Overnite Transportation Co. (Dayton, Ohio Terminal)

National Labor Relations Board - Board Decisions

Aug 16, 2001

334 N.L.R.B. 1074 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
Overnite Transportation Company (Dayton, Ohio
Terminal) and Teamsters Local Union No. 957,
an affiliate of International Brotherhood Of
Teamsters, AFL–CIO

Overnite Transportation Company (Chattanooga,
Tennessee Terminal) and International Broth-
erhood of Teamsters, Local 515

Overnite Transportation Company (Nitro, West Vir-
ginia Terminal) and Truck Drivers, Chauffeurs
and Helpers Local Union No. 175, an affiliate of
the International Brotherhood of Teamsters,
AFL–CIO

Overnite Transportation Company (Richfield, Ohio
Terminal) and Teamsters, Freight Drivers,
Dockworkers and Helpers, Local Union No. 24
a/w International Brotherhood of Teamsters,
AFL–CIO

Overnite Transportation Company (Parkersburg,
West Virginia Terminal) and Chauffeurs, Team-
sters, and Helpers Local Union No. 175 a/w In-
ternational Brotherhood of Teamsters, AFL–
CIO

Overnite Transportation Company (Nashville, Ten-
nessee Terminal) and Teamsters, Freight Em-
ployees, Local Union No. 480, a/w International
Brotherhood of Teamsters, AFL–CIO

Overnite Transportation Company (Rockford, Illi-
nois Terminal) and Teamsters Local Union No.
325, a/w International Brotherhood of Team-
sters, AFL–CIO

Overnite Transportation Company (Bensalem, Penn-
sylvania Terminal) and Teamsters Local Union
107, a/w International Brotherhood of Team-
sters, AFL–CIO. Cases 18–CA–13394-63 (for-
merly 9–CA–32770), 18–RC–15815 (formerly 9–
RC–16517), 18–CA–13394-49 (formerly 10–CA–
28360), 18–CA–13394–67 (formerly 10–CA–
28455), 18–RC–15817 (formerly 10–RC–14601),
18–CA–13394–37 (formerly 9–CA–32731), 18–
CA–13394–66 (formerly 9–CA–32940), and 18–
RC–15785 (formerly 9–RC–16511), 18–CA–
13394–88 and –89 (formerly 8–CA–27314 and 8–
CA–27379), 18–RC–15881 (formerly 8–RC–
15191), 18–CA–13394–53 (formerly 6–CA–
27132), 18–RC–15813 (formerly 6–RC–11158),
18–CA–13394–83 (formerly 26–CA–16837), 18–
RC–15822 (formerly 26–RC–7696), 18–CA–
13394–84 (formerly 33–CA–11151), 18–RC–
15823 (formerly 33–RC–3975), 18–CA–13394–3
(formerly 4–CA–23519), and 18–RC–15767 (for-
merly 4–RC–18525)
August 16, 2001
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On July 13, 1999, Administrative Law Judge Benjamin
Schlesinger issued the attached decision (Overnite II),
which is a continuation of his previous decision in Over-
nite Transportation Co., 329 NLRB 990 (1999), enfd.
240 F.3d 325 (4th Cir. 2001) (Overnite I), petition for
rehearing en banc granted and panel decision vacated
July 5, 2001. The Respondent filed exceptions and a
supporting brief. The General Counsel filed an answer-
ing brief in opposition to the Respondent’s exceptions.
The Respondent filed a reply brief. The Respondent also
filed a motion, with supporting exhibits, to reopen the
record, to remand for a hearing on union violence and
intimidation, and to consolidate with pending 8(b)(1)(A)
cases. The General Counsel filed a statement in opposi-
tion to the Respondent’s motion. The Respondent filed a
reply to the General Counsel’s statement in opposition.
The Respondent also filed motions to supplement the
record regarding union violence and intimidation, em-
ployee turnover, and supervisory turnover. The General
Counsel filed a response to the Respondent’s motions to
supplement the record.
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,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2

1 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 of the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. Additionally, the Respondent asserts
that the judge’s findings are a result of bias and prejudice. After a
careful examination of the entire record, we find no evidence that the
judge prejudged the case, made prejudicial rulings, or demonstrated
bias in his credibility resolutions, analysis, or discussion of the evi-
dence.
2 We shall modify the judge’s recommended Order by substituting a
broad cease-and-desist order for the narrow one recommended by the
judge because the Respondent’s conduct demonstrates a general disre-
gard for the employees’ fundamental rights. America’s Best Quality
Coatings Corp., 313 NLRB 470, 473 (1993), enfd. 44 F.3d 516 (7th
Cir. 1995), cert. denied 515 U.S. 1158 (1995); Hickmott Foods, 242
NLRB 1357 (1979). Consistent with Overnite I, we shall substitute the
334 NLRB No. 134
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1075
In its exceptions, the Respondent contends that the
“principal error” in the judge’s decision in Overnite II is
“his reliance on what he found were violations in his first
decision” in Overnite I. As discussed below, however,
after the filing of the Respondent’s exceptions, the
judge’s decision in Overnite I was affirmed by the Board.
Similarly, we find no merit in the Respondent’s excep-
tions in Overnite II, and we adopt the judge’s decision,
including his key finding that Gissel3 bargaining orders
are warranted at seven of the Respondent’s service cen-
ters.
Background
In brief, Overnite I and Overnite II arise in the context
of a campaign conducted by the International Brother-
hood of Teamsters, AFL–CIO, and its affiliated locals
(collectively the Union) to organize many of the Respon-
dent’s approximately 175 service centers throughout the
country. On July 29, 1995, the parties formally settled
almost all the 8(a)(1) violations alleged in these proceed-
ings and the 8(a)(3) allegations for which the only reme-
dies required were cease-and-desist orders and the post-
ing of a notice. They also settled certain 8(a)(3) allega-
tions that concerned the Respondent’s failure to imple-
ment the March 1995 wage and benefit package at four
service centers where the Union recently won elections
and was certified by the Board.4 As part of the settle-
ment, the Respondent made the employees whole for the
monetary losses suffered and agreed to post a notice at
all its service centers, in which it pledged not to violate
the Act.
Specifically left for resolution in these proceedings
were the so-called “national allegations,” which related
to all of the Respondent’s facilities, and other allegations
that, in the General Counsel’s view, supported bargain-
ing orders under Gissel at many of the Respondent’s ser-
vice centers. The General Counsel specifically reserved
the right to use any competent, relevant, material, and
otherwise admissible evidence to support his claim for
Gissel relief, even if the evidence pertained to allegations
that had been previously settled. Thereafter, the parties
agreed to litigate a sampling of the Gissel cases on the
premise that a limited decision by the judge would assist
them in determining how to advance with the remaining
issues.
On April 10, 1998, the judge issued his decision in
Overnite I, finding that the Respondent had committed
unfair labor practices affecting employees on both a na-

date December 11, 1995, for the date February 10, 1995, appearing in
par. 2(g) of the judge’s recommended order.
3 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
4 West Sacramento, California; Kansas City, Kansas; Blaine, Minne-
sota; and Indianapolis, Indiana.
tionwide and unit-specific basis. The judge concluded
that such conduct justified issuance of Gissel orders at
four of the Respondent’s service centers.5
On July 13, 1999, the judge issued his decision in
Overnite II, finding that Gissel bargaining orders were
warranted at seven additional service centers6 on the ba-
sis of the national violations established in Overnite I and
the specific unfair labor practices committed at each of
those locations.7 With respect to an eighth service cen-
ter,8 the judge found that Gissel relief was not appropri-
ate because the Union’s majority status had not been
proven, and no exception was filed to that finding.
On November 10, 1999, the Board issued its decision
in Overnite I, affirming the judge’s rulings, findings, and
conclusions in all material respects, and adopting his
recommended Order directing the Respondent to bargain
with the Union at the four contested service centers. 329
NLRB 990.
Thereafter, the Respondent filed with the Fourth Cir-
cuit a petition for review of the Board’s Overnite I deci-
sion, and the Board filed a cross-application for en-
forcement of its Order. On February 16, 2001, the court
issued its decision in Overnite I, enforcing the Board’s
Order in its entirety. 240 F.3d 325. On July 5, 2001,
however, the court granted the Respondent’s petition for
rehearing en banc and vacated the panel decision that
was filed on February 16, 2001.
In Overnite I we found, in agreement with the judge,
that the Respondent had committed nationwide, publi-
cized, and repeated violations of the Act which affected
all bargaining unit employees. In particular, the Respon-
dent implemented discriminatory wage increases in vio-
lation of Section 8(a)(1) and (3) of Act. This unlawful
conduct constituted the core of the Respondent’s highly
coercive “carrot and stick” campaign through which the
Respondent granted selective wage increases to its un-
represented employees, while at approximately the same
time communicating the futility of union negotiations
and threats of plant closure. The judge also found, and
we agreed, that the Respondent had committed a number
of additional unfair labor practices at the four contested
service centers and that the Union had established its
majority status at these service centers. The Board
5 Louisville, Kentucky; Lawrenceville, Georgia; Norfolk, Virginia;
and Bridgeton, Missouri.
6 Dayton and Richfield, Ohio; Nitro and Parkersburg, West Virginia;
Nashville, Tennessee; Rockford, Illinois; and Bensalem, Pennsylvania.
7 Because all the 8(a)(1) violations he found were encompassed
within the earlier settlement, the judge did not provide remedies for the
unlawful conduct. Instead, consistent with the settlement, he consid-
ered the conduct as supporting the General Counsel’s request for Gissel
bargaining orders.
8 Chattanooga, Tennessee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
agreed with the judge that the Respondent’s pervasive
and egregious unfair labor practices warranted Gissel
orders at the four service centers. In so finding, the
Board rejected the Respondent’s arguments that the pas-
sage of time, the turnover of employees, and the turnover
of management diminished the continuing impact of its
unfair labor practices. Rather, the Board found that “the
Respondent’s violations are precisely the types of unfair
labor practices that endure in the memories of those em-
ployed at the time and are most likely to be described as
cautionary tales to later hires.” Overnite I, supra, 329
NLRB at 994.
Analysis
1. The judge’s findings in Overnite II closely track his
findings in Overnite I. Indeed, as stated above, the Re-
spondent contends that the “principal error” in the
judge’s Overnite II decision is his reliance on the na-
tional violations he found in his Overnite I decision. We
reject this contention. For the reasons we found the na-
tional violations in Overnite I to be sufficient to warrant
the issuance of the bargaining orders in that case, we find
those same national violations sufficient to warrant bar-
gaining orders at the service centers at issue in Overnite
II. Further, for the reasons stated by the judge, we adopt
his findings that the Respondent committed numerous
unit-specific unfair labor practices at the seven contested
service centers and that the Union had established its
majority status at these service centers. Accordingly, we
adopt the judge’s recommendation that Gissel bargaining
orders should also be issued at the seven additional ser-
vice centers at issue here.9
2. As it did in Overnite I, the Respondent argues that
Gissel relief is inappropriate because of employee and
supervisory turnover, and it moves to supplement the
record with additional evidence that was unavailable at
the close of the hearing. Specifically, the Respondent
asserts that as of March 2001, turnover of employees

9 Our dissenting colleague would defer ruling on this case until the
court rules en banc on the Respondent’s petition for review and the
Board’s cross-application for enforcement in Overnite I. Contrary to
our colleague, we find it appropriate to decide this matter at this time.
It is well settled that “the pendency of collateral litigation does not
suspend a respondent’s duty to bargain under Section 8(a)(5).” May-
wood Do-Nut Co., 256 NLRB 507, 508 (1981). Accord: Tropicana
Resort & Casino, 331 NLRB 573 (2000). See also Great Dane Trail-
ers, Inc., 191 NLRB 6, 7 (1971); Porta-Kamp Mfg. Co., 189 NLRB
899, 900 (1971). In all these cases, the Board declined to stay its own
proceedings pending the resolution of collateral litigation in the courts.
In addition, Sec. 10(g) of the Act provides that the “commencement of
proceedings under subsection (e) or (f) of this section shall not, unless
specifically ordered by the court, operate as a stay of the Board’s or-
der.” Thus, consistent with our traditional practice and the terms of the
statute, we shall not stay these proceedings pending the Fourth Circuit’s
en banc ruling in Overnite I.
who were eligible to vote in the elections ranged from 41
to 49 percent at three service centers, and from 50 to 62
percent at four others. In addition, the Respondent al-
leges that there has been high turnover among its super-
visors and managers.
In determining whether a Gissel bargaining order is
appropriate, the Board traditionally does not consider
turnover, but rather assesses the situation at the time the
unfair labor practices were committed. Overnite I, supra,
329 NLRB at 994. Otherwise, “the employer that has
committed unfair labor practices of sufficient gravity to
warrant the issuance of a bargaining order would be al-
lowed to benefit from the effects of its wrongdoing.” Id.
In the present case, even accepting, arguendo, the facts
asserted by the Respondent concerning employee and
supervisory turnover, we find that the effects of the Re-
spondent’s unlawful conduct are not likely to be suffi-
ciently dissipated by turnover to ensure a fair second
election. In this connection, in Overnite I we determined
that the Respondent’s unfair labor practices had a con-
tinuing impact on employees at the four service centers
notwithstanding an employee turnover rate of approxi-
mately 40 percent. Similarly, in the instant case, at three
of the service centers in issue, the alleged turnover rate is
less than 50 percent. Thus, at these three service centers,
the Respondent’s severe and pervasive unfair labor prac-
tices would be recalled by a majority of the Respondent’s
current employees. With respect to the other four service
centers where the employee turnover rate equaled or ex-
ceeded 50 percent, we cannot find such turnover to be
dispositive. See NLRB v. Gerig’s Dump Trucking, Inc.,
137 F.3d 936, 943–944 (7th Cir. 1998) (turnover rate of
76 percent “alone should [not] prevent enforcement of
the Board’s [Gissel] order”). Even with a turnover rate
as high as 62 percent, there are still a substantial number
of employees remaining who were employed at the time
the Respondent committed serious unfair labor practices
and were directly affected by them. Indeed, as noted
above, in Overnite I we stated that “the Respondent’s
violations are precisely the types of unfair labor practices
that endure in the memories of those employed at the
time.” Id. at slip op. 5. Accordingly, the Respondent’s
motions to supplement the record regarding employee
and supervisory turnover are denied on the ground that
the evidence it seeks to introduce would not require a
different result.10
10 In Overnite I, we affirmed the judge’s refusal to give controlling
weight to evidence of management turnover. We see no reason to
reach a different result here. See Walgreen Co. v. NLRB, 509 F.2d
1014, 1019 fn. 6 (7th Cir. 1975) (enfg. Gissel bargaining order where
the manager who committed the unlawful conduct was transferred, not
discharged, and where there was no indication that employees saw
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1077
3. Next, the Respondent moves to reopen the record,
to remand for a hearing on union violence and intimida-
tion, and to consolidate with pending 8(b)(1)(A) cases.11
In its motion, the Respondent states that “[o]n October
24, 1999, the International Brotherhood of Teamsters . . .
commenced a nationwide strike against Overnite avow-
edly to protest Overnite’s alleged unfair labor practices,
which include its withholding of recognition at bargain-
ing order locations.” Overnite further states that the
“strike has been plagued with serious, premeditated vio-
lence and other intimidation.” The Respondent claims
that the strike has been “[o]rchestrated, [o]verseen and
[d]irected” by the International. According to the Re-
spondent, violence and related intimidation have oc-
curred at numerous service centers including those at
Bensalem, Pennsylvania; Dayton, Ohio; Nashville, Ten-
nessee; and Rockford, Illinois. In addition, the Respon-
dent argues that, as a result of the highly integrated na-
ture of its trucking operations, employees in the bargain-
ing units at Richfield, Ohio; Nitro and Parkersburg, West
Virginia, have learned of strike-related misconduct oc-
curring at other service centers.
Citing Laura Modes Co., 144 NLRB 1592 (1963), and
its progeny, the Respondent contends that the Teamsters’
campaign of violence and intimidation “should vitiate
bargaining orders” at the locations involved here. Spe-
cifically, the Respondent moves to reopen the record,
remand the bargaining order cases, and consolidate them
for hearings before the judges assigned to hear the
8(b)(1)(A) allegations involving the same locations.
The General Counsel opposes the Respondent’s mo-
tion on two grounds. First, the General Counsel con-
tends that the Respondent has not presented sufficient
evidence to warrant the relief it seeks. Second, the Gen-
eral Counsel argues that the Respondent has selected an
inappropriate forum: In the General Counsel’s view, the
strike misconduct issue should be examined in the pend-
ing 8(b)(1)(A) cases, not the closed records in Overnite
II.
In Overnite Transportation Co., 333 NLRB (2001),
the Respondent raised a similar Laura Modes defense to
refusal to bargain allegations in four units in which Local
Teamsters unions had been certified as the employees’
bargaining representatives. As in that case, for the pur-
pose of ruling on the Respondent’s motion in the instant
case, we will accept as true the Respondent’s allegations
of strike-related misconduct, and we will assume, ar-
guendo, that the Respondent is correct that the Interna-

management turnover as resulting from punishment for committing
unfair labor practices).
11 The Respondent’s motion to supplement the record regarding un-
ion violence and intimidation is granted.
tional has orchestrated, overseen and directed the strike,
and is responsible for many of the violent incidents that
are alleged to have occurred.12 Nevertheless, after care-
ful consideration and for the reasons described below, we
have decided to: (1) deny the Respondent’s motion as to
the three service centers where little or no strike miscon-
duct is alleged to have occurred, and (2) direct a hearing
on the Respondent’s motion as to the four service centers
where the Respondent alleges that serious and substantial
strike misconduct has occurred.
In Laura Modes, supra, the seminal case in this area,
the Board found that the company violated Section
8(a)(5) of the Act by refusing to recognize the union.
144 NLRB at 1595. The Board, however, declined “to
give [the union] the benefit of our normal affirmative
bargaining order” because the union “evidenced a total
disinterest in enforcing its representation rights through
the peaceful legal process provided by the Act in that it
resorted to and/or encouraged the use of violent tactics to
compel their grant.” Id. at 1596.
As the Respondent acknowledges in its reply brief,
“Laura Modes relief is not routine.” Indeed, the Board
has characterized the withholding of an otherwise appro-
priate remedial bargaining order as an “extraordinary
sanction.” New Fairview Convalescent Home, 206
NLRB 688, 689 (1973), enfd. 520 F.2d 1316 (2d Cir.
1975), cert. denied 423 U.S. 1053 (1976).
In applying the principles of Laura Modes here, as in
Overnite Transportation, supra, “it is important to bear
in mind that while the Respondent’s motion emphasizes
the responsibility of the International for the nationwide
strike, the International would not be the beneficiary of
any bargaining order issued in this proceeding because it
is not the [designated] representative of the bargaining
unit employees.” Rather, six different Locals sought to
be the exclusive bargaining representatives of the em-
ployees employed at the Respondent’s facilities in Ben-
salem, Pennsylvania; Dayton and Richfield, Ohio; Nash-
ville, Tennessee; Rockford, Illinois; Nitro and Parkers-
burg, West Virginia. Furthermore, although the Locals
share a common affiliation with the International, the six
Locals and the International are each separate and dis-
tinct labor organizations within the meaning of Section
2(5) of the Act. Id. Therefore, even assuming that all of
the strike misconduct allegedly engaged in at all the
various locations cited by the Respondent can be attrib-
12 We emphasize that we make these assumptions solely for the pur-
pose of ruling on the Respondent’s motion. The legality of the alleged
misconduct and liability therefor is a matter to be decided in the context
of the pending 8(b)(1)(A) cases. We express no view about the merits
of any charge and complaint allegations of strike-related misconduct by
the International and the Unions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
uted to the International, that misconduct is relevant to
the Respondent’s Laura Modes defense only if, by virtue
of an agency relationship, that conduct can also be attrib-
uted to the Locals. There is no basis for finding, and the
Respondent has not argued, that each of the Locals is an
agent of every other Local, such that each Local’s con-
duct can be attributed to every other Local. Thus, the
only conceivable basis for attributing all of the conduct
to any of the Locals that sought to represent the employ-
ees would be a finding that the International is an agent
of each one of them. Id.
Accordingly, we must consider principles of agency
law. It is well established that, under Section 2(13) of
the Act, employers and unions are responsible for the
acts of their agents in accordance with ordinary common-
law rules of agency. Longshoremen ILA Local 1814 v.
NLRB, 735 F.2d 1384, 1394 (D.C. Cir. 1984) (“Beyond
doubt, the legislative intent of [Section 2(13)] was to
make the ordinary law of agency applicable to the attri-
bution of individual acts to both employers and un-
ions.”). And, under “hornbook agency law[,] . . . an
agency relationship arises only where the principal ‘has
the right to control the conduct of an agent with respect
to the matters entrusted to him.’” Longshoremen ILA v.
NLRB, 56 F.3d 205, 213 (D.C. Cir. 1995) (quoting Re-
statement (Second) of Agency Sec. 14 (1958); accord,
NLRB v. Sheet Metal Workers Local 19, 154 F.3d 137,
142 (3d Cir. 1998).
Here, the Respondent argues in its motion that the
strike was called by the International, has been orches-
trated by the International, overseen and directed at all
times by the International, and can only be called off by
the International. The motion provides no basis for find-
ing that the Locals exercised control over the Interna-
tional with respect to the conduct of the strike. Accord-
ingly, in the absence of any showing that the Interna-
tional was acting as the agent of the Locals, we conclude
that the Respondent is not entitled to a hearing insofar as
it seeks to establish misconduct on the part of the
International. Overnite Transportation, supra.

We also conclude that the Respondent is not entitled to
a hearing insofar as it seeks to establish that strike mis-
conduct occurring at its other service centers was dis-
seminated to employees at the Richfield, Nitro, and Par-
kersburg service centers. The evidence the Respondent
seeks to adduce is simply not relevant. Id. The issue
before us is not whether the employees at Richfield, Ni-
tro, and Parkersburg were coerced by strike misconduct
allegedly occurring elsewhere, or by news of miscon-
duct, but whether any strike misconduct allegedly occur-
ring at these three service centers is the type that justifies
withholding a bargaining order. Dissemination of mis-
conduct is insufficient to justify such extraordinary relief.
Id. In its motion, the Respondent concedes that “little or
no picket line violence” has occurred at Richfield, Nitro,
and Parkersburg. Therefore, there is no basis for with-
holding otherwise appropriate remedial bargaining orders
at these three service centers.
As to the four other locations—Dayton, Ohio; Nash-
ville, Tennessee; Rockford, Illinois; and Bensalem,
Pennsylvania—the Respondent has alleged that serious
and substantial strike-related misconduct has occurred
and that local union officials have participated in this
conduct.13 Therefore, with respect to these four loca-
tions, we find that the Respondent’s motion raises genu-
ine issues of material fact. Accordingly, we shall order
that a hearing be held before an administrative law judge
to determine whether the alleged misconduct at these
four locations is “of such a character as to justify the
‘extraordinary sanction’ of . . . withholding the bargain-
ing orders required to remedy the Respondent’s unfair
labor practices.” Id. However, for the following rea-
sons, we find that the instant case is not the appropriate
forum for determining whether the alleged misconduct at
these four locations is “of such a character as to justify
the ‘extraordinary sanction’ of . . . withholding the bar-
gaining orders required to remedy the Respondent’s un-
fair labor practices.” Id.
In its motion, the Respondent lists numerous cases in
which the General Counsel has issued complaints against
the International and its affiliated locals alleging viola-
tions of Section 8(b)(1)(A) of the Act. The Respondent
argues that the Board should reopen the record in Over-
nite II, remand the bargaining order cases, and consoli-
date them for hearings before the judges assigned to hear
the 8(b)(1)(A) cases involving the same locations. While
we agree with the Respondent that considerations of
economy and efficiency may well militate in favor of
assigning the same judge to hear both its Laura Modes
defense and any related 8(b)(1)(A) allegations, we see no
reason to delay the resolution of this proceeding by re-
opening the record in Overnite II. In this connection, we
observe that even if the Respondent were ultimately to
prevail on its Laura Modes defense, the Respondent
would still have a bargaining obligation at each of the
seven service centers effective December 11, 1995, the
date the Respondent and the General Counsel both
agreed was appropriate in Overnite I, and continuing
through at least October 24, 1999, the date the Respon-
13 In this respect, the instant case is distinguishable from Overnite
Transportation, supra, where the facts alleged by the Respondent, and
assumed to be true by the Board, fell “within the category of union
picket line misconduct that the Board has found, with court approval,
does not preclude an otherwise appropriate bargaining order.”
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1079
dent alleges that the strike misconduct began. The bar-
gaining obligation is subject to revocation after October
24, 1999, only at the Dayton, Nashville, Rockford, and
Bensalem service centers, and only if the Respondent
proves its Laura Modes defense in subsequent proceed-
ings.
In sum, we shall issue a final Order directing the Re-
spondent to bargain with the Local Unions at the seven
service centers in issue in Overnite II. In addition, we
shall treat the Respondent’s motion to reopen the record
and remand for hearing as a motion for revocation of the
bargaining orders issued in Cases 18–CA–13394–63
(Dayton, Ohio); 18–CA–13394–83 (Nashville, Tennes-
see); 18–CA–13394–84 (Rockford, Illinois); and 18–
CA–13394–3 (Bensalem, Pennsylvania). Finally, we
shall order that a hearing be held before an administrative
law judge, to be designated by the chief administrative
law judge, for the purpose of receiving evidence to re-
solve the issues raised by the Respondent’s motion for
revocation of the bargaining orders issued in these four
cases. The chief judge may consolidate this motion with
any 8(b)(1)(A) cases that concern allegations of union
violence at the four named service centers.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Overnite
Transportation Company, Richmond, Virginia, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified and set forth in full
below.
1. Cease and desist from
(a) Bypassing the exclusive representatives of its em-
ployees and dealing directly with its employees.
(b) Unilaterally changing the terms and conditions of
employment of certain of its employees by implementing
the overtime and nonwage portions of its productivity
package.
(c) In any other manner interfering with, restraining,
or coercing its 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 Teamsters Local 957, an
affiliate of the International Brotherhood of Teamsters,
AFL–CIO (Local 957) as the exclusive representative of
its employees in the following appropriate unit concern-
ing their terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time road drivers, city
drivers, and dock workers employed at Overnite Trans-
portation Company’s Dayton, Ohio facility, excluding
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.

(b) On request, bargain with Truck Drivers, Chauf-
feurs and Helpers Union No. 175, an affiliate of the In-
ternational Brotherhood of Teamsters (Local 175) as the
exclusive representative of its employees in the follow-
ing appropriate units concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time over the road driv-
ers, city drivers, jockeys, dock workers and mechanics
employed at Overnite Transportation Company’s Nitro,
West Virginia facility, excluding all office clerical em-
ployees, sales employees, and all professional employ-
ees, guards, and supervisors as defined in the Act.

All full-time and regular part-time over the road driv-
ers, city pick-up and delivery drivers, hostlers, yard
workers and dock workers employed at Overnite
Transportation Company’s Parkersburg, West Virginia
facility, excluding all guards, mechanics, supervisors,
professional workers, office clerical employees and any
other employees excluded by the Act.

(c) On request, bargain with Teamsters, Freight Driv-
ers, Dockworkers and Helpers, Local Union No. 24, a/w
International Brotherhood of Teamsters, AFL–CIO (Lo-
cal 24) as the exclusive representative of its employees in
the following appropriate unit concerning their terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

All full-time and regular part-time city drivers, road
drivers, dock lead men, dock workers, and jockeys,
employed at Overnite Transportation Company’s 3495
Brecksville Road, Richfield, Ohio facility, excluding all
office clerical employees, professional employees, me-
chanic lead men, mechanics, guards, and supervisors as
defined in the Act.

(d) On request, bargain with Teamsters, Freight Em-
ployees, Local Union No. 480, a/w International Broth-
erhood of Teamsters, AFL–CIO (Local 480) as the ex-
clusive representative of its employees in the following
appropriate unit concerning their terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
All full-time and regular part-time city drivers, dock-
workers, road drivers, leadpersons, and mechanics em-
ployed at Overnite Transportation Company’s Nash-
ville, Tennessee facility, excluding all office clerical,
professional employees, guards and supervisors as de-
fined in the Act.

(e) On request, bargain with Teamsters Local Union
No. 325, a/w International Brotherhood of Teamsters,
AFL–CIO (Local 325) as the exclusive representative of
its employees in the following appropriate unit concern-
ing their terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time truck drivers, dock
workers, and dock leadpersons employed at Overnite
Transportation Company’s Rockford, Illinois facility,
excluding office clerical employees, confidential em-
ployees, professional employees, guards and supervi-
sors as defined by the Act, and all other employees.

(f) On request, bargain with Teamsters Local Union
107, a/w International Brotherhood of Teamsters, AFL–
CIO (Local 107) as the exclusive representative of its
employees in the following appropriate unit concerning
their terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time drivers and dock
workers employed at Overnite Transportation Com-
pany’s Cornwell Heights (Bensalem), Pennsylvania fa-
cility, but excluding all other employees, office clerical
employees, guards and supervisors as defined in the
Act.

(g) At the request of the exclusive representatives of
the unit employees at the above service centers, rescind
in whole or in part the overtime and nonwage portions of
the productivity package.
(h) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix A”14 at
its Dayton service center; “Appendix B” at its Nitro ser-
vice center; “Appendix C” at its Richfield service center;
“Appendix D” at its Parkersburg service center; “Appen-
dix E” at its Nashville service center; “Appendix F” at its
Rockford service center; and “Appendix G” at its Ben-
salem service center. Copies of the notices, on forms

14 If this Order is enforced by a judgment of the United States court
of appeals, the words in this and the other notices reading “Posted by
Order of the National Labor Relations Board” shall read “Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
provided by the Regional Director for Region 18, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since December 11, 1995.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the portions of the
record that were placed under seal will continue to be
maintained under seal.
IT IS FURTHER ORDERED that the elections held in
Cases 18–RC–15815 (formerly 9–RC–16517), 18–RC–
15785 (formerly 9–RC–16511), 18–RC–15881 (formerly
8–RC–15191), 18–RC–15813 (formerly 6–RC–11158),
18–RC–15822 (formerly 26–RC–7696), 18–RC–15823
(formerly 33–RC–3975), and 18–RC–15767 (formerly
4–RC–18525) are set aside and the petitions in these
cases are dismissed.
IT IS FURTHER ORDERED that the election in Case
18–RC–15817 (formerly 10–RC–14601) be set aside and
this case transferred to the Regional Director for Region
10 for the setting of a second election at such time and
place as he deems circumstances afford a free choice of a
bargaining representative in an appropriate unit.
IT IS FURTHER ORDERED that the complaints ruled
on in this Decision are dismissed insofar as they allege
violations of the Act not specifically found.
IT IS FURTHER ORDERED that a hearing be held
before an administrative law judge to be designated by
the chief administrative law judge, for the purpose of
receiving evidence to resolve the issues raised by the
Respondent’s motion for revocation of the bargaining
orders issued in Cases 18–CA–13394–63 (Dayton,
Ohio); 18–CA–13394-83 (Nashville, Tennessee); 18–
CA–13394-84 (Rockford, Illinois); 18–CA–13394-3
(Bensalem, Pennsylvania). For purposes of hearing and
decision by an administrative law judge, the chief judge
may consolidate this motion with any 8(b)(1)(A) cases
that concern allegations of union strike misconduct at the
four named service centers. The designated administra-
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1081
tive law judge shall prepare and serve on the parties a
decision containing findings of fact, conclusions of law,
and a recommended Order. Following service of the
decision, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
IT IS FURTHER ORDERED that the Respondent’s
motion is referred to the chief administrative law judge
for further appropriate action in accordance with this
decision.
[Direction of Second Election omitted from publica-
tion.]

CHAIRMAN HURTGEN, dissenting.
In Overnite I,1 the Board found that Respondent com-
mitted certain unfair labor practices, and entered Gissel2
bargaining orders in four units. The decision in the in-
stant case rests heavily and principally on the Board’s
decision in Overnite I. That is, based largely on the con-
duct in Overnite I, the Board here entered Gissel orders
in seven other units. On July 5, 2001, the reviewing
court granted Overnite’s petition for a rehearing en banc
in Overnite I. In light of this, I would defer ruling on this
case until after the court rules in Overnite I. In my view,
considerations of practicality as well as deference to the
court make it inappropriate for the Board to issue the
instant decision at this time.
My colleagues assert that “the pendency of collateral
litigation does not suspend a respondent’s duty to bargain
under Section 8(a)(5).” I assume, arguendo, the validity
of that principle. Thus, if a given case 1 establishes an
employer’s duty to bargain in a unit, the Board can find a
breach of that duty in case 2, without awaiting a judicial
review of case 1. However, in the instant situation, case
1 did not establish a duty to bargain in the instant units.
The instant case 2 seeks to impose, for the first time, a
Gissel obligation in the instant units. Thus, the afore-
mentioned principle does not apply.
Similarly, the issue here is not whether the Board order
in case 1 should be stayed. Under Section 10(e) and (f),
that order is not stayed. Respondent remains subject to
the Board’s Order to bargain in the units involved
therein. However, the issue here is whether Respondent
should be compelled to bargain in the different units in-
volved herein.
Although the instant case involves different units, it
nonetheless relies heavily on the Board’s finding of vio-
lations in case 1. That is, the unlawful conduct in the
units in case 1 is said to taint the atmosphere in the in-

1 329 NLRB 990 (1999), enfd. 240 F.3d 325 (4th Cir. 2001), peti-
tion for rehearing en banc granted and panel decision vacated July 5,
2001.
2 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
stant units, such that a fair election cannot be held and a
Gissel order should be granted. However, there is at
least some doubt as to whether the Board’s findings and
conclusions in case 1 are correct. Although the review-
ing court initially enforced the Board’s Order, that court
has taken the unusual step of granting Respondent’s peti-
tion for a rehearing en banc. For the reasons set forth
above, I would await the court’s decision.
APPENDIX A
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 bypass Teamsters Local Union No.
957, a/w International Brotherhood of Teamsters, AFL–
CIO (Local 957) and deal directly with our employees.
WE WILL NOT unilaterally change the terms and con-
ditions of our employees by implementing the overtime
and nonwage portions of our productivity package.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with Local 957 as the
exclusive representative of our employees in the follow-
ing appropriate unit concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time road drivers, city
drivers, and dock workers employed at Overnite Trans-
portation Company’s Dayton, Ohio facility, excluding
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
WE WILL, at the request of Local 957, rescind in
whole or in part the overtime and nonwage portions of
the productivity package.

OVERNITE TRANSPORTATION
COMPANY
APPENDIX B
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 bypass Truck Drivers, Chauffeurs and
Helpers Local Union No. 175, an affiliate of Interna-
tional Brotherhood of Teamsters, AFL–CIO (Local 175)
and deal directly with our employees.
WE WILL NOT unilaterally change the terms and con-
ditions of our employees by implementing the overtime
and nonwage portions of our productivity package.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with Local 175 as the
exclusive representative of our employees in the follow-
ing appropriate unit concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time over the road driv-
ers, city drivers, jockeys, dock workers and mechanics
employed at Overnite Transportation Company’s Nitro,
West Virginia facility, excluding all office clerical em-
ployees, sales employees, and all professional employ-
ees, guards, and supervisors as defined in the Act.

WE WILL, at the request of Local 175, rescind in
whole or in part the overtime and nonwage portions of
the productivity package.

OVERNITE TRANSPORTATION
COMPANY
APPENDIX C
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 bypass Teamsters, Freight Drivers,
Dockworkers and Helpers Local Union No. 24, a/w In-
ternational Brotherhood of Teamsters, AFL–CIO (Local
24) and deal directly with our employees.
WE WILL NOT unilaterally change the terms and con-
ditions of our employees by implementing the overtime
and nonwage portions of our productivity package.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with Local 24 as the
exclusive representative of our employees in the follow-
ing appropriate unit concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time city drivers, road
drivers, dock lead men, dock workers, and jockeys,
employed at Overnite Transportation Company’s 3495
Brecksville Road, Richfield, Ohio facility, excluding all
office clerical employees, professional employees, me-
chanic lead men, mechanics, guards, and supervisors as
defined in the Act.

WE WILL, at the request of Local 24, rescind in whole
or in part the overtime and nonwage portions of the pro-
ductivity package.

OVERNITE TRANSPORTATION
COMPANY
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1083
APPENDIX D
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 bypass Truck Drivers, Chauffeurs and
Helpers Local Union No. 175, an affiliate of Interna-
tional Brotherhood of Teamsters, AFL–CIO (Local 175)
and deal directly with our employees.
WE WILL NOT unilaterally change the terms and con-
ditions of our employees by implementing the overtime
and nonwage portions of our productivity package.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with Local 175 as the
exclusive representative of our employees in the follow-
ing appropriate unit concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time over the road driv-
ers, city pick-up and delivery drivers, hostlers, yard
workers and dock workers employed at Overnite
Transportation Company’s Parkersburg, West Virginia
facility, excluding all guards, mechanics, supervisors,
professional workers, office clerical employees, and
any other employees excluded by the Act.

WE WILL, at the request of Local 175, rescind in
whole or in part the overtime and nonwage portions of
the productivity package.

OVERNITE TRANSPORTATION
COMPANY
APPENDIX E
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 bypass Teamsters, Freight Employees,
Local Union No. 480, a/w International Brotherhood of
Teamsters, AFL–CIO (Local 480) and deal directly with
our employees.
WE WILL NOT unilaterally change the terms and con-
ditions of our employees by implementing the overtime
and nonwage portions of our productivity package.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with Local 480 as the
exclusive representative of our employees in the follow-
ing appropriate unit concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time city drivers, dock-
workers, road drivers, leadpersons, and mechanics em-
ployed at Overnite Transportation Company’s Nash-
ville, Tennessee facility, excluding all office clerical,
professional employees, guards and supervisors as de-
fined in the Act.

WE WILL, at the request of Local 480, rescind in
whole or in part the overtime and nonwage portions of
the productivity package.

OVERNITE TRANSPORTATION
COMPANY
APPENDIX F
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.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
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 bypass Teamsters Local Union No.
325, a/w International Brotherhood of Teamsters, AFL–
CIO (Local 325) and deal directly with our employees.
WE WILL NOT unilaterally change the terms and con-
ditions of our employees by implementing the overtime
and nonwage portions of our productivity package.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with Local 325 as the
exclusive representative of our employees in the follow-
ing appropriate unit concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time truck drivers, dock
workers, and dock leadpersons employed at Overnite
Transportation Company’s Rockford, Illinois facility,
excluding office clerical employees, confidential em-
ployees, professional employees, guards and supervi-
sors as defined by the Act, and all other employees.

WE WILL, at the request of Local 325, rescind in
whole or in part the overtime and nonwage portions of
the productivity package.

OVERNITE TRANSPORTATION
COMPANY
APPENDIX G
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 bypass Teamsters Local Union No.
107, a/w International Brotherhood of Teamsters, AFL–
CIO (Local 107) and deal directly with our employees.
WE WILL NOT unilaterally change the terms and con-
ditions of our employees by implementing the overtime
and nonwage portions of our productivity package.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with Local 107 as the
exclusive representative of our employees in the follow-
ing appropriate unit concerning their terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time drivers and dock
workers employed at Overnite Transportation Com-
pany’s Cornwell Heights (Bensalem), Pennsyl-vania
facility, but excluding all other employees, office cleri-
cal employees, guards and supervisors as defined in the
Act.

WE WILL at the request of Local 107, rescind in
whole or in part the overtime and nonwage portions of
the productivity package.

OVERNITE TRANSPORTATION
COMPANY

Carol M. Shore, Esq. and Andrew L. Lang, Esq., both of Cin-
cinnati, Ohio; Kerstin Meyers, Esq., of Atlanta, Georgia; Al-
len Binstock, Esq., of Cleveland, Ohio; Kim Seigert, Esq.,
of Pittsburgh, Pennsylvania; Linda M. Kirchert, Esq., of
Memphis, Tennessee; David M. Bigar, Esq., of Minneapo-
lis, Minnesota; Richard T. Heller, Esq. and Patricia Gar-
ber, Esq., both of Philadelphia, Pennsylvania, for the Gen-
eral Counsel.
Kevin Duffee, Esq., Christopher Johlie, Esq., Thomas Dugard,
Esq., Craig T. Boggs, Esq., Jay Swardenski, Esq., Tracy A.
Peterson, Esq., Craig M. Hoetger, Esq., Frank J. Saibert,
Esq., and Melissa Crawford, Esq. (Matkov, Salzman, Mad-
off & Gunn), all of Chicago, Illinois, for the Respondent.
Frelan Patrick, of Dandridge, Tennessee, for Locals 175, 480,
and 107; Ken Ramser, of Akron, Ohio, for Loacl 24; Marc
M. Pekay, Esq., of Chicago, Illinois, for Local 325; and
Theresa M. Flanagan, Esq., of Philadelphia, Pennsylvania,
for Local 107.
DECISION
PRELIMINARY STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge.
This decision constitutes the resolution of the issues that remain
after and follow my earlier Decision in JD–5–98 (Overnite I),
which decision and the record on which it is based are incorpo-
rated herein by reference. Overnite I held, inter alia, that the
nationwide announcement on February 10, 1995, and grant on
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1085
March 5, 1995, by Respondent Overnite Transportation Com-
pany (Respondent or Overnite or the Company) to all of its
employees of an unprecedented, second substantial wage in-
crease in 1995, about 2 months after the first increase, timed at
the peak of the Teamsters’ organizing drive, was an unfair labor
practice in violation of Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act). The violation was so serious
that it alone warranted the relief of bargaining orders at four of
Respondent’s service centers under the authority of NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969), and established
Board precedent.
Implicit in Overnite I was that the conduct engaged in na-
tionally by Overnite was also sufficient to warrant bargaining
orders in other unfair labor practice cases that constituted part
of this consolidated proceeding and which concerned additional
service centers of Overnite, provided that there was proof that
the International Brotherhood of Teamsters, AFL–CIO
(Internationa”), or its affiliates, represented a majority of the
employees at those service centers. This decision involves, in
the order that the hearings were held, eight additional service
centers located at Dayton, Ohio; Chattanooga, Tennessee;
Nitro, West Virginia; Richfield, Ohio; Parkersburg, West
Virginia; Nashville, Tennessee; Rockford, Illinois; and
Bensalem, Pennsylvania.1

1 The consolidated complaint also sought, in this phase of the pro-
ceeding, bargaining orders at Lafayette, Indiana, and Elmsford, New
York. Near the end of the hearings, the General Counsel moved for
orders, which I granted, severing and dismissing those cases. In addi-
tion, the parties settled the complaints in Cases 18–CA–13394–65
(formerly 9–CA–32869), 18–CA–13394–10 (formerly 10–CA–28205),
and 8–CA–28126 during trial, and those complaints were severed from
this proceeding.
The relevant docket entries are as follows: The charge in Case 18–
CA–13394–63 (formerly 9–CA–32770) was filed by Local 957 on
March 27 and amended on May 11 and June 5, 1995. On June 8, 1995,
an unfair labor practice complaint issued, which was amended on June
13. Thereafter, on June 28, 1995, Case 18–RC–15815 (formerly 9–RC–
16517) was consolidated with the unfair labor practice proceeding. The
charge in Case 18–CA–13394–67 (formerly 10–CA–28455) was filed
by Local 515 on May 10, 1995. The charge in Case 18–CA–13394–49
(formerly 10–CA–28360) was filed by Local 515 on April 3 and
amended on April 20, 1995. On May 24 and July 12, 1995, unfair labor
practice complaints issued. On June 8, 1995, Case 18–RC–15817 (for-
merly 10–RC–14601) was consolidated with the two earliest unfair
labor practice cases. The charge in Case 18–CA–13394–37 (formerly
9–CA–32731) was filed by Local 175 on March 27 and amended on
May 8, 1995. The charge in Case 18–CA–13394–66 (formerly 9–CA–
32940) was filed by Local 175 on May 24, 1995. On May 10, 1995, an
unfair labor practice complaint issued and was amended on May 24 and
30, 1995. On May 17, 1995, Case 18–RC–15785 (formerly 9–RC–
14601) was consolidated with the unfair labor practice case. The charge
in Case 18–CA–13394–88 (formerly 8–CA–27314) was filed by Local
24 on April 17. The charge in Case 18–CA–13394–89 (formerly 8–
CA–27379) was filed by Local 24 on May 10 and amended on May 19,
1995. On November 30, 1995, an unfair labor practice complaint is-
sued. Thereafter, on December 7, 1995, Case 18–RC–15881 (formerly
8–RC–15191) was consolidated with the unfair labor practice case. The
charge in Case 18–CA–13394–53 (formerly 6–CA–27132) was filed by
Local 175 on March 16 and amended on June 21, 1995. On June 28,
1995, the unfair labor practice complaint issued; and the representation
case was consolidated with the unfair labor practice case. The charge in
On July 29, 1995, the General Counsel and Respondent for-
mally settled, with certain exceptions, all the numerous 8(a)(1)
unfair labor practices alleged in the various complaints consoli-
dated in this proceeding. Specifically left for resolution in the
earlier portion of this proceeding were the so-called “national”
allegations which related to all of Respondent’s facilities and
other allegations that, the General Counsel contended, sup-
ported bargaining orders under Gissel. The General Counsel
also specifically reserved the right to use any competent, rele-
vant, material, and otherwise admissible evidence to support
the bargaining orders, even if the evidence pertained to allega-
tions that had been previously settled.
Having determined that the national unfair labor practices
warranted bargaining orders at all the service centers, I must,
therefore, also consider whether any of the various 8(a)(1)
allegations support the additional bargaining order requests; but
those allegations become relevant and material only if I find
that the Teamsters represented at a critical time a majority of
the employees at the particular service centers. Gourmet Foods,
270 NLRB 578 (1984). If there was no majority, then the
8(a)(1) allegations support nothing and have already been set-
tled; and there is no further relief that I might properly grant,
because the relief has already been agreed on. I, thus, turn first
to the Locals involved and their alleged majority status at each
of Respondent’s service centers.
I. THE UNIONS INVOLVED
Respondent admitted, and I conclude, that Teamsters Local
Union No. 957, an affiliate of International Brotherhood of
Teamsters, AFL–CIO (Local 957),2 is a labor organization
within the meaning of Section 2(5) of the Act. The following
employees constitute a unit appropriate for purposes of collec-
tive bargaining:

All full-time and regular part-time road drivers, city drivers,
and dock workers employed at Overnite Transportation Com-
pany’s Dayton, Ohio facility, excluding office clerical em-
ployees, professional employees, guards and supervisors as
defined in the Act.

9.
Case 18–CA–13394–83 (formerly 26–CA–16837) was filed by Local
480 on May 30 and amended on June 27, 1995. On July 7, 1995, the
unfair labor practice complaint issued. Thereafter, on July 19, 1995,
Case 18–RC–15822 (formerly 26–RC–7696) was consolidated with the
unfair labor practice case. The charge in Case 18–CA–13394–84 (for-
merly 33–CA–11151) was filed by Local 325 on April 11 and the com-
plaint issued on June 28, 1995. On the same day, Case 18–RC–15823
(formerly 33–RC–3975) was consolidated with the unfair labor practice
case. The charge in Case 18–CA–13394–3 (formerly 4–CA–23519)
was filed by Local 107 on February 15 and amended on February 17
and April 6, 1995. The unfair labor practice complaint issued on April
13 and was amended on April 17, 1995. Thereafter, on May 1, 1995,
Case 18–RC–15767 (formerly 4–RC–18525) was consolidated with the
unfair labor practice case. The hearing was held in Dayton, Ohio;
Chattanooga and Nashville, Tennessee; St. Albans and Parkersburg,
West Virginia; Cleveland, Ohio; Atlanta, Georgia; Rockford, Illinois;
and Philadelphia, Pennsylvania, for 30 days, starting on June 29, 1998,
and ending on February 18, 199
2 This Local, as well as the other Locals, are often separately re-
ferred to herein as the “Teamsters” or “the Union.” Hopefully, the
reference to the appropriate Local is obvious.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
Respondent admitted, and I conclude, that International
Brotherhood of Teamsters, Local 515 (Local 515), is a labor
organization within the meaning of Section 2(5) of the Act. The
following employees constitute a unit appropriate for purposes
of collective bargaining:

All full-time and regular part-time city drivers, road drivers,
dockmen, dock leadmen, jockeys and mechanics employed at
Overnite Transportation Company’s Chattanooga, Tennessee
terminal, but excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in the
Act.

Respondent admitted, and I conclude, that Truck Drivers,
Chauffeurs and Helpers Local Union No. 175, an affiliate of
International Brotherhood of Teamsters, AFL–CIO (Local
175), is a labor organization within the meaning of Section 2(5)
of the Act. The following employees constitute units appropri-
ate for purposes of collective bargaining:

All full-time and regular part-time over the road drivers, city
drivers, jockeys, dock workers and mechanics employed at
Overnite Transportation Company’s Nitro, West Virginia fa-
cility, excluding all office clerical employees, sales employees
and all professional employees, guards and supervisors as de-
fined in the Act.

All full-time and regular part-time over the road drivers, city
pick-up and delivery drivers, hostlers, yard workers and dock
workers employed at Overnite Transportation Company’s
Parkersburg, West Virginia facility, excluding all guards, me-
chanics, supervisors, professional workers, office clerical em-
ployees and any other employees excluded by the Act.

Respondent admitted, and I conclude, that Teamsters,
Freight Drivers, Dockworkers and Helpers, Local Union No.
24, affiliated with International Brotherhood of Teamsters,
AFL–CIO (Local 24), is a labor organization within the mean-
ing of Section 2(5) of the Act. The following employees consti-
tute a unit appropriate for purposes of collective bargaining:

All full time and regular part time city drivers, road drivers,
dock lead men, dock workers, and jockeys employed at Over-
nite Transportation Company’s 3495 Brecksville Road, Rich-
field, Ohio facility, excluding all office clerical employees,
professional employees, mechanic lead men, mechanics,
guards and supervisors as defined in the Act.

Respondent admitted, and I conclude, that Teamsters,
Freight Employees, Local Union No. 480, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL–CIO (Local 480), is a labor or-
ganization within the meaning of Section 2(5) of the Act. The
following employees constitute a unit appropriate for purposes
of collective bargaining:

All full time and regular part time city drivers, dockworkers,
road drivers, leadpersons, and mechanics employed at Over-
nite Transportation Company’s Nashville, Tennessee facility;
excluding all office clerical, professional employees, guards
and supervisors as defined in the Act.

Respondent admitted, and I conclude, that Teamsters Local
Union No. 325, affiliated with International Brotherhood of
Teamsters, AFL–CIO (Local 325), is a labor organization
within the meaning of Section 2(5) of the Act. The following
employees constitute a unit appropriate for purposes of collec-
tive bargaining:

All full-time and regular part-time truck drivers, dock workers
and dock leadpersons employed at Overnite Transportation
Company’s Rockford, Illinois facility, but excluding office
clerical employees, confidential employees, professional em-
ployees, guards and supervisors as defined by the Act, and all
other employees.

Respondent admitted, and I conclude, that Teamsters Local
Union 107, affiliated with International Brotherhood of Team-
sters, AFL–CIO (Local 107), is a labor organization within the
meaning of Section 2(5) of the Act. The following employees
constitute a unit appropriate for purposes of collective bargain-
ing:

All full-time and regular part-time drivers and dock workers
employed at Overnite Transportation Company’s Cornwell
Heights, Pennsylvania facility, but excluding all other em-
ployees, office clerical employees, guards and supervisors as
defined in the Act.

II. THE UNION’S MAJORITY
A. Preliminary Statement—The Law and Credibility
Respondent attempted to prove that the Teamsters obtained
authorization cards and petitions fraudulently from many of
Overnite’s employees by representing that the cards were to be
used for the sole purpose of obtaining an election. In Gissel,
395 U.S. at 606–608, the Supreme Court approved the Board’s
Cumberland Shoe doctrine3 for determining the validity of
authorization cards, describing Board law, 395 U.S. at 584, as
follows:

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

The authorization cards and petitions used by the Teamsters
do not refer to an election or make any statement inconsistent
with the stated single purpose of designating the Union as col-
lective-bargaining representative. In all instances, I find that
they were unambiguous and had a single purpose, with the
meaning of Cumberland Shoe, supra.
The Board wrote in DTR Industries, 311 NLRB 833, 839–
840 (1993), enf. denied on other grounds 39 F.3d 106 (6th Cir.
1994):

3 Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d
917 (6th Cir. 1965), reaffd. in Levi Strauss & Co., 172 NLRB 732
(1968), both approved in Gissel, 395 U.S. at 606–608.
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1087
The Gissel Court fashioned the following rule for un-
ambiguous single-purpose authorization cards:

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

395 U.S. at 606. Thus, where the card on its face clearly de-
clares a purpose to designate the union as collective-
bargaining representative, the only basis for denying face
value to the authorization card is affirmative proof of misrep-
resentation or coercion. Levi Strauss & Co., 172 NLRB 732,
733 (1968).
In Levi Strauss, the Board explained and reaffirmed
the Cumberland Shoe doctrine in the context of unambi-
guous, single-purpose authorization cards. The Board
stated:

Declarations to employees that authorization
cards are desired to gain an election do not under
ordinary circumstances constitute misrepresenta-
tions either of fact or of purpose. As in the instant
case, where the Union did use the evidence of em-
ployee support reflected by the cards to get an elec-
tion, such declarations normally constitute no more
than truthful statements of a concurrent purpose for
which the cards are sought. That purpose, more-
over, is one that is entirely consistent with the au-
thorization purpose expressed in the cards, as well
as with the use of the cards to establish majority
support. A point sometimes overlooked is that in
basic purpose there is no essential difference be-
tween cards that are needed for a showing of inter-
est to gain an election and cards that must be used
to support a majority designation showing in a Sec-
tion 8(a)(5) complaint proceeding. . . .
Thus, the fact that employees are told in the
course of solicitation that an election is contem-
plated, or that a purpose of the card is to make an
election possible, provides in our view insufficient
basis in itself for vitiating unambiguously worded
authorization cards on the theory of misrepresenta-
tion. [311 NLRB at 839.]
. . . .
[W]e reject the Respondent’s argument that
even assuming, for merits sake, that . . . [the] . . .
union solicitors said that the cards were “for an
election,” and did not state that the cards were
“only for an election,” an assumption that we find
supported by a preponderance of the testimony of
the employees here, that the cards are invalid be-
cause the employees were misled about the pur-
pose of the authorization cards.
Rather, we apply Gissel’s rule that employees
are bound by the clear language of what they sign
unless there is a deliberate effort to induce them to
ignore the card’s express language by telling them
that the sole and exclusive purpose of the card is to
get an election. [311 NLRB at 840.]

Much of Respondent’s proof came from employees who tes-
tified that the only purpose given for the cards was that they
were going to be used to obtain an election. That is not enough.
In DTR Industries, 311 NLRB at 840, the Board accepted cards
signed by 23 employees, whose testimony:

establishe[d] that even though they were told that the cards
were for an election or a vote, they were not told either explic-
itly or in substance that the cards would be used only or solely
for an election or vote or for no purpose other than to help get
an election or a vote as required to invalidate the cards under
Gissel.

See also Jeffrey Mfg. Division, 248 NLRB 33 (1980), enfd. as
modified sub nom. Dresser Industries v. NLRB, 654 F.2d 944
(4th Cir. 1981); DTR Industries, supra, 311 NLRB at 843
(Selby, Weis, McVetta). Some employees’ testimony that they
did not read the authorizations “does not necessarily invalidate
the Board’s reliance on the cards as evidence of majority sup-
port.” DTR Industries, 311 NLRB at 841 fn. 39, citing Ona
Corp., 261 NLRB 1378, 1410 (1982), remanded 729 F.2d 713
(11th Cir.1984); Jeffrey Mfg. Division, supra; Keystone Pretzel
Bakery, 242 NLRB 492 (1979), enfd. 696 F.2d 257 (3d Cir.
1982). In DTR Industries, 311 NLRB at 839, the Board noted
the Supreme Court’s consideration in Gissel of General Steel
Products, 157 NLRB 636 (1966), one of the four cases consoli-
dated in Gissel, in which the trial examiner rejected the com-
pany’s contentions:

that . . . cards should be [invalidated] because . . . employees
[were] told one or more of the following: (1) that the card
would be used to get an election; (2) that [an employee] had
the right to vote either way, even though he signed the card;
and (3) that the card would be kept secret and not shown to
anybody except to the Board in order to get an election.. . .
[T]hese statements, singly or jointly, do not foreclose use of
the cards for the purpose designated on their face. [157 NLRB
at 645, cited at 395 U.S. 584–585 fn. 5 and 608.]

On the other hand, a misrepresentation that a card is only for
an election disqualifies the card from consideration as a true
reflection that an employee has authorized union representa-
tion. When this series of cases began, Respondent attempted to
prove that the Teamsters distributed a leaflet that said just that.
The leaflet, captioned with two portly industrialists smoking
cigars, and a large Teamsters logo, advised the employees that
Overnite was not telling the truth:
DON’T BE MISLED BY UP/OVERNITE HALF TRUTHS
1. By signing a Teamsters authorization card you are
only saying that you want to have an election conducted
by The National Labor Relations Board.
2. Despite what management may be telling you, the
only people who see your authorization cards are the
Teamsters, and The National Labor Relations Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
3. You are not obligated to The Teamsters at all by
signing a card.4
4. The NLRB will hold a secret ballot election, what
that means is neither management or the Teamsters will
know how you voted.
5. Don’t be misled, if UP/Overnite thought you would
get less in negotiations they would pay the Teamsters to
come in, but that’s not what they were worried about,
management is worrying about you having a voice in your
future.
6. The reason management gets the gold mine and
workers get the shaft is, without a union you have no voice
in your future, you only have broken promises. You can’t
plan your future on a broken promise.

Get your promises in writing
With a Teamsters contract!!

The testimony in the first hearing, involving the Dayton fa-
cility, was far from clear that the Teamsters had actually dis-
tributed the leaflet. Only a few of the many witnesses called by
Respondent could identify it; and their recollections of it were
weak indeed, so hesitant that I was not, and still am not, in-
clined to believe them. Of additional importance was the fact
that there was no evidence of anything that occurred in Dayton
that would have created an issue and prompted the Teamsters to
write such a response. The hearing next moved to Chattanooga,
where Overnite’s case accelerated. Witnesses were still uncer-
tain, but more of them—never that many at any of the loca-
tions—identified the leaflet, which I received in evidence be-
cause of their identification, albeit somewhat tentative. That did
not necessarily end matters, however. When the leaflet again
became an issue at the hearing involving the Richfield service
center, the counsel for the General Counsel gave one witness,
who had identified the leaflet, a different leaflet that appeared
at first glance to be the same as the first. And the witness then
changed his earlier testimony, stating that he could no longer
identify the first leaflet as the one that the Teamsters passed out
and that the Teamsters could have passed out the second leaflet,
which contained one profound difference from the first. That
was the first paragraph, which in the first leaflet openly repre-
sented that the cards were not being sought to show interest in
the Union but were being solicited to obtain an election. In-
stead, the second leaflet stated:

1. By signing a Teamsters authorization card you are
authorizing the Teamsters to represent you for all matters
pertaining to wages, hours, and conditions of employment.
Our intention is to file the cards with the National Labor
Relations Board for an election.

Neither the Teamsters nor Respondent offered any evidence
that would explain the reason that the Teamsters would have

4 This paragraph may, depending on the wording of the authorization
card or petition or the words of the solicitor, invalidate a signature.
Silver Fleet Motor Express, 174 NLRB 873, 873–874 (1969); Eckerd’s
Markets, Inc., 183 NLRB 337, 338 (1970); Fort Smith Outerwear, 205
NLRB 592, 593 fn. 2 (1973), enfd. as modified on other grounds 499
F.2d 223 (8th Cir. 1974).
thought it important to distribute this leaflet, making the second
leaflet as curious as the first. More problematic was the later
revelation that the second leaflet was one that Respondent, in
response to a subpoena duces tecum served by the General
Counsel, had produced from its files early in this proceeding,
more particularly from its file maintained at its Chattanooga
service center. Yet that was not shown to the Chattanooga em-
ployees, those whose testimony may conceivably have been
affected, to affirm facts that were really quite different. They
were shown, instead, the offensive first leaflet.
Nonetheless, the issue continued to be litigated up to the
hearing in Nashville, with more employees identifying the first
leaflet, and not one representative of the Teamsters testifying
about the first leaflet or any of the other leaflets. At Nashville,
Respondent served subpoenas not only on Local 480 but also
on the International. The subpoenas sought the appearance of
any person who had knowledge of the preparation and distribu-
tion of the first leaflet. The subpoenas were answered with the
response that there was no one who had such knowledge.
There was thus, in this record, no rebuttal of any evidence
that the first leaflet, with its direct statement that the cards were
being solicited only for an election, was distributed as the wit-
nesses testified. Although there continued to be, among the
employees who identified the first leaflet, some uncertainty in
their testimony, I have credited many of Respondent’s wit-
nesses, even though I have substantial doubts about their testi-
mony. If the Teamsters represented in the first leaflet5 that the
cards (and petitions) would be used solely for the purpose of
obtaining an election, the solicitors at the service centers where
the leaflets were seen may have made the same representations,
and I have credited the testimony of many of those witnesses
called by Respondent who testified that they were told the con-
tent of that first leaflet (Teamsters leaflet).
There was one final problem with the testimony about the
authorization cards and petitions, and that problem is more
about the construction of the English language than it is about
legalities. There were a substantial number of witnesses who
used the word “just” (some simply by habit) or “only” or
“solely” or “merely” not to limit the purpose for which the
cards were to be used but to indicate that a certain comment
was the only comment that was made. It makes a difference at
law. If a solicitor stated only that the card was to be used for an
election, that does not misrepresent the purpose of the card and
is not inconsistent with a union’s proof that it has been author-
ized to represent employees. On the other hand, if it is clear that
the card or petition is being presented for signature to be used
only to obtain an election, then it is not being presented to ob-
tain the signatory’s authorization of the union as his representa-
tive.6
5 Although no one identified the leaflet as being prepared by the
Teamsters, because of the testimony that it was distributed by Team-
sters members and other supporters of the Union, it may fairly be as-
sumed that it was in fact a Teamsters document, for which the Team-
sters were responsible.
6 Perhaps the emphasis on language is too much, for in Jeffrey Mfg.
Division, 248 NLRB 33 (1980), employee Bell was told that the card
did not mean that he was joining the Union but that “it was just to get a
representative to explain the purpose of the Union to us at a meeting.”
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1089
Respondent called numerous witnesses to contest their au-
thorizations. As in Overnite I, their testimony—that they did
not know how their signatures ended up on the documents
shown to them; or that they did not sign the documents that
were placed before them, even though their signatures appeared
on the documents; or that they signed different documents; or
that the writing on the cards or petitions were covered—was
weak, often confused, frequently inconsistent, sometimes bor-
dering on the silly, and uniformly unbelievable. That they so
testified was not necessarily unexpected. The Supreme Court
commented in Gissel, 395 U. S. at 608, that:

[E]mployees are more likely than not, many months after a
card drive and in response to questions by company counsel,
to give testimony damaging to the Union, particularly where
company officials have previously threatened reprisals for un-
ion activity in violation of Section 8(a)(1). [Footnote omitted.]

Here, although there were no alleged violations of Johnnie’s
Poultry, 146 NLRB 770 (1964),7 Respondent “directed” its
current employees to see its counsel, and, only when they ar-
rived, were they given their Johnnie’s Poultry protective in-
structions. The employees who agreed to testify were paid their
witness fee plus their normal wages. Knowing of Overnite’s
desire to prevent union organization, they could be expected to
tailor their testimony to explain away their signing of union
authorizations.
Regarding the testimony about the alleged unfair labor prac-
tices, I found most of the employees called by the General
Counsel sincere, truthful, and generally reliable. Various inci-
dents occurred, often repetitive of conduct exhibited throughout
this consolidated proceeding; and, although sometimes I had
difficulty finding that the General Counsel’s witnesses accu-
rately perceived those incidents, I also find that they did not
make them up from nothing. So, I have more often credited
them than not, wholly independent from, but certainly consis-
tent with, Board law, which recognizes that the testimony of
current employees that contradicts statements of their supervi-
sors is likely to be particularly reliable. Flexsteel Industries,
316 NLRB 745 (1995), enfd. mem. 83 F.3d 419 (5th Cir. 1996).
The testimony of current employees that is adverse to their
employer is “given at considerable risk of economic reprisal,
including loss of employment . . . and for this reason not likely
to be false.” Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22
(1977).
In making these and other credibility findings, I have fully
reviewed the entire record and carefully observed the demeanor
of all the witnesses. I have also taken into consideration the
apparent interests of the witnesses; the inherent probabilities in
light of other events; corroboration or the lack of it; the consis-
tencies or inconsistencies within the testimony of each witness
and between the testimony of each and that of other witnesses

The Board counted Bell’s card, refusing to find that statement sufficient
to cancel the unambiguous language on the card, which Bell read, indi-
cating that the signer authorized the union to act as a collective-
bargaining representative.
7 The General Counsel attempted at a late date to add such a viola-
tion in Nashville; but the Regional Office had not even investigated it
yet, and I refused to permit the amendment.
with similar apparent interests. Testimony in contradiction to
that upon which my factual findings are based has been care-
fully considered but discredited. See generally NLRB v. Walton
Mfg. Co., 369 U.S. 404, 408 (1962). Where necessary, how-
ever, I have set forth the precise reasons for my credibility reso-
lutions, bearing in mind the oft-quoted advice: “It is no reason
for refusing to accept everything that a witness says, because
you do not believe all of it; nothing is more common in all
kinds of judicial decisions than to believe some and not all.”
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950).
B. Dayton
On February 7, 1995, Local 957 requested that Respondent
recognize and bargain with it as the exclusive collective-
bargaining representative of the Dayton unit, but Respondent
failed and refused to do so. Local 957 also mailed to the Re-
gional Office a petition for an election the same day. The elec-
tion was held on March 30, 1995, which Local 957 lost, 27–21,
with 1 void and 3 challenged ballots; and the Union filed timely
objections. The objections case was consolidated in this pro-
ceeding, and the parties stipulated at the hearing to certain re-
lief, which is incorporated in this decision.
As of the date of Local 957’s request for recognition, Re-
spondent employed 54 employees in bargaining unit positions.8
In order to prove a majority, Local 957 had to prove 28 cards.
Thus, the parties’ disagreement over the status of Ted Gutwein,
whose name appears for the first time on the payroll ending
February 18, 1995, is of no moment. Whether he is to be in-
cluded in the unit or not, Local 957’s majority would still be
established once it attained 28 valid cards. In any event, Gut-
wein was terminated (not temporarily laid off, as Respondent
contends) for lack of work on September 11, 1994, and did not
work again until February 13, 1995. “[I]n order to be ‘em-
ployed during the payroll period’ and be eligible to vote, an
employee must perform unit work during the payroll period,”
with certain limited exceptions. Dyncorp/Dynair Services, 320
NLRB 120, 121 (1995). Assuming that Gutwein was laid off,
Respondent showed no practice in Dayton regarding the recall
of laid-off employees.9 Gutwein performed no work in the rele-
vant payroll period and thus may not be included in the unit.
8 This computation includes Joe Kitchen, a part-time dockworker,
who, the General Counsel notes, has no hours listed for the payroll
ending February 11, 1995, or for the payrolls preceding and subsequent
to that date. However, there was written on the payroll sheets “n/w,”
which I understand means “no work,” and not that he was no longer
employed.
9 Riviera Manor Nursing Home,, 200 NLRB 333 (1972), enf.
granted in part and denied in part mem. 487 F.2d 1405 (7th Cir. 1973),
and Koons Ford of Annapolis, Inc., 282 NLRB 506 (1986), enfd. 833
F.2d 310 (4th Cir. 1987), cert. denied 485 U.S. 1021 (1988), cited by
Respondent, do not support its position. The employees whose status
was questioned in Riviera Manor “were undisputably working in the
unit on the day the union made its bargaining demand, and the only
question was whether their cards were valid if signed prior to the date
they began working.” 299 Lincoln Street, Inc., 292 NLRB 172, 180
(1988). The Board declined in Koons Ford, supra, 282 NLRB at 509 fn.
17, to rule on administrative law judge’s determination of the validity
of the authorization card of employee Epling, and that is the finding on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
The cards were actually envelopes, which could be folded
and then returned to the Teamsters.10 On the inside was written:
AUTHORIZATION FOR REPRESENTATION
I, the undersigned employed by _______________________
________ hereby authorize the Teamsters Union _________
to act as my collective bargaining representative.
_______________________________________________
Signature of employee
________________________________________________
Home Address City State Zip Code
Phone ________________ Date ___________________

Be Wise—Organize

Early in this proceeding, counsel agreed that, in order to save
time, Respondent would supply to the General Counsel (pursu-
ant to subpoena or stipulation) exemplars of the signatures of
the employees whom the General Counsel claimed had filed
authorization cards and petitions for the Teamsters in the vari-
ous locations where Gissel bargaining orders were being con-
tested. The General Counsel’s handwriting expert, who was
Richard Shipp, would then compare the signatures on the cards
and petitions with the exemplars. After his analysis, the cards
and petitions and the exemplars would be sent to Respondent’s
counsel so that Respondent’s expert could perform the same
review. Although there is a paucity of exemplars in evidence,
compared to the boxes of material that were at each of the hear-
ings, the exemplars consisted of W-4 forms; applications for
employment; vehicle accident reports; employee reports of
work injury; forms for enrollment in Overnite’s health plan;
stock subscription agreement cancellations and requests for
refunds; hazardous material certifications; employee eligibility
verifications required by the Immigration and Naturalization
Service; and receipts of Overnite’s drug and alcohol employee
information packet, employee handbook, and absentee and
tardiness, and on-the-job injuries policies. Generally, no less
that 10 exemplars were produced for each employee.
Shipp compared the signatures on the Dayton authorization
cards (except for one, which was not signed) with exemplars
produced from Respondent’s personnel files of employees

which Respondent relies. Finally, Gutwein did not make an application
to return to work before he actually returned, so he had no nexus to the
service center.
10 Respondent contends that the “General Counsel’s card case fails
because many of the cards do not clearly identify Local 957 as the
signer’s designated collective bargaining agent.” The designation of a
parent union instead of the local union does not invalidate the petition.
Cam Industries, 251 NLRB 11 (1980), enfd. 666 F.2d 411 (9th Cir.
1982). Furthermore, the return address on the envelope clearly identi-
fied the Teamsters in Dayton. A number of employees attended meet-
ings at the Dayton union office. Respondent’s claim that Jones testified
to a different address of the Local is specious. The official transcript is
obviously in error, reporting “2219 Armstrong Lane,” rather than “2719
Armstrong Lane,” the correct address on the authorization cards, on the
petition for a representation election, the original unfair labor practice
charge, and all the rest of the pleadings, as well as exhibits in this pro-
ceeding. There is no factual basis in this record to sustain Respondent’s
suggestion that the employees were at all confused about what union
they were authorizing to represent them.
whom it employed and who had the same names as those per-
sons whom the General Counsel asked for. Respondent con-
tends that the exemplars were never authenticated as the genu-
ine signatures of the employees whose signatures were being
compared and that, therefore, no comparison of signatures
could be conducted.
Rule 901(a) of the Federal Rules of Evidence, titled “Re-
quirement of Authentication or Identification,” provides: “The
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its propo-
nent claims.” In US.. v. Mangan, 575 F.2d 32, 41–42 (2d Cir.
1978), cert. denied 439 U.S. 931 (1978), the court wrote:

[S]ubdivision (b) [of Rule 901] gives several illustrations of
sufficient authentication, one of which is

(4) Distinctive characteristics and the like. Appear-
ance, contents, substance, internal patterns, or other dis-
tinctive characteristics, taken in conjunction with circum-
stances.

Weinstein & Berger's Commentary on the Federal Rules
states, ¶ 901(b)(4)[01] at 901–47, that “Wigmore's conclusion
that mere contents will not suffice unless only the author
would have known the details is contrary to the federal rules
and unsound" (footnote omitted) and that “[T]he common law
prejudice against self-authenticating documents is not carried
over into the Federal Rules.”

The question is whether the exemplars bear the signatures of
the employees who signed the cards. I find that they did. As
stated in U.S. v. White, 444 F.2d 1274, 1280 (1971), cert. de-
nied 404 U.S. 949 (1971), quoted with approval in Scharfen-
berger v. Wingo, 542 F.2d 328, 336 (6th Cir. 1976):

There is no precise method by which a specimen must be
proved to be genuine and the proof may be either direct or cir-
cumstantial. Dean v. United States, 246 F. 568, 576 (5th Cir.
1917) The courts have not restricted the manner in which
specimens may be proved genuine and each case must be
viewed on its own facts. See Annot. 41 A.L.R.2d 583, 589
(1955).

Accord: U.S. v. Reed, 439 F.2d 1, 3 (2d Cir. 1971), where the
court held that exemplars “could be shown either by direct or
circumstantial evidence or by a combination of both,” citing
U.S. v. Swan, 396 F.2d 883 (2d Cir. 1968), cert. denied 393
U.S. 923 (1969). In Scharfenberger v. Wingo, supra, the exem-
plars were copies of withholding exemption certificates, a job
application, and a signed letter of resignation. The court noted,
542 F.2d at 337, that they were taken from the individual’s
employer, which was the Commonwealth of Kentucky, they
were prepared long before the litigation began, and there was
no evidence tending to show that the documents were not writ-
ten by the individual.11
11 I asked Respondent’s counsel “if these aren’t the samples of these
particular people, who do they represent.” Counsel’s brief contends that
“the inquiry begs the question,” that the Fed.R.Evid. do not permit
judges to simply infer authenticity where a document “appears” from
“common sense” to be authentic, and that whether the Fed.R.Evid. are
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1091
The Board rule is no different. In Aero Corp., 149 NLRB
1283 (1964), enfd. sub nom. Auto Workers v. NLRB, 363 F.2d
702 (D.C. Cir. 1966), cert. denied 385 U.S. 973 (1966), the
employer, just as Overnite, would not stipulate to the authentic-
ity of documents subpoenaed from employee personnel files,
such as W-4 forms, employment applications, skills certifica-
tion forms, paycheck endorsements, or signed personnel forms
of another type regularly used by the employer. The Board held
that the exemplars were authentic based on the nature of the
documents, i.e., employees were required by law to sign them,
or because the employer relied on them in the course of its
business. “If the [employer] wished to attack the genuineness of
the signatures on these forms, it could have come forward with
some evidence indicating that they are not genuine,” the Board
wrote, at 1287, relying on Reining v. U.S., 167 F.2d 362, 364
(5th Cir. 1948). Aero Corp., supra, has been consistently fol-
lowed. Naum Bros., Inc., 240 NLRB 311, 320 fn. 79 (1979),
enfd. 637 F.2d 589 (6th Cir. 1981); Highland Light Steam
Laundry, 272 NLRB 1056, 1066 fn. 19 (1984), enfd. mem. 765
F.2d 136 (2d Cir. 1985); Somerset Welding & Steel, Inc., 304
NLRB 32, 53 fn. 61 (1991).
Be-Lo Stores v. NLRB, 126 F.3d 268, 279–280 (4th Cir.
1997), relied on by Respondent, does not require a different
result. The court was critical of an administrative law judge’s
comparison of several cards with signatures on the employees’
W-4 forms. The court was not presented with an entire person-
nel file containing many kinds of documents submitted by em-
ployees in obvious compliance with the dictates of their em-
ployer. Respondent also contends that the basis of Aero Corp.,
supra, is the Board’s conclusion that documents contained in
personnel files are self-authenticating, a ruling that was abro-
gated by Rule 902 of the Federal Rules of Evidence, adopted in
1973, after the Aero Corp. decision, which does not list as self-
authenticating documents, an employer’s personnel files. How-
ever, once the parties stipulated that the contested exemplars
came from Respondent’s personnel files, certain conclusions
follow. They are business records of Respondent. They were
submitted by the employees because Respondent asked for
them to be signed. Respondent maintained them for certain
purposes: one, because the law required some of them; and
another, because Overnite needed others to avoid liability. Cir-
cumstantially, therefore, by the nature of the documents, in a
case involving the very party against whom the documents are
being used, the documents have been authenticated.12

“common sense” friendly is beside the point. Counsel’s argument as-
siduously avoids proof by circumstantial evidence, which relies on
common sense. It also is contrary to the Second Circuit’s pointed ar-
gument, in U.S. v. Mangan, supra at 42, that the appellant there “ad-
vances no explanation as to who else could have written the material in
[the] personnel files . . . .”
12 Respondent’s counsel suggests that the General Counsel “might
have met his burden under Rule 901(b)(3) simply by introducing the
personnel records into evidence or developing a basic factual record
about them.” In fact, Respondent offered, and I received, all the exem-
plars in the hearing of the Chattanooga case. Later, by letter, Respon-
dent moved to withdraw them, with the consent of the General Counsel.
With the parties’ stipulations, and in light of my disposition of the
Chattanooga proceeding, I see no reason to burden the record with
Implicit in counsels’ arrangement for the exchange of the
documents is the acknowledgement that they are the authentic
exemplars of the signatures of the employees. Otherwise, Re-
spondent would not have wanted to compare the signatures on
the authorization cards with the exemplars. The fact that the
signatures of the employees on the authorization cards match
the signatures of the persons who signed the exemplars is no
coincidence. They were written by the same persons. As the
court stated in U.S. v. Liguori, 373 F.2d 304, 305 (2d Cir.
1967):

Only baseless speculation could assign these docu-
ments to any hand[s] other than” those of the signatories
of the cards. Furthermore, with almost no exceptions, the
two hundred or more employees who testified in this pro-
ceeding acknowledged that they had signed the cards that
Shipp opined that they had signed. Finally, I find persua-
sive the General Counsel’s argument that: “To grant Re-
spondent’s objection . . . would require a finding that . . .
Respondent routinely collects forged signatures on docu-
ments used for tax, safety, motor vehicle driving certifica-
tion, payroll and other critical purposes.

Accordingly, I find that the exemplars were what they pur-
ported to be and reject Respondent’s contention, made at all the
hearings, that none of the authorizations were properly authen-
ticated.
Shipp testified at each location and divided his opinions of
the identification of signatures into five categories (his opinions
will be referred to in this decision by those categories): (1) a
definite identification, that the questioned signature on the au-
thorization was written by one and the same person who wrote
the known signatures; (2) a probable identification, that the
same person probably wrote the authorization, when the ques-
tioned signature was compared with the known signatures; (3)
an inconclusive identification, that Shipp was unable to say
whether the person did or did not write the authorization; (4)
that the signature on the authorization was probably not the
signature of the person who signed the exemplars; and (5) that
the person who signed the authorization did not sign the exem-
plars.
Of the 38 cards Shipp examined in the Dayton proceeding,
he identified 32 signatures as category 1 signatures, those writ-
ten by the same persons who wrote the exemplars. Regarding
the cards of Kenneth Leslie, Michael Reuber, and Carl Wil-
liams, Shipp testified that the same person who wrote the ex-
emplars probably signed the authorization cards (category 2).
Shipp could express no opinion (category 3) as to three cards:
the first, purportedly the card of Michael Hartzell, which was
not signed; the second, the card of Larry Joe Boyd, but Shipp’s
comparison of the printing indicated that the person who
printed the material on the card was the same as the one who
printed on the exemplars; and the third, the card of Joseph
Colley.
Respondent contends that Shipp’s testimony that Leslie,
Reuber, and Williams probably signed the cards was legally

more than 400 additional documents. I grant Respondent’s motion to
withdraw its exhibit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
insufficient proof that they did sign the cards, reasoning that
Shipp must testify to a reasonable degree of scientific cer-
tainty13 that the signatures are those of the three employees.
Whatever bearing Respondent’s legal citations may have on the
expert testimony of a scientist, those do not nor should they
apply to a handwriting expert. There is some difference of legal
opinion whether handwriting analysis is a science;14 but, by
virtue of Shipp’s studies and experience, he is, if not a scientist,
nonetheless an expert, helpful in being of aid to discerning the
similarities and differences of handwriting samples. Of neces-
sity, his review can reveal both. As he recognized over and over
in this hearing, various factors cause people to write their signa-
tures in different ways. A person may be more careful in writ-
ing a signature on a last will than on a FedEx receipt. Depend-
ing on the room available, one may write differently on a golf
scorecard than on a check. A card signer, who is trying to keep
secret his union activities, may write differently when writing
on the hood of a car or in the cab of a truck than on a voter’s
register. Nonetheless, similarities occur, and even if there are
dissimilarities, there may be enough similarities to cause the
expert to state that the writings were “probably” written by the
same person (as did Respondent’s expert witness at the Rock-
ford hearing), as opposed to “definitely.” Such testimony is
nonetheless sufficiently probative so as to be admissible under
Rule 702 of the Federal Rules of Evidence. U.S. v. Hardrich,
707 F.2d 992, 994 (8th Cir. 1983), cert. denied 464 U.S. 991
(1983) (expert testimony that defendant “probably wrote” en-
dorsements on certain checks); U.S. v. Fleishman, supra (expert
testified that there were definite indications that defendant
wrote a certain note, but could not testify to a “definite conclu-
sion”). “An expert opinion regarding handwriting need not be
based upon absolute certainty in order to be admissible.” U.S. v.
Herrera, 832 F.2d 833, 837 (4th Cir. 1987), citing U.S. v.
Baller, 519 F.2d 463 (4th Cir.1975), cert. denied 423 U.S. 1019
(1975).
Respondent does not contend that Shipp’s definite opinion,
for example, that a card was signed by the particular employee,
is not evidence that that employee signed the card, even in the
absence of any other evidence. The issue, here, is the weight, if
any, that should be given to Shipp’s equivocal “category 2”
opinion, U.S. v. Herrera, supra at 837, which Shipp could not
define,15 testifying that the probability could be as little as a
fraction above 50 percent. That, however, is evidence that a
particular employee signed a card and is sufficient to meet the
Board’s requirement that facts be proved by a preponderance of
evidence. Blue Flash Express, 109 NLRB 591, 592 (1954).
Once the General Counsel has proved by a preponderance
that the cards were probably written by the employees whose
names appeared on them, it was incumbent on Respondent to

13 Respondent relies on, among others, Porter v. Whitehall Labora-
tories 9 F.3d 607, 614 (7th Cir. 1992); and Grant v. Farnsworth, 869
F.2d 1149, 1152 (8th Cir. 1989).
14 Compare, U.S. v. Jones, 107 F.3d 1147 (6th Cir. 1997), cert. de-
nied 521 U.S. 1127 (1997), with U.S. v. Fleishman, 684 F.2d 1329,
1336–1337 (9th Cir. 1982), cert. denied 459 U.S. 1044 (1982).
15 In the Rockford hearing, Respondent’s expert handwriting simi-
larly testified as to the probabilities that someone wrote a particular
document. He declined to give percentages.
demonstrate that the opinion was incorrect. It could do so by
calling its own expert (as it did in the hearings leading up to
Overnite I), by offering the exemplars to me for my examina-
tion under Rule 901(b)(3) of the Federal Rules of Evidence, or
by calling its employees to testify that they did not sign the
cards. Respondent did not do so. I credit the cards in category
2, taking some comfort that throughout this proceeding, there
was never a dispute between Shipp and Respondent’s expert
and that no employee whose card he opined was probably writ-
ten by that employee credibly testified that he did not sign that
card. I thus consider Shipp’s testimony reliable, and I rely on
it.16 I conclude that the category 2 signatures are the signatures
of the employees whose names appear. (At the hearing involv-
ing the Nitro service center and at all subsequent hearings, the
General Counsel called almost all of the category 2 signatories
and all identified their signatures.)
Regarding the category 3 cards, employee Bob Staton testi-
fied that he gave authorization cards to Boyd and Colley and
that they returned the cards to him minutes later. He gave a card
to Hartzell, who he saw writing on the hood of a car and then
returned a card to him. The fact Staton did not actually witness
the signing (or, in the case of Hartzell, printing) of these cards
is not an impediment to their recognition as true authorizations
of the Union. As long as a signed card is returned by the signer
to the solicitor, that is normally sufficient. What is troubling is
that Staton, although identifying the three cards during his di-
rect testimony, testified on cross-examination that he never
looked at the cards when they were returned to him and so
could not testify that what was returned had any writing on
them; nor is there any proof that Staton was testifying about the
three cards that the General Counsel was attempting to authen-
ticate as being signed by the three employees, none of whom
testified. Accordingly, I will not count them. In sum, I find that
there were 35 cards with valid signatures, 32 in category 1, and
3 in category 2.
Of these, Respondent attacks the cards of Bob Hooten, Jay
Manns, Randy Meyers, and C. Tucker, because they were not
dated; and the card of Richard Roehm, which was dated “12/8.”
On February 7, 1995, Local 957 mailed its petition and cards to
the Board’s Regional Office, which received them the follow-
ing morning, so the cards had to be signed by February 7. I will
credit them,17 noting that, regarding Roehm, there is no evi-
dence that Local 957 made an attempt to obtain authorization
cards other than during its campaign, which began on October
16, 1994, at the first meeting held by the Union. Furthermore,
Staton gave Roehm the card one morning in 1994 and Roehm
returned it in the evening of the same day. In addition, Hooten,
Manns, and Meyers attended the first union meeting and signed
16 Shipp gave inconclusive opinions regarding a number of other
signatures, and he testified that some of the signatures were probably
not the signatures of the employees or definitely were not. However,
almost all the employees testified that they did, indeed, sign their cards;
and I have credited them. Those findings do not demean the expert
opinion of Shipp, but reflect, for a variety of reasons, that the employ-
ees wrote their signatures in ways that were not consistent with their
exemplars.
17 Pilgrim Life Insurance Co., 249 NLRB 1228, 1241 (1980), enfd.
mem. 659 F.2d 1070 (3d Cir. 1981).
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1093
their cards there. Finally, by December 18, 1994, Local 957 had
obtained almost all the cards that it would ever receive, so it is
probable that these cards were signed before then. For this latter
reason, the card signed by Frank Rose, although dated January
5, 1994, was undoubtedly signed in 1995, and Rose mistakenly
and by habit wrote the old year, and not the new. I will count
all these cards.
Respondent also contends that various employees were mis-
led into signing their cards. Although Tim Diehl did not sign a
card, he testified that in late 1994 he was approached by Staton
(in the presence of Ed Lane, Roy Cockrell, and Mike Hartzell),
a day or two later by Hooten, and a day or two later by Mike
Rueber, each of whom told him that the card did not mean any-
thing, that it just for a union vote. From this, Respondent con-
tends that I should not credit the cards of Lane, Cockrell, and
Hartzell, whose card was never properly authenticated.
Cockrell signed his card on October 16. Even if Staton made
the statement attributed to him, that statement would not have
been made before Cockrell signed at the union October 16
meeting, because cards were not distributed before then. On the
other hand, Lane signed on December 30. It is thus more than
likely that the statement to him, if credited, was made before he
signed; but there was no proof that Lane signed as a result of
Staton’s solicitation or heard the same words as Diehl did. He
may well have signed as a result of a solicitation from another
person who told him that the card authorized the Union to rep-
resent him. I find that Diehl’s testimony was insufficient to
switch the burden back to the General Counsel to prove that
Lane signed the cards under circumstances that would invali-
date his card.18
In addition, Brian Terry testified that Staton told him that he
needed the card “just so we can have an election.” He also testi-
fied that he did not read the authorization card because he
trusted Staton’s representation; but an examination of the card
indicates that Terry neatly filled in all the blanks and could
hardly avoid seeing the writing in the text and the caption, par-
ticularly the words “bargaining representative” immediately
above where he signed. Staton testified that he never mentioned
to any of the employees that the cards were going to be used to
support the Union’s petition for an election, but he admitted
that Teamsters Business Agent Keith Jones said at the October
16 meeting, at which 10 employees signed cards, that not only
were the cards for union representation but also, if enough
cards were signed, the cards would support the petition for an
election. In the face of this acknowledgement, it seems improb-
able that Staton should have had any inkling, as he insisted, that
it was somehow improper to tell employees that cards were also
to be used to get an election. It is also improbable that Staton
merely handed employee cards, did not even ask them to sign,
and never talked to anyone about the benefits of the Union, as
he insisted.
I do not believe him, but that does not mean, as Respondent
contends, that Staton was so unbelievable that I should find that
he told not only what Diehl and Terry testified to but also ex-
pressed the same words to all the other card signers. In fact, no

18 I would have made the same ruling regarding Hartzell, had I not
already refused to credit his card.
one else testified to what Diehl and Terry said. Mark Burnett
asked Staton the purpose of the card, and Staton replied: “[I]t’s
for [an] election . . . to see if we wanted to have the Teamsters
in there.” Bart Ullmer originally testified three times that Staton
told him that the purpose of the card was to get a vote. Later,
Eric Manns also told him that the card was for a vote. It was
only after Respondent’s counsel showed Ullmer the Teamsters
leaflet that Ullmer qualified his answer to add the word “just.” I
find his original answers, rather than the suggested answer,
closer to the truth.
I also find that Staton told Terry, as he told the others, that
the purpose of the card was to get an election; but I do not find
that he told Terry that the only purpose for the card was to ob-
tain an election. I find that Terry’s use of the word “just” was
not a quotation. Rather, Terry peppered his testimony with the
word “just” so that it lost all meaning. For example, “I just put
the card up in my mailbox, because I just didn't sign it at the
time.” “I was just getting off, and he was still there.” “I just
went ahead and signed it.” “I just—I just got it, because Bob
Staton is a pretty good friend—well, his son's a real good friend
of mine and, you know, I just knew—I just figured Bob would
never do anything to jeopardize my job. So, you know, it was
just for an election, I just didn't think I was really getting into
anything.” “I just know that he needed enough cards.” “I just
like to keep my nose out of things.” “I just don't like getting in
the middle of things.” “It was just a regular workday back in
‘94.” I will count his card.
The testimony closest to what Respondent urges was the gra-
tuitous (and somewhat suspect) musing of Charles Steiner, who
attended two union meetings, and who stated, in answer to the
question whether what he was being shown was an authoriza-
tion card, that he “was under the impression that [the authoriza-
tion card] was just more or less like a petition-type thing and,
you know, unless we voted the Union in, that that didn’t mean
anything—was the impression [he] had.” Later in his testi-
mony, however, Steiner stated that Rueber asked him to sign a
card, stating: “[Y]ou need to sign this card to see how serious
we are about having the election. The Hall needs to know just,
you know, before they get involved, how—just how many of us
want to have—you know, want to—want representation.” I find
that Steiner knew that what he was signing sought representa-
tion by the Union. I will count his card.
As to that October 16 meeting, one of Respondent’s wit-
nesses, employee Don Marshall, testified that Jones stated: “I
was told that, you know, if I signed the card, it was to see how
many people wanted the—the Teamsters representation, and
when they got enough cards, they would hold an election. And
that the—it was for representation by the Teamsters.” His
change of testimony, after he was shown the Teamsters leaflet,
that the card was only for an election because he heard it from
Jones or read it, was clearly intended to ingratiate himself with
Respondent’s counsel, after upsetting him so with his earlier
answer. Marshall’s stark admission, at least at first, was consis-
tent with the testimony of Steve Hutchinson, who attended the
October 16 meeting “to know what we could do in terms of
forming some type of a body with a voice.” At first, Hitchinson
could not recall anything specific of what Jones said, but under-
stood as a result of going to the meeting that the Union wanted
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
“to get most of our employees to sign the cards, and [they]
would be sent to Washington, D.C., to the National Labor Rela-
tions Board, and we would need a certain percentage to get the
cards sent in to be signed to declare for a vote.” I find that there
was nothing stated at that meeting that would controvert the
language of the card or misrepresent its purpose.
As a result, I credit 35 cards.19 The General Counsel needed
to prove 28 cards. The Union thus represented a majority of the
employees at the Dayton service center.
C. Chattanooga
On March 22, 1995, Local 515 filed a petition for a represen-
tation election of the employees at Respondent’s Chattanooga
service center. A stipulated election was held on April 27, 1995,
which Local 515 lost, 34-23, with 4 challenged ballots; and the
Local filed timely objections. The objections case was consoli-
dated in this proceeding, and the parties stipulated at the hear-
ing to certain relief, which is incorporated in this decision.
“The burden is on the General Counsel to show that a major-
ity of employees supported the Union.” Abbey’s Transportation
Services, 284 NLRB 698, 703 (1987), enfd. 837 F.2d 575 (2d
Cir. 1988). In order to prove that the Union represented a ma-
jority of the employees that was dissipated by Respondent’s
unfair labor practices, if any, the General Counsel has the bur-
den of proving the number of employees in the unit, so that the
number needed to constitute a majority can be computed. The
General Counsel proves nothing by showing that numerous
employees signed cards if those persons do not represent a
majority.
The evidentiary problems begin with the counsel for the
General Counsel’s failure to offer payroll records to show who
was employed. The General Counsel moved early at the hear-
ing to amend the complaint to change what was originally al-
leged—that the Union represented a majority of Respondent’s
employees on March 12, 1995,—by adding the alternate date of
March 21. Over Respondent’s objection, based in part on coun-
sels’ problem of preparing to litigate changes in the composi-
tion of the unit because, perhaps among others, one supervisor
may have been demoted to an employee’s position, I granted
the motion. From then on, it was assumed that the two relevant
and material dates were March 12 and 21. Undoubtedly, when
preparing the brief, the General Counsel recognized that the
record lacked the important payrolls. Thus, the brief argues that
I should use the Excelsior list, which “with certain exceptions,
reflects which employees were employed by the Employer
during the relevant period.”
Skipping Respondent’s objection that under no circum-
stances may an Excelsior list be used to determine majority

19 In doing so, I find that the Teamsters leaflet did not affect any of
the cards. The Union did not start distributing literature until late Janu-
ary 1995, well after the Union’s card majority had been secured. Even
if the leaflet had been distributed, as a number of Overnite’s witnesses
testified, they could not remember when. Steiner could not even recall
whether he saw it before or after the election. Both Jones and Staton
denied having seen the document; and I am not persuaded, from the
hesitancy and lack of clarity of their testimony, that Steiner, Ullmer,
Dye, Hutchinson, or Marshall saw it, either.
status,20 a proposition that is dubious, there are three problems
that are insurmountable. First, Respondent’s Excelsior list is
based on the employees in its employ on April 8, and that is not
one of the two dates that the complaint alleges and that the
parties agreed to litigate. Second, the parties could not agree
that the Excelsior list was accurate. They could not agree that
those on the list were actually employees. And the counsel for
the General Counsel could not agree that there should not have
been others added to the list. She said: “There also may be an
issue because there are individuals who are not included on the
[E]xcelsior list and will need to be included.” Third, the coun-
sel for the General Counsel specifically committed to the prin-
ciple that the Excelsior list would not be used as the basis for
determining the composition of the unit. The following con-
firms that understanding:

JUDGE SCHLESINGER: . . . I didn’t know whether
General Counsel intends to supplement the [E]xcelsior list
but I take it that I am not to consider the [E]xcelsior list as
submitted to me for the purposes of computation of major-
ity status.
[The Counsel for the General Counsel]: No, but I’m
hoping that we might be able to shorten my examination
of the custodian by reaching a stipulation because I know
those people they want to include in the unit for the rele-
vant period and I don’t think it’s—I’m hoping that we
won’t have to go through every individual on the list.

No stipulation was reached and no evidence was introduced
proving the employees who were employed on the dates alleged
in the complaint. It is impossible to determine, therefore, how
many employees would have had to authorize the Union to
represent them as their collective-bargaining representative to
determine whether the Union represented a majority. Even the
counsel for the General Counsel could not state in her brief who
was properly included in the unit. Thus, she wrote: “Counsel
for the General Counsel agreed, at the hearing, that the Excel-
sior List, with certain exceptions, reflects which employees
were employed by the Employer during the relevant period.”
Accordingly, I conclude that there is no proof that Local 515
represented a majority of the employees in the appropriate unit
on the dates alleged in the complaint. Accordingly, Gissel relief
is inappropriate. I will not determine whether Respondent
committed the additional two unfair labor practices that the
complaint alleges. I have, however, ordered a remand of the
representation case to the Regional Director for a new election,
as the parties stipulated.
D. Richfield
On February 15, 1995, the day that the complaint alleges, in
the alternative, that Local 24 represented a majority of Over-
20 In a brief involving a different service center, the counsel for the
General Counsel contended: “As argued below, the General Counsel
rejects Respondent’s position that majority support must be established
as of the date of the election at which time some 142 voters were listed
as eligible on the Excelsior list. In Daumann Pallet, Inc., 314 NLRB
185 (1994), the Board adopted the judge’s finding of a Gissel bargain-
ing order and his conclusion that it is inappropriate to use the Excelsior
list to determine majority status.”
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1095
nite’s Richfield employees, the Union requested that Respon-
dent recognize and bargain with it, but Respondent refused to
do so. The Union filed a petition for an election the following
day, and an election was held on April 19, 1995, which the
Union lost, 79–53, with 4 challenged ballots, insufficient to
affect the election’s results. There were 138 employees em-
ployed on February 15, so 70 constituted a majority. Shipp
identified 82 cards21 in category 1 and 7 in category 2, which
excludes the card of Robert Koneval, who purposely did not
sign his card. The General Counsel is not relying on it. The
card of Robert Wilkinson, placed by Shipp in category 3, was
authenticated by the solicitor of the card. So, there are a total of
90 valid cards, at least as to signature.
The cards read:
AUTHORIZATION FOR REPRESENTATION UNDER
THE THE NATIONAL LABOR RELATIONS ACT
I, the undersigned employee of the ________________
(Print full name of Company)
hereby authorize Freight Drivers, Dockworkers & Helpers
Local Union No. 24 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO, to represent me in all matters pertaining to
hours, wages and conditions of employment in accordance
with the provisions of the National Labor Relations Act.

When the Union filed its petition on February 16, 1995, it
supported it by filing 75 authorization cards. On September 25,
1995, it filed an additional 18 cards, bearing dates that precede
not only the holding of the election but also the date of the fil-
ing of the petition. Eight of the cards were signed on or after
February 16. Respondent contends that the dates on the re-
mainder of those cards must be false, because the Union would
have filed all of them with the petition. Accordingly, the
Board’s presumption that the dates on cards are valid should
not apply. Respondent does not cite any legal precedent, and its
argument is not persuasive. First, the Board’s presumption does
not flow from the fact that the cards were filed with the Region.
There is a presumption of regularity when it is proved that the
cards are signed by the employees whose signatures appear on
the cards. Second, Respondent’s position makes little sense. All
the Union had to do in order to file its petition was to show that
it had an interest, and it could have done so by producing cards
from 30 percent of the employees. The Union had no other
obligation to produce any of its cards, except to prove that it
had majority support if the Region was to pursue a bargaining
order. So it was entitled to hold back its authorization cards.
That does not make them any the less valid. Third, an examina-
tion of the formal papers makes it obvious what happened here.
The complaint did not issue until November 1995. It must have
been that the Region, during its investigation of the charge in
Case 18–13394–89, asked for all of the Union’s evidence that
would be needed to support the Union’s request for a bargain-
ing order. The Union supplied the additional cards in Septem-
ber, 2 months before the complaint issued. Fourth, one of the
18 cards demonstrates the inaccuracy of Respondent’s conten-

21 I omit in this calculation the duplicate cards of Steve Predojev,
Chad Tomaiko, and Daniel Reed.
tion. Charles Satterwhite signed his card on February 14 and
returned it by mail to the Union on February 16, as demon-
strated by a postmark on the reverse side of his card.22 I will
count all of these cards towards the Union’s majority.
Respondent attacks the validity of the cards signed by Steve
Durgala and Kathy Ryncarz on the ground that they are dated
“1994.” The cards are dated on February 11 and January 21,
and I take notice of the well-known fact that people, after the
turn of the year, sometimes err by force of habit and write the
previous year, rather than the current year. Furthermore, in light
of the unrebutted testimony of Charles Ball that the distribution
of authorization cards began in November or December 1994
and that no cards had been distributed since a prior union cam-
paign in 1988, I find that these two cards were signed in 1995
and will credit them.
Respondent also objects to five cards on the ground that the
Teamsters misrepresented the nature of the cards. The General
Counsel concedes that Bruce Ramsey’s card should not be
counted. Ronald Brogan was given his card by Teamsters’ rep-
resentatives (although not identified by name, they wore Team-
sters’ buttons and jackets) and was told to sign the cards: “This
is just to get a vote.” Although Brogan read the card, the spe-
cific statement to him invalidates his card. John Barnum was
told by Tom Ball that his card was “just to get a vote to Rich-
field.” (I do not credit Barnum’s embellishment that Ball said,
“[T]hat was it, not for representing.”) It is true that, later in his
testimony, Barnum had trouble recalling Ball’s exact words,
but Barnum repeated the essence of Ball’s statement suffi-
ciently for me to credit his testimony and not count his signa-
ture. I note that Respondent’s counsel had given Barnum the
Teamsters leaflet to review long before the hearing. That may
have colored his testimony. However, Ball was not called to
deny Barnum’s statement.
Former employee John Lauer (spelled this way in the briefs,
but referred to in the official transcript as “Lower”) solicited
cards from Eric Ashe and his brother-in-law, Howard Davis. He
asked them whether they had filled out cards. They answered
that they had not, and he gave them cards, saying: “Well go
ahead and fill it out. It’s just for information purposes to be sent
to your house.” The General Counsel contends that the state-
ment was “highly ambiguous,” but I disagree. The card’s pur-
pose was explained as one limited to the receipt of union litera-
ture, nothing more or less. As to Ashe, that statement negates
his card. I do not find, as Respondent urges, that there is suffi-
cient proof that Davis’s card should also not be counted. Thee
is no evidence that he was listening to or heard what Lauer said
or that Davis was not told other purposes of the card that might
have impacted on his signing. I will not exclude Davis’s card.
Finally, Respondent contends that Robert Koneval made a con-
scious decision not to sign his card and, as a result, did not
authorize the Union to represent him. The General Counsel
agrees, and I will not count his card.
22 None of the other 17 cards bear a postmark or any other marks
showing the reason that they were not submitted by the Union with its
original submission. However, it may well be that cards signed before
February 16 were not given to the Union until afterwards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
Accordingly, of the 90 cards with authenticated signatures, I
exclude from my computations the cards of Ramsey, Brogan,
Barnum, Ashe, and Koneval, all of whose cards were dated
before February 15. Thus, there are 85 valid authorization cards
dated before March 10, the alternate date alleged in the com-
plaint, when there were also 138 employees in the unit, and 77
valid authorization cards dated before February 15. On both
dates, the Union had authorizations from more than the 70 em-
ployees it needed and thus represented a majority of Overnite’s
employees.
E. Nitro
On January 27, 1995, Local 175 requested that Respondent
recognize and bargain with it as the exclusive collective-
bargaining representative of the Nitro employees, but Respon-
dent failed and refused to do so. The Union also filed a petition
for an election on January 30. The election was held on March
20, which the Union lost, 60–27, with 3 challenged ballots; and
it filed timely objections. The objections case was consolidated
in this proceeding.
The card used in the Nitro and Parkersburg campaigns was
different from cards used elsewhere. It was headed by the cap-
tion, in bold capital letters: “AUTHORIZATION FOR UNION
REPRESENTATION BY TEAMSTERS LOCAL UNION
175.” What followed is the language—particularly the word
“improved”—that Respondent contends removes the card from
a valid authorization card to a card that cannot form the basis
for a Gissel bargaining order:

I, the undersigned employee of _____________ volun-
tarily and of my own free will, hereby authorize Local
175, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, to represent me for the purpose of collective
bargaining as to improved wages, hours, and working
conditions.

Respondent contends that this language:

expressly limits the Union’s authority as a bargaining agent to
bargaining about “improved” wages, hours, and working con-
ditions. The card does not give the Union authorization to rep-
resent the card signers with regard to many of the topics for
which a collective bargaining representative under the Act be-
comes the employee’s exclusive representative-dealing with
an employer’s demands to reduce wages and diminish bene-
fits, bargaining with regard to benefits or conditions that will
remain the same, representing the employee in grievances or
disciplinary situations, bargaining for the employee in dealing
with the employer about changes in operations such as sub-
contracting, layoffs and plant closings. An employee who
signed [one of these cards] legally could advise Local 175 that
the Union had no authority to represent the employee on any
of these matters.

I do not agree. The card’s heading states clearly that the card
was for “union representation.” The body of the card says no
less. “[I]mproved,” the word that Respondent deems offensive,
was inserted to reflect nothing more than employees’ hopes that
the Union would help them to improve their lot. Respondent
reads far too much into the improvements that employees seek
at their jobs. The point of organization is not only to obtain
higher wages and more and greater benefits and less hours, but
also protection from all the actions of an employer that may
seem deleterious to the working environment, whether that be
protection from discipline or prevention from the possible re-
duction and diminishment of working conditions. All improve
the workers’ terms and conditions of employment.23
As of the payroll ending the week of January 28, Respondent
employed 90 employees in bargaining unit positions. In order
to prove a majority, the Union had to prove 46 cards. Shipp
identified the signatures on 56 authorization cards24 as being in
category 1 and 725 in category 2, which included Kenneth
Cox’s printing of his signature. In sum, Shipp authenticated the
handwriting on 63 cards. In addition, one employee, Jerry
Gillispie, whose signature Shipp was unable to form a firm
opinion (category 3), also testified that he signed his card.
Thus, 64 cards were identified.
Thirty-nine of them were obtained at a union meeting held
on December 10, 1994. Respondent attacks all these cards on
the basis that Union Business Agent Harry Deems, who pre-
sided, told the employees that the cards were solely for the
purpose of an election. Deems denied doing so, testifying that
he explained that, if the cards were signed, the Union would be
the bargaining agent for the Nitro service center and that, when
a sufficient number was signed, the Union would then send the
cards to the Board; and the Board would run an election. Re-
spondent’s witnesses, all current employees, except for one, did
not uniformly support Respondent’s contention. In fact, the
exception, retired employee Gordon Sargent, corroborated
Deems, recalling that he said: “The only reason you were sign-
ing that card was to be represented. I mean, authorizing the
Teamsters to represent you.”

23 Respondent’s reliance on Nissan Research & Development, Inc.,
296 NLRB 598, 599 (1989), is misplaced. There, the card was not a
single-purpose card which clearly and unambiguously authorized the
union to represent the employees. Although it authorized the union to
represent the signer in collective bargaining, it also stated that the pur-
pose of signing it was to have a Board-conducted election. The General
Counsel’s authority is no more compelling. Although the cards in Fer-
land Management Co., 233 NLRB 467, 472 (1977), were entitled “Au-
thorization Card For Better Working Conditions And Job Security” and
deemed to be valid cards sufficient to support a bargaining order, the
cards also stated, Id. at fn. 12: “I designate and authorize the Rhode
Island Workers Union to act as my collective bargaining representative
with my employer.” Grey’s Colonial Acres Boarding Home, 287
NLRB 877 (1987), is inapposite. There, the Board held that the execu-
tion of dues-checkoff cards, which contained no specific reference to
the union’s authority to represent employees for “collective bargaining
purposes,” nonetheless could be used to demonstrate the union’s major-
ity support among the unit employees. Here, Respondent’s claim is not
that the employees did not desire to have the Union act as their repre-
sentative, but that they limited the Union to do only certain functions
for them.
24 In making of these calculations, I have not considered two cards
signed by employees Michael McNally and Kenneth Shull, who were
stipulated not to be within the unit.
25 The General Counsel called these employees, who identified their
signatures (or printing).
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1097
The other witnesses were of little help,26 in part because they
gave no uniform testimony about what Deems said. I found that
Douglas Canterbury was generally confused about dates and
persons and certainly did not have a clear recollection of the
events in late 1994 and early 1995, as he was free to admit.
Although he was a union supporter and, indeed, a union leader
among his peers, and I suspect that he handed out the Team-
sters leaflet setting forth the fact that the cards were to be used
only for obtaining an election (on cross-examination, he admit-
ted that he could not be certain that he handed out the specific
document), he could not recall when he handed it out and never
related how many copies he distributed. (He did state that he
gave them out to those that wanted it.) There is thus nothing to
show that the Union obtained cards as early as the December
meeting based on the leaflet’s misrepresentation of their pur-
pose. Rather, Canterbury simply could not remember, and there
is no logical inference that I can draw based on his testimony
that would lead to setting aside the Union’s clear majority.
The other witnesses, all current employees, and thus under
Gissel more apt to favor their employer in their testimony, were
also of little comfort to Respondent’s contention. It is true that
current employee Ralph Gragg used the magic word “just,”
when he initially testified: “[A]ll I was told was that they
wanted a card signed just to show interest. If they had so many,
x amount of cards signed they could hold a—it was authoriza-
tion for a vote.” But immediately after, he did not use that
word, at least in the sense of qualifying the purpose of the vote:
“Like I said, I don’t even remember who offered me the card to
sign, but I’d say whoever offered me the card to sign, it was
just—are you interested in having Teamsters represent you, if
you are interested, sign the card. If we get x amount of cards
signed then we can hold a vote.” I credit this later response.
There is accordingly nothing here to indicate to indicate that
Gragg should have disregarded the card’s clear authorization
nor was Gragg assured that the card would be used for no other
purpose than to get an election.27 Timothy Bailey, who saw the
Teamsters’ leaflet after he had signed his card, testified that
Deems said that the purpose of the cards was “to be able to
petition the NLRB for a vote” at the Nitro service center. Bai-
ley admitted that: “[M]ostly the meeting was about was talking

26 Respondent requests an adverse inference from Deems’ failure to
produce, pursuant to subpoena, notes of the December 10 meeting.
Deems testified that he had no such notes, and he did not recall that he
had notes. In his investigatory affidavit, Deems referred to notes, as
follows: “According to my notes of December 10, 1994, there was an
organizing meeting held at Local 175’s office.” However, his affidavit
also contained the following language which was crossed out: “At-
tached is a copy of my notes for that meeting as Charging Party’s Ex-
hibit B.” No CP Exh. B was attached. It would appear that notes of the
meeting were unavailable, at least as of September 11, 1996, the date of
that affidavit. What the first “notes” refers to is unclear, but might very
well be merely a calendar reference to the day of the meeting. I cannot
on the basis of this ambiguous material find that Deems did not comply
with the subpoena, and I refuse to draw any inference from his failure
to produce notes of the meeting.
27 Gragg’s testimony that he was told that the card was not legally
binding was extracted from him as a result of leading questions, and
was soon recanted, only to be resurrected by a statement that he “could
have heard” it but could not truthfully answer. I disregard his answer.
about some problems that Overnite that were discussed. How
things could be handled, why the employees were so upset,
why they were there. Just different things like that were dis-
cussed.” In all the circumstances, no one told Bailey to disre-
gard the card or that the sole purpose of the card was to obtain
an election.
Brian Johnston testified that Deems said: “[T]he purpose of
signing a card was to assure all of us that we would have our
day in the voting booth to vote yes or no for the Union.” Deems
also said: “[I]f we did vote and . . . the Union did get represen-
tation of Overnite . . . they wouldn’t settle for anything less
than the National Freight Motors Agreement, for nothing less.”
Johnston read the card, and no one told him to disregard it. I
find nothing here to indicate that Deems limited the purpose of
the card solely to use for an election. Finally, John Hodges
testified that the person who was the spokesman (his descrip-
tion did not match Deems’ appearance, but Deems had been ill
and the hearing took place 4 years later) said that the employees
“were there to get as many cards signed as possible to get a
vote.” Hodges read the card. There was nothing said that lim-
ited the use of the card.
In sum, I will count all these cards, totaling 64, and will not
reject any of the cards signed at the first union meeting. In light
of Sargent’s corroboration, corroboration from the only witness
called by Respondent who was not a current employee and who
had little reason to fabricate his testimony, I credit Deems, who
I found was credible and experienced in organizing activities.28
In doing so, I reject Respondent’s contention that the testimony
of Kenneth Cox was “most damning” to the General Counsel’s
case. Rather, Cox filled out a questionnaire sent to him by the
Regional Office in which he stated that he was told that the
“purpose of the card was to represent me in collective bargain-
ing.” That is quite different from Cox’s exposition at the hear-
ing, which I do not credit. As a result, the 64 authorizations was
more than the 46 cards that the Union needed for a majority.
F. Parkersburg
On January 27, 1995, Local 175 requested that Respondent
recognize and bargain with it as the exclusive collective-
bargaining representative of the Parkersburg employees, but
Respondent failed and refused to do so. The Union also filed a
petition for an election on January 30. The election was held on
March 21; and the Union lost, 25–3, with 1 challenged ballots,
and filed timely objections. The objections case was consoli-
dated in this proceeding.
As noted above, the card used in the Parkersburg campaign
was the same as that used at Nitro. Respondent interposes the
same defenses regarding the validity of the card for the pur-
poses of bargaining-order relief, and I rule the same way as I
did above. Respondent also contends that Deems, in soliciting
signatures, conditioned their taking effect on the Union winning
the election. However, employee Stanley Mincks stated repeat-
edly that Deems said only that the card “was authorizing the
Union to be our bargaining agent in a contract negotiations.”
28 Respondent contends that, despite the fact that Deems is retired,
he “had a substantial incentive to vindicate his actions.” I have taken
that into account, as I have with other witnesses who had left Over-
nite’s employ.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
That does not controvert the language of the card nor misstate
its purpose.
As of the payroll ending the weeks of January 21 and 28 and
February 4, 1995, Respondent employed 28 or 29 employees in
bargaining unit positions.29 In order to prove a majority, Local
175 had to prove 15 cards. Shipp identified the signatures on 18
authorization cards, 17 cards as being in category 1 and 130 in
category 2. The Union represented a majority of the Parkers-
burg service center employees.
G. Nashville
On February 8, 1995, Local 480 filed a petition for a repre-
sentation election which resulted in a stipulated election held on
March 29, 1995. Local 480 lost the election, 71–53, with 6
challenged ballots, and filed timely objections. The objections
case was consolidated in this proceeding. The parties also stipu-
lated that, during the period from January 20 through February
9, 1995, Respondent employed at least 128 employees in bar-
gaining unit positions; and, until January 27, 1995, Lee Graf
was also employed by Respondent, making a total of 129 em-
ployees. Respondent contends that Graf, after January 27, and
six others should be included in the unit, because they were laid
off and had a reasonable expectation that they would be re-
called.
On November 7, 1994, sometime prior to October 10, 1994,
and January 27, 1995, dockworkers Louis Goodman Jr. and
James Fields and city driver Lee Graf, respectively, voluntarily
resigned from their employment. Whether their resignations
were caused by their having little work to do, as Respondent
suggests but has not proved, is beside the point. They quit.
They had, and should have had, no expectation of being re-
called. That Overnite employed Goodman again on September
25, 1995, does not change this result. There was no evidence of
the circumstances of that employment. Goodman may have
merely applied for a job again. In any event, Board law makes
clear that I am not to look at events that occurred after the rele-
vant date or dates for determining eligibility.31 I will not in-
clude these individuals in computing the number of employee
in the unit.
There is some basis in the record for finding that road driver
Mark Damron left his job on August 17, 1994, but unlike three
other employees, there is no business record of the reason for
his departure. There are records that on August 13 and Septem-
ber 6 and 17, 1994, road driver James Uzzle, dockworker Scott
Bolden, and road driver David Hatley, respectively, were laid
off due to lack of work. Uzzle was recalled on February 13,

29 The parties were unable to agree on whether Pamela Jeffrey
should be included in the unit or not. A resolution of her status is un-
necessary because it will not affect the number of cards needed to prove
a majority.
30 The General Counsel called the solicitor of this card, who identi-
fied the card.
31 The Board rejected the notion that the rehire of the employees
“perforce establishes the temporary nature of the layoff, obviating the
need to evaluate the employees’ expectancy of recall.” Apex Paper Box
Co., 302 NLRB 67, 68 (1991).
1995;32 Hatley, on March 22, 1995; and Damron, on April 24,
1995. Bolden never was.
Temporarily laid-off employees may be eligible to vote if
objective factors support “a reasonable expectancy of recall in
the near future, which establishes the temporary nature of the
layoff.” Apex Paper Box Co., supra. The Board looks at the
employer’s past experience and future plans, the circumstances
surrounding the layoff, and what the employees were told about
the likelihood of recall. The record here is rather scanty. Office
Manager Ron Cunningham was not all that helpful because he
was not testifying from personal knowledge. For example, the
following appears in his testimony:

Q. And if someone is laid off due to lack of freight, are
they told anything about their—generally now. I’m not
talking about any particular individual—generally about
their possible future with the company?
A. Oh, yeah. It’s a possibility that they could be re-
called, yes.

So, what these employees were told is not definitive. Nor is
his testimony that the practice at the Nashville service center is
that employees are told that, if freight picks up, they will be
called back first. In fact, the record was not even clear that
there was a lack of work in the fall of 1994. Cunningham did
not know what the freight volumes were. And, assuming that
there was a need for a layoff, there was no proof that these
employees were recalled from that layoff or whether they were
simply rehired as a result of attrition. To Cunningham, recall
and rehire was the same, and Overnite’s personnel form treated
both the same.
The Nashville service center maintains no list of laid-off em-
ployees. Although Cunningham testified that there is no length
of time limiting the right to a recall, personnel records are dis-
posed of after 3 years, so his testimony is somewhat suspect.
And, even if a laid-off employee should decline a recall offer,
his name is maintained, according to Cunningham, on the list
(which does not exist), even 5 years, indicating that these per-
sons are used more as a source of employees rather than as
employees entitled to the job again, from which they were laid
off. On the other hand, he testified that no employees are hired
with people on layoff; but the rehire or recall of the three road
drivers was not in the order that they were laid off. In addition,
when they are rehired, their original date of hire (adjusted for
part-time work) is used for determining seniority; but Cunning-
ham, who as office manager should have known, did not know
whether the original date of hire was used for the purposes of
benefits, such as vacations.
Although there are some indications that there is a policy re-
garding the “recall” of laid-off employees, on balance there
seems to be nothing more here than the use of laid-off employ-
ees to fill openings for road drivers when Overnite has a need
for them. There is no doubt that Overnite has a turnover of
employees. (Indeed, Overnite attempted to use that turnover to
support its contention that Gissel bargaining orders are inap-
propriate.) But attrition and the rehiring of employees who have
32 The parties stipulated that Uzzle should be included in the unit
from this date.
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1099
previously been laid off is a far cry from the recall of employ-
ees when work picks up, and there has been no showing of that
here. Besides, there was no solid proof that the employees were
told anything; and, even if I should accept Cunningham’s tes-
timony that the employees were told of a “possibility that they
could be recalled,” there was clearly no estimate of the duration
of the layoff or specific indication of a time when the employ-
ees should have anticipated being called back. In these circum-
stances, the vague statements, if made, do not provide an ade-
quate basis for concluding that any of them had a reasonable
expectancy of reemployment in the near future. Data Technol-
ogy Corp., 281 NLRB 1005, 1006 (1986), citing Foam Fabri-
cators, 273 NLRB 511 (1984), and Tomadur, Inc., 196 NLRB
706 (1972).
As a result, I do not include these employees in the bargain-
ing unit during the period of the claimed majority and find that,
with 129 employees in the appropriate unit through January 27,
128 through February 12, and 129 from February 13, 1995, the
Union must prove 65 signatures. The General Counsel submit-
ted 92 signatures on petitions which read:

Yes! We want a voice through collective bargaining.
We believe that only through collective bargaining can we
have a voice in our work place, achieve fair treatment for all,
establish seniority, job security, benefits wages and working
conditions. Therefore, this will authorize the International
Brotherhood [o]f Teamsters, Local 480, Nashville, TN to rep-
resent me in collective bargaining with my employer. This
will also authorize said union to use my name for the purpose
of organizing.
Employees of Overnite Transportation Co. Nashville, TN.
That was followed by eight boxes, with spaces to be filled in
for the printed name, address, department, shift, phone, job, rate
of pay, signature, and date. Some pages were signed by only
one employee. On others, all the boxes were filled in.
Shipp identified 71 signatures as being in category 1 and 14
in category 2, all of which I have credited.33 In addition, there
were five signatures that Shipp opined as being in category 3,
those which he could not affirmatively state were or were not
the signatures of the employees whose they purported to be.
Two of those signatures were identified by the employees
themselves, and two others were identified by the solicitors.
Finally, there were two signatures for which Respondent sup-
plied no handwriting samples. One signer identified his own
signature; the other was identified by the solicitor. In sum, I
find that 91 signatures have been authenticated.34
Overnite attacks the cards on numerous grounds. The first is
on the basis of the Teamsters leaflet, which was identified by
several witnesses as not only being distributed at the service

33 Of the category 2 signatures, six of the signatories identified the
signatures as theirs, and the solicitors identified five of the other signa-
tures. The only ones not otherwise authenticated, except for Shipp’s
opinion, were Steve Cope, Spencer Davis, and Gary Thornton.
34 The only card that I have not credited is the one allegedly signed
by Joe Elkins.
center but also posted on the employees’ bulletin board35 and
taped in the cab of a truck. Respondent claims that, because of
the widespread distribution of the leaflet, all the cards were
tainted and none should be counted. One difficulty with this
contention is that very few of the Respondent’s own witnesses
testified that they saw the leaflet, although a number testified
about the common knowledge that cards were sought only for
the election. Another difficulty is that no one who saw the leaf-
let could identify when they saw it, although assuredly they saw
it before the election. Thus, the record does not make clear that,
if the leaflet misled any employees, it did so with respect to all
the employees. Merely because the leaflet misrepresented the
purpose of the petition does not mean that all the employees
received that message. Accordingly, I reject Respondent’s con-
tention that I ought not to consider any of the cards signed by
the Nashville employees.
Overnite also objects to the counting of all the petitions that
were signed at the Union’s first meeting on January 21, 1995,
bearing about 41 signatures. It relies solely on the testimony of
Clifton Harris, a current employee who was a strong union
supporter, who stated that at the meeting, a union representa-
tive—he did not recall who—told the employees that: “We had
to have a percentage of our employees out of the Nashville
service center to sign those cards before we could take a vote
for representation of the union.” In addition, he testified, with
some lack of sincerity, that: “[T]hey assured us that these were
not really, you know, signing a union card. . . . [T]his was not
signing your union card; this was just signing to get a petition
up to take a vote.” Literally within a few minutes, on cross-
examination, Harris could not remember specifically that the
union representative made any specific statements at this meet-
ing. “I can’t remember exactly what he did speak about.” When
asked: “You testified that someone said you needed a percent-
age in order to get a vote. Who made that statement?” Harris
answered that he could not remember. He then said that he had
met with Respondent’s counsel days before and counsel called
his attention to a particular point of what he identified as the
Teamsters leaflet. Then, he denied his testimony; “I don’t really
recall whether he brought, you know, brought out any particular
point. He just asked me if I had seen this pamphlet at one time
or another.”
Lawrence Perry, the Teamsters International organizer, did
not recall the meeting the same way. He testified that he read
the petition verbatim, and the petition clearly stated that the
employees were authorizing the Union to represent them. Un-
ion activist, employee Ben Lay, recalled that Perry said that the
“petition was for an election to get union representation.” He
also recalled: “[A]t a meeting, I think it was Larry Perry that
read the paragraph at the top of” the petition. Although there
were some problems with Perry’s testimony, Harris never de-
nied that Perry read the petition to the employees; and no one
else, of the over 40 employee witnesses called by Respondent,
35 Although, because of the Teamsters’ noncompliance with the sub-
poenas, I am willing to credit many witnesses who testified that they
saw the Teamsters leaflet, I cannot believe that the leaflet was posted
on the bulletin board. Surely, more than one person would have seen it
posted there.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
corroborated what Harris initially testified to. I credit Perry and
find that nothing was said that would negate the clear language
of the petition authorizing the Union to represent the employ-
ees. Because I discredit Harris’s testimony about what “a Union
representative” stated at the January 21 union meeting, there is
nothing else in his testimony that would indicate that his signa-
ture was obtained by any misrepresentation. Rather, he read the
petition and recalled enough of the meeting to testify that there
was discussion about retirement and wages. Afterwards, he
wore a union hat and button and otherwise supported the Un-
ion. I will count his card.
Respondent attacks the petitions of over 40 other present and
retired employees who testified at the hearing. Those who were
no longer working for Respondent had, unlike the others, no
reason to fear that their testimony might harm them in their
employment relationship and thus did not evidence the bias of
some of the other witnesses. Yet their testimony was not the
model of clarity and, understandably, coming 4 years after the
events, was not fresh in their minds.
George Billiter, who believed that he read the petition, was
badgered by some coworkers that “they needed a petition and
they had to have so many names to get a union vote.” Only
after Respondent’s counsel showed him the Teamsters leaflet
did he testify that one unidentified employee told him that the
petition was only for an election. Although that obviously may
have refreshed his recollection and may have represented more
of what was going on in Billiter’s mind (“[t]hat’s what they was
trying to do”) rather than fact, Phillip Holland (Phil), who gave
him the petition that he signed, told him that he was “not obli-
gated to the Teamsters at all,” an indication that the petition’s
purpose was limited to the election, exactly what Billiter had
been hearing so much about. In these circumstances, I will not
count his signature.
I did not find the testimony of Bobby King particularly per-
suasive. It is true that he recalled numerous, but unidentified
employees, saying to him that the purpose of the petition was
for a vote, but I did not find convincing that little portion of his
recollection that the petition was only for a vote. For example,
he testified that the solicitors “had talked about getting the peti-
tion signed, get all the names they could on it to ask for a vote”
and “that was just the talk of the petition being to ask for a vote,
that’s all.” I found Ben Lay’s testimony convincing that he told
King the reasons that he thought the Union would be good for
the employees and that he gave King a petition page and asked
him to read it and return it to him if he wanted to sign it. King
returned the signed petition page about 10 to 15 minutes later.
King had ample time to read the petition, and it is likely that he
did. I will count his signature.
Duel Holland (Duel) persistently asked Willis Bradford to
sign a petition, pointing out the benefits of the Union but failing
to convince Bradford. So, one time, he told him: “I don’t care
whether you vote for it or not, [but] . . . [y]ou owe it to us to
sign a card so we can call it to a vote, because we know you’re
going to retire pretty quick.” Bradford replied that he did not
“owe him a damn thing” and told Holland three times a week
that he would not sign. Finally, Bradford did sign, after Duel
told him once again that “if he just signed, it would help us get
our vote.” I will count his signature. Nothing that Duel said
advised Bradford to disregard the clear language of the petition.
In so doing, I do not credit Bradford’s testimony that he did not
read the top of the petition because it had been folded to ob-
scure the writing. I find that it was not folded that way.
I reject the petition of Henry Foster, who was told, if not by
all the solicitors, by Duel and Ralph Lane: “Sign the paper, the
only thing you’re doing is allowing them to come in and vote
for the union.” That instructed Foster to disregard that language
of the petition. I also reject the petition of Thomas Harris, who
was asked by Melvin Owens to sign the petition “so we could
have a union vote.” Harris asked Owens “would me signing the
petition bring anything about,” and Owens replied, “No, it’s
just to say that you would like to have a vote.” Owens thus told
Harris to disregard the other language on the petition. The Gen-
eral Counsel contends that Harris answered differently on
cross-examination, but his answers to a question36 were am-
biguous and indicate that Harris thought that he was being
asked about discussions of the relative merits of the Union. I do
not regard those answers as changing the testimony he gave on
his direct examination.
Jerry Summers’ testimony changed frequently, but what was
consistent was that he made known his views against the Union
several times. Testifying about Phil’s efforts to convince him to
sign a card, Summers quoted Phil as saying: “Was to get the
votes. It wasn’t an actual vote. It was just to—that they had to
have a certain percentage of cards to sign to even have a vote.”
Then, when asked a leading question about whether he and Phil
had a conversation about whether or not he was interested in
the Union at the time that Phil was asking him to sign the peti-
tion, he answered that he did, and when asked what was said,
answered: “Oh, I don’t remember. I mean, it was just give him
a chance to vote, that it didn’t matter if I was for it or against it,
it was just to get a vote, signing that card didn’t mean anything,
that it was just to get a vote and then I could vote either way I
wanted.” Then, when asked whether that was what Phil said
when he asked Summers to sign the petition, he answered: “I
believe so.” In the totality, Phil knew that Summers was op-
posed to the Union and told Summers that, despite his opposi-
tion, he should sign because the only purpose of the petition
was to obtain a vote. Phil thus advised Summers to disregard
the writing on the petition. I will not count his signature.
The remainder of the employees were currently employed by
Overnite. Steve Searcy testified that either Phil, or Billy Joe
Trauber, or Lane “were trying to get enough people to sign the
card to have the election.” That is insufficient to find that
Searcy was misled into believing that the card was not for the
purpose of representation. Besides, Lane, who testified that he
gave Searcy the card, said that he asked him to sign a petition
for union representation. I believe him and particularly believe
that he did not hide the top of the petition, as Searcy suggested.
I will count his card.
I will also count the card of Donnie Anderson who testified
that either Phil, Duel, or Lane told him: “It was just to get
enough names for–if we got a majority of names of people at

36 The question was: “And is it possible that your understanding that
this was to have an election was based on those kinds of conversations
and not what Mr. Owens said to you?”
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1101
the local–I mean, at the Nashville terminal here, if they got
enough names, then we could get an election to vote.” The
word “just” in this context has no meaning. Indeed, Anderson
testified on cross-examination that he did not think the word
“just” was said. Besides, Anderson repeatedly used “just” in his
testimony. Anderson stated that he normally reads writings
before he signed. I find that he did here, too.
Phil, in asking Frances Conrad to sign, said: “[T]he only
thing that I was doing when I signed that, no matter where I
stood, for or against the union, was that all I was doing was
authorizing them to use my name for a petition to bring in an
election.” Conrad replied: “[F]ine, for the election, yeah, that’s
a good idea.” Conrad was familiar, if not with the Teamsters
leaflet, the language in it limiting the use of the petition to sup-
port a vote. I will not count his signature.
Phil asked Jerry Hare if he was interested in signing the peti-
tion, which was “a petition to get an election date.” Hare said
that, as a result, he did not read the petition, which he nonethe-
less filled out in detail. And he conceded that he usually reads
documents that he signs. So I do not believe him; but, even if I
did, no one told him not to read the petition37 and no one mis-
represented the purpose of the petition. I will count his petition.
I will also count the petition of Justin Garver, despite his testi-
mony that Phil told him that the petition “was only to get a vote
in to the terminal.” In other portions of his testimony, Garver
did not limit the use of the petition. Thus, he stated that Phil
and Lane “said it was for–to get a vote in” and “[t]hat was for a
vote.” I am convinced that “to get a vote” was the only purpose
told to Garver, and not that the petition’s only purpose was to
get a vote.
Phil asked Wayne Gower three or four times to sign a peti-
tion, at one point advising Gower that he was about the only
city driver who would not sign. During his conversations, Phil
told him that the Teamsters had better retirement benefits, that
the Teamsters would credit each employee with the years they
had been with Overnite, and that employees would get “more
pay.” Phil said in one of his conversations, according to Gower,
that the purpose of the petition was “so they could get enough
cards so they could get a vote, so, you know, they’d be able to
have a vote.” In another conversation, Phil explained the pur-
pose as “other than just the chance to have a vote, you know,
they had to have so many cards signed so they could get a peti-
tion to have a vote to see if we wanted a union or not.” I find
that Gower was never told that the sole purpose of the petition
was to get a vote and was never advised to disregard the plain
and unambiguous language set forth in the petition. I will count
his signature. In doing so, I find that, even if Phil’s statement
that Gower was “about” the only city driver who had not signed
was untrue, there was no showing that Gower relied on that
statement in signing his card or that the statement was a mate-
rial misrepresentation.
There is no question that Duel repeatedly solicited Doug
Kelly to sign the petition, but I find that Duel did not say that it
was “just for the election.” Although Kelly testified that that
was what Duel told him, Kelly (who had been awake for more

37 In fact, witnesses uniformly denied that the solicitors directly told
them to disregard the language of the card or petition.
than a day, testifying after a long-distance truck run) also ex-
plained repeatedly that the card was for an election, without
using the word “just.” For example, Kelly quoted Duel as say-
ing: “It was for the election” and “[W]e need so many signa-
tures to have enough names up for the election.” I find that
Duel’s admitted discussion of the benefits of representation
(fringe benefits, wage increases, better retirement plan) made
clear to Kelly that something more that the election was at stake
and am not persuaded by his testimony that Duel made state-
ments to him that would have led him to disregard the clear
language of the petition. In addition, Kelly testified that Duel
represented that he needed a certain number of signatures to get
an election, but Kelly could not recall what the number, or per-
haps percentage, was. Thus, even if Kelly told Duel that he
would sign when Duel needed one more signature to have
enough for an election and that eventually Duel told him that he
needed one more signature, that testimony, without any relation
to fact, has no significance, because it cannot, on the basis of
this record, be shown to be untrue.38
I will not count the card of Sam Sanderlin. Duel talked to
him numerous times about signing a petition, so much that
Sanderlin described Duel as “pushy.” When Duel asked how
Sanderlin felt about the Teamsters, Sanderlin told him that he
“didn’t particularly care” about the Union. Duel said that em-
ployees were having problems with management and wanted
the right to vote; and, if Sanderlin signed, employees would
have that right. Sanderlin then told Duel that he did not want to
be represented by the Union, and Duel promised that “this was
going to be confidential.” Sanderlin then told Holland that he
did not want his “name to appear on anything.” Duel said that it
would not. I recognize that Duel and others spoke to Sanderlin
of the benefits of union representation; but once Duel agreed
that the petition was going to be confidential, he was implicitly
saying that he agreed that Sanderlin’s signature was not going
to signify his authorization. By doing so, Duel changed the
purpose of the petition from its plain language to one that was
intended to be solely for an election.
Lay, Larry Newton, and Mike Copeland asked Max Hughes
to sign a petition. Before Hughes signed, Newton told him that
the petition “was to get enough people to sign the cards to get a
vote.” On direct examination, Hughes followed this answer
with “is the only thing it was for,” which I find was not said by
Newton, as Hughes’ testimony on cross-examination demon-
strates. Rather, those words constituted his description of the
only purpose that Newton gave. In these circumstances, there is
nothing which compels the conclusion that the clear language
of the petition should be disregarded. I will count Hughes’ sig-
nature. I will also count the petition of Jimmy Summers, whom
Phil told that the purpose of the petition was “to get so many
names so they could have a vote.” Summers signed the petition
for another employee who told him that, if he would sign the
petition, the Teamsters could “get enough names for a vote.”
38 For this reason, I find that the petition of Donovan Tucker, who
was present during this conversation, is not invalid, as Respondent
suggests. In addition, there was no evidence that Tucker heard what
Duel said or relied on it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
Neither statement should have misled Summers from the clear
purpose of the petition. I will count his signature.
On about February 2, 1995, Newton told Jerry King that “he
was trying to get cards signed to get an election.” More than a
week before, Phil told King the same purpose, that “they
wanted to try to get as many signatures and cards signed to
where they could get an election at the terminal.” About three
to four before King signed, he testified, Jimmy Ruffin said that
the purpose of the petition was “Just to, you know, get enough
signed to get an election.”39 King’s use of the word “just” was
his limitation on what Ruffin said, and, as I understood what he
was saying, not a limitation on the use to which the card would
be put. I conclude that his petition should be counted.
Dean Snow signed a petition at the January 21, 1995 union
meeting at the union hall, but came in late. He testified that
someone, he was sure working for the Teamsters, asked him to
sign the petition, and he asked what the petition was for. Ap-
parently, he received no answer, but told the person: “I will not
join. I will sign for a vote.” Later, the petition was “passed
around” and, according to Snow, he again asked: “What’s it
for?” adding “The only thing I’ll sign for is a vote”; so some-
one, he believed a driver from a trucking company (not Over-
nite), said, “Well, this’ll get you a vote.” I have little faith in
Snow’s testimony; but even if I believed it, no one told Snow to
sign, and no one representing the Union told him to disregard
the language or misrepresented that the sole purpose of the
petition was to get an election. I will count his signature.
I will not count the card of James Gilley, if for no other rea-
son than the fact that he saw the Teamsters leaflet before he
signed. That was sufficient to invalidate his petition. According
to Tim Heming (who, when he testified, was a supervisor), Phil
“told me that all this was was—that the card was only to get an
election is all he told me. He said it didn’t mean that that’s what
you were wanting, but it was just saying that we would be able
to get an election at the terminal.” Heming conceded, however,
that he did not remember Phil’s exact words and that it was
possible that Phil said, “We need you to sign to obtain a vote.”
Obviously, that makes a big difference. But, in this instance, I
believe Heming’s first recollection and will not count his signa-
ture.
I will count the signature of Terrence Fields, who first testi-
fied that Roy Shelor asked him to sign, saying that “they
needed so many signatures to have a vote at the terminal for the
union.” Shelor also said that Bobby Hill, a friend of Fields, had
just signed, adding: “You know you ought to go and jump on
board. This is just for us to have a vote. We need an X-amount
of signatures.” Then, on cross-examination, Fields testified that
he had not given a direct quotation, but knew “as far as saying
this is—‘Sign this to get a vote,’ yeah, that’s what he said.” and
then, “‘We need X-amount of people to sign to have the right to
have a vote for the union.’ That’s how he put it.” I thus find
that Shelor did not misrepresent the purpose of the petition.
Both Duel and Lane asked Jeffrey Hinkle to sign on numer-
ous occasions. At first, Hinkle said that he “didn’t want any
part of the union and that [he] was for the company.” Holland

39 King’s recollection of time was exaggerated, because cards were
first signed at the January 16 union meeting.
and Lane, however, persisted in asking him to sign, finally
telling him: “Just give us a chance to have an election. By sign-
ing this card, it’s saying that you want the right to vote either
way.” So Hinkle signed. The essence of what they told him was
to disregard the language of the petition, because he still had
the right to vote against the Union. And so, even though he
expressed that he was for the Company, the signing of the peti-
tion would only authorize a vote in which Hinkle could main-
tain his opposition. I will not count his signature.
Darius Rogers’ testimony was exaggerated. He said that
Lane and Kenneth Mace had hounded him for 1-1/2 months or
2 to sign a petition, when there is no evidence that the Union
tried to get petitions signed any earlier than at the union meet-
ing of January 21, 1995, and Darius signed 9 days later. In
addition, Darius used the word “just” a little too much to ensure
the accuracy of his recollection of the alleged limitation by
Lane of the purpose of the card. But his brother Darrin corrobo-
rated the fact that Lane told them that the petition “was merely
to have an election to vote on whether we wanted the Teamsters
or not.” I will not count the signatures of either brother. In do-
ing so, I deny the General Counsel’s motion to strike the testi-
mony of Darius on the ground that Respondent’s counsel re-
fused to turn over a document he showed to him during pretrial
preparation. Considering the nature of the testimony and the
fact that the word “only” and “just” and the like is so critical to
the resolution of the issues presented in this proceeding, I ex-
amined the document in camera and found it relevant to the
witnesses’ testimony. Berkey Photo, Inc. v. Eastman Kodak
Co., 74 F.R.D. 613, 615–616 (S.D.N.Y. 1977). Nonetheless, the
content of the Teamsters leaflet is about as direct a suggestion
to a witness of what should be said as there could be. I have
considered in my credibility resolutions Respondent’s refusal to
produce the document, just as I have weighed the Teamsters’
refusal to acknowledge authorship of the leaflet and to testify
about its distribution.
J. C. Tidwell asked John Ball to sign a petition, but Ball said
that he was not interested in the Union or for it. Tidwell then
said that “all [the petition] was for was to have an election . . .
just so we can have an election.” He further said that “it didn’t
mean that I would be voting for the union; we were just having
an election.” Although Ball appeared on cross-examination to
back off from his recollection of precise words, I was im-
pressed that from all the circumstances he was not designating
the Union as his collective-bargaining representative but was
merely trying to support an election. I will not count his signa-
ture.
James Copeland, who attended two to four union meetings,
had little recall of the events at issue, and what he remembered
was that he was told that the petition was for a vote. That does
not mean that the language of the petition was to be disre-
garded. I will count his card. Although Shawn Allison testified
that Phil told him that the petition was “just to be able to vote”
and that both Duel and Lane told him that the petition was “just
to vote,” Allison was unable to recall on cross-examination that
anyone used the words “just” or “only.” For example, Allison
answered “Yes” when asked whether “the only thing [he was]
told by Duel and Phillip and Ralph Lane was that the petition
was to be able to vote.” I am not convinced that he was misled
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1103
in that respect. But he was also told that his father had already
signed a petition and he found out later that that was not so.
Although he was unable to identify who told him, it appeared
from his testimony that it was one of the solicitors. I find that
that was a material misrepresentation that was made to get him
to sign the petition, and I will not credit his petition.40
Phillip Nation habitually used the word “just” so that it is en-
tirely unclear whether Lay told him to sign a card “just to give
him a right to have an election to, you know, carry a vote. Just
to have an election.” Thus, although he stated: “That’s all I can
remember him saying is just to have an election,” he also an-
swered in the affirmative when asked: “Is it your testimony that
that’s the only thing he said was it was to have an election?”
Later he stated that Phil “just asked me to sign the petition to
have a election.” I am not persuaded that Nation was misled to
ignore the language of the petition.41
Darrell Cleaver, while unbelievably denying that he signed
the two petitions that bore his name, testified that Paul Doubler,
who did not testify, told him that the petition was “for an elec-
tion only” or “only for an election” and that he responded, “[I]f
it’s only for an election, I’d sign it.” Doubler told him that that
was the only purpose of the petition and that he was not obli-
gated to vote for the Teamsters if he signed. I will not count it
because he was being asked to disregard the language of the
petition.
Jerry Smart originally testified that Clifton Harris told him to
sign “to get a vote into the terminal.” Then, after Respondent’s
counsel asked him a leading question, he testified that Harris
said that the petition was “only to get a vote.” I accept his first
recollection, which was free of counsel’s suggestion. I will
count his petition.
Duel solicited Steve Cantrell’s signature, saying that “there
was nothing the company could do to” him, that he could not be
fired or disciplined, and that it was “perfectly safe” for him to
sign it. He added that “it was not a vote for the union. It was a
card saying that we were going to vote, that we wanted the vote
to happen.” Finally, Duel said that the petition “doesn’t mean
that you want the union. This doesn’t mean that you don’t want
the union. This means that all you want is a vote.” The sub-
stance of what Duel was saying is that Cantrell was not show-
ing his allegiance to the Union but was showing his support
solely for a vote. I will not count his petition.
According to Larry Powers, Duel asked him to sign the peti-
tion, and he signed it. Then, Powers testified that Lay told him
that the purpose of the petition “was to get enough votes to—or
cards signed to get a vote on the union.” Then, he said that Duel
told him “it was to get enough cards signed to have a vote on
the Union.” He added, in answer to a leading question, that
Duel also said that Powers would have a chance “to vote
whichever way I wanted to vote.” None of the solicitors’ state-

40 Allison’s alleged attempt to revoke his card was supported by tes-
timony so lacking in detail that, although I find that he called someone,
I am unsure whom he called.
41 Respondent contends that the signature of Gerald Vaughan should
not be counted because “[i]n all likelihood” Vaughan signed at the
same time as Nation. I refuse to do so, first, because I do not believe
Nation and, second, because I cannot find that Vaughan heard the same
words that Nation testified to.
ments misrepresent the plain language of the petition. In any
event, I do not credit Powers’ testimony for three reasons. First,
he could not recollect signing the petition, so I doubt that he
would have had any credible recollection of what led up to his
signing.42 Second, he began to testify that someone came to his
house after the election to solicit his card, testimony that cannot
be believed. Finally, I credit the testimony of Tony Butler, who
no longer worked for Overnite and had no reason to fabricate
his testimony. He testified that he made no comment at all
about the purpose of the petition but merely asked Powers if he
wanted to sign the petition and gave the petition to Powers. I
credit Power’s signature.
Charles Black’s testimony is troubling because Respondent’s
counsel engaged in a few leading questions. But it has less of
the fault of Smart, whom I discredited, because Black, who
appeared sincere, related that he had had a bad experience
working for an employer that had been represented by a union
and was not ready to join the Union, to which Harris replied
that this “was not to join the Union [but] to force the company
to give us a vote.” That implied that the petition was not to
show Black’s feeling about union representation, but to obtain
his support solely to get a vote. I will not credit his signature.
I conclude that, of the 91 authenticated signatures, 15 should
not be credited, leaving 76 which should, a majority of the 129
employees. Even if Respondent correctly urged the addition of
the 7 employees discussed above, there would still be a major-
ity of employees who supported the Union.
H. Rockford
On February 6, 1995, Local 325 requested that Respondent
recognize and bargain with it as the exclusive collective-
bargaining representative of the Rockford employees, but Re-
spondent failed and refused to do so. The Union filed a petition
for an election the next day, supported by a showing of interest
of 12 authorization cards. The Union and Overnite stipulated to
an election, held on March 28, which the Union lost, 12–6. The
Union filed timely objections, some of which were consolidated
in this proceeding and all of which are alleged as unfair labor
practices in the complaint.
Gissel relief is proper only where the union has filed timely
and proper objections to the election. Irving Air Chute Co., 149
NLRB 627 (1964), enfd. 350 F.2d 176 (2d Cir. 1965). Respon-
dent moves that the Union’s objections be dismissed on the
ground that they were filed by facsimile transmission which
was then prohibited by Section 102.114(e) of the Board’s Rules
and Regulations.43 The document was either a fax or a copy of
one, because it bears at the top of each page a fax line of “April
04 ‘95 03:02 pm Local #325 815 874 9694.” Although that line
shows the location of the sender of the fax, it does not show to
whom the fax was sent. So there is no proof that the fax was
sent to the Regional Office. Moreover, the fax bears the origi-
nal signature, or at least the writing, of Art Bell, which indi-
cates that whatever was delivered to the Regional Office (there
is an original receipt stamp on the back of the objections) was
42 The way that the petition is folded did not permit the top of the pe-
tition to be obscured, as Respondent suggests in its brief.
43 The Rules now permit the filing of documents by facsimile trans-
mission.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
not a fax delivered directly to the Region on its fax machine.
Rather, in a different fax from Local 325, which was addressed
to Bell, Tony Viren of Local 325 instructed Bell to file the ob-
jections with the Board’s Regional Office. The message on the
transmission letter reads:

To whom it may concern at the NLRB Region 33 - Peoria, IL
on behalf of Local 325 and Tony Viren, Art Bell Local 627 is
filing objections in regards to the Overnite election. (sgd.
Ted Sh . . . )

Thus, the fax was received elsewhere, signed by Bell or who-
ever wrote his name, and then delivered to the Regional Of-
fice.44 I find, therefore, that Respondent did not prove that the
Region, by accepting the objections, violated the Board’s Rules
and deny Respondent’s motion.
As of the date of the Union’s request for recognition, Re-
spondent employed 18 employees in bargaining unit positions.
In order to prove a majority, the Union had to prove 10 cards.
Shipp identified, under category 1, the signatures on 10 cards.
He could not reach an opinion regarding the authenticity of the
signature of Mark Sornsin, who was called by the General
Counsel and credibly testified that he signed the card attributed
to him a month or month and one-half before the election at a
meeting where other employees signed their cards.45 Nickolas
Kapotas identified the card of Dennis Whitmire as one that he
solicited. Accordingly, 12 union authorization cards were au-
thenticated.
Respondent attacks Terrance Cunningham’s and Whitmire’s
cards on the ground, which I find to be proved not only on the
basis of expert witness testimony but also my own examination,
that the dates were not written by the employees. However, that
fact does not invalidate the cards, because Board law holds that
it is not uncommon for employees to sign cards that have been
dated by others and that different handwriting, without more, is
insufficient to overcome the Board presumption that the card
was signed on the date appearing on it. Zero Corp., 262 NLRB
495 (1982), enfd. mem. 705 F.2d 439 (1st Cir. 1983); Jasta
Mfg. Co., 246 NLRB 48 (1979), enfd. mem. 634 F.2d 623 (9th
Cir. 1980). It is unclear when Whitmire signed his card, but he
applied for employment on November 13 and was hired on
November 16, 1994; and Kapotas, whose card was dated Feb-

44 Respondent contends that “the Board’s date stamp on the Objec-
tions’ back side shows that the Board received the objections only 18
minutes after the 3:02 p.m. facsimile transmission, suggesting the Ob-
jections were faxed directly to the Board and not somewhere else first.
. . .This evidence, at a minimum, raised a rebuttable presumption that
the Union faxed its Objections to the Board.” Respondent’s contention
is based on nothing but surmise. In addition, Respondent wanted the
opportunity to call as a witness someone who would prove that one
could not travel from Local 627 to the Regional Office in 18 minutes,
and that was one of the reasons that the third hearing (in Philadelphia)
was adjourned to Nashville. The counsel for the General Counsel was
prepared to call a witness to rebut such evidence there. Then, Respon-
dent determined not to call a witness, and so the counsel for the General
Counsel called none.
45 Admittedly, Sornsin also testified that he put the correct date on
the card, February 4, 1994, but there is no indication in this proceeding,
including the earlier hearings leading up to Overnite I, that the Team-
sters’ organization drive anywhere started earlier than September 1994.
ruary 4, 1995, was sure that he signed a card before Whitmire
did. There was no testimony about the date that Cunningham
signed his card; but, once again, the Teamsters’ campaign did
not begin until the latter part of 1994, so Cunningham would
not have signed before then. More importantly, the Local, as
part of its showing of interest, sent all the cards to the Regional
Office and all the cards, including these two contested cards,
were received by the Regional Office in the morning of Febru-
ary 7, 1995, as shown by the time stamps on the reverse side of
the cards. Accordingly, both Cunningham and Whitmire signed
their cards no later than February 6, 1995, and their cards shall
be counted to support the Union’s majority. I credit 12 cards, 2
more than a majority of Respondent’s Rockford employees.46
I. Bensalem
On January 4, 1995, Local 107 requested that Respondent
recognize and bargain with it as the exclusive collective-
bargaining representative of the Bensalem (also known as
Cornwell Heights) employees. On the same day, the Union
filed a petition for an election, which was held on February 14,
1995. The Union lost the election, 59–46, with 16 challenged
ballots, sufficient to affect the results of the election, and filed
timely objections. The objections case was consolidated in this
proceeding. The Board agent challenged the ballots of the jock-
eys, whom the parties agreed should be excluded from the unit.
With those exclusions, there are only 10 remaining challenged
ballots, which are insufficient to affect the results of the elec-
tion.
The parties agreed that, as of December 21, 1994, Respon-
dent employed at least 117 employees in bargaining unit posi-
tions, but disagreed at the hearing, although Respondent did not
brief its position, about the status of three dock leadmen, Sean
McCaffrey, Mark Taylor, and Michael Daily. The General
Counsel contended that they were employees; Respondent, that
they were supervisors. They also disagreed about Daniel Gallo,
who was a road driver but lost an eye in an accident and, by
reason of that injury, could not be licensed to drive. Respondent
assigned him to work in the office, it contends temporarily,
until Respondent could determine what he could do. In the
meantime he was retained on the books as a road driver. The
General Counsel contends that he was an office worker and not
a road driver, as Respondent contends (although not in its
brief), and is thus not to be counted.
Gallo should be excluded from the unit. As of the day of his
accident, March 9, 1994, almost a year before the election, he
ceased to be a driver because, as a result of his injury, Pennsyl-
vania law prohibited from driving. That Respondent continued
to pay him as a driver, and label him as such, does not vary the
duties to which he was assigned, namely, doing clerical work,
whether office (specifically excluded from the unit) or plant
(because he worked not in the office but in the area where the
dispatcher worked); and he subsequently became the night
dispatcher. He lost his community of interest with the drivers
46 I specifically reject Kapotas’ testimony that Whitmire filled out
the entire card in his presence. The date of the card “10-24-94” was in a
different ink and written by a different person. I accept Kapotas’ testi-
mony, however, that Whitmire signed his card during the time when the
Union was attempting to get employees to sign authorization cards.
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1105
when he was injured, and he had no community of interest with
any of the employees in the appropriate bargaining unit. He was
not a dockworker, which he became after the election, or a
jockey, which he subsequently became, and which the parties
agreed was excluded, anyway. Indeed, Joseph Moran, the assis-
tant service center manager, did not know whether Gallo, after
his injury, was physically able to do a dockworker’s job or
whether there were any openings for a dockworker. Most con-
vincing is the profs note sent to the Bensalem service center,
indicating that on December 4, 1994, the safety department at
Overnite’s headquarters in Richmond advised the center that
Gallo’s classification “needed to be changed to a non-driver.
His physical expired on 12/3/94. If this employee is not quali-
fied to drive he must be changed to a non-driver, non-cdl
class.” I find that he was not a driver and was not in the bar-
gaining unit. Mrs. Baird’s Bakeries, 323 NLRB 607 (1997).
As to the dock leadmen, I note that all of them were included
on Respondent’s Excelsior list and all of them voted in the
election, without challenge. It was only at this stage of the pro-
ceeding that their status became an issue. Daily was the dock
leadman on the a.m. shift, working with two other leadmen and
a crew of about 20 to 25 dockworkers from 5 a.m. to about 2
p.m. on the inbound freight. When he reported to work, he im-
mediately began loading freight with the other dockworkers.
When trucks became full, if there was extra freight, Daily
would ascertain where it was going. At 9 a.m., his dock super-
visor would leave, and Daily took over at the shack, reviewing
records, adding up timecards, figuring how many hours the
employees had worked, and computing production statistics. At
12 noon, he performed a yard check, writing the name of every
truck and matching freight with bills to ensure that no freight
was unaccounted for.
Evidence of supervisory function is lacking. For his duties,
Daily, like the other dock leadmen contested by Respondent,
was paid $16.45 per hour, 25 cents more than regular dock-
workers. Otherwise, he received the same fringe benefits and
was not paid a flat salary, as other supervisors were, and was
paid for overtime, as other supervisors were not. He did not
attend management meetings and went to the same mandatory
meetings that other employees were required to attend.47 Be-
tween 9 a.m. and 2 p.m., no supervisor was present. Between 9
a.m. and 12 noon, Daily handed out loads; or, if a truck came in
late, he would get it stripped. Each day, Daily assigned 4–5
trucks, particularly those that had items on them that required
delivery without delay; but the assignment was to the employ-
ees who had completed their work. On Saturdays, Daily also
worked the same hours, with 6–7 other dockworkers, but with-
out a supervisor present. “I’m it,” he answered.
The dockworkers were told to follow his directions. If a
dockworker had a problem, he was to come to Daily. Months
before the election, Daily was permitted to issue written warn-
ings which constituted corrective actions. However, about 4 or
5 months before the election, his supervisor, Gary Labor, told

47 Part of Overnite’s preelection campaign at each of the service cen-
ters was a series of meetings that employees were required to attend
(“mandatory meetings”).
him that he could no longer write up employees. If there were a
problem, Daily was to tell Labor.
Sean McCaffrey worked the midnight to 8:30 a.m. shift, with
two other leadmen, dealing with inbound freight, making sure
that the freight went on the correct trucks. But his supervisor,
Labor, came in at 11 p.m., so McCaffrey, unlike Daily, was
never without supervision. McCaffrey was responsible for get-
ting in touch with the jockey to back a trailer needed for a spe-
cific freight, and then McCaffrey loaded and unloaded freight
for half his day, in the same way as any of the other dock-
workers. McCaffrey was also responsible for tracing “hot”
shipments (shipments that had to be delivered the next day),
which he found out about from the computer. He also did the
setup when Labor said that he was not going to be there or it
was going to be busy. McCaffrey also covered for Labor when
he was on vacation or was sick.
McCaffrey would keep an eye on the other dockworkers, en-
suring that they were using the correct type of equipment so
that they did not damage the goods that they were moving,48
work among them, and see that they received help, if they
needed it. And the dockworkers would come to him if they
needed help. McCaffrey assigned work to the dockworkers
about once a week, when his supervisor was not there. Nor-
mally, that entailed only the dockworker grabbing a trailer, at
which point McCaffrey would write his name on a form C pro-
vided by Respondent. He also assigned trucks throughout the
night. During his employment, McCaffrey could only suggest
writeups; and he was involved in writing up an employee about
4–5 times, when the supervisor would tell him to write up an
employee. In only one instance did McCaffrey somewhat insti-
gate a writeup, when for a half dozen times an employee had
not cleaned up and on the seventh occasion, when the employee
left freight behind, McCaffrey complained to his supervisor,
who told him to write up the employee. McCaffrey did so and
gave the form to his supervisor.
Mark Taylor worked with only one other leadman on the af-
ternoon outbound shift, starting at 1 p.m. and ending at 11 p.m.
His supervisor was John Madden, who came in at about 3:30
p.m. and finished at about 1 a.m.; so for 2-1/2 hours, Taylor
worked without supervision. He spent his first 2 hours making
sure that the trucks that he needed were on the dock and in the
right place and finding out what trucks were needed. He pre-
pared his form Cs, writing the numbers of the trucks to record
what trucks were available and to whom the trucks were going
to be assigned. The arrival of the 15 dockworkers who worked
on Taylor’s shift was staggered: the first two to report began at
3 p.m., and others came in hourly up to 6 p.m. At 3 p.m., when
the other leadman reported for work, Taylor left his administra-
tive duties and, like the other dockworkers, stripped and loaded
the rest of his shift, sometimes (once every 2 weeks) returning
to the shack—assigning trucks—when he wanted a break from
the more physical demands of his job.
Taylor talked to dockworkers who were not working hard or
damaging something, but he reported any problem that he had
48 Examples that McCaffrey gave were the incorrect use of a forklift
to move a rug, rather than a rug pole, and the incorrect use of a forklift
to move bales, rather than a handtruck.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
to his supervisor. Overnite did not permit him to fill out write-
up forms. One of the things that Taylor watched for was hot
freight, which was handed out first. Typically, he assigned it to
those he considered faster workers, and sometimes transferred a
better worker off a job to handle a hot shipment.
The Board, with court approval, has found that the assign-
ment and direction of employees in connection with the loading
and unloading of trucks, and in connection with the storing of
goods, is generally routine in nature. Millard Refrigerated Ser-
vices, 326 NLRB 1437 fn. 3 (1998), citing Williamson Piggly
Wiggly, 280 NLRB 1160, 1166–1169 (1986), enfd. 827 F.2d
1098 (6th Cir.1987); Sears, Roebuck & Co., 292 NLRB 753
(1989); Highland Superstores, Inc., 927 F.2d 918 (6th
Cir.1991), enfg. 297 NLRB 155 (1989). The employees’ work
is repetitive and requires little supervision. They perform the
same job tasks on a continuous basis. The trailers are loaded
and unloaded routinely, and the employees are assigned in the
order that they arrive at the facility or are ready to handle a new
trailer. Priority for handling new shipments is based on records
which dictate which shipments need to be delivered early. That
the lead dockworkers assign other dockworkers to various tasks
does not reflect their ability to responsibly direct employees.
They are experienced employees who know which of their
fellow employees have the greater skill and experience. Their
use of this information when assigning work does not establish
that they exercise independent judgment. Sears, Roebuck &
Co., supra at 755. I conclude that the three lead dockworkers
should be included in the unit.
The parties agreed that, as of December 21, 1994, Respon-
dent employed 114 employees in bargaining unit positions.
Adding the three lead dockworkers, there were 117 employees
in the unit, so the Union had to prove 59 cards. The authoriza-
tion card contained requests for the usual information (name,
address, phone, and social security numbers), and contained at
the top the following:

TEAMSTERS LOCAL 107
I, the undersigned, of my own free will, desire to be-
come a member of Local 107, Affiliated with International
Brotherhood of Teamsters, AFL–CIO and by so doing des-
ignate said Union as my chosen representative in all mat-
ters pertaining to wages, hours and working conditions.

Respondent contends that this card is ambiguous and should
not be counted because the card becomes effective only when
the employee becomes a member of the Union. However, the
Board has granted bargaining orders based on authorization
cards employing identical language. Comcast Cablevision, 313
NLRB 220, 257 (1993); Eastern Steel Co., 253 NLRB 1230,
1240 (1981), enfd. 671 F.2d 104 (3d Cir. 1982). I conclude,
therefore, that the card is a valid authorization of the Union as
the employees’ representative. The remainder of Respondent’s
arguments have no validity. That the card stated at the bottom
that all the replies were to be kept confidential does not require
the nullification of the employees’ will. That language was
meant to ensure that Overnite would not learn of the employ-
ees’ union activities and desires and to protect the employees
who signed cards. As noted above, telling an employee that
signing will be kept confidential does not invalidate an authori-
zation card. And it is not a “lie,” as Respondent charges, if the
Union uses the cards to obtain a Gissel order. The original in-
tent of authorization cards is to support a showing of interest
for an election or to show an employer (normally through a
third party, so the employer will not know who signed the
cards) that the Union represents a majority. The reason that the
cards must be shown in a Gissel case is that an employer is
alleged to have violated the Act in such an egregious manner
that there can no longer be a fair election. For Respondent to
take advantage of its own violations of the Act, as found in
Overnite I, to thwart the employees’ will is utterly unjustified. I
reject, therefore, Respondent’s attack on the cards.
The General Counsel submitted 69 cards, 5149 of which were
identified by Shipp as being in category 1. I credit all of them
as bearing the signatures of the employees and specifically find
that Andrew Everk, whose card is undated, mailed his card in
1994, as shown by the postmark and as confirmed by his testi-
mony that he signed the card about 4 months before the elec-
tion, which would place the date in October 1994, which the
postmark shows, and about a week after another employee, Dan
Maier, signed his card, again placing the date in October. The
other undated card was signed by Robert Tucker. The postmark
bears a date of November 28, but the year is illegible. The card
bears a receipt by the Regional Office as January 4, and the
parties cannot agree whether an arrow pointing between the
numbers 4 and 5 around the perimeter of that stamp indicates
the year, perhaps the end of 1994 and the beginning of 1995. In
any event, most of the cards bear that same receipt stamp, mak-
ing it convincing that all the cards were filed to support the
petition, which was filed on January 4, 1995. In addition,
Tucker signed another card, which is dated December 9, 1994,
and he testified that that card was signed 2 or 3 months after his
first card. Although his testimony about the time gap appears to
be inaccurate, I find that the December card was signed after
the earlier card and that both cards can be used to support the
Union’s majority. Accordingly, as of December 21, 1994, there
were 51 cards positively identified by Shipp, and I credit them.
There were also 13 cards that Shipp identified as being in
category 2, which I would have credited, based on Shipp’s
testimony, in any event. Here, each of the employees, with the
exception of Christian Tomlinson,50 testified that he signed the
card; and I credit all of them. I also credit the cards of David
Stauffenberg and Randie McDonough,51 whose signatures, in
Shipp’s opinion, were in the categories 3 and 4, respectively;
but the employees testified that they signed the cards, and I
have no reason to doubt them. I will count the card of Richard
Mucerino, despite the fact that he did not sign the card. He
authorized his wife to sign the card, which he read and identi-
fied as a “Teamsters card,” and that is sufficient to validate the
card. I also credit the unsigned card of Herbert Capps, who did

49 Edwin Burgos and Michael Cottrell each signed two cards. I have
included in this computation only one card for each employee.
50 The Counsel for the General Counsel represented that he had
made extensive efforts to locate Tomlinson and had been unable to do
so.
51 This card was dated November 10, 1994. McDonough signed an-
other card 8 days later.
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1107
not fill in any of the spaces on the card. Instead, he specifically
authorized his wife to fill in the card. Capps knew what the card
was for. He was a member of the Union for 31 years and was
on withdrawal status. In addition, Capps mailed the card, but
testified that he forgot to sign it. The Board has held that the
mere fact that an employee forgets to sign a card is no reason to
disqualify it. Skyline Transport, 228 NLRB 352, 354 fn. 11
(1977). I do not count the card of Michael Frontantaro, whose
card was dated “1/14/95” by someone else, as being signed on
that day. Frontantaro’s testimony was confused about the date
that he signed the card. It is probable that it was backdated,
because he testified that he signed it on the day that he was
“called down” by the Union to vote. Because he voted, al-
though challenged, it is probable that he signed on the day that
he “answered the request to come down and vote,” that being
February 14, 1995. The total number of cards that I credit as of
December 21 is 68 (51 in category 1, 13 in category 2, and the
4 discussed in this paragraph),52 more than the 59 cards needed
for a majority. Therefore, a majority of the Bensalem employ-
ees authorized the Union to be their representative.
III. THE UNFAIR LABOR PRACTICES
A. Dayton
Most of the unfair labor practices alleged in the Dayton
complaint were withdrawn by the General Counsel. Only two
remain, and both, testified to by Bob Staton, are familiar sub-
jects and dealt with at length in Overnite I. One involves vice
president of safety Bobby Edwards speaking in March, before
the election, to a meeting of about 20 employees and saying
that the employees in Chicago had been in the Union and had
been negotiating with Overnite for 13 years and Overnite still
had not agreed on a contract with the Union. The other in-
volved the March wage increase. In early February 1995,
shortly after the Union’s representation petition was filed, Ser-
vice Center Manager Chuck Littleton held a series of meetings
with employees to announce the March 1995 wage increase and
allegedly advised the employees that service centers that had
voted in the Union, such as Indianapolis, Kansas City, and Sac-
ramento, would not receive the raise.
Edwards did not testify; and, although Staton’s testimony
was minimal, there is still there the sense that, if the Overnite
had not entered into an agreement with the Teamsters after 13
years, there would be little hope for any progress in Dayton. I
conclude that Respondent violated Section 8(a)(1) of the Act by
threatening that bargaining would be futile.
On the other hand, Littleton testified and denied Staton’s al-
legations. Rather, he said that employees asked him whether the
raise would be paid to represented employees, and he first an-
swered that any wage increase would have to be negotiated and
said nothing more. On cross-examination, he said that he told
his employees that the employees at the facilities that had voted
in the Union would not necessarily receive the increase at the
same time. Littleton thus changed his testimony, but Staton was
not wholly credible. I have previously found that, contrary to
his denials, he told employees that the authorization cards were

52 Richard Mucerino, Francis Oquendo, and Robert Tucker signed
valid second cards, which could also be counted.
going to be used for an election. That is contrary to his testi-
mony that he merely handed cards to employees and never
asked them to sign. He testified that he brought McCarty’s card
to the union representative, when the card had been mailed. He
first testified that he did not receive a letter from a union repre-
sentative, and later changed his testimony.
I have found this identical violation previously, and the alle-
gation is clearly the type of conduct that Respondent has en-
gaged in. I do not trust either witness, but it appears that Re-
spondent’s strategy was to make known to its employees that
those of them who had not voted for the Teamsters were going
to get a raise and those who had voted in the Union were not,
because they had to negotiate and Overnite was not going to
sign a contract with the Union. Overnite made that known not
only in its meetings, but, as pointed out in Overnite I, made it
known in The Overniter for only one reason—to tell its em-
ployees of the danger of voting for the Union. And, if that were
the strategy, it is curious that none of Overnite’s service man-
agers raised the subject first. Rather, according to them, the
employees would always ask whether someone else was getting
a raise. I do not believe that happened. I conclude that Littleton
violated Section 8(a)(1) of the Act, as Staton testified.
B. Richfield
Several times during the mandatory meetings, Service Center
Manager Jerome Ruediger53 emphasized that nothing was
automatic if the Teamsters won the election and that the em-
ployees would not automatically get what the Teamsters had
been promising. He did not believe that Overnite would ever
sign the Teamsters’ National Master Freight Agreement
(NMFA) or that Overnite and the Union could ever agree on
paying overtime or granting superseniority. Ruediger stated that
other companies had gone out of business because they signed
the NMFA and that signing that contract would be a “bad
thing” because it would be “economically unsound.” Overnite
would not sign anything that would weaken it “economically or
competitively.” These statements, which were supported by
examples, do not violate the Act. In so finding, I reject the con-
tention that Ruediger specifically stated that Overnite would
not agree to any labor contract.
However, Ruediger told the employees that the service cen-
ters that had voted in the Union would not be receiving the
March 5 wage increases because the parties had to negotiate the
increase first. That was accompanied by the familiar Chicago
refrain, discussed at length in Overnite I, that Overnite and the
Union had been negotiating for 13 years and had yet to agree
on terms of a contract. It was thus evident that bargaining
would be futile, that Overnite would not sign an agreement, and
that the selection of the Union as their representative would
cost employees their wage increases. I conclude that in these
respects Respondent violated Section 8(a)(1) of the Act.
53 In making credibility resolutions, I find that, from certain admis-
sions of the General Counsel’s witnesses, Ruediger followed the scripts
that had been given to him for the mandatory meetings. That is not to
say that Ruediger did not make comments that had not been written for
him, but, taken in context, the General Counsel’s witnesses inaccurately
recalled what Ruediger said.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
According to former employee Lawrence Keith, Ruediger
delivered the “Give Jim a Chance” theme, also dealt with at
length in Overnite I, that, if the employees would give Respon-
dent’s new president and chief operating officer, Jim Douglas, a
chance and vote against the Union, “things would turn around
and [Overnite] would be a lot better place” and “things would
get better . . . once we got past the union thing.” Ruediger im-
parted the thought that, if the employees rejected the Union and
gave Douglas and Overnite the opportunity, conditions would
improve. That constituted an implied promise of benefits,
aimed at discouraging support for the Union, in violation of
Section 8(a)(1) of the Act. Reno Hilton Resorts Corp., 319
NLRB 1154, 1156 (1995).
About a week before the election, Dock Supervisor Dan
Mitchen threatened Keith that, if the employees voted in the
Union, the only way the Union could get any wage increases or
other improvements would be to go on strike; and, if they went
on strike, they could either lose their jobs or be replaced for a
while. In one of the mandatory meetings, Ruediger said that, if
the Union and Overnite could not agree on a contract, the pri-
mary weapon that the Union had available to put pressure on
Overnite was to strike. An employer may not lawfully state to
employees that a union’s sole leverage to obtain anything from
it is to strike. Fred Wilkinson Associates, 297 NLRB 737
(1990). That is what Mitchen told Keith, but not what Ruediger
said at the mandatory employee meeting. I conclude that
Mitchen’s statement violated Section 8(a)(1) of the Act, but
Ruediger’s did not; and I will dismiss the allegation of the
complaint as to him.
A few weeks before the election, Supervisor Jesse Young
told Keith that, if the Union won the election, Overnite would
more than likely ship freight around the Richfield service center
to avoid the higher union wages.54 The allegation is supported
by the similar threat of Human Resources Manager Steve Bias
at a mandatory meeting that, if Richfield became a union termi-
nal, the Company could run freight around it which would re-
duce the employees’ working hours. I find that these threats,
which were denied by Respondent’s witnesses, were not the
kinds of statements that the employees would concoct from
nothing. I credit the General Counsel’s witnesses and conclude
that the threats of Young and Bias to divert work and thus re-
duce the wages of the Richfield employees were made to dis-
courage their support for the Union, in violation of Section
8(a)(1) of the Act.
The General Counsel relies on additional, allegedly unlawful
statements of Ruediger about the negative consequences that
would result if employees selected the Union to represent them.
Charles (Tom) Ball testified that at one of the mandatory meet-
ings, this one 2 weeks before the election, Ruediger told em-
ployees (in essence repeated by Ruediger the following week)
that the Union might “negotiate” a contract that Overnite could
not afford and, if so, Overnite might have to go out of business.
I find that Ruediger said no such thing. In fact, as Ball admit-
ted, Ruediger was referring to the NMFA and made clear, in

54 Respondent sent its employees a mixed message. If the Union was
voted in, Respondent threatened that it would not grant the increases
that the nonunion service centers were going to be paid.
predictions backed by examples and references to particular
provisions of that agreement, that Overnite could not afford that
agreement which would weaken it economically and competi-
tively. For example, Ruediger stated:

Moving to the NMFA wage rate alone would put Overnite in
the red. That’s right. Do the math yourself ($2.36 x 2,300 x
12,000 employees = $65,136,000). Now, you figure it out.
Would you take a mortgage or rent a house if the monthly
payment was more than your total take home pay? Of course
not. Well, that’s exactly what the Teamsters want you to be-
lieve Overnite will do. And remember, that was only the cost
of wages. It did not include pension, insurance, restrictive
work rules, etc. It is just that kind of crazy thinking that re-
sulted in a month long strike in 1994 and put 41 of the top 50
carriers out of business. [Emphasis in original.]

I conclude that these allegations of threat of closure and re-
fusal to sign an agreement cannot be sustained and must be
dismissed.
Finally, a week before the election, in one of the mandatory
meetings, Ruediger placed on the table before him notes from
employees whom the supervisors had helped with various prob-
lems and said that the notes were confidential—he could not
read them—but, if the Union was voted in, according to Ball,
employees could no longer take any issues to their supervisors
and Overnite would not be able to help the employees any
more. However, Ruediger denied that, insisting that he told the
employees what would be the result of the NMFA on the rela-
tionship between employees and management. I find that, al-
though Ruediger may have been thinking about the effect of the
NMFA of grievances (incorrectly, it turns out), he did not refer
to the NMFA, which resulted in a threat that Respondent would
cut off access to its supervisors, even for temporary changes in
shifts or hours to suit an employee’s needs, if the employees
voted for the Teamsters. That violated Section 8(a)(1) of the
Act.
C. Nitro
Posted at the Nitro service center for several days in early
February 1995 was a poster of a “Teamsters Graveyard,” fea-
turing the gravestones of Teamsters trucking firms that had
gone out of business and Overnite’s headstone with an open
grave and a “?”. The poster thus represented that the Teamsters
caused the companies to go out of business and predicted that,
if employees selected the Union, Overnite would go the same
way. I found in footnote 10 of Overnite I that the poster vio-
lated Section 8(a)(1) of the Act.55
Gissel teaches that predictions of the dire consequences that
unionization may have on a company are not necessarily viola-
tions of the Act, but an employer has to make sure that its threat
is reasonably based on fact and is grounded on more than sur-
mise. Thus, the Court wrote, 395 U.S. at 618–619:

55 Admittedly, the witnesses in the Nitro hearing described the poster
somewhat differently, with a figure of a “grim reaper” getting ready to
bury Overnite. I find, in the context of this entire proceeding, and con-
sidering the evidence decided on in Overnite I, that the leaflet posted in
Nitro was identical to the one described in my earlier decision.
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1109
[A]n employer is free to communicate to his employees any
of his general views about unionism or any of his specific
views about a particular union, so long as the communications
do not contain a ‘‘threat of reprisal or force or promise of
benefit.’’ He may even make a prediction as to the precise ef-
fects he believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond his
control or to convey a management decision already arrived at
to close the plant in case of unionization. If there is any impli-
cation that an employer may or may not take action solely on
his own initiative for reasons unrelated to economic necessi-
ties and known only to him, the statement is no longer a rea-
sonable prediction based on available facts but a threat of re-
taliation based upon misrepresentation and coercion, and as
such without the protection of the First Amendment. . . . As
stated elsewhere, an employer is free only to tell ‘‘what he
reasonably believes will be the likely economic consequences
of unionization that are outside his control,’’ and not ‘‘threats
of economic reprisal to be taken solely on his own volition.’
‘[Citations omitted.]

The record is barren of any proof to support Respondent’s
representation that the Teamsters caused the demise of these
companies or its dire prediction that Overnite would follow,
after unionization. Accordingly, the poster’s threat that, if the
Union was successful, Overnite would close its business was
based on no objective facts, and was, in the words of Gissel,
that Respondent would “take action solely on [its] own initia-
tive for reasons unrelated to economic necessities and known
only to it”; and the poster’s threat is “no longer . . .a reasonable
prediction based on available facts but a threat of retaliation
based upon misrepresentation and coercion.” Eldorado Tool,
325 NLRB 222 (1997).
The complaint alleges that Service Center Manager Dennis
Cole engaged in numerous threats and promises from the com-
mencement of the union campaign up to the March 20, 1995
election. One was his emphasis on the “Give Jim a Chance”
campaign, which was promoted on T-shirts and hats worn by
Respondent’s supervisors and in fliers and handbills. Cole an-
nounced that Overnite had a new chief operating officer, that
Douglas was a good man, that he had come to Overnite to make
it more profitable, and that he would relinquish some of the
authority back to the service center managers in order for them
to take care of the immediate problems at each center, as con-
trasted with his predecessor, Boswell, who “had had the
[t]erminal [m]anagers’ hands tied and they had to get authoriza-
tion from Richmond in order to take care of any immediate
problems that we had at each individual terminal.” Cole said
that if the employees did not tell him what the problems were,
he would not know what to fix. Despite his statements that he
could not and was not promising anything, he was doing just
that, and he actually did.
When Cole arrived, the practice was that employees were al-
lowed to bid for the time during which they would take their
vacations. Employees with greater seniority and who were enti-
tled to at least 2 weeks were allowed to bid on the first round of
bidding on their first 2 weeks. On the next round they could bid
for another week, and they could do so on the following rounds.
Cole changed that, saying that it was against company policy,
which permitted employees to bid only on 1 week for each
round. During the campaign, an employee asked why employ-
ees were not allowed to bid for 2 weeks, as they had done be-
fore. Cole said that he would look into this and later, before the
election, suggested that the employees vote on that. In fact, one
day, between the end of February and the beginning of March,
when employees were given their work assignments, they were
given a ballot on that question that they turned in to their dis-
patcher. The city drivers also objected that they had in the past
been allowed to bid on routes once a year, but they no longer
were. Cole promised to check into that, too. In the same ques-
tionnaire, employees were asked their preference about bidding
on routes. The employees voted for both changes, and Respon-
dent announced that both votes had passed. The vacation bid-
ding was changed after the election, effective for vacations
taken during 1995; but the city drivers were not allowed to bid
for their runs. I conclude that Respondent violated Section
8(a)(1) of the Act by soliciting employee grievances56 and by
implication promising to remedy them and, in fact, remedying
one of them.57 Respondent’s claim that this new system for
picking vacations was not a benefit, because some employees
were hurt by it, has no substance. Cole pleased the majority of
the employees, at least those who voted for the change.
Some of the allegations relate to Cole’s alleged threats about
the consequences of selecting the Union. There was testimony
that Cole advised the employees that they were then allowed to
work more than 40 hours per week; but, if the Union won,
Overnite would not allow them to work over 40 hours. Cole
credibly denied that. Rather, what he told them was that, if
Respondent were compelled by contract to pay overtime, Over-
nite would control its overtime so that it would not have to pay
time and one-half. That is in accord with the script that had
been prepared for him to use at the mandatory meetings and
which I find he followed. I will dismiss the allegations pertain-
ing to this threat.
On the other hand, I do not believe that the employees con-
cocted their recollections (or misunderstood) that Cole, often
holding up a blank piece of paper, said both in and out of the
mandatory meetings, that Respondent’s bargaining would “start
at zero” or “ground zero” or “would start with a blank sheet of
paper and everything was up for negotiations.” He added:
“[T]he company did not have to agree to anything. All they had
to do was bargain in good faith.” That was coupled by Cole’s
reference to Chicago, where Overnite had been bargaining in
good faith for 9 or 10 years (he said), but there had been no
contract or anything decided.
An employer violates Section 8(a)(1) by statements that bar-
gaining will start from scratch or from zero or from a blank

56 Cole’s direct solicitation of grievances to resolve or refer to Doug-
las during this campaign was not part of Overnite’s normal practice of
encouraging employees to file complaints.
57 I have fully considered the testimony of former operations man-
ager, Mike White, who, I find, was mistaken in his recollection that the
ballot occurred the previous fall.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
sheet of paper, where, in context, they are not explained or they
reasonably lead employees to believe that their then current
benefits would be lost or reduced, and could only be regained
through negotiations with the employer. Lear-Siegler Manage-
ment Service, 306 NLRB 393 (1992), citing Taylor-Dunn Mfg.
Co., 252 NLRB 799, 800 (1980), enfd. mem. 810 F.2d 638 (9th
Cir. 1982). Cole, in fact, related the nature of the negotiating
process, but he left a logical concern by his numerous repeti-
tions of starting bargaining “from scratch” and “ground zero,”
without repeating the nature of the bargaining process, that the
employees were justifiably concerned that they would lose their
current benefits. Adding the narration of the Chicago experi-
ence could only bolster their belief that bargaining would be
futile. So, the election of the Union would mean a bargaining
process which began with the loss of their current benefits and
bargaining which had no hope of getting anywhere. I conclude
that this threat of the punishment for and futility of a union
victory violated Section 8(a)(1) of the Act.58
D. Parkersburg
Respondent’s principal defense to much of the conduct al-
leged in the complaint is that what it did was simply part of its
normal, everyday procedure, nothing out of the ordinary, and
certainly nothing to find a violation about. The facts do not
support Respondent’s position. One of the issues that had been
troubling the Parkersburg employees was Respondent’s failure,
despite the weekly complaints of employees, to supply for up to
4 years various pieces of equipment that some of the dock em-
ployees claimed they needed in order to properly perform their
work. Some was somewhat basic, like a hammer and a working
crowbar (it was bent) and a power saw. The employees needed
palettes. Lights on the dock needed replacement and switches
and jacks were broken. Other equipment consisted of a tow
motor (the engine smoked excessively, giving employees head-
aches) and a lift truck.
After the election petition was filed, officials from Over-
nite’s Richmond headquarters, as they and Overnite’s “quality
team” or “troubleshooters,” referred to in Overnite I, did in
many other locations, suddenly began to pay attention to what
was troubling the employees. Perhaps once a year, or even
every 2 years, an executive from Richmond would visit the
Parkersburg service center for an hour or so; but with the union
campaign, for the first time in years, a group of top officials
came to Parkersburg to see what were the problems. In particu-
lar, Edwards told employee Richard Woody:

he had been sent down to talk to me. Because Mr. [Paul]
Heaton [senior vice president], with my work record and be-
ing a good employee, that he knew that Parkersburg terminal
must have had a real problem for me to be involved in the or-
ganization of the Teamsters Union. And that he come down to
see what the problem was.

The obvious implication of Edwards’ remarks was that there
would not have been union activity had things been alright, and

58 My review of Cole’s testimony and his notes and overhead slides
from the mandatory meeting convinces me that he did not threaten that
strikes were inevitable, but rationally spelled out all the Union’s op-
tions.
Woody readily admitted that the employees were very upset
and that he had signed a card and was supporting the Team-
sters. He said that the employees were dissatisfied with their
service center manager, Fred Hutchins, and city dispatcher,
Rick McIntosh, and were very upset and worried about their job
security, with Respondent’s downsizing and restructuring, tak-
ing runs away from Parkersburg and giving them to the larger
terminals and reducing the workforce by about 20 employees.
Edwards asked Woody to relate these complaints to Heaton. He
also asked for Woody’s help in combating the union campaign.
Edwards said that he had intended to retire, but after meeting
with Overnite’s new chief operating officer, Douglas, Edwards
decided that he would remain to help the Company fight the
Union, because he believed from his heart that what Douglas
told him would be the truth and that changes would be made,
and would Woody help and give Jim a chance. Woody agreed,
discarding his union hat and pin that he had been wearing up
until then.
Within a few days, Heaton and Vice President of Operations
John Fain came to Parkersburg and talked with the employees.
In particular, Heaton had a lengthy talk with Woody, whom he
asked what was going on, what kind of problems was he en-
countering, and how Heaton could fix them. Heaton, like Ed-
wards, also said that Overnite had a new chief operating officer,
Douglas, who (he believed) would make changes. Woody told
him about what was broken and needed to be replaced and what
needed to be updated, such as broken dock and other lights,
inoperable switches, a leaking roof, tow motor forks that were
too short, one tow motor that was smoking excessively and
gave everybody a headache, the lack of a functional rug boom
and equipment to move linear shaped steel objects, and bent
and broken pilot jacks, hammer, and crowbar. Woody asked if
he could make him a list of all things that he needed, and he
would give it to Heaton.
The two then went out on the dock to look at some of the
items that Woody had mentioned and returned to where they
had been talking, when driver Phillip Zigler came in from a run,
and they, with Fain, who had also joined the conversation,
talked about runs being changed and shortened. Zigler com-
plained that he could not understand why he had to take a run
of 6 hours, and then stay in bed for 17 to 20 hours before he
returned, rather than adding another run onto his Parkersburg to
Harrisburg run. Heaton and Fain could not understand why the
drivers were not running longer runs. Heaton then went into the
dispatch office and called Mickey Kelly, Overnite’s service
center manager in Harrisburg, and asked if there would be any
problem in adding Philadelphia to the Harrisburg run. Kelly
had no problem with that. Heaton then called central dispatch
and reported to Zigler and Woody that the expanded run had
been approved and that the run would start immediately—and it
did, that night. Shortly after, Heaton pinned a “Give Jim a
Chance” badge on Woody.
Woody left the meeting to complete cleaning up and prepare
his list, which he gave to Heaton, who said that he would tele-
phone Overnite’s facility in Charlotte that rebuilds motors and
fabricates some of the equipment that Woody was requesting.
Soon after, Heaton summoned Woody to explain to the fore-
man in Charlotte, who was on the telephone, exactly how he
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1111
wanted the equipment made, and Woody did so. Heaton told
Woody that some of smaller items, such as hammers and crow-
bars, could be bought locally. The products from Charlotte
should be coming in immediately. Heaton would ship the old
smoking tow motor out that night for evaluation
These complaints had never been addressed prior to the un-
ion campaign. Even Heaton expressed his amazement. He
could not understand why Hutchins had not taken care of these
problems. Woody promised to advertise Overnite’s new policy,
telling Heaton that he would tell all the employees that they
were going to get new equipment, and that would make every-
body happy. Woody told at least three-fourths of the employ-
ees. And Overnite followed up on all its promises, delivering to
the service center, starting immediately after these events and
before the election, everything on Woody’s list, except the dock
vacuum, and repairing the items that he had complained about.
Several other allegations of the complaint dealt with implied
promises of changes for the better. After one of the mandatory
meetings, Mincks and two other employees stayed to voice
their concerns and complaints about seniority and pensions to
Edwards and Roanoke Service Center Manager Jerry Galli-
more. Edwards responded that a lot of the problems that the
employees were expressing had been raised at other service
centers, that Overnite knew of some of those problems, and
Overnite “was working on resolving some of the problems.”
Mincks knew of Overnite’s campaign centering on “Give Jim a
Chance” about the second or third mandatory meeting when the
slogan appeared on hats and T-shirts. It also arose in another
conversation with Edwards after the first meeting. Edwards
asked to see Mincks and told him about all the changes that
Douglas had promised Edwards would come about and what
Overnite was going to do for the employees. Edwards believed
Douglas (that was the reason that Edwards was not going to
retire) and, as a result, thought that the employees ought to back
off from what they were doing. The employees should “give
him a chance” and give him a year to do what he says he’s
going to do. If, after a year, it did not work out, then Overnite
“deserve[s] what they get.”
Edwards’ promises, albeit in the abstract, were made to in-
fluence the results of the election and to discourage the em-
ployees from their support of the Union. What Heaton and Fain
did was not so implied and indirect. Rather, they openly solic-
ited the complaints of the employees, turned Woody from his
support of the Union by promising to correct what was trou-
bling him and the rest of the employees, and then corrected
within days the inaction of up to 4 years. They bought or re-
paired equipment and added hours to one driver’s route. That
cannot be legitimized by Respondent’s defense that it was
merely making normal repairs and capital improvements. There
was nothing normal about what Respondent did. Nor were the
improvements made to benefit customers. The impetus for the
purchases and repairs was the employees’ petition for represen-
tation.59 I conclude that Respondent violated Section 8(a)(1) of

59 Gallimore testified that the motor began smoking excessively a
month after he first arrived in Parkersburg, which would place the event
in March; and it was Heaton who had the motor replaced. Even if that
were true, Gallimore did nothing to fix the problem, nor did Heaton
the Act by soliciting complaints, making implied and direct
promises, and resolving grievances, all in an attempt to influ-
ence the results of the election.
E. Nashville
In early March 1995, then service center manager, Lonnie
Lane, held a meeting with a group of employees. During the
course of this meeting Lane asked the employees to tell him
their problems that they thought would be solved by having a
union, that “we could talk it out and we didn’t need [any] out-
side in[ter]ference.” The employees raised issues of seniority
rights and favoritism. The Union, Lane said, could not guaran-
tee to fix them. He blamed many of Overnite’s problems on
Boswell, who had been fired, and said that Douglas, a “people
person,” was now leading Overnite and asked the employees to
“give Jim a chance.” A similar conversation took place about
March 23, when Gary McGuire, then Overnite’s district human
resource manager, and Lane met with Ben Lay, who was wear-
ing a union shirt and hat, and McGuire and later Lane asked
him why he was supporting the Union. Lay could not recall his
answer precisely but answered Lane that he thought that the
employees needed representation to keep what they had and not
lose anything. McGuire asked him “if [he’d] wait and give Jim
Douglas a chance, to wait a year and the union would be there
after that year.” McGuire also asked Lay what he thought of a
tape of a portion of a Ron Carey interview that had been played
at one of the mandatory meetings. Lay answered that he
“thought the tape sucked, . . . that he [Knoxville, Tennessee
service center manager Tony Sneed] should have played the
whole tape not just part of it.”60 The final alleged violation was
by Heaton, who, on March 27, asked Shelor if he had any com-
plaints or gripes about Overnite and stated that, in light of the
fact that Shelor had been with the Company for 22 years, he did
not understand why Shelor was wearing a Teamsters’ hat and
supporting the Union.
The complaint alleges that these conversations constituted
the solicitation of grievances from employees and that
McGuire, in conveying the “Give Jim a Chance” slogan, by
implication promised to address the employees’ concerns. Re-
spondent contends, however, that its solicitation of grievances
was part of its past practice and that it may continue doing so,
relying on Recycle America, 308 NLRB 50, 55–56 (1992).
Unlike that case, there is no evidence here of any past practice,
unless one considers Heaton’s normal practice of asking em-
ployees how things were going and ending his brief encounters
with employees by saying that in case they had any problems,
they should telephone him. Here, however, the solicitation was

testify, so there is no way of knowing whether Gallimore’s testimony
was accurate. I believe Woody, who, when he testified, was no longer
employed by Overnite, but had left to obtain a better job. I find, then,
that it took Woody’s complaint to Heaton to resolve the issue, a finding
which is really not inconsistent with Gallimore’s testimony.
60 The complaint alleges that McGuire interrogated an employee, but
the General Counsel did not brief the allegation. If the conversation
with Lay is alleged to violate the Act, I dismiss it. See the discussion of
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel &
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985), in Overnite I.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
specifically aimed at resolving the grievances and problems
that brought about the union organizing campaign and, at least
in the first two conversations, coupled with implied promises
that Douglas would resolve those problems from the Overnite’s
Richmond headquarters. I conclude that Overnite violated Sec-
tion 8(a)(1) of the Act regarding the first two conversations.
The third, between Heaton and Shelor, although merely a minor
interrogation of a union adherent without any hint that what
Shelor replied would be cured, continued the earlier implied
promises and also violated the Act. Flexsteel Industries, 316
NLRB 745, 745 fn. 1 (1995), enfd. mem. 83 F.3d 419 (5th Cir.
1996).
On March 1, 1995, Lane mailed a form letter to all Nashville
service center employees, which stated, in part, as follows:

FACT: Negotiations are a two-way street. Each side
tries to make their best deal in negotiations. The union will at-
tempt to negotiate a union security clause (you must join the
union or lose your job), dues checkoff (dues money automati-
cally deducted from your paycheck . . . .

That letter was followed by a mandatory meeting on March 14,
during which Sneed read the following:

[A] Teamster victory could possibly cost you your job— in
one of three ways: . . .
Second, if the union is successful in negotiating a un-
ion security clause, Overnite could be forced to fire you if
you became delinquent in your dues payments to the un-
ion.

Both the March 1 letter and Sneed’s speech threaten that
employees could lose their jobs. The message underlying this
threat, as the General Counsel correctly contends, was that
employees who desired union representation to ensure greater
job security would succeed only in giving Respondent addi-
tional grounds to terminate their employment. However, Ten-
nessee is a “right to work” State. Union-security provisions are
unenforceable, and Respondent would violate the law if it dis-
charged an employee for failure to pay dues. Accordingly, Re-
spondent’s threat that employees could lose their jobs as a re-
sult of the application of a union-security clause had no factual
basis and violated Section 8(a)(1) of the Act.61
Some of the allegations relate to McGuire’s discussion of
Respondent’s 401(k) plan and the alleged promise of benefits. I
find that neither Shelor nor Lay fully comprehended what
McGuire was saying and that their general factual perceptions
and recollections were inaccurate. Rather, the following consti-
tute the facts: On March 23 and 24, 1995, McGuire was speak-
ing at a mandatory meeting about the possibility of withdraw-
ing contributions made to an employee’s 401(k) plan to provide
for the education of the employee or employee’s spouse or
children. Shelor interrupted, telling the other employees what
McGuire said was not true, that he had previously tried to with-
draw 401(k) funds, but he did not get the amount that he was
entitled to. McGuire said that he knew nothing about Shelor’s

61 Respondent’s reliance on New Process Co., 290 NLRB 704
(1988), and John W. Galbreath & Co., 288 NLRB 876 (1988), is mis-
placed. Neither decision arose in a “right-to-work” jurisdiction.
prior problem and that he did not discuss specific individual
problems at group meetings, but he would be glad to talk to
Shelor and look into the problem. After the meeting, McGuire
E-mailed Overnite’s director of compensation and benefits, Syd
Spencer, asking about Shelor’s previous attempt to withdraw
his 401(k) funds. The next day, before McGuire had received
any information from Spencer, he saw Shelor, who explained
that he had applied for his 401(k) funds in 1993 to pay for his
daughter’s college tuition, but had not received all the funds to
which he was entitled. McGuire said that he would look into
the issue.
A few days later, McGuire reviewed the information relating
to Shelor’s 401(k) fund with Spencer, and they determined that
Shelor had received about $140 less than he should have. This
was caused by the fact that Overnite funded the Plan only quar-
terly, so at the time that Shelor applied, not all of Overnite’s
contributions had been credited to his account. The following
Monday, March 27, McGuire returned to Nashville and spoke
with Shelor, explained the mistake, and told him that he could
file a new hardship application for 401(k) funds, based on his
daughter’s need for tuition in 1995, not 1993; but Overnite
could not correct the 1993 mistake. That same day, Shelor
filled out an application for a new hardship withdrawal for
401(k) funds, showing his daughter’s 1995 class schedule, and
submitted it to Overnite. The 401(k) plan committee approved
Shelor’s application in May 1995, after the Nashville election
was over. As a result, contrary to the allegations of the com-
plaint, McGuire never promised Shelor access to his 401(k)
funds or to remedy Shelor’s grievance.
At another mandatory meeting, Lay asked McGuire why
Shelor had not been allowed access to his 401(k) funds when he
had previously applied. McGuire told Lay that he would not
discuss another employee’s benefit issues; but, if Lay had gen-
eral questions about the 401(k) plan, he would talk to him after
the meeting. The next day, McGuire found Lane and Lay al-
ready talking about Overnite’s 401(k) plan. Lane told Lay that
McGuire could answer Lay’s questions. Lay then asked
McGuire general questions about how employees could get
their money out, and McGuire answered Lay’s questions. Lay
never asked McGuire to obtain his 401(k) funds, and McGuire
never told Lay that he could obtain Lay’s funds for him. Lay
had no hardship for which he needed his 401(k) funds and had
not applied for and did not even want access to his 401(k)
funds. In these circumstances, there is no conceivable reason
that McGuire should have promised Lay that he could have all
his 401(k) funds, a promise that would have been completely
contrary to the regulations governing the funds. I dismiss this
allegation, too.
Employee J. C. Tidwell testified that on March 27, Fain said
to him, “I feel like slapping your jaw because you are wearing
that shirt and cap,” referring to the Teamsters’ insignia that
Tidwell was wearing. Tidwell then asked Fain to give him the
opportunity to remove his eyeglasses because it was against the
law to hit someone wearing glasses. Fain turned and walked
away, and Tidwell returned to his work. Tidwell stated that
several employees had seen this exchange and asked Tidwell
what had happened, and he told them. None of them testified.
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1113
I do not know of any reason that Tidwell would fabricate this
testimony. On the other hand, I was impressed by Fain’s testi-
mony and demeanor and have no reason to believe that he, an
attorney and a senior official of Overnite who was clearly
aware that the Teamsters would file charges regarding activities
far less serious that the one of which he was accused, would
possibly engage in such conduct. Appearances may be deceiv-
ing, but, if Tidwell were told what he said he was told, he was
told by someone other than Fain. On the basis primarily of
demeanor evidence, but also because of the lack of corrobora-
tion, I dismiss this allegation.
On March 29, the day the election was held, there were sev-
eral dozen persons in front of the Nashville service center,
some of whom identified themselves or were identified as em-
ployees from Respondent’s other terminals. As Shelor walked
past, one told him that, once the Union got voted in, there
would be no working over 40 hours and no overtime. In other
locations, Overnite encouraged employees from other terminals
to come to its service centers on the day before and the day of
the Board-conducted election. Overnite’s position statement
acknowledged that it reimbursed these out-of-town employees
for hotel and rental car costs in Nashville. Overnite assuredly
did not have these employees present in Nashville for any other
purpose than to support the Company. I find that these persons
were Overnite’s agents and that Overnite is responsible for their
comments either because they are its agents or that they had the
apparent authority to act on Overnite’s behalf. The comment
complained of threatened that Respondent would discontinue
assigning overtime in the event that the Teamsters won. That
constitutes a threat of loss of income, discouraging employees’
support of the Teamsters in violation of Section 8(a)(1) of the
Act. Two other of the demonstrators told Phil not to vote for the
Union but to “give Jim a chance,” a repetition of the illegal
promise of unspecified benefits made by Respondent during the
election campaign. I find that this promise also violates Section
8(a)(1) of the Act.
F. Rockford
In January or February 1995, Nickolas Kapotas, Patrick
McKee, and Earl Williams were preparing to leave for the day,
and city dispatcher, Brian Ross, walked up to them. One of the
employees asked Ross what he thought would happen in the
event the employees voted in the Union. Ross said that he
thought that Respondent would probably close the service cen-
ter.62 Ross did not testify. I conclude that Respondent’s threat
to close Respondent’s facility violated Section 8(a)(1) of the
Act. Unlike Standard Products Co., 281 NLRB 141 (1986),
modified on other grounds 824 F.2d 291 (4th Cir. 1987), the
principal authority relied on by Respondent, Ross, one of only
two supervisors at the Rockford service center, did not couch
his answer as his personal opinion, and not as a spokesperson
for management. The employees were warranted in finding his
statement as a threat.

62 Williams did not testify to this incident at all. Kapotas’s recollec-
tion was less than clear. His testimony changed when he was shown his
investigatory affidavit on cross-examination. I do not credit his recol-
lection, unsupported by the other two employees, that Ross also stated
that service center manager Dave Radnoti would lose his job.
Three days after the Union’s representation petition was
filed, February 10, then service center manager, Dave Radnoti,
met with five–six drivers and read Douglas’s letter announcing
the 55 cents wage increase and asked the drivers what they
thought of the raise. Someone asked if the raise had anything to
do with the Union, and Radnoti answered that it did not. But, if
the raise indicated what Douglas was going to be, that was a
good indication. He added that Douglas was going to make
some changes, but Radnoti could not tell them what changes.
The employees then raised some problems they were having,
including one involving their routes. Radnoti said that he did
not know that the employees had all these problems, and he
would look into them. He hoped that the employees would
come to him any time to solve these problems. (There is no
record evidence that Radnoti ever rectified the problems that
were raised at this meeting or even discussed them again with
the employees.) Despite Radnoti’s disavowal, this meeting was
arranged to praise the Company and to convince the employees
to abandon the Union. Thus, Radnoti encouraged the employ-
ees to come to him with their problems, promised to look into
them, and promised that Overnite would make changes, all in
violation of Section 8(a)(1) of the Act.
About 2 or 3 weeks before the March 28 election, on sepa-
rate days, Radnoti rode with city drivers Kapotas and Williams
all day (8–10 hours), trying to persuade them to vote for the
Company.63 Radnoti told Kapotas that Boswell was not good
for the Company, Douglas was new, he was starting out fresh,
and Kapotas should give him “a chance.” Radnoti asked Kapo-
tas what he thought of the recent 55 cents per hour wage in-
crease that Douglas had announced in his letter of February 10.
Kapotas said that it was “nice,” but Overnite should also pay
overtime to its employees. Radnoti replied that Overnite would
never do that, because it had to remain competitive. It was a
matters of economics. If Overnite had to agree to pay overtime,
it was cheaper to use more trucks and hire more drivers and pay
them straight time, rather than pay time and one-half to its em-
ployees. When Kapotas continued not being happy about Over-
nite’s wages, Radnoti reminded him that the wages were “fro-
zen” and the increase was not being paid in locations where the
Teamsters had won elections: “[W]e got ours because we . . .
didn’t have the union in.” At service centers where the employ-
ees had voted in the Union, wages were a subject of negotia-
tions; and the parties there had to negotiate any increases. Ka-
potas also testified that Radnoti told him that if he (Kapotas)
did not like working for Respondent, he could probably find a
job somewhere else. Kapotas’s precomplaint investigatory affi-
davit purportedly related his full conversation with Radnoti, but
omitted this threat. I credit Radnoti’s denial that he made any
threat and dismiss this allegation. I find that Radnoti’s praise of
Douglas for the increase and urging that he be given a chance,
especially when considered in light of Radnoti’s earlier meeting
63 Kapatos’s memory was not particularly accurate, and Williams’
testimony had its faults, too. They were generally reliable; and I have
generally credited them, but not everything that they testified to. I have
generally discredited Radnoti, but find that some of what he testified to
was truthful. In general, this narration constitutes an amalgam of the
testimony of the witnesses and what I deem probably occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114
with the employees, is a promise of further, albeit unspecified,
benefit increases to dissuade Kapotas from supporting the Un-
ion, in violation of Section 8(a)(1) of the Act. As to the other
allegations of the complaint, with the way Kapotas related this
conversation and Radnoti denied it, I find nothing in this con-
versation that violated the Act.
Radnoti’s daylong conversation with Williams was filled
with some of the same talk. Radnoti used the same sales pitch
of “give Jim a chance,” pointing out the $1.05 total raise that
Overnite had given or announced in the first 2 months of 1995
as a demonstration of Douglas’s good deeds. He said, “[A]in’t
that good.” Boswell gave only 50 cents per hour, but Douglas
raised wages another 55 cents. Williams said that, if Overnite
paid time and one-half, the union campaign might not have
started. Radnoti said that overtime impacted on Overnite’s abil-
ity to compete with other carriers that did not pay overtime; that
Overnite would not pay time and one-half; and that, if Overnite
were forced to pay, the employees would not be able to work
overtime; but the employees would be brought back to the ter-
minal after 39-1/2 hours. Williams said that Overnite was not
paying it now and added: “I guess we’ll just have to sit back
and wait and see what was going to happen.” At some point
during the day, Radnoti said that Douglas was going to make
some other changes, but he could not tell Williams what they
were. As to this last statement, I conclude that Radnoti specifi-
cally promised further beneficial changes to dissuade Williams
from supporting the Union, in violation of Section 8(a)(1) of
the Act. I also conclude that Radnoti committed the same viola-
tion found above, regarding Kapotas. I find no other violations
alleged in the complaint.
At one of the mandatory meetings, Mike Knight, then the re-
gional director for Respondent’s central region, told the em-
ployees that Douglas would “untie” the hands of the local man-
agers and let them run their service centers; that Douglas had
taken the governors off the trucks, allowing the road drivers,
who are paid by the miles that they drive, to drive more miles
quicker; that Douglas had already announced the additional 55
cents increase and that, if this demonstrated the type of person
Douglas was, then employees should give him a chance. A city
driver asked whether the governors could be taken off the city
trucks. Knight said he had not heard of such a complaint before,
and Radnoti asked why employees would want that. The driver
said that it would enable them to travel faster because the city
drivers also had to drive the “big roads,” and they could get
back to the terminal and home quicker. Both Knight and Rad-
noti told the employees that they would look into the matter.
Although Radnoti expressly stated that he could make no prom-
ises and could not rectify any grievances during the union or-
ganizing campaign, his statement that he would look into the
complaint, coupled with Knight’s urging Douglas be given a
chance, left the logical inference that Radnoti’s looking into the
matter would result in action after the election. Knight’s re-
minder to the employees of the wage increase and the revision
of the speed limit, coupled with asking them to give Douglas a
chance, implied that Overnite would provide additional, al-
though unspecified, future benefits in violation of Section
8(a)(1) of the Act. National Micronetics, 277 NLRB 993
(1985), relied on by Respondent, did not involve any earlier
unlawful conduct, such as the wage raise and permission to
drive at higher speeds, on which Knight’s new promise was
predicated.
G. Bensalem
Bobby Edwards said at a meeting in mid-December that, just
because employees vote for a union, nothing changes. The un-
ion still has to bargain for a contract. Overnite had to bargain in
good faith, but Overnite would not sign a contract. All the em-
ployees needed to look at was Overnite’s bargaining experience
in Chicago. The employees there had a union for years and still
did not have a contract.
In so finding, I do not believe the testimony of Larry Tad-
lock, Respondent’s then safety supervisor and current (as of the
hearing) human employee relations manager, who said that he
had been with Edwards on a number of campaigns and that
Edwards, who never testified at any of the hearings, said only
that Respondent would not sign a contract that would put Over-
nite out of business. Although Tadlock said that he was not
paying attention, he testified that Edwards probably mentioned
Chicago to the Bensalem employees, because he mentioned in
every other campaign that he had been with him that Overnite
had bargained in good faith with the Union in Chicago for 12 or
13 years, and Overnite was challenged once and the Board
ruled in Overnite’s favor. Furthermore, bargaining had taken
several years and that the parties had arrived at a local contract,
but the International turned it down. Edwards said, according to
Tadlock, at the meeting with the Bensalem employees, “[W]e
would be glad to bargain in good faith, and we would sign a
contract if it was acceptable by both parties.” If Edwards made
these statements, Tadlock’s experience is unique.64 In Overnite
I, I found that Respondent’s and, in particular, Edwards’ lack of
narrating the full story of what occurred at the Chicago negotia-
tions was what got Respondent into trouble. Tadlock’s testi-
mony supplies some of the story that was missing, perhaps
because he read Overnite I, and is so utterly inconsistent with
what I heard narrated before, and in this proceeding, too, that I
find that it simply did not happen. I discredit him, therefore,
and find that Edwards threatened the futility of bargaining in
violation of Section 8(a)(1) of the Act, as he had not only
throughout this campaign, but before.65 Overnite Transporta-
tion Co., 296 NLRB 669 (1989), enfd. 938 F.2d 815 (7th Cir.
1991).
Employee Thomas McGinley testified that in early February
Tadlock spoke at a mandatory meeting about seniority and
responded, “[Y]es” in answer to an employee’s question
whether, if the Union won, other people could come in and take
the jobs of the employees. Tadlock explained that, if there were
a layoff at another facility or work was slow, union people who
had more seniority than Overnite employees could take their

64 His testimony that whatever Edwards stated was in response to an
employee’s question was not unique. Respondent’s witnesses generally
testified that Chicago became a subject only as a result of questions and
was never first raised by Edwards, testimony that I have previously not
believed—and still do not.
65 Thus, even though the General Counsel presented only one wit-
ness to support this testimony, Edwards’ actions throughout the cam-
paign were so consistent that no further corroboration is necessary.
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1115
jobs. Jim D’Alessio, Overnite’s regional vice president for the
northeast region, who was at that meeting, allegedly confirmed
Tadlock’s answer. McGinley’s testimony was not supported by
any other witness. Tadlock denied that McGinley asked him
anything, but testified that at one of the meetings someone
asked about whether there would be people displaced if the
Union were voted in, to which Tadlock answered that every-
thing would have to be negotiated. Bensalem service center
manager Edward Warters, who was present at all of these meet-
ings, was never questioned about this allegation. Although I
have considered the fact that no one corroborated McGinley’s
testimony, I nonetheless, in light of my disbelief of Tadlock’s
narration of Edwards’ conduct, as well as the discrepancy be-
tween his initial denial that he advised the employees that “sen-
iority would be within the bargaining unit” and Respondent’s
position statement, do not believe his denial of this allegation,
either, and conclude that Respondent violated Section 8(a)(1) of
the Act.
The complaint alleges that Respondent’s letter to its employ-
ees, dated February 8, 1995, unlawfully threatened employee
with closure of the Bensalem facility and the inevitability of
strikes and indicated that bargaining would be futile. In part,
the letter66 read:

1. The Teamsters Can Guarantee Nothing But Trouble.

People very often have the wrong impression as to
what a union can do. Often they are told, and often they
believe, that if they vote a union in, then automatically
they will receive higher pay and benefits of various kinds.
We understand that some of the employees who are push-
ing for the Union have already begun making promises
that if it is voted in there will be immediate pay increases
and benefit changes. Such an idea as that is absolutely in
error. Voting for the Teamsters Union will not automati-
cally bring any wage increases or other benefits to you.
Let’s look at a couple examples:
Chicago. In 1982, our local drivers, after being prom-
ised all sorts of pay increases and benefits, voted the
Teamsters union in. And two years later, when their
wages, benefits and working conditions were no different
from those of any other local drivers in the Company, the
Union called them out on strike.
The strike lasted for sixteen months during which time
there were countless fire bombings and other acts of vio-
lence and destruction, but the Company did not yield to a
single demand of the Union. Today, eleven years later, the
wages, benefits and working conditions of the Chicago lo-
cal drivers are still the same as those of every other city
driver in the Overnite system.
. . . .
The only way the Teamsters can try to bring pressure
on the Company is to call you employees out on strike.
However, we want everyone to understand that we have no
intention of giving in to any strike pressure.
. . . .

66 This letter is quoted in Overnite I, where it is referred to as a letter
from Overnite to its Philadelphia employees.
You may ask, if the Union cannot force the Company
to do anything it does not wish to do, why is the Company
opposed to the Union?
The answer is that our whole future here in Philadel-
phia—expanding and making a success of this operation—
increasing your satisfaction with your work—
strengthening your security in your job—all definitely de-
pend upon our pulling together and not pulling apart. The
close relationship we are trying to build is absolutely es-
sential. Whatever tears down that sort of relationship will
prove fatal in the long run.
We have a new President at Overnite and we are defi-
nitely trying to listen and to solve problems with you. Give
us that opportunity. . . .
. . . .

5. The Teamsters Can’t Provide Job Security.

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

Overnite I found a number of unfair labor practices in this let-
ter:

[T]he letter . . . threatened that bargaining would be futile by
telling the employees that local drivers at its Chicago service
center had earlier voted for representation; that, despite a 16-
month strike at the Chicago facility, “the Company did not
yield to a single demand of the Union” . . . ; and that the
wages, benefits, and working conditions of the Chicago local
drivers were still the same as those of every other Overnite
city driver. [It] repeated the threat of the inevitability of strikes
and further threatened that the Teamsters’ would tear down
the close relationship between Overnite and its employees that
“will prove fatal in the long run” and that a Teamsters’ vic-
tory ran “the risk of tearing apart everything you now have.”
. . . Taken together, the message was that a Teamsters’ victory
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1116
would be fatal to Overnite and that the Teamsters in any event
could not deliver on its promises, but Respondent would.67

Finally, the last-quoted paragraph of the letter, specifically
naming Teamsters’ companies that had gone out of business
and indicating that “more than 150 unionized carriers” had
gone out of business and threatening that there would be “more
in the future” merely attempted to put the blame on the fact that
the Teamsters or the fact that the Companies were “unionized”
caused the Companies to go out of business. This is a written
“Graveyard Poster.” I conclude that the paragraph constitutes
an implicit threat that Overnite would close, too, if the Team-
sters won the election. Eldorado Tool, 325 NLRB 222 (1997).
A number of the unfair labor practice allegations involved
the additional threats that, if the Union were voted in, Overnite
would lose business. At a mandatory meeting about 2 weeks
before the election, Warters threatened that Overnite could or
would lose two of its customers, Cardone Industries and
Schwartz Paper, if the employees voted in the Union. These, he
explained, were big accounts for his terminal; and both custom-
ers had said that they would not deal with union carriers be-
cause they were afraid of a strike. At a later mandatory meet-
ing, D’Alessio said that, if the employees voted to let the Union
in, “we would lose business,” according to employee Robert
Sheppard and corroborated by Warters, or that Overnite could
lose as much as 30 or 40 percent of its business. D’Alessio did
not support his threat with any fact.
Another concerned First-Line Supervisor Mark Romanoski,
a dock supervisor. The day before the election, Romanoski told
employee John Tyciak that he could see by what Tyciak was
wearing (a union pin) what his vote was going to be. Ro-
manoski asked Tyciak to “give the new guy [Douglas] a
chance,” adding that things were going to get better. He also
stated that he did not want to see what happened in Kansas City
happen at Bensalem. At Kansas City, the service center lost 40
percent of its business. When, the same day, Romanoski told
employee Mike Cottrell that Overnite would lose business if it
went union, Cottrell told him that he was “full of it.” Ro-
manoski insisted that Kansas City had lost half of its business
because the Union had won. Romanoski told employee Gerald
O’Donnell that he could not believe that the employees still
wanted the Union, asking, “Did you hear what happened in
Kansas City?” O’Donnell said that he had, and Romanoski said
that Overnite had lost 40 percent of its business because the
employees had voted in the Union. Sheppard, who was walking
by, asked who he had heard that from and said that was “bull-
shit.” If it were so, Respondent would have posted literature on

67 The cases relied upon by Respondent, Louis-Allis Co., 182 NLRB
433 (1970), and J. R. Wood, Inc., 228 NLRB 593 (1977), are distin-
guishable, because the employer did not state or imply that union repre-
sentation would inevitably lead to strikes or loss of jobs. Thus, in
Louis-Allis Co., supra, the employer pointed out that plant closings
were not confined to unionized plants. In Wood, supra, the Board found
that the employers merely asserted that they would not yield under
strike pressure to unreasonable demands, 228 NLRB at 593–594. Over-
nite’s letter implied that it would not bargain and threatened that the
only way that the Union could possibly obtain anything was to strike,
and that would do no good because Overnite would not bend under a
strike.
the bulletin board. Sheppard told other employees that the ru-
mor was false. Cottrell was the only employee who testified
that Warters made the same statement about Kansas City, al-
though Warters did not mention a percentage of the business
that was lost, at a meeting and in two or three casual conversa-
tions. I credit Warters’ denial, because of the lack of corrobora-
tion of Cottrell’s testimony. If Cottrell were accurate about the
number of Warters’ repetitions, surely one of the other employ-
ees who testified would have recalled such a statement. On the
other hand, I do not credit Warters’ testimony that he made
every effort to dispel the rumor, telling employees who raised
the subject not to believe it. Surely, someone would have heard
him say that, yet his testimony was uncorroborated.
Warters testified that all he told the employees was to con-
sider the possibilities. Overnite was nonunion and publicized
that fact. He asked the employees how many customers were
shipping with Overnite because it was nonunion and to consider
that customers had a tremendous concern over Overnite’s
availability to pick up their freight in case there was another
union strike. Cardone and Schwartz were customers because of
an earlier Teamsters’ strike. Perhaps at another meeting, maybe
the same, he told the employees that 30 to 40 to 50 percent of
Overnite’s business was dependent on its being nonunion. The
employees needed to think about the effect of their vote, how
many customers ship because Overnite is nonunion, and how
many would leave as customers.
Even if I fully believed Warters, there is in his statements a
threat that, by voting for the union, customers would leave.
Nowhere in his testimony was there any factual basis for those
statements. At best, Warters was advised that there was a pos-
sibility of concern by the clients, a concern that was never told
by Warters to the employees; but there was nothing to show
that their reaction would be an immediate or automatic deter-
mination to leave Overnite and go elsewhere, once the employ-
ees voted for the Teamsters. Of equal or greater concern is the
fact that Warters did not even know the volume of the business
of Cardone and Schwartz before or after the Teamsters strike,
and his estimate at the hearing of their business was only 20
percent. Thus, his threat that Overnite would lose up to half its
business had no factual basis. In sum, even if I believed him
fully, I would conclude that he violated the Act. I am persuaded
that Warters tempered his testimony and that his threats were
more forceful, as the employees testified. I also conclude that
Romanoski, who did not testify, made exactly the threats that
work would be lost if the employees voted for the Union, as the
employees testified and conclude the Respondent, by Warters,
D’Alessio, and Romanowski, violated Section 8(a)(1) of the
Act.68
In mandatory meetings, Warters discussed what would be
required in collective bargaining. Cottrell testified that Warters
threatened that, if the Union won the election, Overnite would
68 Although both Sheppard and Cottrell did not believe Ro-
manowski, and Sheppard told other employees not to believe him, there
is no evidence that all the employees felt the same way. Indeed, Tyciak
feared, as a recent hire, that he would lose his job. Respondent’s de-
fense that Romanoski was merely spreading a rumor, but not actually
threatening employees, is pure sophistry.
OVERNITE TRANSPORTATION CO. (DAYTON, OHIO TERMINAL) 1117
not give it a contract, but would just walk in, talk for 5 minutes,
and then leave. Overnite had been doing this in Chicago for
years, Cottrell quoted Warters. Warters, on the other hand,
testified that he thought that the employees were convinced
that, once the Union got in, there would be a contract. In an
attempt to disabuse them of that notion, he told them that eve-
rything had to be negotiated, and that could take a long period
of time or a short period of time, that individual sessions could
take 5 minutes or a day or two. Although the Bensalem cam-
paign was one of the early Teamsters’ efforts at organization,
and Respondent did not fully have its entire opposition pre-
pared, I have substantial doubt that Warters said anything more
than what he testified to. Certainly, no other employee heard
what Cottrell heard, and Warters demonstrated candor when he
refused to corroborate Tadlock’s testimony about Edwards,
although Warters was at that meeting. I credit him and dismiss
this allegation.
IV. THE 1996 PRODUCTIVITY INCREASES
Overnite I also concluded that on January 1, 1996, Overnite
committed additional violations of Section 8(a)(5) and (1) of
the Act by unilaterally implementing various “productivity
improvements” and thus changing the terms and conditions of
employment of the employees who had voted in Board-
conducted elections to be represented by the Teamsters, but
Overnite had not yet recognized the Union. That conclusion
also applied to the four units that were the subject of the earlier
Gissel case. Having determined that the Teamsters were enti-
tled to bargaining orders at those four service centers, it fol-
lowed that Overnite should have bargained with the Teamsters
before imposing the productivity improvements. At the earlier
hearing, the General Counsel asked for an order regarding all
the Gissel locations. I withheld an order on the Gissel cases that
are the subjects of this decision. Having now found that the
Teamsters represented a majority at seven of the facilities, I
will recommend that, at the request of the exclusive representa-
tives of the unit employees at Respondent’s service centers at
Dayton, Richfield, Nitro, Parkersburg, Nashville, Rockford,
and Bensalem, Respondent shall rescind in whole or in part the
portions of the productivity package that do not provide wage
and mileage improvements.
The Objections
In order to expedite the hearings, and because almost all that
was left of this proceeding was the determination of whether
bargaining order relief was warranted, I suggested that the
General Counsel consider withdrawing certain allegations of
the various complaints that would in no event support a bar-
gaining order. Allegations were withdrawn that would have, if
found, affected the elections at the Dayton and Chattanooga
service centers. The parties stipulated that, if I did not recom-
mend a bargaining order, or, if I did, and the recommendation
of a bargaining order was not adopted by the Board or was not
enforced by a court of appeals, the Locals shall be entitled to a
new election, without filing a new showing of interest. I, there-
fore, will not address specifically the objections relating to
those locations, except that, in all locations, the objections to
the elections included one or more of the following: the unlaw-
ful announcement on February 10, 1995, and the implementa-
tion on March 5, 1995, of the wage and mileage increase, the
reinstitution of the safety bonus, and the increase in the miles
that drivers could travel and the speed they could drive at. I find
that conduct alone to be objectionable and reason for setting
aside the election.
Specifically, Objections 1, 2, 3, 4, and 5 concerning the
Richfield service center track a number of the unfair labor prac-
tices found and, to that extent, I find that the objections are
meritorious. Objections 6 and 7 appear to deal vaguely with
some of the conduct found above, but to that extent are duplica-
tive, and to the extent that they allege different conduct, that
conduct was not proved; and the objections are not sustained.
Objection 1 concerning the Nitro service center is sustained, to
the extent that it alleges conduct which I have found violated
Section 8(a)(1) of the Act within the critical preelection period,
after the filing of the petition. Ideal Electric & Mfg. Co., 134
NLRB 1275, 1278 (1961). No evidence was adduced to support
Objections 2 and 3, and they are not sustained. Objections 1
and 5 concerning the Parkersburg service center are also sus-
tained to the extent that they mirror the unfair labor practices
that I have found. Objections 1(a), 2(b) and (c), and 10 con-
cerning the Nashville service center, to the extent that I have
found unfair labor practices, are sustained. I dismiss Objections
1(c), 3, 5, 7, and 8. They were not proved or not even pre-
sented. Objections 1–4 concerning the Rockford service center
are sustained to the extent that they mirror the unfair labor prac-
tices that I have found. Objections 1, 2, and 4 concerning the
Bensalem service center are sustained to the extent that they
mirror the unfair labor practices that I have found. I dismiss
Objection 3, which was not presented.
REMEDY
The organizing campaigns at the seven service centers took
place in late 1994 and early 1995. Petitions for elections were
filed between January 4 and February 15, 1995, and the elec-
tions were held between February 14 and April 19, 1995. On
February 10, Overnite announced its unlawful wage and mile-
age rate increases and reinstatement of safety dinners and
awards. Shortly after, it changed the speed limit and number of
miles per dispatch for the road drivers. The increases took ef-
fect on March 5, and about the same time Overniter announced
that employees at the nonunion facilities would receive no in-
creases, as representatives of Overnite had been advising em-
ployees for weeks. Overnite I concluded that the increase was
sufficient by itself to warrant Gissel bargaining-order relief.69

69 Respondent contends that, because 22 of Local 24’s authorization
cards (out of 90) in Richfield are dated on or after February 10, “there
is every reason to believe that a free and fair election can be held at
Richfield where the wage increase announcement was outside the criti-
cal period and the Union was able to secure 22 additional cards after
Overnite announced the wage increase.” The fact that the union cam-
paign continued its momentum is hardly persuasive proof that Respon-
dent’s actions did not have their desired effect over the period culmi-
nating with the election. By election day, the employees had the in-
crease in their pocket and were subject to the mandatory meetings
where Overnite’s new leadership was praised and asked to be given a
chance. And, of course, the Union lost the election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118
The unfair labor practices found in this decision support that
recommendation, sometimes minimally, and sometime substan-
tially. In common with the earlier proceeding, there were no
unlawful discharges.70 But there were threats of closing and
loss of business, “hallmark” violations, and threats that the
election of the Teamsters would be futile, because one way or
another Overnite would not bargain in good faith. And there
were numerous examples of Overnite’s solicitation of griev-
ances, promises that the terms and conditions of employment
would get better, and actual resolution of grievances to sway
the feelings of its employees.71
Respondent contends that bargaining orders should not be
granted because the 1995 increase took place 4 years ago. But
the Board has been consistent in its approach, until relatively
recently, and then only because of the “particular facts” in that
case, Research Federal Credit Union, 327 NLRB 1051 (1999),
that: “[T]he Board traditionally assesses whether a Gissel bar-
gaining order remedy is warranted as of the time of the respon-

70 There were numerous complaints of discharges, some at the con-
tested service centers, but, without exception, all of those were settled,
many during the spring and summer of 1998.
71 In addition, the General Counsel urges that certain conduct at the
time of the Richfield election and shortly after show that Respondent’s
violations continue—that Respondent was out to get a leading union
activist, Linda Moran, with the participation of night dispatcher Caro-
lyn Sielski (“[T]he bitch is mine”) and the approval of service center
manager Ruediger and Human Resources Manager Bias. Sielski, who
was no longer employed by Respondent, denied the allegation; and
Respondent gathered ample proof to show that Glen Pressley, the ac-
cuser, intensely disliked and threatened to get back at Overnite for what
he perceived the Company had done to him. Although his testimony
had appeal, there was not enough here, especially because the Moran
case settled and I had no feeling that Respondent concocted a case
against her. Furthermore, many of the witnesses presented by Respon-
dent had no interest in the outcome, while there was a motive for
Pressley’s testimony. I do not credit it.
dent’s unfair labor practices. Historically, the Board has not
considered subsequent employee or managerial turnover in this
context. Highland Plastics, Inc., 256 NLRB 146, 147 (1981).”72
Furthermore, the fact that there has been delay is due in good
part to the time that it takes to litigate these matters. This has
been a lengthy proceeding. Since Overnite I, hearings have
been held in nine cities. Counsel wanted time to prepare. The
spring and summer of 1998 was devoted to the preparation for
hearing of a mass of 8(a)(3) proceedings in other cities. Mo-
tions to quash subpoenas and for other relief were filed in al-
most every location. Now, an additional 5200 pages of tran-
scripts and 600 pages of briefs have been filed, as well as nu-
merous motions and replies. The more alleged violations of
law, the longer the hearing and the longer the delay. Employees
should not be held to lose their rights to representation merely
because an offending employer determines to commit more
violations, rather than less, and thus lengthens legal proceed-
ings, rather than shortens them.
Accordingly, I will recommend that, on request, Respondent
bargain with the seven Locals that are the exclusive representa-
tive of its employees at its Dayton, Ohio; Nitro, West Virginia;
Richfield, Ohio; Parkersburg, West Virginia; Nashville, Ten-
nessee; Rockford, Illinois; and Bensalem, Pennsylvania service
centers. At the request of the exclusive representatives of the
unit employees there, Respondent shall rescind in whole or in
part the portions of the productivity package that do not provide
wage and mileage improvements.
[Recommended Order omitted from publication.]

72 For this reason, I deny Overnite’s May 3, 10, 20, and 21, 1999
motions to supplement the record concerning changes of employees
and management at the Dayton, Chattanooga, Richfield, Nashville, and
Bensalem service centers. In addition, “There must be an end to litiga-
tion in Labor Board cases.” L’Eggs Products v. NLRB, 619 F.2d 1337,
1353 (9th Cir. 1980).