related unlawful conduct and that it will af-
firmatively remedy its unlawful conduct as ordered. See Nickey
Chevrolet Sales, Inc., 142 NLRB 23 (1963).
I also find that a special remedy is appropriate. Specifically,
I shall order Vice President Zea or, if he chooses, a Board agent

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
in his presence, to read the remedial notice aloud to the employ-
ees, at one or more mandatory meetings scheduled during work-
ing time to ensure the widest possible attendance a Spanish-lan-
guage interpreter, must be present as well to translate the reading
for employees who are not fluent in both English and Spanish. I
find that this special remedy is appropriate under Board prece-
dent given the severity of unfair labor practices committed by the
Company’s highest ranking local official (vice president) and a
dispatcher (agent) who controls the assignments of drivers.
Accordingly, based on the above findings of fact and conclu-
sions of law and the entire record, I issue the following recom-
mended17
ORDER
The Respondent, IBT, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Misclassifying employees as independent contractors.
(b) Interrogating drivers by polling drivers to ascertain who
supported the Union.
(c) Expressing futility of the union organizing campaign.
(d) Threatening drivers with unspecified reprisals and sug-
gesting that they leave the Company.
(e) Interrogating employees about their support for the Union.
(f) Threatening employees with unspecified reprisals for sup-
porting the Union.
(g) Threatening employees with company closure.
(h) Promising employees better work for abandoning their
union support.
(i) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of the Board’s order, take
all appropriate actions to correct the misclassification including
the rescission, in writing, of any company documents that pur-
port to classify employees as independent contractors.
(b) Make employees whole for any loss of earnings and other
benefits suffered as a result of the misclassification in the manner
set forth in the remedy section of the decision.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of any losses in-
curred by the employees and due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Wilmington, California, copies of the attached notice
marked “Appendix”18 in both English and Spanish. Copies of the
18 In addition to physical posting of the paper English/Spanish If this
Order is enforced by a judgment of a United States court of appeals, the
words in the notice reading “Posted by Order of the National Labor Re-
lations Board” shall read “Posted Pursuant to a Judgment of the United
INTERMODAL BRIDGE TRANSPORT 23
notice, on forms provided by the Regional Director for Region
21, after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. The notice
shall be distributed to the employees, with one of their weekly
pay or settlement checks. The notice shall also be distributed
electronically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent 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 April 9, 2015, including all lease drivers.
(e) Within 14 days after service by the Region, hold a meeting
or meetings during working time, scheduled to ensure the widest
possible attendance by employees, including both company driv-
ers and lease drivers, at which the attached notice will be read
aloud by the Ozzie Zea Respondent’s vice president or, at the
Respondent’s option, by a Board agent in Zea’s presence, with
translation provided by a Spanish-language interpreter for em-
ployees who are not fluent in both Spanish and English.
(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.
Dated, Washington, D.C., November 28, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT misclassify employees as independent contrac-
tors.
WE WILL NOT interrogate drivers by polling drivers to ascer-
tain who supported the Union.
WE WILL NOT express futility of the union organizing cam-
paign.
WE WILL NOT threaten drivers with unspecified reprisals and
suggest that they leave the Company if they support the Union.
WE WILL NOT interrogate employees about their support for
the Union.
WE WILL NOT threaten employees with unspecified reprisals
for supporting the Union.
WE WILL NOT threaten employees with company closure.
WE WILL NOT promise employees better work for abandoning
their union.
WE WILL NOT threaten employees with job loss and/or com-
pany closure if they support the union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
take all actions to properly classify the workers as employees and
rescind, in writing, any company documents that purport to clas-
sify them as independent contractors. WE WILL make employees
whole for any losses suffered as a result of the misclassification
including any consequential damages they may have incurred.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CA-177303 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940

States Court of Appeals Enforcing an Order of the National Labor Rela-
tions Board.”