Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Apr 20, 2000

330 N.L.R.B. 1275 (N.L.R.B. 2000)

OVERNITE TRANSPORTATION CO. 1275
Overnite Transportation Company and Freight Driv-
ers, Warehousemen and Helpers, Local Union
No. 390 affiliated with The International Broth-
erhood of Teamsters, AFL-CIO and Johnny A.
Fryer and Hugo Hernandez. Cases 12–CA–
18110, 12–CA–18596, 12–CA–18695, 12–CA–
18909, 12–CA–18611, and 12–CA–18971

April 20, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN AND HURTGEN
On June 8, 1998 Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and cross-exceptions.
The Respondent filed a reply and an answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
except as modified and to adopt the recommended Order
as modified and set forth in full below.
1. The judge found, and we agree, that the Respondent
violated Section 8(a)(1) and (5) of the Act by failing to
provide the Union with a copy of a complaint letter from
a Home Depot store in relation to the discipline of em-
ployee Carlos Ramirez. The judge also found that the
Respondent’s failure to provide other information in rela-
tion to that discipline was not unlawful. The General
Counsel has excepted, arguing that the Respondent also
violated Section 8(a)(5) by failing to provide a complaint
letter regarding Ramirez from customer Eurostyle. For
the reasons stated below, we find merit in this exception.
On October 9, 1996, Ramirez was issued a corrective
action report (written warning) based on a customer
complaint from Eurostyle. At the disciplinary meeting
involving that complaint, Assistant Terminal Manager
Doy Argo showed Ramirez the Eurostyle complaint.
After Ramirez persuaded Argo that the Eurostyle com-
plaint may have lacked merit, the warning, if not with-
drawn, was reduced to an oral warning. Ramirez was not
required to sign the corrective action report. Therefore,
under the Respondent’s policy, it was not an official
written warning.

1 We grant the Respondent’s motion to take administrative notice of
NLRB v. Wehr Constructors, Inc., 159 F.3d 946 (6th Cir. 1998).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We do not rely on the judge’s statement in fn. 11 of his decision that
the Respondent and its subcontractors would, if the issue arose, be
considered joint employers. We also do not rely on his speculation in
fn. 12 as to whether the Respondent’s Miami hiring procedure is fol-
lowed at its terminals where there is no union representation.
We correct the record to indicate that the name of the customer to
whom employee Hugo Hernandez made a delivery on August 8, 1997,
is “Brassline.” We also correct the caption of the judge’s decision to
indicate that neither Mark Richard nor Judith Scott participated in the
hearing as counsel for the Union, and that Marc Stefan did so partici-
pate.
On December 11, 1996, Ramirez was issued a “final”
corrective action report as a result of a complaint from
customer Home Depot. In the disciplinary meeting, Un-
ion Steward Hugo Hernandez asked Assistant Terminal
Manager Argo for a copy of this corrective action report
concerning Ramirez, a copy of the Home Depot letter
(which had been shown to Hernandez and Ramirez), and
any other material relevant to the report. Argo gave Her-
nandez a copy of the report but declined to give him a
copy of the Home Depot letter. At a later date, Hernan-
dez asked Argo for information regarding Ramirez.
Argo said that he would provide information in response
to a written request. On February 12, 1997, Ramirez
made a written request, witnessed by Hernandez, for “all
my personal records, write ups and any documentation
relating to my job at Overnite Transportation.” On Feb-
ruary 24, 1997, Argo (now terminal manager) transmit-
ted copies of four corrective action reports dated Decem-
ber 11, October 9, 1996, and February 10 and 26, 1993,
plus a bill of lading dated April 30, 1996, indicating that
this constituted the entire documentation that the Re-
spondent had concerning past disciplinary actions or
warnings issued to Ramirez. Argo did not transmit the
Home Depot letter or the complaint letter from Euros-
tyle.
At the hearing, Argo was asked whether, in addition to
the Home Depot incident, there were any other reasons
why Ramirez was issued a final warning in December
1996. He replied, “Yes, there were—there had been a
verbal warning and a discussion with Mr. Ramirez about
a like incident, although it was—the visibility of this
incident was not as broad as the visibility of the [Home
Depot] incident.” Thus, the severity of the December
discipline (a final warning) was based at least in part on
the October Eurostyle complaint.3
Further, the Eurostyle letter was clearly within the
scope of the written request. That request, on its face,
asked for “all . . . write ups and any documentation . . . .”
Nothing in this language excludes the Eurostyle letter.
Clearly, the purpose of the information requests was to
allow the Union to review the information to decide
whether to grieve the December discipline further. The
3 As to the Eurostyle letter, we note that, despite Argo’s apparent ac-
ceptance of Ramirez’ explanation of the incident, it remained the sub-
ject of a corrective action report (indeed, the Respondent included a
copy of the report, but not the letter, in its response to the written re-
quest for information). Further, as discussed supra, Argo’s testimony
indicates that the Eurostyle letter played at least some role in the deci-
sion to discipline Ramirez.
330 NLRB No. 184
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
Eurostyle letter was relevant to this legitimate purpose,
and the Respondent’s failure to supply it was, in these
circumstances, unlawful.4
2. In the remedy section of his decision, the judge con-
cluded that, because the Respondent’s unlawful unilat-
eral changes (i.e., subcontracting, changes to the starting
time, and institution of a call-in procedure) had no mate-
rial or measurable effect on the earnings of its unit em-
ployees, no backpay remedy was required. The General
Counsel has excepted to this conclusion, contending that
the unit employees’ earnings were reduced by the Re-
spondent’s actions. Although we express no view as to
the merits of the General Counsel’s arguments in this
respect, we note that the General Counsel did present
significant evidence to support his assertions,5 and we
find that the General Counsel should not be precluded
from advancing his arguments. Accordingly, we shall
allow the General Counsel, at the compliance stage of
this proceeding, to attempt to show that a backpay rem-
edy is required.6
3. As to the subcontracting issue, we, unlike our dis-
senting colleague, adhere to the Board’s view as articu-
lated in Torrington Industries, 307 NLRB 809 (1992). In
Torrington, the Board held that the Supreme Court, in
Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203 (1964), had implicitly engaged in a balancing of fac-
tors before concluding that an employer had a duty to
bargain over the kind of subcontracting decision at issue
there. Such decisions, as the Court in First National
Maintenance Corp. v. NLRB, 452 U.S. 666 (1981),
agreed, do not involve a change in the scope and direc-
tion of the enterprise and thus are not core entrepreneu-
rial decisions beyond the scope of the Act’s bargaining
obligation. There is, therefore, often no need to “rein-
vent the wheel” in subcontracting cases. Like our Tor-
rington predecessors, we agree with our colleague that,
in some cases, nonlabor cost reasons for subcontracting
may provide a basis for concluding that a decision to
subcontract is not a mandatory subject of bargaining.
Unlike our colleague, however, we would follow Tor-
rington by reserving such inquiries to cases where the

4 If the Respondent believed the request to be overbroad and burden-
some, it should have said so. Instead, it merely made an incomplete
response.
5 This evidence includes, inter alia, copies of invoices showing that
on certain days some leased drivers worked more hours than many of
the Respondent’s regular employee drivers.
6 Having found the Respondent’s subcontracting unlawful, we shall
require the Respondent to rescind the subcontracts at issue. Our dis-
senting colleague states that he would not provide this remedy without
a showing that the affected subcontractors had notice of the proceeding
against the Respondent. In our view, the requirement to rescind flows
logically from the finding of violation. The notice question is properly
a matter between the Respondent and its subcontractors.
However, in accordance with the Respondent’s exception, we shall
narrow the judge’s recommended Order to provide that the Respondent
shall cease and desist from unilaterally changing employees’ start times
when based on factors other than freight volume fluctuations.
nonlabor cost reasons relate to a change in the scope and
direction of a business and are therefore matters of core
entrepreneurial concern outside the scope of bargaining.
It is manifest (and undisputed) that the instant case does
not involve a change in the scope and direction of the
Respondent’s business. In our view, that fact outweighs
the factual distinctions mentioned by our colleague
among the instant case, Torrington, and Fibreboard.
In particular, we reject our dissenting colleague’s con-
tention that Torrington is inapplicable because no current
unit employees lost their jobs as a result of the subcon-
tracting and there was therefore “no direct adverse im-
pact” on the unit. At issue here is a decision to deal with
an increase in what was indisputably bargaining unit
work by contracting the work to outside subcontractors
rather than assigning it to unit employees. We think it
plain that the bargaining unit is adversely affected when-
ever bargaining unit work is given away to nonunit em-
ployees, regardless of whether the work would otherwise
have been performed by employees already in the unit or
by new employees who would have been hired into the
unit. In any event, it is not clear in this case that the Re-
spondent’s current employees did not, themselves, lose
work opportunities. The Board’s decision in Acme Die
Casting, 315 NLRB 202 (1994), is instructive in this
regard. In Acme, the Board held that the employer vio-
lated Section 8(a)(5) by not offering to bargain before it
subcontracted drilling work and moved a drill used for
the work to the subcontractor. The Board rejected a con-
tention similar to that made by our dissenting colleague
in this case and held that “the reasoning of Torrington
Industries is not limited to situations in which employees
are laid off or replaced.” Id. at 202 fn. 1. The respon-
dent had informed the union that the work was relocated
because a “‘backlog in die casting and trimming caused
parts to be completed late, resulting in insufficient time
and manpower available to complete job on premises’,”
and insisted that “no hours of work were lost by unit em-
ployees on account of this move.” Id. at 207. The Board
adopted the judge’s finding that the employer moved the
work because it otherwise “might” have had to pay its
regular employees overtime to perform it. Id. at 202 fn.
1 and 209. Similarly, in this case, the Respondent’s
regular employee drivers “might” have lost at least the
opportunity for additional work, and, as the judge stated
in Acme Die Casting, “[t]he fact that no employees were
laid off or suffered a reduction in their workweek—even
if true—is irrelevant.” Id. at 209. As we stated earlier,
the General Counsel has introduced enough evidence that
the Respondent’s actions “might” have had a material
impact on the earnings of unit employees to warrant con-
sideration of whether the unit employees should be
granted a monetary remedy at the compliance stage of
this proceeding. See footnote 6, supra. The assignment
of more hours to leased drivers than to regular employee
drivers might have resulted in a loss of work opportuni-
OVERNITE TRANSPORTATION CO. 1277
ties for employee drivers. For all these reasons, we hold
that Torrington subcontracting is not limited to situations
where it has been affirmatively shown that the employer
has taken work away from current unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Overnite Transportation Company, Miami,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally subcontracting bargaining unit work
done at its Miami, Florida facility.
(b) Unilaterally changing the starting times of its unit
employees at its Miami, Florida facility when based on
factors other than freight volume fluctuations.
(c) Unilaterally requiring its unit employees at its Mi-
ami, Florida facility to call in before reporting to work.
(d) Refusing to furnish to the Union information which
is relevant for the purposes of bargaining about unit em-
ployee discipline.
(e) 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) On request, bargain with the Union regarding any
changes in wages, hours, or other terms and conditions of
employment of unit employees.
(b) On request, furnish the Union, in a timely manner,
with any information that is relevant for bargaining over
unit employee disciplines.
(c) Rescind its subcontracts with Ryder Truck Rental,
LEI Dedicated Services, Pro Drivers, and any other sub-
contractors performing driving work.
(d) Make whole its unit employees for any loss of pay
or other benefits they may have suffered as a result of its
unlawful conduct, in the manner prescribed in Ogle Pro-
tection Service, 183 NLRB 682 (1970), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(e) Within 14 days after service by the Region, post at
its facility in Miami, Florida, copies of the attached no-
tice marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since May 1, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HURTGEN, dissenting in part.
Unlike my colleagues, I disagree with the judge’s find-
ing that the Respondent violated Section 8(a)(5) and (1)
of the Act by failing to notify the Union and failing to
offer to bargain about its decision to subcontract bargain-
ing unit work. I think that there is room for doubt as to
the judge’s finding that the Respondent’s decision to
resume subcontracting, after a “hiatus” of about 18
months, amounted to a change in terms and conditions of
employment. However, even assuming arguendo the
correctness of that finding, I do not find that the subcon-
tracting was unlawful.
As an initial matter, I note the judge’s finding that it
was not clear whether the Respondent’s costs per hour
were greater or less when it used contract drivers instead
of its own employees. Further, Terminal Manager Doy
Argo, whom the judge generally credited, testified with-
out contradiction that his decision to use subcontractors
was not based on labor cost considerations. Rather, the
Respondent was trying to cope with an increase in freight
volume relative to available manpower. The judge found
that, because the subcontracting did not result in any
change in the scope and direction of the Respondent’s
business, the question of whether labor costs motivated
the subcontracting was not controlling. Applying Tor-
rington Industries, 307 NLRB 809 (1992), the judge
found that the subcontracting was unlawful.
In my view, Torrington Industries was wrongly de-
cided. Where, as here, labor costs are not the reason for
the subcontracting, that fact weighs heavily in the deter-
mination of whether the subcontracting is a mandatory
subject of bargaining. As discussed below, that analysis
leads here to the conclusion that the Respondent’s sub-
contracting was not a mandatory subject of bargaining.1
My view flows from First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981). The Supreme
Court divided management decisions into three catego-
ries. The first category consists of management deci-
sions, such as choice of advertising, product type and
design, and financing arrangements, which “have only an
1 I define “labor costs” to include the cost of wages, hours, and
working conditions, but not such broader economic factors as, for ex-
ample, retail costs, inventory expenses, and utility expenses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
indirect and attenuated impact on the employment rela-
tionship.” There is no obligation to bargain over these
decisions. In the second category are management deci-
sions, such as “the order of succession of layoffs and
recalls, production quotas, and work rules, which are
almost exclusively ‘an aspect of the relationship between
employer and employees’.” There is an obligation to
bargain over these decisions. The third category consists
of management decisions that have a direct impact on
employment—such as the elimination of jobs—but
which have as their focus only the economic profitability
of the business. For these decisions, the Court held that
bargaining would be required “only if the benefit, for
labor-management relations and the collective-bargain-
ing process, outweighs the burden placed on the conduct
of the business.” Id. at 676–679.
In the instant case, the judge found that the subcon-
tracting had no direct impact on unit employees. Thus, it
may well be that the first category (only an indirect and
attenuated impact on the employment relationship) ap-
plies. In such a case, it is clear that bargaining is not
required. However, even if the instant case does not fall
into the first category, it falls into the third category (di-
rect impact on employment, focus limited to economic
profitability). That is, in light of the heavy freight vol-
ume relative to manpower, the Respondent’s profitability
turned on its ability to subcontract the work. Without
subcontracting, it would have been unable to serve its
customers adequately. In that circumstance, the custom-
ers would have been required to turn elsewhere.
Applying the balancing test of the third category, it is
clear that the potential benefits of collective bargaining
do not outweigh the burdens that such bargaining would
place on the conduct of the business. Concededly, if
labor costs are the basis for a decision, the benefits of
collective bargaining are potentially significant. But
where, as here, labor costs are not the basis for the deci-
sion, those benefits are, at most, problematic. As to the
“burden” side of the balance, a requirement of collective
bargaining means that a decision cannot be made and
implemented until impasse (or agreement) is reached.
Under current Board decisions the reaching of that point
can be long, arduous, and uncertain. Until that point is
reached, the Respondent would not be able to take steps
that are necessary to the economic profitability of the
enterprise. Even then, unilateral action would be prem-
ised on the elusive law of impasse.
Based on the above, I conclude that the benefits are
problematic and that the burdens are substantial. And, in
order for the decision to be a mandatory subject, the bal-
ance must go the other way. Clearly, the General Coun-
sel has not established that the benefits of bargaining
outweigh the burdens. See Dorsey Trailers, Inc. v.
NLRB, 134 F.3d 125 (3d Cir. 1998) (decision to subcon-
tract based on employer’s need to meet increased de-
mand held not bargainable); Furniture Rentors of Amer-
ica, Inc. v. NLRB, 36 F.3d 1240 (3d Cir. 1994) (rejecting
Board’s approach as set forth in Torrington Industries).
Fibreboard, supra, does not require a contrary result.
In Fibreboard, the employer “merely replaced existing
employees with those of an independent contractor to do
the same work under similar conditions of employment.”
379 U.S. at 213. In the instant case, however, none of
the Respondent’s unit employees was replaced or laid
off. Indeed, the Respondent hired a limited number of
new full-time employees after it resumed subcontracting
in July 1997. Further, the judge found that the employ-
ees neither lost income nor worked fewer hours as a re-
sult of the subcontracting. In addition, and very signifi-
cantly, the employer in Fibreboard was motivated by
labor cost considerations. The employer had received
assurances from subcontractors that economies could be
derived by reducing the work force, decreasing fringe
benefits, and eliminating overtime payments. Id. In the
instant case, this was not the situation.
The Court in Fibreboard expressly limited the scope
of its holding:

We are thus not expanding the scope of manda-
tory bargaining to hold, as we do now, that the type
of “contracting out” involved in this case—the re-
placement of employees in the existing bargaining
unit with those of an independent contractor to do
the same work under similar conditions of employ-
ment—is a statutory subject of collective bargaining
under § 8(d). Our decision need not and does not
encompass other forms of “contracting out” or “sub-
contracting” which arise daily in our complex econ-
omy.

Id. at 215. (Fotnote omitted.)
As noted, in the instant case we do not confront “the
type of contracting out” involved in Fibreboard.
As discussed above, I conclude that Torrington was
wrongly decided. In addition, even if Torrington is
good law, it is distinguishable. In that case, the Board
limited its holding to those cases, factually similar to
Fibreboard, in which all that is changed through the sub-
contracting is the identity of the employees doing the
work. 307 NLRB at 811. Here, by contrast, work previ-
ously done by unit employees was not taken from them
and turned over to employees of a subcontractor. To
repeat, no unit employees were laid off, and they lost no
wages and no hours. My colleagues state that a bargain-
ing unit is harmed when unit work is given to nonunit
employees, regardless of whether the work would other-
wise have been done by employees already in the unit or
by new employees who would have been hired into the
unit. Assuming arguendo that they are correct, it does
OVERNITE TRANSPORTATION CO. 1279
not follow that such a work transfer is a mandatory subject
of bargaining. As noted supra, the First National Mainte-
nance criteria must still be satisfied.
I find the Third Circuit’s analysis in Dorsey Trailers,
supra, persuasive. The court reversed the Board and
found that the employer’s decision to subcontract unit
work was not a mandatory subject of bargaining. Dorsey
Trailers, like the instant case, but unlike Fibreboard, did
not involve the replacement of one group of employees
by another. Accordingly, the issue was whether the sub-
contracting decision centered around the scope and direc-
tion of the employer’s enterprise, its future viability and
whether the decision was motivated by a desire to reduce
labor costs. 134 F.3d at 132–133. The court concluded
that the decision to subcontract, which was based on the
employer’s need to meet increased demand, was not mo-
tivated by a desire to eliminate or reduce the overtime of
unit employees. Thus, the decision was not a mandatory
subject. Similarly, here the Respondent’s decision was
aimed at the increase in freight volume relative to avail-
able manpower and was not motivated by a desire to re-
duce labor costs. Another striking similarity between
Dorsey Trailers and the instant case is the lack of impact
on unit employees. Here, as in Dorsey, the subcontract-
ing had no direct adverse impact, in any measurable way,
on the existing complement of bargaining unit employ-
ees.
Finally, my colleagues say that the decision herein
“might” have an impact on employees, albeit a future
one. However, assuming arguendo that there was such
an impact, that does not mean that the decision was a
mandatory subject. Under the third category of First
National Maintenance, a decision with an impact on em-
ployment is a mandatory subject only if the benefits for
collective bargaining outweigh the burdens. That is not the
situation here.2

2 Because I would not find that the Respondent’s subcontracting was
unlawful, I would not, as my colleagues do, require the Respondent to
rescind its current subcontracts. Even if the subcontracting were un-
lawful, I would not provide this remedy in the absence of a showing
that the affected subcontractors had notice of the proceeding against the
Respondent.
My only other disagreement with my colleagues relates to the Re-
spondent’s failure to furnish a copy of the Eurostyle complaint letter in
connection with the disciplining of employee Carlos Ramirez. I note
that the warning notice given Ramirez, on its face, refers only to the
Home Depot incident. Although Argo alluded to the Eurostyle incident
in his testimony concerning the warning, he clearly minimized its im-
pact in comparison with the Home Depot incident. Moreover, although
Steward Hernandez made it clear to Argo that he wanted a copy of the
Home Depot letter, he did not do so as to the Eurostyle letter. I also
note that, after Ramirez and Argo discussed the Eurostyle incident on
October 9, 1996, Argo concluded that the complaint might not have
merit and he did not require Ramirez to sign the associated corrective
action report. In these circumstances, I would not find unlawful the
Respondent’s failure to include a copy of the Eurostyle letter in its
response to Ramirez’ remarkably broad-written request for information.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain collectively with the
Union by unilaterally subcontracting bargaining unit
work.
WE WILL NOT refuse to bargain collectively with the
Union by unilaterally changing starting times based on
factors other than freight volume fluctuations, call in
procedures, or any other term or condition of employ-
ment of unit employees.
WE WILL NOT refuse to bargain collectively with the
Union by refusing to furnish information which is rele-
vant to the discussion of unit employee discipline.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the ex-
clusive representative of the employees regarding any
changes in wages, hours, and terms and conditions of
employment of unit employees.
WE WILL, on request, furnish to the Union information
that is relevant to discussion of unit employee discipline.
WE WILL make whole our unit employees for any loss
of pay or other benefits they may have suffered as a re-
sult of our unlawful conduct, with interest.
WE WILL rescind our subcontracts with Ryder Truck
Rental, LEI Dedicated Services, Pro Drivers, and any
other subcontractors performing driving work.

OVERNITE TRANSPORTATION COMPANY

Jennifer Burgess-Solomon Esq. and Karen M. Thornton Esq.,
for the General Counsel.
Craig T. Boggs Esq. and Daniel Pasternak, Esq., for the Re-
spondent.
Judith Scott, Esq., Mark Richard Esq., and Ardyth Walker Esq.,
for the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Miami, Florida, on December 9 to 12, 1997, and
February 2 to 5, 1998. The charge in Case 12–CA–18110 was
filed by Freight Drivers, Warehousemen and Helpers, Local
Union No. 390, affiliated with the International Brotherhood of
Teamsters, AFL–CIO (the Union or Local 390) on June 7,
1996. The charge in Case 12–CA–18596 was filed by the Un-
ion on February 3, 1997, and amended on April 30 and May 16,
1997. The charge in Case 12–CA–18611 was filed by Johnny
A. Fryer, an individual, on February 7, 1997, and amended on
May 23, 1997. The charge in Case 12–CA–18695 was filed by
the Union on March 26, 1997. The charge in Case 12–CA–
18909 was filed by the Union on July 21, 1997. The charge in
Case 12–CA–18971 was filed by Hugo Hernandez, an individ-
ual, on August 13, 1997.
A complaint was issued on August 30, 1997, in relation to
the Case 12–CA–18810. A consolidated complaint was issued
in Cases 12–CA–18810, 12–CA–18596, and 12–CA–18611 on
October 15, 1997. Another consolidated complaint was issued
on October 17, 1997, in Cases 12–CA–18695, 12–CA–18909,
and 12–CA–18971. Subsequently, the consolidated complaints
were further consolidated for hearing.
In substance the complaints make the following allegations:
1. That Overnite transportation Company (the Respondent),
without first notifying or offering to bargain with the Union,
unilaterally commenced in January 1996, to implement a call-in
system for dock workers that required certain employees to call
Respondent before reporting to work in order to determine if
work was available. (The date is wrong and it is clear that the
allegation refers to events which occurred in late December
1996 or early 1997.)
2. That the Respondent, in mid-May 1996, without first noti-
fying or offering to bargain, unilaterally changed the schedules
of employees in the unit.
3. That the Respondent, in late December 1996, without first
notifying or offering to bargain, unilaterally implemented a rule
requiring certain drivers to call in before reporting to work.
4. That the Respondent, in late December 1996, without first
notifying or offering to bargain, unilaterally changed its method
of assigning work to drivers by, inter alia, taking away regular
routes and not assigning work on certain days of the week.
5. That the Respondent in early January 1997, without first
notifying or offering to bargain with the Union, unilaterally
implemented a “bills-per-hour standard” for the assignment of
work. 1
6. That on or about December 11, 1996, the Respondent by
Doy Argo, threatened to discharge employees because of their
union membership and activities.
7. That on or about December 11, 1996, the Respondent, for
discriminatory reasons, issued a final written warning to Carlos
Ramirez.

1 In the opening statements, the Union’s counsel explained that this
allegation was that the Respondent put into effect, what amounted to a
productivity standard for inbound dock workers requiring them to do
four bills per hour. There was no evidence to support any claim that
such a productivity standard was ever implemented by the Company at
the Miami location. It is therefore recommended that this allegation of
the complaint be dismissed.
8. That on or about December 11, 1996, the Respondent
failed to timely furnish to the Union information requested in
connection with the warning to Ramirez.
9. That on or about February 24, 1997, the Respondent, for
discriminatory reasons, issued a written warning dated October
9, 1996, to Carlos Ramirez.
10. That on or about August 11, 1997, the Respondent, for
discriminatory reasons, suspended Hugo Hernandez.
11. That on or about August 14, 1997, the Respondent, for
discriminatory reasons, issued a final written warning to Her-
nandez.
12. That since about July 8, 1997, the Respondent, without
first notifying or offering to bargain, has unilaterally subcon-
tracted out bargaining unit work.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Overnite is a national freight carrier with headquarters is
Richmond, Virginia. It has over 160 facilities with about
11,000 mostly nonunion employees, whom the Teamsters Un-
ion have been attempting to organize for many years. In some
cases, the Union has been successful and on August 15, 1995,
Local 390, was certified, after an election held in April 1995, as
the bargaining representative in the following unit of employ-
ees:

All full-time and regular part-time over-the-road driv-
ers, city drivers, dock workers, jockeys, driver leadper-
sons, dock leadpersons and mechanics employed by Re-
spondent at its Miami, Florida facility; excluding all other
employees, office clerical employees, janitors, managerial
employees, confidential employees, guards and supervi-
sors as defined in the Act.

The Miami terminal is a 47-door facility and employees 37
city drivers and 18 dockworkers. Additionally, it employs three
over-the-road drivers, two jockeys, and three mechanics. Non-
bargaining unit employees consist of two salesmen, five clerical
employees, and four supervisors. Doy Argo came to the Miami
terminal in March 1996 as assistant terminal manager and
thereafter became the terminal manager in January 1997, in
which capacity he is in overall charge of its operations. Mark
Carlson has been the inbound dock supervisor and Trey
Richardson the outbound dock supervisor. Garret Wilson and
James Smithers were, at times relevant to this case, dispatchers
who supervised drivers.
Freight comes into and out of the facility during the course
of the day. There is a group of inbound dockworkers who han-
dle incoming freight and who start work late at night unloading
freight from incoming trailers and loading freight on trailers for
delivery into Miami. The inbound shift has generally com-
menced work at 11 p.m. and finished when the inbound freight
OVERNITE TRANSPORTATION CO. 1281
is unloaded and then reloaded for Miami delivery. Another
group of dock employees work during the morning and daytime
hours and they are they are responsible for loading freight that
has been picked up in Miami for delivery elsewhere. These are
called outbound dockworkers. City drivers make deliveries and
pickups within the Miami area using tractor trailers. The three
over-the-road drivers move freight between the Miami terminal
and terminals located elsewhere.
Deliveries into the Miami area are divided into two general-
ized categories. Some customers have a sufficiently large vol-
ume of shipments that freight designated for them is sometimes
put into a separate area of the terminal and delivered in bulk.
(This is referred to as appointment or volume freight.) Most of
the other shipments are relatively small, going to a wide variety
of customers and these are put on trailers which are assigned to
a particular area within Miami. About 24 city drivers are regu-
larly assigned to particular routes. The remainder, usually less
senior drivers, are assigned as needed. (There is no bid system
whereby drivers select particular routes. The dispatchers can
and do assign routes at their discretion.)
The city drivers generally leave the terminal with a load of
freight by around 9 a.m. and continue on their routes, making
deliveries until completed. In this sense, although they have a
set start time, they do not have regularly defined hours al-
though Department of Transportation rules prohibit drivers
from working more than 15 hours in any given day or more
than 70 hours over any 8-day period. Usually, starting in the
afternoon, the city drivers will receive messages from the dis-
patchers, via phone or radio, as to any pickups that they should
make while on the route. Drivers are expected to call in during
the afternoon so as to keep the dispatchers informed as to their
whereabouts. Changes are made as they go along.
The freight business is somewhat seasonal in that there is a
slow season that usually occurs during the months of January
and February and a heavy season that occurs in autumn. This
means that during the slow time of year, the number of deliver-
ies to and from the terminal will drop and the amount of work-
time available for employees will correspondingly be lower.
This will be discussed further in relation to some of the allega-
tions regarding alleged unilateral changes.
At various times in the past, the Company has used nonem-
ployee drivers during times of the year when there has been a
great deal of work. This practice apparently ceased sometime
in early 1996 but was resumed around the first week of July
1997. Argo decided to utilize, starting on July 8, 1997, two to
three outside companies to furnish drivers to make deliveries
within Miami. Continuously since that time, the Respondent
has regularly utilized anywhere from one to nine contract driv-
ers per week to do work which essentially is the same as work
done by its own drivers. The contract drivers, in almost all
cases, utilize Overnite’s tractors and trailers and are supervised
by the same dispatchers who supervise Respondent’s regular
drivers. Overnite pays an amount per hour to the outside com-
panies who hire the contract drivers and those companies pay
the drivers. There is no dispute that Overnite never notified or
offered to bargain with the Union regarding its decision to sub-
contract out this work. As discussed below, the Respondent
argues that this practice is nothing new, and that it has had no
impact on the work or earning opportunities of bargaining unit
employees.
As noted above, the Union was certified as the bargaining
representative at the Miami facility in 1995. At some point
thereafter, Hugo Hernandez became the local shop steward.
And although the parties have not reached a collective-
bargaining agreement, and there is no contractual griev-
ance/arbitration procedure, Hernandez has regularly dealt with
Doy Argo regarding various grievances that have arisen. In-
deed, the testimony of Hernandez is that Argo has been ex-
tremely accommodating with respect to such grievances and
has, in virtually all cases, reduced or retracted disciplines which
Hernandez has grieved on behalf of employees. Although the
evidence shows that Carlos Ramirez was the person who origi-
nally contacted the Union back in late 1994 or early 1995, it
does not appear that his union activities at the terminal have
been particularly distinguishable from many of the other driv-
ers. (Argo nevertheless acknowledges that he understood that
Ramirez was an active union supporter.) Hernandez has clearly
been the main force for the Union at this terminal, and as far as
I can see, particularly effective on behalf of employees in deal-
ing with management regarding local problems.
I should also note that Argo, the terminal manager, is not re-
sponsible for bargaining with the Union with respect to a con-
tract.2 On occasion, he has consulted with the Company’s nego-
tiators but only to provide information. I also note that neither
Argo nor anyone else at the Miami terminal can impose any
formal disciplinary action against any bargaining unit employee
without first clearing such action with attorneys who are
charged with reviewing such actions beforehand. I do not con-
strue such a procedure as resulting from any altruistic motives
but rather from an intention to avoid, to the extent possible,
expenditures in time and money on legal proceedings.3
If anything, the facts in the present case, show that at least at
the Miami facility, the Company was extremely reluctant to
impose disciplinary actions against bargaining unit employees,
and if imposed, was very likely to cave in when confronted by
Hernandez. I suspect that the reason for this posture was not
altruistic, but rather resulted from a prior history of being faced
with unfair labor practice charges and complaints and a will-
ingness to bend over backward in order to avoid potential
litigation.4 In any event, except for a single statement which is
alleged in the present case as being violative of Section 8(a)(1)
of the Act (and which is not credited by me), the evidence
shows that at the Miami terminal, the management has never

2 Over a period of time, the Union has been certified as the bargain-
ing agent at individual terminals each of which are considered to be
separate bargaining units. Nevertheless, for convenience, Overnite and
the Teamsters Union have set up a unified forum to negotiate. This has
created a somewhat unusual situation something like coalition bargain-
ing where although each unit remains separate, bargaining nevertheless
is carried out at a national level.
3 On July 29, 1995, the General Counsel entered into a formal set-
tlement regarding a number of other cases pending in various Regional
Offices. In addition to the standard types of remedial actions, an alter-
native disputes resolution procedure was established to deal with cer-
tain types of allegations. This settlement, which was mentioned at
various times during the present case, is more fully described by Ad-
ministrative Law Judge Benjamin Schlesinger in an opinion issued on
April 10, 1998. (JD–5–98.)
4 In the context of contract bargaining with a certified or recognized
union, there is another compelling reason for an employer to be cau-
tious. If the employer engages in conduct which might later be found
to be an unfair labor practice, a union, if it commences a strike, can
legitimately assert that the strike was caused, at least in part, by the
employer’s unfair labor practices. In such a situation, the employer
would be unable to permanently replace strikers and would be required
to recall them if they unconditionally offered to go back to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
interrogated or threatened employees because of their union
activities.
B. Allegations Regarding Carlos Ramirez
Carlos Ramirez is employed as a city driver. He testified
that he was the person who initiated the union-organizing cam-
paign at the facility. And although his union activities are not
nearly as extensive as those of Hernandez, Doy Argo concedes
that he became aware, soon after his arrival at the Miami termi-
nal, that Ramirez was an active union supporter.
On October 9, 1996, Ramirez was called to a meeting with
Argo where he was presented with a proposed corrective action
report which resulted from a customer who complained about
him. At the meeting, where the customer’s written complaint
was shown to him, Ramirez successfully argued that the com-
plaint might not have merit and so the warning, if not with-
drawn, was reduced to a verbal warning. Ramirez was not re-
quired to sign the corrective action form and as such, the matter
did not, under company policy, rise to the level of an official
written warning.5 Contrary to the General Counsel’s assertion,
the evidence does not suggest that this action was motivated by
Ramirez’ union activities. On the contrary, it could be argued
that this incident shows that at least with respect to disciplinary
actions, Argo, who was aware of Ramirez’ union activity, was
willing to mitigate the disciplinary action if he received a rea-
sonable explanation.
The October 1996 incident was the first warning that Rami-
rez had received since the election which was held on April 13,
1995. He did receive two other correction action reports, but
these were in 1993, well before any union activity at this loca-
tion.
The complaint alleges that the Respondent violated the Act
by issuing to Ramirez, the October warning on or about Febru-
ary 24, 1997. I am not sure what this allegation is based on,
since the complaint does not allege that the warning itself con-
stituted a violation of the Act when it was first given to Rami-
rez. With respect to this allegation, the facts show that Ramirez,
in relation to a different warning (dated December 11, 1996),
made a written request on February 12, 1997, for information
regarding his disciplinary record and that on February 24, Argo
turned over a group of documents which included the October
9, 1996 corrective action report. As the October 9 corrective
action report was handed over to Ramirez in response to his
request, it hardly can be shown that this “issuance” was dis-
criminatorily motivated. I therefore recommend that this allega-
tion of the complaint be dismissed.
On December 2, 1996, Ramirez went to Home Depot to
make a delivery. He parked his truck at the dock and pro-
ceeded to unload the delivery which turned out to be short.
That is, although the bill said that there were 139 boxes, there
were only 81 boxes on the trailer. According to Ramirez, the
Home Depot dockworker asserted that the delivery was 60
boxes short whereas Ramirez asserted that it was 58 boxes
short. In any event, Ramirez states that after awhile, and while
this issue was unresolved, another Home Depot employee told
him that he would have to move his truck away from the dock
so as to allow other deliveries to be made. Ramirez concedes
that he refused repeated requests to move his truck by Home
Depot personnel. At this point, according to Ramirez, the re-

5 If the Company is intent on giving a written warning, the employee
is required, as a condition of continued employment, to sign the correc-
tive action report.
ceiving manager called Respondent’s dispatcher, Jimmy Smith-
ers, who thereupon asked Ramirez to explain the problem
which he did. The credible evidence is that Smithers at this
point told Ramirez to move the trailer but Ramirez still per-
sisted in staying put. The store manager thereupon called Argo
who called Ramirez and told him to move the truck. Finally,
Ramirez moved the truck, the bill of lading was signed as being
58 boxes short, and Ramirez eventually made his way back to
the terminal.
Doy Argo testified that he received a phone call from Home
Depot to the effect that Ramirez was refusing to move his truck
from the dock. Argo states that he spoke to Ramirez over the
phone, told him to move the truck and that Ramirez agreed to
do so. According to Argo, he got a call later in the day from a
woman from Home Depot who was really upset about the inci-
dent and wanted to know what he intended to do about it. Argo
states that he told her that if she was that upset, she could send
a letter. Argo testified that after this call he asked Smithers
about the incident and Smithers told him that he received a call
from Home Depot and that he had asked Ramirez to move the
truck from the dock.
On December 3, 1996, Rita Essex, an employee from Home
Depot wrote a letter to Doy Argo which stated:

Per our phone conversation . . . concerning The Home Depot
store 206. The receiving manager, Mr. Joe Rodriguez asked
your driver Mr. Carlos Ramirez to move his truck from the
back door while he was processing the paper work which had
a discrepancy, he refused. Joe in turn called the store mgr.
Mr. Frank Martinez he also requested Carlos remove his
truck so another truck could be serviced. But again Carlos re-
fused!!! As a last resort Joe called you and you directed your
driver to move the truck and he did not. We have all been
quite unproductive due to the uncooperation of your driver.
May I suggest strongly you do not allow this driver to service
any of The Home Depot stores

Realizing that Home Depot, a fairly sizable customer, was
serious enough about the incident to write this letter, and this
incident occurring just about 2 months after the previous cus-
tomer complaint about Ramirez, Argo decided to issue a formal
warning to him. (After clearing it with the company’s attor-
neys.)
On December 11, 1996, Argo called Ramirez and Hernandez
into his office in order to present Ramirez with a corrective
action report indicating that it was a “final” warning. At this
meeting, Argo explained why he was issuing the discipline
asserting among other things, that Ramirez had failed to re-
spond to Home Depot’s instructions to move the truck and
Smither’s directive to do so. Ramirez told Argo that he did not
work for Home Depot and that his only bosses were Argo and
Smithers. (I suppose Ramirez was saying that he did not have
to listen to Home Depot’s people.) Ramirez claims that after
trying to explain the dispute about the number of boxes that
were short, Argo said that if he continued with his union atti-
tude he would be fired. Ramirez states that he and Hernandez
went outside to talk and where they decided to call the Union.
Ramirez testified that when they returned to the office, Argo
refused to talk to the union official. Ramirez also testified that
when they returned to the office, he told Argo that Smithers had
not told him to remove the truck from the dock but that when
Smithers was called into the discussion, Smithers said that he
did. Ramirez claims that during this meeting, Argo did not
OVERNITE TRANSPORTATION CO. 1283
show either the letter from Home Depot to either himself or
Hernandez.
The corrective action report form has a place at the bottom of
the page, for an employee to write his response to a discipline.
As Ramirez had difficulty writing in English, he told Hernan-
dez his version of the events and Hernandez wrote it down,
filling out the front and the back of the page. He states that
Hernandez wrote down, at the top of the page, the alleged
threat.
Hernandez testified that at the December 11, 1996 meeting,
Argo showed them both the proposed corrective action report
and the letter from Home Depot. Hernandez states that he cau-
cused with Ramirez to get his version of the events and that
after they returned, Ramirez tried to explain his side of the
story. According to Hernandez, after returning from his caucus
with Ramirez, Argo said, “I[I]f you keep this union attitude,
I’m going to have to terminate you.” Hernandez states that he
wrote this down at the top of the corrective action report form
and continued to write, at the bottom of the page and the other
side, Ramirez’ version of the events. He states that at one point
during the meeting, Ramirez asked to have Smithers called in
but that Smithers took the Company’s side.
Argo categorically denied that he made any threat to dis-
charge Ramirez if he continued to have a union attitude. Re-
garding, the writing at the top of the corrective action report
form, Argo testified that Hernandez initially wrote out Rami-
rez’ response in the appropriate place starting at the bottom of
the page, and only wrote what appears on the top of the page
after Hernandez and Ramirez initially left the office and after
they returned following their call to the Union.
Smithers testified that he was called into the meeting at some
point, but really could not recall what if anything he said. (He
does recall that after Hernandez and Ramirez left, he asked to
see what Hernandez had written and told Argo that it was bull.)
Smithers was not present at the entire meeting and he could
neither confirm nor deny the alleged threat made by Argo to
Ramirez. He confirms Argo’s assertion that Hernandez wrote
down the alleged threat on the top of the page after returning
some time after having completed Ramirez’ version of the
events on the bottom and back of the form.
Anything is possible. But the evidence in this case indicates
that during his entire tenure at the Miami terminal, Doy Argo
has never made any kind of threat or statement even remotely
similar to the one attributed to him by Hernandez and Ramirez
on December 11, 1996. Further, Argo had consulted with
counsel before presenting the corrective action report to Rami-
rez. Argo did not strike me as being stupid and although smart
people sometimes do stupid things, I don’t think it likely that
Argo would make a statement clearly indicating antiunion ani-
mus during a disciplinary meeting directly in front of the Un-
ion’s shop steward. In my opinion, Hernandez and Ramirez,
realizing that the discipline was clearly warranted, fabricated
the threat in order to make out a case of antiunion retaliation.
(Hernandez was quite familiar with unfair labor practice proce-
dures and no doubt had a good idea of what evidence was de-
sirable in an NLRB proceeding.)
In my opinion, the actions of Ramirez at Home Depot
showed a disregard of customer needs and his refusal to follow
Smither’s order to move the truck, constituted insubordination.
The written warning, even if a final warning, does not strike me
as being disproportionate to the offense and the evidence does
not indicate to me that the discipline was at variance with other
discipline taken vis a vis other employees at the Miami termi-
nal. In short, as I do not credit the alleged threat made by Argo,
and conclude on objective grounds that the level of discipline
was justified, I recommend that this allegation of the complaint
be dismissed.
In connection with the Ramirez discipline, the General
Counsel also alleges that the Respondent violated Section
8(a)(5) when it failed to timely furnish certain requested infor-
mation to the Union.
According to Hernandez, at some point during the December
11 1996 meeting, he asked Argo for a copy of the corrective
action report, a copy of the Home Depot letter, and anything
else that was relevant to Ramirez’ writeup. Argo made and
gave him a copy of the report, but declined to give Hernandez a
copy of the Home Depot letter on the asserted grounds that the
letter was confidential. Thus, although the letter had been
shown to Ramirez and Hernandez during the course of the
meeting, a copy was not turned over to them. No other written
information was given and the credible evidence does not show
that Hernandez, at that time or at any time soon thereafter,
made an explicit request for any other documentation.
Hernandez testified that at some subsequent time, he asked
Argo for information regarding Ramirez and that Argo said that
he would provide information if the request was made in writ-
ing. Accordingly, on February 12, 1997, Ramirez made a writ-
ten request for “all my personal records, write ups and any
documentation relating to my job at Overnite transportation.”
The document indicates that it was witnessed by Hernandez.
Argo received this document on February 12 and 24, 1997, he
transmitted copies of four corrective action reports dated De-
cember 11 and October 9, 1996, February 10, and 26, 1993, and
one B/L dated April 30, 1996; these being the entire documen-
tation that the Company had regarding past disciplinary actions
or warnings issued to Ramirez during his employment Argo
did not furnish the Home Depot letter which precipitated the
December 11, 1996 corrective action report. He refused to
furnish this document on the grounds that he felt it was confi-
dential.
In NLRB v. Acme Industrial Co., 385 U.S. 432 (l967), the
Supreme Court held that the employer was obligated to furnish
information in relation to both pending and potential griev-
ances, so as to enable the union to assess the merits of a griev-
ance. Accordingly, information which would tend to disprove
the validity of a grievance would be just as relevant as informa-
tion which would tend to establish the merits of a grievance.
The Court stated:

When the respondent furnishes the requested informa-
tion, it may appear that no subcontracting or work transfer
has occurred, and accordingly, that the grievances filed are
without merit.
Far from intruding upon the preserve of the arbitrator,
the Board’s action was in aid of the arbitration process.
Arbitration can function properly only if the grievance
procedures leading to it can sift out nonmeritorious claims.
For if all claims originated as grievances had to be proc-
essed through to arbitration, the system would be woefully
overburdened.

In Ohio Power Co., 216 NLRB 987, 991 (1975), the Board
formulated a test for evaluating the relevance of broad catego-
ries of requested information as follows:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
Where the information sought covers the terms and conditions
of employment within the bargaining unit, thus involving the
core of the employer-employee relationship, the standard of
relevance is very broad, and no specific showing is normally
required; but where the request is for information with respect
to matters occurring outside the unit, the standard is some-
what narrower (as where the precipitating issue or conduct is
the subcontracting of work performable by employees within
the appropriate unit) and relevance is required to be some-
what more precise. . . . The obligation is not unlimited. Thus,
where the information is plainly irrelevant to any dispute there
is no duty to provide it.
. . . .
It is not required that there be grievances or that the informa-
tion be such as would clearly dispose of them. The union is
entitled to the information in order to determine whether it
should exercise its representative function in the pending mat-
ter, that is, whether the information will warrant further proc-
essing of the grievance or bargaining about the disputed mat-
ter.

Further, where relevant information is requested, the em-
ployer (or union), is required to furnish it in a timely fashion.
Civil Service Employees Assn., 311 NLRB 6, 9 (1993).
The names and addresses of witnesses to an incident for
which an employee receives discipline is relevant in relation to
a union’s right to present a grievance. Boyertown Packaging
Corp., 303 NLRB 441, 444 (1991).6 On the other hand, the
Board has also held that a refusal to provide pre-arbitration
disclosures of witness statements does not violate the Act be-
cause of confidentiality considerations. Anheuser-Busch, Inc.
237 NLRB 982 (1978).
Weighing relevance to legitimate considerations of confiden-
tiality is not always so easy. In Pennsylvania Power Co., 301
NLRB 1104, 1107 (1991), the Board held that the employer did
not violate Section 8(a)(5) of the Act by refusing to furnish the
names, addresses, and statements of informants whose state-
ments were used as the basis for testing employees for drug
abuse. On the other hand, the Board did find that the employer
violated the Act by refusing to provide a summary of the in-
formant’s statements. The Board stated:

Although we agree that the names and addresses of infor-
mants here are relevant to the Union’s collective-bargaining
responsibilities, we find that in investigations of this kind of
criminal activity, a potential for harassment of informants,
with a concomitant chilling effect on future informants, is suf-
ficiently likely that the Respondent has a legitimate interest in
keeping the informants’ identities confidential and that this
confidentiality interest outweighs the Union’s need for the in-
formant’s names and addresses.
. . . .
We agree with the judge that the Respondent did not violate
Section 8(a)(5) . . . by refusing to supply the informants’
statements, and we adhere to our holding in Anheuser-Busch,
supra. Balancing the competing interests, however, we find,
contrary to the judge, that the Respondent is required to sup-
ply the Union with a summary of the informants’ statements.
This summary should be drafted to include the information on

6 However, in certain circumstances, the employer may refuse to
give out unlisted phone numbers. GTE California, Inc., 324 NLRB 424
(1997).
which the Respondent relied to meet the threshold “suspicion”
standard for performing the drug tests.

In my opinion, the facts in the present case do not present the
kinds of confidentiality issues presented in Pennsylvania Power
Co., supra, or Anheuser-Busch, supra. The Home Depot letter
was a customer complaint and not a witness or informant
statement obtained by the respondent for use in operating an
antidrug program or in an arbitration or other legal proceeding.
(In fact there was no possibility of the writer being called to
testify in an arbitration case as there is no contract between the
Union and the Respondent containing an arbitration clause.)
The Home Depot letter writer neither sought nor was offered
confidentiality. Finally, the Respondent can hardly press a
claim of confidentiality when Argo asserts that he showed the
letter to Hernandez and Ramirez on December 11, 1997.
While the Union had no means to compel the company to ar-
bitrate the Ramirez warning, this does not mean that it could
not have used the Home Depot letter to evaluate whether its
representatives wanted to spend the time to bargain over this
grievance within the context of local contract negotiations.
Moreover, although perhaps unlikely to change the company
representative’s mind, the review of relevant information al-
ways provides some hope. The fact that the request for the
letter was made orally by the shop steward in the first place,
and thereafter in writing by an employee is not, in my view,
grounds for any defense. It was not proved that there was any
agreement between the Company and the Union that required
information requests to be made in writing. An oral request is
sufficient.
I do not conclude, however, that the Respondent violated the
Act by failing to provide the other information. The evidence
shows that at the December 11, 1996 meeting, Hernandez asked
for and received a copy of the Ramirez’ corrective action re-
port. He asked for but was refused the Home Depot letter.
When Argo gave Hernandez a copy of the report, he did not
hear from him for a period of time, and with the exception of
the Home Depot letter, was entitled to think that he had com-
plied with Hernandez’ request for relevant information. When,
Hernandez finally got around to repeating his request for “rele-
vant” information and had Ramirez make the request in writing,
Argo furnished the information contained in Ramirez’ personal
file within 12 days. Thus, when faced with an explicit request
for information, Argo responded and with the exception of the
Home Depot letter acted with reasonable dispatch in tendering
the relevant documentation.
C. Allegations Regarding Hugo Hernandez
Hernandez was involved in an incident on August 8, 1997,
which resulted in Argo giving him a 3-day suspension and final
warning. Argo states that it is true that he treated Hernandez
differently than other employees because of his position as
union steward. He testified that but for the fact that Hernandez
was the shop steward, he would have fired him.
Hernandez was employed at the Miami facility from 1986 to
1997. (He left to become a union organizer.) At the time of the
incident herein, Hernandez was employed as a city pickup and
delivery driver and was the Union’s shop steward at the facility.
In October 1995, 2 months after the election, Hernandez was
discharged but thereafter reinstated after an unfair labor prac-
tice charge was filed and a non-Board settlement agreement
reached. I did not want to litigate the circumstances of this
prior discharge and I make no findings as to whether it was
OVERNITE TRANSPORTATION CO. 1285
motivated by antiunion considerations or for just cause. Also,
over the next 2 years, Hernandez received various other warn-
ings. Other than the fact that documentation of these warnings
were received in evidence, neither party litigated the circum-
stances giving rise to the warnings and none of these, except for
the one issued on August 13, 1997, was alleged in the com-
plaint to be unlawful.
As noted above, Doy Argo was aware that Hernandez was
the shop steward and most active person in support of the Un-
ion. This is not in dispute and the evidence, shows that Her-
nandez has been particularly successful in getting Argo to
eliminate or mitigate disciplines to employees when Hernandez
has pressed a grievance on behalf of the affected employee. In
this respect, the evidence shows that in dealing with Hernandez,
Argo has generally bent over backwards to accommodate him.
There is no credible evidence to show that Argo made any
statements that could be construed as violating Section 8(a)(1)
of the Act by way of threats, promises, interrogation, etc.
On the morning of Friday, August 8, 1997, Hernandez left
the facility at 9:12 a.m. with a truckload of deliveries, one of
which consisted of athletic tape for delivery to the University of
Miami. According to the manifest and the testimony of Her-
nandez, this shipment was located in the nose of the trailer
which means that it would be relatively inaccessible until other
deliveries were made from the back or tail of the trailer.
Hernandez claims that he tried to make the delivery to the
University at around 1 p.m., but that there was no one there to
receive the freight and he therefore continued his route. He
states that after making a delivery to a company called
Brasswell, he left at 5 p.m. and went to make a pickup at a resi-
dence pursuant to a call he received from Smithers sometime
before he arrived at Brasswell (4:47 p.m.). Hernandez claims
that on his way to the residence, he got caught in a massive
traffic jam for between one half to 1 hour because a tanker blew
up on Route 836. He states that he made the pickup and de-
cided, notwithstanding instructions from dispatcher Smithers,
to go back to the terminal without making the last two deliver-
ies because he was too tired, having stayed up the previous
night with his sick daughter. He claims that he told Smithers
that he was too tired and would endanger the public if he had to
drive to the University of Miami.
Hernandez’ trip card, which was written out by Hernandez,
shows that he arrived at Brasswell at 4:47 p.m. and completed
his delivery there at 5 p.m. The trip card shows that Hernandez
arrived at the residence for the pickup at 5:33 p.m.7 The mile-
age between the two locations was 4 miles although Hernandez
asserted in his direct testimony that it was between 8 and 10
miles. Hernandez claims that the residence was closer to
Brasswell than the University of Miami, but maps introduced
into evidence, show that this is not true. Hernandez conceded
that before he arrived at the pickup, he received a call on the
radio from Smithers who told him that the people from the
University of Miami needed their delivery and that he told
Smithers that he was going to make the pickup instead. Her-
nandez also concedes that he did not intend to make the deliv-
ery. According to Hernandez, this radio call from Smithers
took place before he arrived at the residence, and looking at the
map and Hernandez’ description of his route to the residence,
he could have avoided any further traffic by getting off the road

7 In a pretrial affidavit, Hernandez asserted that it took a couple of
hours to get from Brasswell to the pickup.
and heading south toward the University and away from Route
836 where the explosion had occurred. Hernandez, during
cross-examination, was evasive as to whether he told Smithers
before 5:30 p.m. that he was tired. And if he was getting tired,
it would have made a lot more sense to make the delivery to the
University and try to get someone else to make the pickup.
According to Hernandez, upon arriving at the residence, and
before starting to move the freight, which consisted of over a
hundred pieces, he called Smithers who again told him that it
was important to make the delivery to the University of Miami
because they needed the delivery for a football game on Satur-
day. Hernandez claims, but I don’t believe, that Smithers told
him to make both the pickup and the delivery.
In any event, the evidence, based on Hernandez’ own testi-
mony, shows that instead of making the delivery to the Univer-
sity in accordance with the explicit instructions of Smithers,
Hernandez decided to disregard those instructions and go to the
residence where the pickup took more than an hour to put in the
trailer. Instead of then going to the University, Hernandez
returned with the tape undelivered and arrived back at the ter-
minal at 7:17 p.m. After finishing the pickup and before return-
ing to the terminal, Hernandez states that Smithers again told
him to make the delivery and that he told Smithers that he was
too tired. According to Hernandez, Smithers said, “[W]ell you
do what you got to do, but you’ll suffer the consequences.”
Saturday and Sunday were days off and Hernandez was told
on Monday morning that he was suspended pending further
investigation. On August 13, he received the 3-day suspension
and final warning, which is memorialized in a corrective action
report form.
Smithers testified that he received a call from a corporate
customer service person located in Richmond, Virginia, at
about 4 or 4:30 p.m. and was asked why a shipment to the
University of Miami hadn’t been received yet. Smithers states
that this person (whom he believed was a woman), wanted to
know about the possibility of getting the shipment delivered
and he told her that he would have to contact the driver to find
out what was going on. According to Smithers, he then deter-
mined that the driver was Hernandez and he states that at a little
before 5 p.m., Hernandez called at which time, according to
Hernandez’ trip card, he would have been at Brasswell. Smith-
ers states that Hernandez asked for the address of a pickup that
he had received earlier in the day, at which point Smithers
asked Hernandez if he had made the delivery to University.
Hernandez’ response was that it was buried in the nose. Ac-
cording to Smithers, he told Hernandez that had to make the
delivery to the University because they needed it for a game on
Saturday and not to worry about the pickup; that he would
make other arrangements for the pickup. Smithers testified that
at no time during this call did Hernandez say that he was tired
or impaired. According to Smithers, he then called the people
for the pickup and told them that the Company would make the
pickup on Monday morning. Smithers states that he assumed
that everything was settled and that he went on with other busi-
ness.
Smithers testified that at about 5:30 p.m., Hernandez called
from the residence and asked how the pickup was going to be
paid. Smithers states that after telling Hernandez to send it as
C.O.D. he asked Hernandez if he had made the delivery and
was told no. According to Smithers, he said that the stuff was
needed tomorrow and had to be delivered. It was at this point,
according to Smithers, that Hernandez, for the first time
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
claimed that he was tired, albeit that he did not say that his
ability or alertness was so impaired that it would be unsafe to
drive. Smithers states that when he asked Hernandez to make
the delivery, Hernandez talked about his daughter being up the
night before. At this point, according to Smithers, he saw no
point in continuing the conversation and he hung up.
According to Smithers, a little later, at about 5:40 or 5:45
p.m., someone from corporate service called and wanted to
know when he was making the delivery to the University. He
said that he would have to wait to see what was going to hap-
pen, inasmuch as he wasn’t sure if Hernandez was going to
make the delivery or return to the terminal. Either way, Smith-
ers had to hear from Hernandez again because the tape was in
the truck and could not be delivered until after Hernandez re-
turned with the truck. Smithers states that the woman from
corporate did not like his answer and wanted to know specifi-
cally what was going to happen. He states that he told her that
he could not give her an answer right then, whereupon she said
that she was going to talk to her supervisor. According to
Smithers, a couple of minutes later, a supervisor named Ginny
called him and wanted to know what was going on and why he
could not give an answer about the delivery. He states that she
asked if he could call the driver and that he spoke to Hernandez
on the radio while she remained on the phone. At that time,
according to Smithers, he asked Hernandez if he was on the
way to make the delivery and Hernandez replied that he was
tired. Smithers testified that when he returned to talk to Ginny,
she was yelling at him and told him that the driver should be
fired. He states he tried to calm her down but she kept on in-
sisting that the delivery had to be made that evening.
Smithers testified that he then spoke to the outbound super-
visor about getting one of the dock people to deliver the ship-
ment, but as it turned out, the person who was still there did not
have the proper license and couldn’t make the delivery that
Friday evening. According to Smithers, before leaving for
home, he wrote out a corrective action report regarding the
incident. He states that when he got home, he called Argo and
told him what happened and Argo told him to be careful of
what he said and to be clear as to how he remembered it. Later
in the evening, Smithers arranged for Trey Richardson, another
supervisor, to come in on Saturday morning to make the deliv-
ery. According to Smithers, at some point, probably on Mon-
day, Argo asked him to write up a report which he did. That
terminated Smither’s involvement in the matter, and in accor-
dance with company policy, the ball was in Argo’s park to
make a decision.
Doy Argo testified that he first became aware of the Hernan-
dez situation on the evening of August 8, 1997, when Smithers
called him at home. He states that Smithers told him what had
happened and recommended that Hernandez be fired. Argo
asked Smithers if anyone else had been fired for a similar situa-
tion and Smithers mentioned two people, Perez and Faukner,
one of whom had been fired about 8 years before and the other
about 2 or 3 years before. According to Argo, he called coun-
sel in order to get advise.
According to Argo, he went in on Saturday and pulled some
documents relating to the incident such as the trip card, Her-
nandez’ timecard, the PCON, and DCON. (The DCON is the
freight manifest showing the deliveries on the trailer when it
leaves in the morning. The PCON is a document showing what
is on the truck when it returns at night.) Argo states that on
Sunday, he again called counsel and thereupon decided to sus-
pend Hernandez on Monday morning pending further investiga-
tion.
Argo testified that on Monday, he told Hernandez that he
was being suspended pending investigation. He also received
an e-mail from Ginny Helfenstein, the customer service super-
visor who described her perspective of the events on August 8,
1997. She confirmed that she told Smithers about the necessity
of making the delivery to the University of Miami. On either
Monday or Tuesday, Argo received from Smithers the latter’s
original draft of the corrective action report written on Friday
and a detailed typewritten account that Smithers did thereafter.
Based on all of the above, and in conjunction with advise from
counsel, Argo decided not to fire Hernandez, but rather to give
him a final warning and a 3-day suspension. On Wednesday,
Argo handed the corrective action report to Hernandez. This
report was actually drafted by a company attorney at the Argo’s
request.
There is no question in my mind, but that the disciplinary ac-
tion meted out to Hernandez was justified and was not inconsis-
tent with any past company policy or practice. Hernandez
clearly and willfully chose to disregard instructions, apparently
believing that he could make his own rules and do his job in the
way that he pleased. Rather than make a delivery as required,
he chose to do something else despite repeated demands by his
supervisor that he do his job. To the extent that Hernandez’
union activity had anything to do with the level of his disci-
pline, it is my opinion that Argo mitigated what he might oth-
erwise have done if Hernandez had not been the shop steward.
D. Alleged Unilateral Changes
1. May 1996 change in start times
Before May 1996, the inbound dockworkers, with some ex-
ceptions, generally started their work day at 11 p.m. from Mon-
day through Thursday, and worked until the inbound freight
was stripped and loaded onto the trailers. On Sundays, the
normal start time is 10 p.m. and for at least one dockworker,
Eugene Lewis, who worked in the appointment warehouse
(dealing with appointment freight), the start time was an hour
earlier than the other inbound dockworkers. With respect to
freight delivery, the Miami terminal was responsible for deliv-
ering any freight that came into the terminal by 8 a.m., but was
not responsible for same day delivery of freight that arrived
after that time. Normally, the city drivers leave the terminal at
about 9 a.m. and the normal closing time for the inbound
freight dockworkers was at or around 8 a.m.
The fact that the normal Monday through Thursday start time
for almost all of the inbound dockworkers was at 11 p.m., does
not mean that there were never any variations. In fact, the
Company produced timecards for a number of less senior
dockworkers tending to show that there were occasions from
December 1995 to March 1996 when they were scheduled to
start work earlier or later than 11 p.m.8 When in the past, start
times of junior dockworkers were changed, the reason typically
was because freight volume was either higher or lower than
usual.
In April or May 1996, the Company made a change pursuant
to which the terminal was required to make same day delivery
on any freight that came into the terminal by 10a.m., rather than

8 R. Exhs. 25(a) to (f) are timecards for Ney Areas, Ponciana Diaz
Jr., Lemmie Faulk, Carlos Fernandez, Eugene Lewis, and Tomas Her-
nandez.
OVERNITE TRANSPORTATION CO. 1287
by 8 a.m. As a consequence, Argo told the dockworkers that as
of May, the four least senior inbound workers would have their
start times changed from 11 p.m. to 1 a.m. The purpose of this
change was to have these people available later in the morning
to handle any late arriving freight.
It is conceded that the Respondent did not notify the Union
or offer to bargain about this change. The change, which af-
fected 4 of the approximately 10 or 11 inbound dockworkers,
did not alter, in any significant way, the weekly hours that each
worked, although it is possible that it might have tended to
equalize the number of hours per week between the more senior
and less senior employees. (If freight volume is slow on any
given day, the junior workers are sent home early unless the
more senior employees volunteer to go home.) In any event,
the change lasted for about 2 weeks, after which it was aban-
doned and the dockworkers went back to their old starting
times. In this regard, Argo testified that the experiment failed,
primarily because of the resistance among both the senior and
less senior dockworkers.
The Respondent argues that the change was not sufficiently
material to warrant bargaining and was, in any event, not really
a change at all, inasmuch as the Company, had a past practice,
or operational reasons for changing the starting times of this
category of employee.
2. Changes during the slow season—December 1996/January
1997
The amount of inbound freight coming into the Miami ter-
minal tends to follow a yearly pattern and the latter part of De-
cember and the month of January are typically slow periods.
As shown by Respondent’s Exhibit 50, which is a summary of
inbound freight bills per week during the period from January
1, 1995, through October 31, 1997, the most severe downturn
occurred in the latter part of December 1996 and through Janu-
ary 1997. This downturn significantly exceeded the down turns
in the two preceding years; 1994–1995 and 1995–1996. In
1997, the volume of inbound freight bounced back to more
normal levels in or about the 2d and 3d weeks of February and
was back to normal by March 1997.
The efficient functioning of a freight delivery service is to
use the least number of trucks and employees to move the most
amount of freight on any given day. It is less efficient, for ex-
ample, to send out 20 trucks and drivers to make deliveries for
a few hours than to send out 15 trucks and drivers to make the
same number of deliveries over the course of a full day. By the
same token, there is a limit, inasmuch as businesses are gener-
ally open during the daytime hours and it would be futile to
have a smaller number of drivers attempting to make deliveries
when stores or businesses are closed. The other limit is the size
of the trailer which can only hold so much stuff. For dock-
workers, the same principles apply and it is more efficient to
have a fewer number of dockworkers to handle the anticipated
inbound freight for the entire normal shift, then to have a larger
number of people at work and standing around doing less work
per employee.
With respect to both dockworkers and drivers, the evidence
shows that during slow periods, the past practice is to first ask
for volunteers to go home and if insufficient volunteers are
found, to send home the least senior employees. In the past, an
employee might be sent home either during the shift or at the
beginning of the shift. In the latter case, a dockworker or driver
would not be allowed to work that day, and would probably use
an accrued vacation day in order to be paid.
There is no dispute about the fact that during the 1996–1997
slow period, the Company unilaterally instituted a call-in sys-
tem for both the inbound dockworkers and the city drivers. It is
conceded that this was done without notification to the Union
and without giving the Union an opportunity to bargain. The
call-in system required both sets of employees to call in before
reporting to work in order to see if there was sufficient work to
allow them to report. The determination as to whether low
seniority employees would be told to stay home, was based on
counting the number of bills that were expected to arrive at the
terminal that evening and it appears that supervision used a
formula to correlate the number of bills to the number of
needed employees.
Contrary to the Respondent’s assertion, this change in proce-
dure was a change in its past practice. Thus, the evidence indi-
cates that in past slow periods, when the number of bills were
low, employees reported to work and if work was insufficient,
the supervisors would ask for volunteers to go home, and then
if not enough people volunteered, would send home the least
senior dockworkers or drivers. Under the old system, a less
senior worker, if he reported to work on a slow day, at least had
a chance that one of the more senior employees might volunteer
to go home and therefore allow him to get a day’s pay that he
otherwise might have lost. (Or to forgo using a vacation day
that he could later use at his own discretion.)
In isolation, the call-in system, which lasted for a short time
and affected only a few of the less senior workers, would
amount to a relatively minor change. Nevertheless, it is my
opinion that it was a change in employee hours and working
conditions.
The allegation that the Company changed its assignment
procedure by utilizing a new counting method, is not correct.
The determination of how much work will be available to
dockworkers and drivers on any given day, has always been
dependent on the number of bills that are expected in the termi-
nal for that day. For convenience sake, the Company has al-
ways counted the number of bills, assuming that this had a high
correlation to the amount of freight that would arrive. Counting
bills is nothing new and there is no credible evidence that the
Company initiated any new standards or practice in counting
freight bills to determine how to allocate its resources in terms
of manpower.
Similarly, the credible evidence does not establish that there
were any other significant changes in company practice during
the 1996–1997 slow period. In this regard, although there was
evidence that one city driver (Fryer) was reassigned for a short
period from a city route to appointment freight, the proximate
cause of this reassignment was the operation of the seniority
system. Inasmuch as assignments have always been governed
by seniority,9 Fryer, who because he had less seniority, was
temporarily reassigned to appointment deliveries because he
had less seniority than someone else. (In effect, he was bumped
from his normal route because of his lower seniority standing.)
Notwithstanding this reassignment, it is virtually impossible to
determine from Fryer’s testimony or from company records,
whether or not he worked any fewer hours during this slow
period than what he would have worked under the old pre-call

9 The more senior drivers have typically been assigned to specific
routes and the least senior drivers have typically been assigned to do
appointment deliveries. It should be noted, however, that the Company
does not have any type of bid system for routes and the Company has
always reserved to itself the right to change routes as it deems fit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
in system or had his assignment not been changed. It should
also be noted that this reassignment hardly affected his em-
ployment in any other respect. He still reported to work at the
same time, still drove a truck to make deliveries and still re-
turned to the terminal when his deliveries were made.
3. Subcontracting
The Company employs, at any given time, a core group of
about 34 to 37 full-time drivers who make deliveries and pick-
ups in the Miami area.
The amount of driving work can fluctuate by season and this
will affect the number of hours worked by the drivers and their
corresponding income. In slow times, the amount of driving
work must be allocated to the existing group of drivers, and the
more senior of them are more likely to earn more money.
There are also periods when the amount of freight increases
and historically, the Company, at the Miami terminal, has util-
ized outside companies to furnish lease drivers to move the
freight. (Most typically, lease drivers will be assigned to move
appointment freight and not be assigned to regular city routes.)
The evidence shows that since at least 1985, the Company has
maintained such a practice and has utilized such drivers along
side its regularly employed drivers.
The practice of subcontracting ceased at the start of 1996 and
did not resume for at least 1-1/2 years. It was suggested by
Hernandez that the reason that the Company terminated this
practice was because the Union threatened to file an unfair
labor practice charge regarding the use of subcontracting. This
may or may not be the case.
It is stipulated that in early July 1997, Doy Argo decided to
reinstitute the policy of using subcontractors. The Company
initially entered into relationships with Ryder Leasing Services
and LEI Dedicated Services. Somewhat later, in September
1997, the Company started to use ProDrivers. In all cases,
Overnite paid each company a fee based on an hourly rate and
the subcontractors paid the drivers. In the case of LEI, the rate
was $16.50 per hour and in the case of ProDrivers, the rate was
$17.50 per hour plus time and a half for overtime.
The evidence shows that since July 8, 1997, the Company
has continually used leased drivers at all times to the present
and has used anywhere from one to nine drivers per week on a
steady and regular basis. In light of the 1-1/2-year hiatus, the
decision to again use subcontractors should be considered as a
change in the status quo as it existed as of July 1997. The em-
ployer concedes that it did not notify the Union about the deci-
sion to use subcontractors and did not offer to bargain about
that decision.
The fees paid to the subcontractors were somewhat higher
than the hourly rate paid to Overnite’s regular drivers. How-
ever, although Overnite’s drivers typically got paid at the rate
of $15.05 per hour as of October 1997,10 they also received
medical and dental insurance benefits plus vacation and holiday
pay. Additionally, Overnite’s drivers can participate in a
401(k) plan whereby the Company puts in 50 cents for every
dollar contributed by an employee. It is not all that clear
whether Overnite’s cost per hour is greater or less when it uses
contract drivers instead of its own regular employees.

10 Starting pay at this time was $13 per hour and this went to $15.05
after 1 year. Drivers are paid at the straight time rate no matter how
many hours per week they work. This apparently is an exception to the
Fair Labor Standards Act’s overtime pay requirement.
According to Argo, the decision to utilize subcontractors to
provide drivers was predicated on the facts that coupled with a
high degree of absenteeism, the amount of freight coming into
the terminal had risen to a level that was overwhelming his
ability to deliver freight using his regular drivers. Argo testified
that he reluctantly made this decision because, in his opinion,
the use of contract drivers is not a good idea inasmuch as these
people are not trained in Overnite’s operations (particularly
paperwork), and are not as subject to Overnite’s control as his
regular drivers.11 In any event, Argo testified that his decision
to utilize subcontractors was not based on labor cost considera-
tions. And the General Counsels do not allege, nor have they
produced any evidence which could justify a conclusion that
the Respondent was motivated by antiunion considerations in
making and implementing its decision to subcontract out bar-
gaining unit work.
Although Argo, in July 1997, told the regular drivers that he
would cease using subcontractors when he hired more drivers,
this did not come to pass. And although Argo has hired a few
new drivers, and in one case obtained a transferred driver from
another terminal, he testified that it has not been very easy to
get new drivers, given the licensing requirements plus Over-
nite’s own requirements for hiring new drivers.12
The use of subcontracting, which recommenced on July 8,
1997, did not result in the layoff of any drivers at the Miami
terminal. Nor did the use of subcontractors result in a diminu-
tion of the average number of hours worked by the regular
drivers. The record shows that in 1997, the Company started
the year with 36 drivers and that during the first quarter, there
were either 36 to 37 drivers who worked, on average, 40.88 per
week. During the second quarter of 1997, the Company started
out with 36 drivers and ended the quarter with 34 drivers. Dur-
ing that quarter, the drivers worked, on average, 43.97 hours
per week. During the third quarter of the year, starting with the
week ending July 5, 1997, there were 33 drivers and the num-
ber of drivers directly employed by Overnite during this quarter
ranged between 32 and 34. The average hours worked per
driver during this quarter (which is when the subcontracting
started), was 45 hours per week. During the fourth quarter, the
Company started out the quarter with 33 employees and ended
the year with 36 drivers. The average hours worked per driver
during the final quarter of 1997 was 44.76 hours per week.
11 I note that the contract drivers who have been assigned to Overnite
by their respective employer’s use Overnite’s tractor-trailers and are
dispatched and supervised on a daily basis by Overnite’s supervisors.
If the issue ever arose, there is little doubt that Overnite and the respec-
tive subcontractors would be considered to be joint employers for this
category of employee, notwithstanding their nominal employment by
someone other than Overnite. See for example, W. W. Grainger, Inc. v.
NLRB, 860 F.2d 244 (7th Cir. 1988).
12 Argo described a long and rather torturous process that he is re-
quired to go through to hire a new driver. Much of the difficulty he
ascribed to regulatory requirements to see if an applicant is properly
licensed and has a clean record. Other difficulties he ascribed to the
Company’s psychological and other testing procedures which result in
an inordinate delay from the time a person files an application to the
time that a person can be put on the payroll. In listening to this descrip-
tion of the hiring process, I couldn’t help feeling somewhat skeptical in
that I wondered how a company could impose procedures which effec-
tively would inhibit its terminal managers from hiring necessary per-
sonnel in sufficient time to meet its business needs. I wonder if the
procedure described by Argo is followed at terminals where there is no
union representation?
OVERNITE TRANSPORTATION CO. 1289
The General Counsel contended that the use of subcontrac-
tors resulted in the regular drivers having reduced opportunities
to work overtime. But this contention is really not supported
by the evidence and, as shown above, the fact is that the regular
drivers, on average, worked more hours per week after the sub-
contracting than they worked before.13
E. Discussion of Unilateral Changes
Once a union becomes the exclusive collective-bargaining
representative, an employer is no longer free to act unilaterally
insofar as changes which affect his employees’ wages, hours,
and terms and conditions of employment. The restraint on the
employer’s freedom of action is required by its obligation to
bargain with a union representing his employees. It is not so
much the particular unilateral action’s effect on the employees,
but the action’s affect on the bargaining process that is the
cause for the prohibition. As stated by the Supreme Court in
NLRB v. Katz, 369 U.S. 736 (1961):

[T]he Board is authorized to order the cessation of behavior
which is in effect a refusal to negotiate or which directly ob-
structs or inhibits the actual process of discussion, or which
reflects a cast of mind against reaching agreement. Unilateral
action by an employer without prior discussion with the union
does amount to a refusal to negotiate about the affected condi-
tions of employment under negotiations, and must of neces-
sity obstruct bargaining. . . . It will often disclose an unwill-
ingness to agree with the union. It will rarely be justified by
any reason of substance. It follows that the Board may hold
such unilateral action to be an unfair labor practice. . . . with-
out also finding the employer guilty of overall subjective bad
faith. While we do not foreclose the possibility that there
might be circumstances which the Board could or should ac-
cept as excusing or justifying unilateral action, no such case is
presented here.

Interestingly, and as more fully discussed below, a change
may be either too small or too big to require bargaining with a
union. Nevertheless, the law as enunciated by the Board and
the courts is that in most cases where changes are made which
affect existing conditions of employment in circumstances
where the employees are represented by a labor organization,
the employer must first notify the Union and give it an adequate
opportunity to bargain about the change.14 It goes without say-
ing that in order to prevail, the General Counsel must show that
there was, in fact, a change. For if the employer merely has
continued an existing practice, it cannot be said that it has made
a unilateral change which requires bargaining.

13 The leased drivers typically handled the appointment freight. The
General Counsel seems to suggest that the regular drivers might have
been assigned to do the appointment freight either before or after their
normal city routes. But as there are only a limited number of hours that
customers are open each day to receive freight, there is a practical limit
on the number of hours per day that any driver and truck can be out
making deliveries or pickups. That limit is defined by the normal busi-
ness hours of the customers and it would make no sense to send out
drivers to make deliveries to locations which are not open.
14 In NLRB v. Eltec Corp., 870 F.2d 1112 (6th Cir. 1989), the court
rejected a company’s contention that it had notified and given a union
ample opportunity to bargain inasmuch as the announcement of the
change was given as an ultimatum and required the Union to respond
within 5 days. In that case, the court also found that the employer’s
offer to bargain after the decision to subcontract was implemented was
not sufficient to satisfy its obligation to bargain.
As it is my opinion, that the subcontracting issue is the more
significant one, I will address that issue first.
In Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), the em-
ployer, for legitimate economic reasons, but without offering to
bargain with the union, displaced its existing maintenance em-
ployees by subcontracting out their work to a third party. In
concluding that the employer was required to bargain about the
decision, the Court stated inter alia:

The facts of the present case illustrate the propriety of submit-
ting the dispute to collective negotiation. The Company’s de-
cision to contract out the maintenance work did not alter the
Company’s basic operation. The maintenance work still had
to be performed in the plant. No capital investment was con-
templated; the Company merely replaced existing employees
with those of an independent contractor to do the same work
under similar conditions of employment. Therefore, to re-
quire the employer to bargain about the matter would not sig-
nificantly abridge his freedom to manage the business.

The issue of subcontracting and bargaining was obliquely
revisited by the Supreme Court in First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981). In that case, which in-
volved the employer’s partial closing of its business, the Court
held that certain types of managerial decisions could be made
without bargaining about the decision, if the decision involved
a change in the scope and direction of the enterprise, even if it
had a direct affect on employment. The Court attempted to
define a test which balanced an “employer’s need for unen-
cumbered decision making with the benefit of collective bar-
gaining for labor management relations.” At footnote 22, the
Court noted, “[W]e of course intimate no view as to other types
of management decisions such as plant relocations, sales, other
kinds of subcontracting, automation etc., which are to be con-
sidered on the particular facts.” The Board in Dubuque Pack-
ing Co., 303 NLRB 386 (1991), set forth the criteria it would
use to apply the Court’s First National Maintenance decision.
(Dubuque involved an employer’s decision to relocate.)
In Torrington Industries, 307 NLRB 809 (1992), the em-
ployer subcontracted work which resulted in the layoff of two
bargaining unit employees who were replaced by independent
contractors. The Board concluded that subcontracting deci-
sions similar to those in Fibreboard were mandatory subjects of
bargaining and did not require the burden shift test utilized in
Dubuque Packing Co., supra, even if the decision was not mo-
tivated by labor costs. That is, the Board concluded that based
on the Supreme Court’s decision in First National Mainte-
nance, supra, the Court had already struck the balance in favor
of finding that decisions to subcontract required bargaining.
Nevertheless, the Board did qualify its decision and stated:

We agree that there may be cases in which the nonlabor cost
reason for subcontracting may provide a basis for concluding
that the decision to subcontract is not a mandatory subject of
bargaining. We do not reach that issue here, however, be-
cause the Respondent’ reasons had nothing to do with a
change in the “scope and direction” of its business. Those
reasons, thus were not matters of core entrepreneurial concern
and outside the scope of bargaining.

Subsequent to its decision in Torrington, supra, the Board
has continued to take the view that employers are required to
bargain about a decision to subcontract irrespective of whether
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
the decisions were motivated by labor cost factors.15 This ap-
proach, however, has had mixed results in the courts of appeals.
In Geiger Ready Mix Co. of Kansas City, 315 NLRB 1021
(1994), enfd. 87 F.3d 1363 (D.C. Cir. 1996), the employer’s
subcontracting decision resulted in the layoff of unit employ-
ees. The Board stated inter alia:

Because this case concerns the reassignment of unit work
rather than a plant relocation, Torrington Industries, supra, . . .
is controlling. The Board in Torrington Industries found that
in cases factually similar to Fibreboard Corp. v. NLRB, when
virtually the only circumstance the employer has changed is
the identity of the employees doing the work, there is no need
to apply the multilayered test of Dubuque to determine
whether the decision is subject to the statutory duty to bar-
gaining because Fibreboard, supra, has already held that such
decisions are mandatory subjects of bargaining. As in Fibre-
board, the Respondents’ assignment of nonunit employees to
deliver concrete batched at speaker road involved the substitu-
tion of one group of worker s for another to perform the same
work at the same plant under the ultimate control of the same
employer for lower wages.

In Acme Die Casting, 315 NLRB 202 fn. 1 (1994), the Board
held that the employer violated Section 8(a)(5) by not offering
to bargain about its decision to subcontract. It stated:

Contrary to the Respondent’s contention, the reasoning of
Torrington Industries, . . . is not limited to situations in which
employees are laid off or replaced. Torrington simply recog-
nizes the principle, applicable in this case, that an employer’s
decision to subcontract is a mandatory subject of bargaining
when what is involved is the substitution of one group of
workers for another to perform the same work and not a
change in the scope and direction of the enterprise. There is
no evidence that the decision to subcontract constituted a
change in the scope and direction of Respondent’s business.
Indeed, the plant manager admitted that the subcontracting
permitted the Respondent to perform work of the same type
done by unit employees in the past while avoiding paying
overtime to those employees.

Member Cohen does not read Torrington as broadly his col-
leagues. In his view, subcontracting is a mandatory subject
where one group of employees is substituted for another and
the decision is based on matters that are amenable to collective
bargaining. In the instant case, the evidence indicates that the
Respondent subcontracted because it was less expensive to do
so than to perform the work in-house on an overtime basis.
There is insufficient evidence to establish the Respondent’s
claim that the subcontracting was necessitated by a customer’s
special needs which could not be met by use of the Respon-
dent’s single machine.
In some of the cases that have been appealed, the courts have
concluded that the determination of whether subcontracting
decisions must be negotiated should depend on whether labor
costs was a factor in making the decision. Thus, in Furniture

15 There are cases holding that subcontracting decision which are
motivated by anti-union considerations are illegal under Sec. 8(a)(1),
(3), and (5) of the Act. See Gold Coast Produce, 319 NLRB 202 fn. 1
(1995); Girardi Distributors, 307 NLRB 1497, 1516 (1992); and Delta
Carbonate, 307 NLRB 118, 121 (1992). As there is no evidence of
antiunion motivation in the present employer’s decision to subcontract,
these cases are not relevant to the issue in the present case.
Rentors of America, Inc. v. NLRB, 36 F.3d 1240, 1246–1250
(3d Cir. 1994), the court rejected what it believed to be the
Board’s inflexible approach set forth in Torrington Industries,
supra, and finding that a decision to subcontract was not moti-
vated by labor cost considerations, held that the employer was
not obligated to bargain about the decision that was actually
motivated by the fact that the employees had been engaged in a
pattern of theft and misconduct. In NLRB v. Eltec Corp., 870
F.2d 1112 (6th Cir. 1989), the court, although upholding the
Board’s finding that the employer had failed to bargain about
its decision to subcontract, found that there was ample proof to
show that the decision, which was made after the union refused
to make concessions, was motivated by labor costs; that it did
not alter the company’s basic operations; did not involve a
substantial capital investment; and would not impose a bargain-
ing requirement that would “significantly abridge” the em-
ployer’s “freedom to manage the business.” Similarly, in Oli-
vetti Office U.S.A., Inc. v. NLRB, 926 F.2d 181 (2d Cir. 1991),
the court while agreeing with the Board’s conclusion regarding
the employer’s decision to subcontract and relocate, found that
the decision was made to lower labor costs and was a decision
which was amenable to bargaining within the meaning of First
National Maintenance v. NLRB, supra. See also W. W.
Grainger, Inc. v. NLRB, 860 F.2d 244 (7th Cir. 1988).
In Dorsey Trailers, Inc., 321 NLRB 616 (1996), the em-
ployer subcontracted out unit work and the Board concluded
that the employer was obligated to bargain pursuant to the ra-
tionale of Torrington. Nevertheless, the Board, with member
Cohen dissenting, went to considerable length to explain that
the Respondent’s decision was motivated by labor costs and
that the decision to subcontract had an adverse impact on the
employees’ overtime opportunities. On Appeal, the ThirdCir-
cuit, refused to enforce the Board’s orders vis-a-vis the subcon-
tracting issue. It concluded that the subcontracting decision did
not involve the substitution of one group of employees for an-
other and therefore was distinguishable from Fibreboard. The
Court concluded that the decision to subcontract, which was
based on the employer’s need to meet increased demand, was
not motivated by a desire to eliminate or reduce the overtime of
bargaining unit employees and that there was no violation of
the Act because the subcontracting had no adverse impact on
the bargaining unit. Dorsey Trailers, Inc. v. NLRB, 134 F.3d
125 (3d Cir. 1998).
In my opinion, the decision to subcontract in the present case
amounted to a change in the existing terms and conditions of
employment as they existed as of July 1997. Notwithstanding
the fact that the Company, in the past, has used subcontracting
to obtain drivers to haul excess freight in peak periods, the
decision here was made after a hiatus of more than 1-1/2 years.
It is also my opinion that the subcontracting in the present
case has not had a direct adverse impact, in any measurable
way, on the existing complement of bargaining unit employees.
The evidence shows that no drivers were laid off as a result of
the subcontracting and no drivers suffered a diminution of in-
come.
On the other hand, one can easily surmise that were a com-
pany allowed, without any restraint, to freely substitute subcon-
tractors for regular employees as the latter group leave, it would
be possible for an employer, over time, to reduce or even elimi-
nate an existing bargaining unit. Moreover, the substitution of
subcontractors’ employees, even if occurring as a consequence
of the normal attrition of regular employees, would create a real
OVERNITE TRANSPORTATION CO. 1291
if indirect impact on the unit employees as it would tend to
dilute their bargaining strength and also create a pool of people
who would likely be available as strike breakers.
It is my opinion that the use of subcontractors to perform the
same work as bargaining unit employees, even if it does not
have a direct and immediate impact on those employees could,
over time, have a continuing and increasing indirect impact of
the bargaining unit and the Union’s ability to bargain on their
behalf.
The record shows that the use of subcontractors to do bar-
gaining unit work has not resulted in any change in the scope
and direction of the Respondent’s business and as such, the
question as to whether labor costs were a motivating factor in
reaching the decision is not controlling under the Board’s view
of the law. Nor do the facts in this case show that the Company
would have faced a crisis in its operations if it had bargained
before making up its mind about the subcontracting decision.
I should emphasize that absent discriminatory intent or a
contractual prohibition, nothing in the law prevents an em-
ployer from making a decision to subcontract unit work and
implementing that decision. What the law requires is that an
employer first offer to bargain about such a decision. While
talk may or may not be cheap, an employer is required, to nego-
tiate with an open mind and give a union a real opportunity to
change its mind. Nor is an employer required to negotiate for
an indefinite period of time over such a decision. The em-
ployer is required to bargain until either an agreement or an
impasse is reached. Where circumstances require quicker ac-
tion, the employer may demand, for example, that the union
meet soon and often in order to resolve the matter expedi-
tiously. While it not possible to define with absolute certainty,
the extent of required bargaining, a union may not hold a deci-
sion hostage by either refusing to meet or by seeking to delay
bargaining.
For the reasons described above, it is my opinion that under
Board law, which I am bound to follow, Torrington Industries
is controlling and that the Respondent has violated Section
8(a)(1) and (5) by failing to notify the Union and failing to
offer to bargain about its decision to subcontract out bargaining
unit work.
The facts in this case show that the Employer also unilater-
ally changed, without bargaining, the starting times of some of
the dockworkers in May 1996 and unilaterally instituted a call-
in system for both dockworkers and drivers in January 1997.
Both of these changes were of short duration and affected, in
either case, a relatively small proportion of the bargaining unit
employees.
Changes in starting time and changes in call-in systems each
involve mandatory subjects of bargaining as they relate to em-
ployee hours and terms and conditions of employment. Car-
bonex Coal Co., 262 NLRB 1306, 1313 (1982) (change in shift
schedule affecting 3 employees); Mitchellace Inc., 321 NLRB
191, 195 (1996) (change in hours held to be nontrivial change
in shift starting times); Blue Circle Cement Co., 319 NLRB 954
(1995) (change in start times); Carpenters Local 1031, 321
NLRB 30 (1996) (change requiring employee to work one half
hour more per day); and United Parcel Service, 323 NLRB 593
(1997) (modification of existing on call system).
The Employer contends that both changes were consistent
with its past practice and therefore did not amount to changes at
all, citing cases such as KDEN Broadcasting Co., 225 NLRB
25, 34–35 (1976) (employer had a past practice of changing
schedules); Mitchellace, Inc., supra (employer changed work
schedules in manner consistent with past practice); and Mathe-
son Fast Freight, 297 NLRB 63 (1989) (change in starting
times consistent with past practice). As stated in KDEN Broad-
casting Co., supra:

The Board has clearly indicated that schedule and hour
changes that are consistent with an employer’s past prac-
tice are not violative of the Act. The rule is well reasoned
because if an employer were prevented from operating in
its normal routine fashion once a union is certified, it
could bring the business to a grinding halt. A basic pur-
pose of the Act is to encourage and promote industrial
peace and it was never intended to bring about a cessation
of production.

In the case of the requirement that employees call in before
reporting to work during the slow season, the evidence does not
show that the Employer had ever required this of its employees
before and this therefore was a change.
In the case of the change in the dockworker’s starting time,
the evidence shows that in the past, the Employer did shift in-
dividual employees on an ad hoc basis to either earlier or later
start times, depending largely on the volume of expected
freight. However, in the present case, the change in having
four of the dockworkers start at 1 a.m. rather than their normal
11 p.m. start time, was instituted for the group to deal with a
new policy whereby the Company guaranteed same day deliv-
ery of any freight received in the terminal by 10 a.m. Thus, the
change was related to a freight delivery decision that was
within the discretion of the Company and not the result of out-
side forces not within its control. And as the change in start
times in this instance was not related to freight volume, the
change was something new and therefore subject to negotia-
tions. Our Lady of Lourdes Health Center, 306 NLRB 337
(1992) (unilateral change in work schedules held to violate
Section 8(a)(5)).
The Respondent also argues that the changes involved herein
were not sufficiently substantial as to require bargaining. And
under Board law, a unilateral change, even if affecting em-
ployee terms of employment, may be so insubstantial as to
excuse any obligation to bargain. Civil Service Employees
Assn., 311 NLRB 6 (1993) (Board held that requirement that
employees carry and use beepers was not a material change
from prior practice of requiring field employees to call into
office several times a day). See also Alamo Cement Co., 281
NLRB 737 (1988), and Trading Port, Inc., 224 NLRB 980
(1976).
Despite this contention, the Board has held in several of the
cases cited above that changes in work schedules and start
times constitute changes in conditions of employment, substan-
tial enough to require bargaining. Also, a procedure requiring
employees to call in before reporting to work, in order to see if
there is enough work, is in my opinion, a significant enough
change in work conditions so as to warrant bargaining even if
its affect on employees’ earnings was slight or even hypotheti-
cal.
Finally, even if either of these changes, by themselves, could
be considered to be insubstantial, they did not occur in isola-
tion. Equitable Resources Energy Co., 307 NLRB 730, 733
(1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
CONCLUSIONS OF LAW
1. By unilaterally subcontracting bargaining unit work, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
2. By unilaterally changing starting times of dockworkers,
the Respondent has violated Section 8(a)(1) and (5) of the Act.
3. By unilateral requiring employees to call in before report-
ing to work, the Respondent has violated Section 8(a)(1) and
(5) of the Act.
4. By refusing to furnish to the Union a copy of the Home
Depot complaint letter in relation to the discipline of Carlos
Ramirez, the Respondent has violated Section 8(a)(1) and (5) of
the Act.
5. The Respondent has not violated the Act in any other
manner alleged in the consolidated complaint.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
As the evidence in this case does not show that the unilateral
changes have had any material or measurable affect on the
earnings of the bargaining unit employees, I conclude that no
backpay remedy is required. Nevertheless, as these changes
affect and tend to undermine the process of good-faith bargain-
ing, I find that the Respondent must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]