Vincent/Metro Trucking, LLC

National Labor Relations Board - Board Decisions

Jul 13, 2010

355 N.L.R.B. 289 (N.L.R.B. 2010)

VINCENT/METRO TRUCKING, LLC
355 NLRB No. 50
289
Vincent/Metro Trucking, LLC and United Food and
Commercial Workers Local 789. Case 18–CA–
18935
July 13, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On June 25, 2009, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Respondent
filed exceptions and a supporting brief.
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 exceptions1 and brief and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.
REMEDY
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), we find that an affirmative bargaining
order is warranted in this case as a remedy for the Re-
spondent’s unlawful withdrawal of recognition. The
Board has held that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) refusal
to bargain with the lawful collective-bargaining represen-

1 No exceptions were filed to the judge’s recommended remedy. No
exceptions were filed to the judge’s dismissal of the allegation that the
Respondent violated Sec. 8(a)(5) and (1) of the Act by failing to exe-
cute a collective-bargaining agreement, or to the judge’s finding that
the Respondent violated Sec. 8(a)(5) and (1) by violating the parties’
Board-approved settlement agreement.
2 We agree with the judge’s finding that the Respondent violated
Sec. 8(a)(1) of the Act by soliciting employees to sign affidavits, which
the Respondent initiated, prepared, distributed, and collected, stating
that the employees no longer wanted the Union to represent them. An
employer may not “initiate a decertification petition, solicit signatures
for the petition or lend more than minimal support and approval to the
securing of signatures . . . .” Sociedad Española de Auxilio Mutuo Y
Beneficencia de P.R., 342 NLRB 458, 459 (2004), quoting Eastern
States Optical Co., 275 NLRB 371, 372 (1985). In addition, the record
shows that the Respondent ordered at least one of its employees (Xiao
Dong Wang) to sign the affidavit.
Member Schaumber acknowledges that the judge’s findings in re-
gard to the employee affidavits and the Respondent’s subsequent with-
drawal of recognition from the Union are consistent with extant Board
law—see e.g. Hearst Corporation, 281 NLRB 764 (1986), affd. mem.
837 F.2d 1088 (5th Cir. 1988). Member Schaumber applies extant law
to decide this case and he joins in finding that the Respondent unlaw-
fully withdrew recognition from the Union. In his view, however, even
unfair labor practices such as those in this case might not taint a peti-
tion (or other expression of employee sentiment such as the affidavits
in this case) if there was affirmative evidence that a majority of unit
employees both signed the petition (or affidavit) and were unaffected
by the unlawful conduct. There was no such showing in this case.
tative of an appropriate unit of employees.” Id. at 68.3
In several cases, however, the U.S. Court of Appeals for
the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). Although the judge recommended an
affirmative bargaining order to remedy the Respondent’s
unlawful withdrawal of recognition, he did not justify
imposition of such an order as required by the U.S. Court
of Appeals for the District of Columbia Circuit. Thus,
for the reasons stated below, we agree with the judge that
an affirmative bargaining order is warranted on the facts
of this case.
In Vincent, supra, the court summarized its requirement
that an affirmative bargaining order “must be justified by a
reasoned analysis that includes an explicit balancing of
three considerations: ‘(1) the employees’ Section 7 rights;
(2) whether other purposes of the Act override the rights of
employees to choose their bargaining representatives; and
(3) whether alternative remedies are adequate to remedy
the violations of the Act.’” Id. at 738.
Consistent with the court’s requirement, we have ex-
amined the particular facts of this case as the court re-
quires and find that a balancing of the three factors war-
rants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s withdrawal of recognition and resulting re-
fusal to collectively bargain with the Union. At the same
time, an affirmative bargaining order, with its attendant
bar to raising a question concerning the Union’s continu-
ing majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may
oppose continued union representation, because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the violation. Because the
Union was never given an opportunity to reach a succes-
sor agreement with the Respondent, it is only by restor-
ing the status quo ante and requiring the Respondent to
bargain with the Union for a reasonable period of time

3 Member Schaumber does not agree with the view expressed in
Caterair International that an affirmative bargaining order is “the tradi-
tional, appropriate remedy” for an 8(a)(5) violation, although he recog-
nizes that the view expressed in Caterair International represents ex-
tant Board law. See Flying Foods, 345 NLRB 101, 109 fn. 23 (2005).
He agrees with the District of Columbia Circuit that a case-by-case
analysis is required to determine if the remedy is appropriate. Alpha
Associates, 344 NLRB 782, 787 fn. 14 (2005). He further finds that
imposing a bargaining order here is appropriate under that analysis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 290
that the employees will be able to fairly assess for them-
selves the Union’s effectiveness as a bargaining repre-
sentative.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of discouraging support for the Union. It also ensures
that the Union will not be pressured by the Respondent’s
withdrawal of recognition to achieve immediate results at
the bargaining table following the Board’s resolution of
its unfair labor practice charges and issuance of a cease-
and-desist order. Providing this temporary period of
insulated bargaining will also afford employees a fair
opportunity to assess the Union’s performance in an at-
mosphere free of the Respondent’s unlawful conduct.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s withdrawal of recogni-
tion and refusal to bargain with the Union because it
would allow another such challenge to the Union’s major-
ity status before the taint of the Respondent’s previous
unlawful withdrawal of recognition dissipated. Allowing
another challenge to the Union’s majority status without a
reasonable period for bargaining would be particularly
unfair given that the litigation of the Union’s charges took
almost a year and, as a result, the Union needs to reestab-
lish its representative status with unit employees. Indeed,
permitting a decertification petition to be filed immedi-
ately might very well allow the Respondent to profit from
its own unlawful conduct. We find that these circum-
stances outweigh the temporary impact the affirmative
bargaining order will have on the rights of employees who
oppose continued union representation.
For all the foregoing reasons, we find that an affirmative
bargaining order with its temporary decertification bar is
necessary to fully remedy the violations in this case. In
order to provide employees with the opportunity to fairly
assess for themselves the Union's effectiveness as a bar-
gaining representative, the bargaining order requires the
Respondent to bargain with the Union for a reasonable
period of time. See, e.g., Spectrum Health-Kent Com-
munity Campus, 353 NLRB 996 (2009). In accord with
the case law, we have accordingly modified the judge’s
recommended bargaining order so that it is not limited to
a predetermined period.4

4 We have also modified the judge’s recommended Order to reflect
the Board’s standard language for notice reading. Homer D. Bronson
Co., 349 NLRB 512, 515–516 (2007), enfd. mem. 273 Fed.Appx. 32
(2d Cir. 2008).
This remedy is appropriate where the violations are sufficiently seri-
ous and widespread that reading of the notice is considered necessary to
enable employees to exercise their Section 7 rights free of coercion.
See Homer D. Bronson Co., supra. Here, the Respondent’s unfair labor
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Vin-
cent/Metro Trucking, LLC, Minneapolis, Minnesota, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Recognize and, on request, bargain collectively
with the Union as the exclusive representative of the Re-
spondent’s employees in the following appropriate unit
with respect to wages, hours, and other terms and condi-
tions of employment and, if an agreement is reached,
embody it in a signed document:

Respondent’s regularly scheduled full and part-time
drivers excluding office clerical employees, guards, and
supervisory employees as defined by the National La-
bor Relations Act, as amended.”

2. Insert the following as paragraph 2(d) and reletter
the subsequent paragraph.
“(d) Within 14 days after service by the Region, hold
a meeting or meetings, scheduled to ensure the widest
possible attendance, at which the attached notice is to be
read to the employees by the Respondent’s owner/man-
ager Weizhen Lin or, at the Respondent’s option, by a
Board agent in Lin’s presence, with translation available
for Spanish-speaking and Mandarin-speaking employ-
ees.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

practices—soliciting employees to decertify the Union; preparing,
distributing, and collecting affidavits in support of decertification; and
unlawfully withdrawing recognition from the Union in violation of a
Board-approved settlement agreement—were serious and affected the
entire bargaining unit.
Member Schaumber would not order a notice reading remedy. The
judge offered no reasons for the remedy and Member Schaumber finds
the unfair practices, though serious, do not warrant this extraordinary
remedy. United Rentals, Inc., 349 NLRB 853, 853 fn. 3 (2007); Chi-
nese Daily News, 346 NLRB 906, 909 (2006).
VINCENT/METRO TRUCKING, LLC 291
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail to provide the union necessary and
relevant information concerning telephone and fax num-
bers, work schedules, and updated employee lists with
contact information.
WE WILL NOT bypass the Union and deal directly with
employees by asking them if they want to be paid hourly
or monthly.
WE WILL NOT prepare affidavits or solicit our employ-
ees to sign documents indicating that they no longer want
the Union to represent them.
WE WILL NOT unlawfully withdraw recognition from
the Union as the collective-bargaining representative of
our employees or when we have entered into a settlement
agreement and have agreed to bargain with the Union for
a period of time and that time has not passed.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL recognize and, on request, bargain collec-
tively with the Union as the exclusive representative of
the Respondent’s employees in the following appropriate
unit with respect to wages, hours, and other terms and
conditions of employment and, if an agreement is
reached, embody it in a signed document:

Respondent’s regularly scheduled full and part-time
drivers excluding office clerical employees, guards, and
supervisory employees as defined by the National La-
bor Relations Act, as amended.

WE WILL provide the Union with necessary and rele-
vant information concerning telephone and fax numbers,
employee work schedules, and updated employee lists
with contact information.

VINCENT/METRO TRUCKING, LLC

Sandra C. Francis, Esq., for the General Counsel.
Henry To, Esq., of Edina, Minnesota, for the Respondent-
Employer.
Douglas J. Mork, of Minneapolis, Minnesota, for the Charging
Party-Union.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on May 7, 2009, in Minneapolis, Minne-
sota, pursuant to a complaint and notice of hearing (the com-
plaint) issued on March 13, 2009, by the Acting Regional Di-
rector for Region 18 of the National Labor Relations Board (the
Board). The complaint, based upon original and amended
charges filed on various dates in 20081 and 2009 by United
Food and Commercial Workers Local 789 (the Charging Party
or Union), alleges that Vincent/Metro Trucking, LLC (the Re-
spondent or Employer), has engaged in certain violations of
Section 8(a)(1) and (5) of the National Labor Relations Act (the
Act). The Respondent filed a timely answer to the complaint
denying that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent violated Section
8(a)(1) and (5) of the Act by refusing to provide necessary and
relevant information to the Union, refusing to execute a written
contract that was agreed upon by the parties, soliciting employ-
ees to withdraw recognition and withdrawing recognition of the
Union as the exclusive collective-bargaining representative and,
in a meeting with employees bypassed the Union and dealt
directly with unit employees, by asking employees if they
wanted to be paid hourly or monthly.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a limited liability company engaged in the
delivery of food and other goods to Asian restaurants, with its
principal office and place of business located in Minneapolis,
Minnesota. Respondent in conducting its business transported
goods valued in excess of $50,000 from its Minneapolis, Min-
nesota facility directly to other enterprises located outside the
State of Minnesota. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Douglas Mork, the organizing director for the Charging
Party, was contacted in July 2007 by a number of Respondent’s
employees.2
The Union was certified on August 27, 2007, to represent
Respondent’s regularly scheduled full and part time drivers.
On or about April 3, the Regional Director for Region 18 ap-

1 All dates are in 2008 unless otherwise indicated.
2 In July 2007, the majority of Respondent’s 13 employees were
Spanish speaking Latino drivers. The complement of the Respondent’s
work force has now changed dramatically with Mandarin Chinese
employees now representing the majority of the 13 employees at the
facility. The Respondent provides apartments at no cost for the Manda-
rin Chinese employees but does not do so for the Latino employees. In
addition, the Mandarin Chinese employees receive their personal mail
(bank statements and telephone bills) at the Respondent’s business
address.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 292
proved a Board settlement agreement in Cases 18–CA–18503,
18–CA–18552, and 18–CA–18616 in which Respondent agreed
to recognize and to bargain in good faith with the Union on
behalf of all unit employees for at least 12 months from the
date of approval of the settlement agreement unless a contract
or bargaining impasse was reached during the 12 months (GC
Exh. 4(a)-(g)).
At all material times Weizhen (Vincent) Lin held the posi-
tion of owner/manager of Vincent Trucking while Weiyi Lin is
the owner/manager of Metro Trucking.
A. The 8(a)(1) and (5) Allegations
1. The refusal to provide information
The General Counsel alleges in paragraphs 11(a) through (g)
of the complaint that the Respondent refused to provide neces-
sary and relevant information to the Union.
Facts
By email dated August 7, the Union requested that the Re-
spondent furnish it with their updated telephone and fax num-
bers (GC Exh. 16).
On September 5, the Union orally requested the Respondent
to provide it with the work schedules for Unit employees.
By email dated November 11, the Union requested the Re-
spondent to furnish it with contact information for new drivers
and an updated employee list with contact information (GC
Exh. 10).
Discussion
The Board has held that a union is entitled to requested in-
formation “if there is a probability that such data is relevant and
will be of use to the union in fulfilling its statutory duties as the
employees’ exclusive bargaining representative.” Southern
Nevada Builders Assn., 274 NLRB 350, 351, (1985). This
liberal discovery-type standard nevertheless contains an impor-
tant limitation: the data must be of use in fulfilling statutory
duties. The “duty to furnish . . . information stems from the
underlying statutory duty imposed on employers and unions to
bargain in good faith with respect to mandatory subjects of
bargaining.” Cowles Communications, Inc., 172 NLRB 1909
(1968).
It is long-established law that the duty to bargain in good
faith embodied in Section 8(a)(5) of the Act includes the obli-
gation of employers to provide their employees’ collective-
bargaining representatives with requested information which is
relevant and necessary to the representative’s duty to bargain
on behalf of employees. NLRB v. Acme Industrial Co., 385 U.S.
432 (1967). Such information may be needed for bargaining,
for administering and policing collective-bargaining agree-
ments, for communicating with bargaining unit members, or for
preserving unit employees’ work, among other reasons. The
requested information at issue in this case falls into the cate-
gory of communicating with bargaining unit members and rep-
resentatives of the Respondent.
The record evidence confirms that the Respondent refused to
provide any of the information requested by the Union as set
forth in the complaint allegations. In this regard, Mork’s unre-
butted testimony confirms that the information was requested
and the Respondent did not offer any evidence during the
course of the hearing to establish that the requested information
was provided to the Union.
Under these circumstances, and particularly noting that the
information sought by the Union is necessary and relevant, I
find that the Respondent’s refusal to provide the requested in-
formation violates Section 8(a)(1) and (5) of the Act. Wayne-
view Care Center, 352 NLRB 1089, 1115 (2008) (requested
information on changes to work force, current schedule for
each department, and information about current employees
presumptively relevant)
2. Did the parties reach agreement on a
collective-bargaining contract?
The General Counsel alleges in paragraph 12 of the com-
plaint that the Respondent and the Union reached full and com-
plete agreement with respect to terms and conditions of em-
ployment of the Unit to be incorporated in a collective-
bargaining agreement, however since December 1, the Respon-
dent has failed and refused to execute a written contract em-
bodying the agreement.
Facts
The parties commenced discussions in January 2008 in an ef-
fort toward reaching their initial collective-bargaining agree-
ment. Mork served as the Union’s chief negotiator and one or
two members of the bargaining unit attended all bargaining
sessions. The Employer was represented by Vincent and his
attorney.
While the parties made substantial progress and reached ten-
tative agreement on a number of contract articles, there re-
mained six outstanding issues when the parties met on Septem-
ber 5. They included seniority of employees, wages, overtime,
the type of wage system to be utilized, vacations, and holidays.
These issues are reflected in Mork’s bargaining notes (GC Exh.
5). Initially, the Employer preferred to pay employees on an
hourly basis but during the course of negotiations proposed that
employees should be able to choose whether they wanted to be
paid on an hourly basis or receive a monthly salary. The Union
initially proposed that employees should be paid hourly but if a
monthly salary system was preferred they required that dollar
figures must be included as part of the negotiation process. The
Union, however, made it clear that they were not in favor of a
monthly salary system at the September 5 negotiation session.
The last face-to-face negotiation session took place on Sep-
tember 19. According to the Union, the parties reached agree-
ment on the subject of seniority for employees, holidays, vaca-
tion, and agreed on a bifurcated wage rate system (GC Exh. 6).
They also made progress on some of the other outstanding is-
sues. Mork requested the Employer to convey the details of
their final position and the Employer agreed at the end of the
meeting to provide the Union with a final contract offer.
By dated September 26, the Respondent provided the Union
its final contract offer (GC Exh. 7 and 8, R. Exh. 8).
By email dated December 1, Mork informed the Respondent
that their last, best, and final contract offer was conditionally
ratified by the unit employees on November 30. The Union
apprised the Respondent that what the employee’s ratified,
however, was the final offer expressed at the bargaining table
VINCENT/METRO TRUCKING, LLC 293
between the parties that was different then the hourly wage
article contained in the Employer’s last, best, and final offer.
The Union then pointed out to the Respondent that they noticed
a major problem with the written contract offer that the Re-
spondent had proposed as its last, best, and final offer. Accord-
ing to the Union, the Respondent neglected to add any language
and details of a monthly pay option and offered to add them to
the final contract offer. By return email dated December 2, the
Respondent offered to add the language and send it to the Un-
ion (GC Exh. 11).
By letter dated December 12, the Respondent informed the
Union that they were immediately withdrawing recognition of
the Union as the representative of their employees.
The Respondent further informed the Union that it had re-
ceived signatures from the majority of the drivers indicating they
no longer wanted to be represented by the Union (GC Exh. 13).
By letter dated December 24, the Union informed the Re-
spondent that it does not recognize the withdrawal of recogni-
tion on numerous grounds. The Union then apprised the Em-
ployer that since they did not receive the corrected contract
language as promised on December 2, it had taken the liberty of
preparing a final contract for their signature. The Union noted
that the contract took effect on December 1, and expected the
agreement to be implemented (GC Exh. 14–15 and R. Exh. 8).
Discussion
Contrary to the General Counsel, I do not find that the par-
ties reached a full and complete agreement on or about Novem-
ber 30. Therefore, for the following reasons, the Respondent
did not fail and refuse to execute a written contract with the
Union.
On September 26, the Respondent followed through on its
commitment at the September 19 bargaining session, and sent
the Union its last, best, and final offer (GC Exhs. 7, 8, and R.
Exh. 8). That contract offer specifically includes in Article 15
that the Respondent will pay its employees on an hourly basis.
On October 27, the Respondent sent an email to the Union and
inquired whether the Unit employees had decided to adopt the
proposed final contract offer previously forwarded on Septem-
ber 26 (GC Exh. 9).
On November 11, the Union informed the Respondent that it
would be voting on the contract shortly (GC Exh. 10).
On December 1, the Union informed the Respondent that the
unit employees conditionally ratified the Employer’s last, best,
and final contract offer. However, the Union advised the Re-
spondent that the employees did not ratify the contract offer
proposed by the Employer. Rather, it ratified a final contract
offer that was expressed at the bargaining table. The Union
pointed out that the last, best, and final contract offer of the
Respondent did not contain any language or details concerning
a monthly pay system. The Union then offered to add this pro-
vision or suggested the Respondent could do so (GC Exh. 11).
On December 2, the Respondent indicated it would add the
monthly pay system option to its last, best, and final contract
offer but it never did so (GC Exh. 11).
By letter dated December 24, since the Union did not receive
the promised corrected contract language, it took the liberty of
preparing a final written contract for the Respondent’s signa-
ture (GC Exhs 14, 15 and R. Exh. 9).
In comparing the last, best, and final contract offer of the Re-
spondent with the final written contract that the Union prepared
and the unit employees ratified, there are a number of differ-
ences. For example, article 15 is different than the Respon-
dent’s final contract offer that proposes to pay unit employees
on an hourly basis. Section 15.1 of the Union’s written contract
permits employees to determine whether they want to be paid
on an hourly basis for all hours worked or on the current
monthly salary system. Additionally, it notes that employees
may switch systems with 2 weeks’ notice given to the Em-
ployer. However, Lin’s unrebutted testimony establishes that
the parties never discussed at either the September 5 or 19 bar-
gaining sessions the issue of switching systems with 2 weeks’
notice given to the Employer nor do Mork’s notes reflect dis-
cussing such an option. Section 15.2 reflects changes for col-
lected bonus pay and section 15.3 provides a pay scale for em-
ployees to be paid on a monthly basis.
The index of the Respondent’s last, best, and final contract
offer is different from the index in the Union’s final written
contract. The effective date of the agreement, December 1, is
inserted in the Union’s final contract while no date appears in
the Respondent’s last, best, and final contract offer. Indeed, the
evidence establishes that no discussions occurred during bar-
gaining about an effective date for the agreement nor do
Mork’s notes confirm that discussions took place on a firm
execution date.3 Lastly, article 11, Discipline and Discharge,
has different section numbers in the Union’s final contract offer
when compared with the Respondent’s last, best, and final con-
tract offer. Contrary to the General Counsel’s argument in brief
that the above omissions are inadvertent I find that the inclu-
sion by the Union of language that employees may switch sys-
tems with 2 weeks’ notice to the Employer and inserting an
effective date for the agreement when no such discussions on
these issues occurred during bargaining, are material differ-
ences between the parties. See, Waxie Sanitary Supply, 337
NLRB 303, 310–311 (2001) and cases cited therein.
I also note the Union’s notes for the September 5 and 19 bar-
gaining sessions (GC Exhs. 6 and 7) do not contain any em-
ployer initials indicating that they are in agreement with a bi-
furcated wage system for unit employees. Moreover, no evi-
dence was presented by the General Counsel that any of the
proposals contained in the Union’s notes could be implemented
piecemeal without full and complete agreement on all contract
articles.
The Board recognizes that in the normal course of negotia-
tions, there is much give and take until a final collective-
bargaining agreement is reached. Frequently, agreement may
be reached on some issues only to be modified as other issues
come into play. Consequently, the Board has adopted the view
that tentative agreements made during the course of contract
negotiations are not final and binding. Taylor Warehouse
Corp., 314 NLRB 516, 517 (1994), enfd. 98 F.3d 892 (6th Cir.
1996). Absence explicit evidence, no agreement becomes final

3 The lone reference to a December 1 effective date is noted in an
email dated December 2, wherein Mork sates “Shall we put December
1 as an effective date” (GC Exh. 11).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 294
and binding until the final contract, in its entirety, is reached.
Stroehmann Bakeries, Inc., 289 NLRB 1523, 1524 (1988).
In summary, I find that the Union did not ratify the last, best,
and final contract offer proffered by the Employer. Rather, the
Union at the ratification vote, presented unit employees with
wage proposals and other contract articles different than what
the Employer had proposed in its last, best, and final contract
offer.
Under these circumstances, I find that there was no meeting
of the minds between the parties and the Respondent’s refusal
to execute the Union’s final written contract is not violative of
Section 8(a)(1) and (5) of the Act.
Therefore, I recommend that paragraph 12 of the complaint
be dismissed.
3. Solicitation of employees
The General Counsel alleges in paragraph 5 of the complaint
that Weiyi Lin solicited various individual unit employees to
each sign a document indicating that the employee no longer
wished to be represented by the Union.
Facts
Xiao Dong Wang commenced employment with the Re-
spondent on October 1, 2007, a period after the Union was
certified at the Respondent. He lives in a company apartment
and pays no rent to the Respondent.
Wang testified that Lin gave him a document and asked him
to sign it. The document stated in pertinent part that Wang no
longer wanted the Union to represent him (GC Exh. 2 and R
Exh. 1).4
Dawei Sun also commenced work at the Respondent after
the Union’s certification and lives with Wang in the company
apartment that is paid for by the Employer. Sun testified that
he signed a document on December 12, indicating that he no
longer wanted the Union to represent him (GC Exh. 3 and R
Exh. 2). Sun stated that he was told by a fellow driver that Lin
had left the document for him to sign.
Lin testified and admitted that he is referred to as the third
boss by the employees. He noted that in December 2008 there
were 13 members of the Unit of which seven were Chinese and
six were Latino drivers. Lin admitted that he prepared the affi-
davits, gave them to, and directed the seven Chinese drivers to
sign the affidavits indicating that they no longer wanted the
Union to represent them (R Exhs. 1–7). He did not give the
same affidavit to the six Latino employees.
Discussion
It is well settled that an employer violates Section 8(a)(1) of
the Act by “actively soliciting, encouraging, promoting, or
providing assistance in the initiation, signing or filing of an
employee petition seeking to decertify its bargaining represen-
tative.” Wire Products Mfg. Co., 326 NLRB 625, 640 (1998),
enf. sub nom. mem. NLRB v. R.T. Blankenship & Associates,

4 Wang stated in his pretrial affidavit that Lin (third boss) gave him
the document after he finished work and told him to sign it. The docu-
ment was in Chinese and English and after he looked at it he signed it.
Wang stated that he signed the document because Lin is his boss and he
pays him (GC Exh. 17).
Inc., 210 F.3d 375 (7th Cir. 2000). In determining whether an
employer’s assistance is unlawful, the appropriate inquiry is
“whether the Respondent’s conduct constitutes more than min-
isterial aid.” Times Herald, 253 NLRB 524 (1980). In making
that inquiry, the Board considers the circumstances to deter-
mine whether “the preparation, circulation, and signing of the
petition constituted the free and uncoerced act of the employees
concerned.” Hall Industries, 293 NLRB 785, 791 (1989), enfd.
mem. 914 F.2d 244 (3d Cir. 1990) (employer violated Section
8(a)(1) by actively assisting a decertification effort “in the con-
text of serious unfair labor practices”).
Applying these principles here, I find that the Respondent’s
conduct constituted more than mere ministerial aid, and was
therefore unlawful. In this regard, in reviewing the testimony
of Wang and Sun and the admissions against interest by Lin,
the General Counsel has conclusively established that the affi-
davits were prepared by the Respondent who instructed the
employees to sign them. It is evident, as testified to by Wang
that the Chinese employees are beholden to the Respondent
who provide them free lodging and good paying jobs. There-
fore, the signing of the affidavits by the employees was not a
free and uncoerced act.
For all of the above reasons, I find in agreement with the
General Counsel, that the Respondent violated Section 8(a)(1)
of the Act when it solicited unit employees to sign the affidavits
indicating they no longer wanted the Union to represent them.
Nassau Glass Corp., 222 NLRB 792 (1976) (shop foreman
drafted, sponsored, and presented to employees for their signa-
tures decertification petition in violation of the Act)
4. Was the withdrawal of recognition lawful?
The General Counsel alleges in paragraph 13 of the com-
plaint that the Respondent withdrew its recognition of the Un-
ion as the exclusive collective-bargaining representative of the
Unit.
Facts
By letter dated December 12, the Respondent informed the
Union that it was withdrawing recognition and noted that it had
obtained the signatures from a majority of the employees to
support its position that they no longer wanted the Union to
represent them (GC Exh. 13).
Discussion
In Levitz Furniture Co. of the Pacific, 333 NLRB 717
(2001), the Board held that an employer must show a union’s
actual loss of majority support in order to lawfully withdraw
recognition. That decision, however, was limited to cases
where there have been no unfair labor practices committed that
tend to undermine employees’ support for unions. The Board
went on to note that it continues to adhere to its well-
established policy that employers may not withdraw recogni-
tion in a context of serious unremedied unfair labor practices
tending to cause employees to become disaffected from the
union nor can it rely on any expression of disaffection by its
employees which is attributable to its undermining support for
the Union.
Applying those principles here, I find that the Respondent pre-
pared, initiated, and required the seven Chinese employees to
VINCENT/METRO TRUCKING, LLC 295
sign the affidavits withdrawing recognition of the Union. Thus,
the withdrawal of recognition executed by employees who were
beholding to the Employer for their lodging and livelihood is not
an act free from coercion. Accordingly, the affidavits signed by
the employees were tainted by the Employer’s unfair labor prac-
tices and consequently the resulting withdrawal of recognition
violated Section 8(a)(1) and (5) of the Act.
I am also in agreement with the General Counsel’s additional
argument that the withdrawal of the Union’s recognition vio-
lated the Board’s previously approved settlement agreement
executed by the Respondent in April 2008. In this regard, the
Respondent agreed to recognize the Union as the exclusive
collective-bargaining representative of its employees and to
bargain in good faith for a period of 12 months. Since the
withdrawal of recognition occurred on December 12, at a time
within the 12-month period, it translates into a refusal to recog-
nize and bargain with the Union in violation of Section 8(a)(1)
and (5) of the Act.
5. Did the Respondent bypass the Union?
The General Counsel alleges in paragraph 14 of the com-
plaint that about late February 2009, in a meeting with some
unit employees held at Respondent’s Minneapolis, Minnesota
facility, Respondent by its Owner/Manager Weizhen Lin and
by an unnamed agent, bypassed the Union and dealt directly
with unit employees by asking employees if they wanted to be
paid hourly or monthly.
Facts
Wang’s trial testimony and his pretrial affidavit indicate that
he was instructed to attend a Sunday meeting on his day off in
late February 2009 with the six other Chinese employees. The
meeting was held at the facility but none of the Latino employ-
ees attended the meeting nor was any representative of the Un-
ion in attendance. Present for the Respondent was Vincent,
Third Boss Lin, and the Employer’s attorney. Vincent did the
majority of the talking and he discussed the differences be-
tween receiving an hourly or monthly salary. Vincent then
asked the assembled employees for their opinion about which
salary they would prefer. Wang expressed his opinion that he
did not want to change the present situation of being paid on a
monthly basis. Vincent also informed the employees about
prior contract discussions with the Union and stated that if they
were to be paid on an hourly basis that new drivers would earn
$9 and current drivers would receive between $10 and $11 per
hour.
Sun also attended the February 2009 Sunday meeting and
testified similar to Wang. He confirmed that neither the Latino
drivers nor any representative of the Union attended the meet-
ing. Sun testified, that during the meeting, Vincent asked the
employees whether they wanted to be paid hourly or monthly.
Vincent testified during the hearing but no questions were
proffered concerning his participation in the late February 2009
meeting.
Therefore, the testimony of Wang and Sun stands unrebutted.
Discussion
Section 8(a)(5) of the Act provides that an employer com-
mits an unfair labor practice by refusing to bargain collectively
with the exclusive representative of its employees. The duty to
bargain is defined in Section 8(d). The obligation to bargain in
good faith requires, “at a minimum recognition that the statu-
tory representative is the one with whom the employer must
deal in conducting negotiations, and that it can no longer bar-
gain directly or indirectly with employees.” General Electric
Co., 150 NLRB 192, 194 (1964), enfd. 418 F.2d 736 (2d Cir.
1069), cert. denied 397 U.S. 965 (1970). Indeed, it is not
enough that the employer communicates with its employees
about wages, hours or working conditions; such communication
must be made with the intent to, or for the purpose of, circum-
venting bargaining with the union. Emhart Industries, 297
NLRB 215, 225 (1989).
The Board in Permanente Medical Group, 332 NLRB 1143,
1144 (2000), citing Southern California Gas Co., 316 NLRB
979 (1965), held that in order to prove unlawful direct dealing
in violation of Section 8(a)(5) of the Act the following criteria
must be established:

(1) the employer was communicating directly with union-
represented employees; (2) the discussion was for the purpose
of establishing or changing wages, hours, and terms and con-
ditions of employment or undercutting the union’s role in
bargaining; and (3) such communication was made without
notice to, or to the exclusion of the union.

In Emhart, the Board found that an employer did not engage
in direct dealing even though it conducted several mandatory
employee meetings, without notice to the union, on procedures
for productivity and quality control, topics that were also the
subjects of ongoing negotiations with the union. Since the
employer was not promising any benefits in these meetings to
the exclusion of the union, the Board held that its intent was not
to undermine the union and thus there was no unlawful direct
dealing.
The evidence in the subject case is unlike what occurred in
Emhart. Rather, the Respondent directed its Chinese employ-
ees to attend a mandatory meeting on their day off and ex-
cluded its Latino employees as well as any union representa-
tives. Since the employees were requested to give their opin-
ions as to which salary structure they preferred, the subject of
the meeting directly impacted wages and other terms and condi-
tions of employment. In addition, Respondent referenced prior
contract discussions with the Union and informed employees
that if they were paid by the hour that new employees would
earn $9 while current employees would receive between $10
and $11 per hour.
Based on the forgoing, the evidence establishes that Vincent
directly communicated with union represented employees and
such communication was made without notice to the Union.
The meeting was held with only a portion of the unit employees
and those in attendance were directed to attend on their day off.
The evidence also confirms that Vincent discussed the Union
and asked the employees their opinion whether they wanted to
be paid on an hourly or monthly basis. I also note that Vincent
is a principal member of the Respondent’s bargaining team and
is responsible for developing collective-bargaining proposals.
He also possesses sole authority for making any changes to
terms and conditions of employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296
For all of the above reasons, I find that the Respondent vio-
lated Section 8(a)(1) and (5) of the Act when it held the late
February 2009 meeting with unit employees, and directly by-
passed the Union by asking employees if they wanted to be
paid on an hourly or monthly basis.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing to provide necessary and relevant information
to the Union, by bypassing the Union and dealing directly with
unit employees, by preparing affidavits soliciting employees to
withdraw recognition of the Union and thereafter withdrawing
recognition of the Union as the employees collective-bargain-
ing representative, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
Act.
4. The Respondent did not violate Section 8(a)(1) and (5) of
the Act when it refused to execute a written contract after nego-
tiations with the Union.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent must convene a meeting for all unit em-
ployees during working time at its facility and Owner/Manager
Weizhen Lin must read aloud the notice to employees to the
assembled employees, as well as to a Board agent whom the
Respondent permits to be present at the meeting. Further, the
Respondent must provide at its own expense, Mandarin Chi-
nese and Spanish language interpreters, who shall translate
aloud for the assembled unit employees the language of the
notice. The notice must be posted in conspicuous places and
versions of the notice must contain Mandarin Chinese and the
Spanish language in addition to a copy of the notice in the Eng-
lish language.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Vincent/Metro Trucking, LLC, Minneapo-
lis, Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to provide necessary and relevant information
to the Union.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Distributing to employees affidavits that solicit and en-
courage them to withdraw recognition of the Union as their
collective-bargaining representative.
(c) Withdrawing recognition from the Union and refusing to
meet and bargain in good faith with the Union.
(d) Bypassing the Union and dealing directly with unit em-
ployees by asking them if they want to be paid hourly or
monthly.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Provide the Union with updated telephone and fax num-
bers, the work schedules of unit employees and the contact
information for new and current employees along with an up-
dated employee list.
(b) Immediately recognize the Union as the exclusive collec-
tive-bargaining representative of the unit employees and nego-
tiate with the Union for a period of at least 4 months toward an
initial collective-bargaining agreement or until a good faith
impasse is reached due to its failure to abide with a prior set-
tlement agreement approved by the Board.
(c) Within 14 days after service by the Region, post at its fa-
cility in Minneapolis, Minnesota, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 3, 2008.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”