Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 387 (N.L.R.B. 2001)

OVERNITE TRANSPORTATION CO. 387
Overnite Transportation Company and Highway,
City and Air Freight Drivers, Dockmen, Marine
Officers Association, Dairy Workers, and Help-
ers, Local Union No. 600, affiliated with the In-
ternational Brotherhood of Teamsters, AFL–
CIO. Cases 14–CA–25643, 14–CA–25777, and
14–CA–25839
September 28, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On April 30, 2001, Administrative Law Judge Robert
A. Pulcini issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief. The Respondent filed
a reply 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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.
In its exceptions, the Respondent contends that the
judge decided the credibility issues in this case based on
the Respondent’s prior unfair labor practices and that the
judge thereby violated Rule 404 of the Federal Rules of
Evidence.1 For the reasons set forth below, we reject the
Respondent’s claim of error in the judge’s decision.
To be sure, a judge’s reliance on a previous Board de-
termination that a party violated the Act as a basis for
concluding that it similarly violated the Act in a later
proceeding would be inconsistent with Rule 404. See
T.K. Productions Inc., 332 NLRB 110, 112 fn. 3 (2000)
(Rule 404 prohibits the use of prior acts to “demonstrate
a corporate character which tends to show that Respon-
dent behaved similarly in the incidents set forth in the
complaint.”). See also Armour Con-Agra, 291 NLRB
962, 965 fn. 9 (1988) (acknowledging that Rule 404
“bars proof of ‘other crimes or wrongs’ to prove that [a
respondent] was guilty of similarly unlawful acts).2 As
discussed below, careful examination of the judge’s deci-
sion demonstrates that his credibility findings do not run
afoul of Rule 404.

1 Fed.R.Evid. 404 states in relevant part:
(a) Character Evidence Generally—Evidence of a person’s
character or a trait of character is not admissible for the purpose
of proving action in conformity therewith on a particular occa-
sion, except:
(1) Character of Accused—Evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut the
same, or if evidence of a trait of character of the alleged victim of
the crime is offered by an accused and admitted under Rule
404(a)(2), evidence of the same trait of character of the accused
offered by the prosecution;
. . . .
(b) Other Crimes, Wrongs, or Acts—Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of mo-
tive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
We recognize, as the Respondent emphasizes in its
brief, that the fourth paragraph of the judge’s decision
includes the following statement:

All of the events in the instant case have a highly
charged, polarized atmosphere as a backdrop, familiar
ground for the parties in this case. See Overnite Trans-
portation Co., 296 NLRB 669 and Overnite Transpor-
tation Co., 329 NLRB [990]. I have taken into account
the history of this Respondent in assessing the various
issues of this case, giving this history significant
weight. Florida Steel Corp., 231 NLRB 651, 658
(1977).3

However, we reject the Respondent’s contention that this
statement establishes that all of the judge’s credibility reso-
lutions are necessarily tainted by reliance on Overnite’s past
violations of the Act. Consistent with the “Background”
heading of the section in which this statement appears, we
believe that it should be read as a general reference to the
consideration that the judge would later give the Respon-
dent’s history, in the context of his particular findings. But
those findings need to be reviewed individually to determine
if the judge violated Rule 404 by using the Respondent’s
prior unfair labor practices as a basis for concluding that it
committed them in this case. This is particularly true be-
cause the judge dismissed one of the complaint allegations,
demonstrating that he did not reflexively rule against the
Respondent.
Accordingly, we now turn to examine the two in-
stances in which the judge credited the General Coun-
sel’s witnesses over the Respondent’s and concluded that
violations of the Act were established.
2 On the other hand, as the Respondent acknowledges in its brief,
Rule 404 does not bar use of prior violations for other purposes, such as
showing an unlawful motive for an employee’s discharge (see, e.g.,
Kenworth Trucks of Philadelphia, 236 NLRB 1299 fn. 2 (1978), enfd.
mem. 595 F.2d 1213 (3d Cir. 1979), or justifying a more extensive
remedy (see, e.g., Hickmott Foods, 242 NLRB 1357 (1979)).
3 The complete case citations are as follows: Overnite Transporta-
tion Co., 296 NLRB 669 (1989), enfd. 938 F.2d 815 (7th Cir. 1991);
Overnite Transportation Co., 329 NLRB 990 (1999), enfd. 240 F.3d
325 (4th Cir. 2001), rehearing granted and panel opinion vacated (July
5, 2001); Florida Steel Corp., 231 NLRB 651 (1977), enf. denied 586
F.2d 436 (5th Cir. 1978).
336 NLRB No. 31
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
The Allegation Concerning Employee Roy Miller
The judge concluded that the Respondent violated the
Act by threatening employee Roy Miller with discipli-
nary action if he crossed a picket line. In doing so, the
judge credited Miller’s testimony that the Respondent’s
St. Louis terminal manager, Ronald Huck, told Miller
that, if he did not cross a picket line erected by the Union
at the Respondent’s Memphis, Tennessee facility,
Miller’s benefits would be canceled and Huck would
take disciplinary action against Miller. The judge de-
scribed Miller’s testimony as “direct, unaffected and un-
varnished.” Although Huck denied threatening Miller
with discipline, the judge was not persuaded by Huck’s
testimony, stating that Miller’s account was bolstered by
the event that followed,4 which the judge characterized as
“consistent with someone who has been threatened in a
situation like Miller was in.” Thus, contrary to the Re-
spondent’s assertion, the judge’s credibility determina-
tions regarding this incident were made without reference
to the Respondent’s previous misconduct.
The Allegation Concerning Employee Virgil Thomas
The judge also concluded that the Respondent violated
the Act by soliciting employee Ralph Rice to circulate a
union decertification petition and offering to pay Rice for
time spent circulating the petition. In so concluding, the
judge credited employee Virgil Thomas’ testimony that
he overheard Supervisor Rodney Reiter tell employee
Ralph Rice, in the presence of two other individuals, that
“we need you to hurry up and get that . . . decert list go-
ing again because . . . there are no charges and they can’t
stop it now . . . . [W]e’ll pay you for your time.” All of
the individuals Thomas said were involved in this inci-
dent denied that any such conversation or event took
place.
In his analysis of conflicting testimony, the judge
stated: “I was more influenced by the demeanor of
Thomas while testifying than the other witnesses to this
event. He was sure in his recollection and did not waiver
[sic] under cross-examination.” The judge also stated
that “the ensuing events involving Rice have a persuasive
symmetry to them that leads me to conclude that Re-
spondent acted to foster and promote the filing of a de-
certification petition.” Further, the judge specifically
discredited Rice’s testimony, stating that he “left the dis-
tinct impression of an antipathy towards the Union so
virulent that I cannot place any reliance in any of his
testimony about it as being an accurate reflection of the
truth.” In rejecting the testimony of the Respondent’s
other witnesses, the judge cited the persuasiveness of

4 It was not disputed that, although Miller crossed the picket line, he
called in sick on the next day due to stress.
Thomas’ demeanor.5 Thus, we conclude that the judge’s
decision to credit the testimony of Thomas over that of
Rice and the Respondent’s other witnesses was properly
based on demeanor factors, not the Respondent’s prior
unfair labor practices.
Although the judge considered the Respondent’s his-
tory in addressing this complaint allegation, he did so
only in the course of rejecting two of the Respondent’s
arguments: (1) that four of its witnesses would never
collude to testify falsely; and (2) that it trained its super-
visors not to become involved in decertification efforts.
With respect to the first argument, the judge stated: “The
past history of this Respondent, in this case, makes this
event completely conceivable and even highly probable.”
With respect to the second, the judge stated: “I can place
no reliance on this assertion, given the history of the par-
ties, of bitter labor strife and unresolved conflict, driven
by this Respondent’s previous misconduct.”
By offering these defenses, the Respondent is clearly
contending that the complaint allegations are simply not
consistent with either the character of its supervisors or
the general corporate ethics that it has attempted to pro-
mote. Where a party presents its corporate character as a
defense to an allegation of illegal conduct, it is not erro-
neous for a judge to reject that defense based on charac-
ter evidence. Indeed, Rule 404 specifically provides that
character evidence may be offered “by the prosecution to
rebut” character evidence “offered by an accused.”6
Thus, we conclude that the judge’s use of character evi-
dence in this limited respect did not run afoul of Rule
404.
5 The judge stated that accepting the version of events offered by the
Respondent’s witnesses would require that he “conclude that Thomas
invented the conversation he spoke of out of whole cloth. I am satisfied
that this is not the case based on my observation of him.”
6 In criminal law, this is known as the “open the door” doctrine. As
the court stated in U.S. v. Monteleone, 77 F.3d 1086, 1089 (8th Cir.
1996):
Generally, the contemporary Rules prohibit the Government from
introducing evidence of the defendant’s immoral character in an
attempt to establish his propensity to engage in criminal behav-
ior. Fed.R.Evid. 404; Michelson v. United States, 335 U.S. 469,
475-76, 69 S. Ct. 213, 218-19, 93 L. Ed. 168 (1948). Character
evidence is undeniably relevant in determining probabilities of
guilt, however, and for this reason the defendant is free to present
evidence, in the form of opinion or reputation testimony, of per-
tinent favorable character traits. Fed.R.Evid. 404(a)(1), 405(a);
Michelson, 335 U.S. at 476, 69 S.Ct. at 218–19. Where the de-
fendant chooses this perilous path, though, he opens the door for
the prosecution to introduce in rebuttal its own opinion or reputa-
tion evidence regarding the defendant’s character.
Here, by asserting its corporate character as a defense, the Respon-
dent opened the door to the judge’s use of the prior decisions to reject
the Respondent’s arguments.
OVERNITE TRANSPORTATION CO. 389
Conclusion
For the reasons stated above, we reject the Respon-
dent’s assertion that the judge erroneously relied on the
Respondent’s prior unfair labor practices to establish that
the Respondent violated the Act in this case. Rather, we
find that his credibility determinations were properly
made on the basis of the evidence adduced in this pro-
ceeding. In addition, the clear preponderance of all the
relevant evidence has not convinced us that the judge’s
credibility determinations are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We therefore affirm the judge’s findings
that the Respondent violated Section 8(a)(1) of the Act.7
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4.
“4. By fostering and aiding a union decertification at-
tempt by soliciting an employee to circulate a decertifica-
tion petition and offering to pay the employee for time
spent in circulating the petition, the Respondent violated
Section 8(a)(1) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Overnite Transportation Company, St.
Louis, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with disciplinary action for
failing or refusing to cross a union picket line.
(b) Fostering and aiding a union decertification attempt
by soliciting employees to circulate a decertification peti-
tion and offering to pay employees for their time so
spent.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in St. Louis, Missouri, copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-

7 We shall modify the judge’s conclusions of law, recommended Or-
der, and notice to conform to the violations found by the judge.
8 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.
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 6, 1999.
(b) 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.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

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

Section 7 of the Act gives employees these rights.

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

WE WILL NOT threaten our employees with discipli-
nary action for failing or refusing to cross a union picket
line.
WE WILL NOT foster and aid a union decertification
attempt by soliciting employees to circulate a decertifica-
tion petition and offering to pay employees for their time
so spent.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

OVERNITE TRANSPORTATION
COMPANY

Sharon L. Steckler and Mary Tobey, Esqs., for the General Counsel.
Jay Swardenski, Esq. (Matkov, Salzman, Madofl & Gunn), of Chicago, Illinois, for the Respon-
dent.
Lany Tinker Jr., of St. Louis, Missouri, for the Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
DECISION
STATEMENT OF THE CASE
ROBERT A. PULCINI, Administrative Law Judge. This case was tried in St. Louis, Mis-
souri, on February 5, 2001. Charges were filed respectively on July 8, October 4, and Novem-
ber 18, 1999.1 A consolidated complaint was issued on December 28. Thereafter, one of the
cases involved in this complaint was dismissed and a consolidated amended complaint was
issued March 31, 2000. This was further amended on January 31, 2001. The complaint alleges
that Overnite Transportation Company (the Respondent) committed certain violations of the
National Labor Relations Act (the Act). The Respondent timely filed an answer to the consoli-
dated complaint denying that it had committed any violation of the Act. At hearing, all parties
were given a full opportunity to present evidence and argument. Briefs submitted by the
General Counsel and Respondent have been given due consideration. On the entire record,
including my observation of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Virginia corporation, is engaged in the transportation of freight at its fa-
cilities in Bridgeton and St. Louis, Missouri, where it annually derives revenues in excess of
$50,000 from the transportation of freight from its facilities in the State of Missouri directly to
points outside of the State of Missouri. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Highway, City and Air Freight Drivers, Dockmen, Marine Officers Association, Dairy Work-
ers, and Helpers, Local Union No. 600, affiliated with the International Brotherhood of Team-
sters, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates its business nationwide with 29 terminals located in 12 States
including the Missouri facilities involved in this case. The Union has represented the Respon-
dent’s drivers at the St. Louis, Missouri facilities since 1995. The St. Louis facility employs 19
road drivers and approximately 18 city drivers. Various locals of the parent Teamsters Union
represent Respondent’s employees at other facilities nationwide. On or about Tuesday, July 6,
Teamster locals struck Respondent at five or six locations including Memphis, Tennessee, and
Indianapolis, Indiana. This strike lasted approximately 3 days. It presaged a companywide
strike by the Teamsters beginning on October 24, which continued through the date of the
hearing in these matters.
On July 26, a road driver named Ralph Rice filed a decertification petition in Case 14–RD–
1653. This was dismissed. On October 18, an employee named William Collins filed a decerti-
fication petition, which was similarly dismissed. On January 24, 2001, another employee
named Jerold Swain filed a decertification petition, which, at the time of hearing, was still
pending disposition by General Counsel. All of the events in the instant case have a highly
charged, polarized atmosphere as a backdrop, familiar ground for the parties in this case. See
Overnite Transportation Co., 296 NLRB 669 (1989), and Overnite Transportation Co. 329
NLRB 990, 1053 (1999). I have taken into account the history of this Respondent in assessing
the various issues of this case, giving this history significant weight. Florida Steel Corp., 231
NLRB 651, 658 (1977).
B. Allegations Concerning Roy Miller
Roy Miller worked for the Respondent for nearly 11 years at its St. Louis facility. He was a
union steward. Drivers like Miller obtained assignments or “runs” from the dispatcher. On July
5, that person was Linda Wnuk, whom Miller called to select his run for the week. He chose the
Memphis, Tennessee run to begin at 9 p.m. on July 6.
Miller telephoned Respondent’s terminal on the morning of July 6th because of some “in-
surance problem” he was having. Miller spoke to Randy Jones, the operations manager, who

1 All dates are in 1999 unless otherwise indicated.
began the conversation by commenting that he “figured” Miller would be “out striking.” Miller
asked Jones what he was talking about and Jones told him of the strike at some of the terminals.
Miller ended the conversation and then called Union Business Agent Larry Tinker about it.
Tinker knew as little about the strike as Miller. Tinker told Miller he would get back to him
shortly, and did, telling him that six terminals were on strike and that Memphis, Tennessee, was
one of them. That afternoon, Miller called the terminal to avoid taking the Memphis run. He
spoke to Wnuk who told him he had to take the run. Miller said he would not cross the picket
line. Wnuk called Miller back 15 minutes later. She told him that she had spoken to Terminal
Manager Ronald Huck and that he said that Miller must go to Memphis and cross the picket
line or his benefits would be ceased. Miller asked to speak to Huck. According to Miller, he
asked Huck if he was being forced to cross the picket line in Memphis, and was told that if he
did not his benefits would be canceled and upon his return Huck would take “disciplinary
action” against him. Huck denies saying anything about discipline. Miller drove the run,
crossed the picket line in Memphis and the next day went on sick leave for stress.
Analysis and Conclusions
I credit Miller’s version of the events in this matter. His testimony was direct, unaffected
and unvarnished. The chain of events in this matter, beginning with the round of phone calls to
and from Miller on July 6, reveals him as a person overwrought with the conflict between his
obligations as a driver and union official. Huck’s denial that he threatened Miller is trumped by
the inability of Miller to deal with the conflict of crossing a picket line under duress, a fact
established by Miller’s going on sick leave for “stress” the next day. There is nothing in the
record to challenge the legitimacy of Miller’s condition, which I find consistent with someone
who has been threatened in a situation like Miller was in. Respondent attempted to impeach the
testimony of Miller by assailing his reputation for truthfulness. It failed for the reasons I have
stated above.
It is a well-established principle that an employee who refuses to cross a picket line engages in
protected activity having made “common cause” with the strikers. ABS Co., 269 NLRB 774 (1984).
It follows, inexorably, that Respondent’s threatening Miller with “disciplinary action” for engaging
in such activity violates Section 8(a)(1) of the Act precisely as General Counsel suggests.
C. Allegations Concerning Alan Agee2
Respondent employed Alan Agee, a driver, for approximately 13 years. He is a striking em-
ployee. At the time of the events here, Linda Wnuk supervised Agee. Wnuk, in turn, reported to Joe
Bill Peters, the terminal manager. Regional Manager Steve Smith had overall responsibility for this
and other facilities.
Agee contends that in the late summer or early fall of 1999, he was assigned a run to Indianapo-
lis, Indiana. When he arrived at this site, he found it struck by the Teamsters Union. Agee crossed
the picket line and completed his task. When he returned to St. Louis, Missouri, his dispatch point,
he went in search of Steve Smith to ask about the requirement to cross picket lines. Agee spoke to
Smith about what he should do and alleges that Smith told him that if he did not cross the picket
line, Agee would have to “find his own way home.” Agee stated that Smith told him that if he did
not cross the picket line, he would be terminated. Joe Bill Peters is alleged by Agee to have been
present during this conversation.3 When Peters testified, he denied being present and stated that he
did not even report to the St. Louis facility until August 23 some 7 weeks after Agee’s best recollec-
tion of the time frame of this conversation. This latter assertion went unchallenged by General
Counsel.
Analysis and Conclusions
2 The allegation of a threat levied against employee Agee by Re-
spondents regional manager was added to the complaint in these mat-
ters, as indicated above, on January 31, 2001. Respondent objected to
this amendment at hearing because of the timing of it. I deferred ruling
on this matter and directed that the issue be litigated. Respondent has
withdrawn objections to the amendment by the General Counsel in its
brief. The issue is therefore moot.
3 Smith recalled the conversation but stated it was a one-on-one en-
counter and that Agee was never told that he would be terminated for
honoring the picket line. Smith’s clear recollection is that Joe Bill Pe-
ters was not present during this event.
OVERNITE TRANSPORTATION CO. 391
Respondent argues that Agee’s first recollection of these events was only a few weeks before
the amendment some 18 to 20 months after the purported events. Agee, it argues, was unclear as to
the timing of this conversation: and was incorrect as to who was present. On the other hand, the
General Counsel contends that the history of this Respondent in dealing with the Union indicts it as
an entity demonstrating a “willingness to exceed the bounds of what it could lawfully do.” I believe
that both Respondent and General Counsel have points in their favor on this issue. However, in
assessing credibility in this matter, I am troubled by the remoteness in time to the event in question
to Agee’s first recollection of it. His testimony was unclear as to the time of the event, and even as
to whom was present during the conversation. Respondent presents a better argument here. I cannot
place enough reliance in Agee’s skewed version of these events to find that Steven Smith threat-
ened him in the manner General Counsel alleges despite Respondent’s notorious history of anti-
union behavior. I conclude there is no merit to this allegation and I recommend its dismissal.
D. Allegations Concerning Solicitation of Employees to
Decertify by Petition
A total of three decertification petitions were filed involving the parties in this matter. An em-
ployee named William Collins on October 16 filed the second of these. The Regional Director
dismissed this on August 22, 2000. Virgil Thomas is a city driver for Respondent. He has also been
a shop steward for the Union and is one of the striking employees. Thomas reported to work one
day in the fall of 1999. Thomas alleges that while waiting to receive his paperwork for his run on
this occasion sometime between 8:30 and 9 a.m., he saw and overheard a conversation the main
office area between Joe Bill Peters, driver-employee Ralph Rice, and city dispatcher Rodney Reiter.
Linda Wnuk was also present sitting at her work area and uninvolved in this conversation.4
The main office area has a window wall separating it from the driver’s lounge and waiting
area. Thomas initially was some four feet from this window but then positioned himself to
eavesdrop on the conversation, when he saw Peters enter the office area with Rice. According
to Thomas, Dispatcher Reiter said to Rice, “We need you to hung up and get that deceit list
going again because there are no charges and they can’t stop it now.” Reiter went on to tell
Rice that that the company would pay him for his time, to which Rice allegedly responded,
“Okay.”
Thomas was on the dock waiting for his truck to be loaded shortly after this event, at about
9 a.m. He alleges he saw and overheard Rice soliciting employees to sign a petition. He claims
that he walked up and spoke to Rice and asked him why he had not solicited him to sign. He
received no response. All of the individuals Thomas said were involved in this event testified
including Linda Wnuk. Each of them denied that any such conversation or event took place.
Analysis and Conclusions
Respondent defends its position here with a four-point argument. Its first point is that the
event never took place. Respondent states in its brief “It is inconceivable that four people would
state unequivocally that something didn’t happen if it in fact did.” I find this argument fatuous
and reject it completely. The essence of the type of misbehavior alleged is that a Respondent’s
agents conspiratorially come together to engage in the common enterprise of undermining a
union’s status. The past history of this Respondent, in this case, makes this event completely
conceivable and even highly probable.
Respondent’s second point is that the Union delayed by some weeks filing a charge in this
mater, as opposed to immediately filing it, as it did in the Thomas matter discussed above. This
fact conveys nothing to support the Respondent’s case. The Union’s motivation in choosing the

4 Thomas alleges that Wnuk was sitting at her work area. Wnuk dis-
putes this claiming that she did not come to work until 10 a.m.
timing for filing the charge in this matter is a red herring, having nothing to do with the merits
of this issue.
Respondent makes much of its third and fourth points. It argues that Reiter and Rich had
little reason to have contact with one another. Reiter was not even his supervisor and Rich
purportedly disliked Reiter for various reasons. Most importantly, Respondent stresses how it
has trained its managers to say nothing about union matters especially decertification issues.
In my assessment of the credibility issues in this matter, I was more influenced by the de-
meanor of Thomas while testifying than the other witnesses to this event. He was sure in his
recollection and did not waiver under cross-examination. Moreover, if I accept Respondent’s
rendition of events, I must conclude that Thomas invented the conversation he spoke of out of
whole cloth. I am satisfied that this is not the case based on my observation of him. The cir-
cumstances Thomas described and the ensuing events involving Rich have a persuasive sym-
metry to them that leads me to conclude that Respondent acted to foster and promote the filing
of a decertification petitions.5 I conclude that Thomas’s version of what occurred is reasonably
accurate. Finally, Respondent advances the virtuousness of its supervisors as a reason why this
event could not have happened as Thomas recounted it. I can place no reliance on this assertion,
given the history of the parties, of bitter labor strife and unresolved conflict, driven by this
Respondent’s previous misconduct.
The right to solicit, prepare and file a decertification petition is the right of employees
alone. An employer is not privileged to circulate or sign a decertification petition. In fact, it can
have no legitimate role in the instigation and circulation of such a petition. Caterair Intema-
tional, 309 NLRB 869 (1992). See also Cypress Lawn Cemetery Assn., 300 NLRB 609, 626,
627 (1990). A respondent acts at its peril and violates Section 8 (a)(1) of the Act, when it
engages, as here, in fostering and aiding a decertification attempt.
CONCLUSIONS OF LAW
1. 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 threatening an employee with disciplinary action if he crossed a picket line, Respon-
dent engaged in unfair labor practices violated Section 8(a)(1) of the Act.
4. By soliciting and bribing an employee to circulate a decertification petition, the Respon-
dent violated Section 8(a)(1) of the Act.
5. The above-described conduct are unfair labor practices within the meaning of Section
2(6) and (7) of the Act.
6. Except as found above, the Respondent has not engaged in any other unfair labor prac-
tices.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to effectuate
the policies of the Act.
[Recommended Order omitted from publication.]
5 Rich testified at length denying the essential elements of Thomas’
allegations, but admitting that he was involved in a decertification
attempt. He also left the distinct impression of an antipathy towards the
Union so virulent that I cannot place any reliance in any of his testi-
mony about it as being an accurate reflection of the truth.