Southern Mail, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 644 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 43
644
Southern Mail, Inc., et al., a Single Employer and
American Postal Workers Union, AFL-CIO.
Cases 16–CA–20760–2, 16–CA–20779, 16–CA–
20958, 16–CA–20996(1–2), 16–CA–21014, 16–
CA–21041, 16–CA–21078
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 6, 2002, Administrative Law Judge Pargen
Robertson issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and Charging Party filed answering briefs, and
the Respondent filed reply briefs. The Charging Party
filed limited cross-exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as modified and to adopt the rec-
ommended Order and notice 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 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.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the contentions are without merit.
2 We have modified the remedy, Order, and notice to more accu-
rately reflect the violations found and the usual remedial provisions of
the Board.
Also, we shall delete from the recommended Order and notice the
requirement that the bargaining period be extended for 12 months under
Mar-Jac Poultry Co., 136 NLRB 785, 787 (1962). Under Mar-Jac, the
Board may extend the 1-year certification period to compensate for the
failure of an employer to bargain in good faith during that time period.
Here, as more fully explained below, the Respondent, during the certi-
fication year, made several unlawful unilateral changes and refused to
furnish requested relevant information. However, neither the General
Counsel nor the Charging Party contends that the Respondent has failed
or refused to recognize the Union or to meet and bargain with the Un-
ion in good faith following the Union’s certification, nor do either of
them contend that the Respondent’s violations of Sec. 8(a)(5) have
tainted negotiations during the certification year. Under these circum-
stances, we will remove the Mar-Jac remedy from the recommended
Order. See Visiting Nurse Services of Western Mass., 325 NLRB 1125,
1132 (1998), enfd. 177 F.3d 52 (1st Cir. 1999), cert. denied 528 U.S.
1074 (2000).
The General Counsel filed a motion to strike portions of the Re-
spondent’s Brief in Support of its Exceptions. We grant the General
Counsel’s motion to strike inasmuch as the references were to docu-
ments and testimony which were not admitted into evidence at the
Introduction
The Respondent, a contract mail carrier for the United
States Postal Service (USPS) primarily engaged in over
the road transportation, consists of six-related companies
operating as a single employer: Southern Mail Services,
Alamo Mail Services, Byrd Trucking, S&B Stagelines,
H&L Mail, and E&L Mail. The Union’s efforts to or-
ganize certain of the Respondent’s employees com-
menced in May 2000.3 On August 31, the Union won a
mail ballot election in a unit of approximately 300 driv-
ers “assigned, stationed or dispatched” from terminals in
Dallas, Houston, and San Antonio, Texas. The Union
was certified as the exclusive bargaining representative
of the drivers on September 8.
In his decision, the judge found that the Respondent
committed a number of unfair labor practices before and
after the election. As set forth below, we affirm in part
and reverse in part the judge’s unfair labor practice find-
ings. We address these matters in turn.
Discussion
1. The judge found, and we agree, for the reasons set
forth in his decision, that the Respondent violated Sec-
tion 8(a)(1) by:
• Supervisor John Pool threatening employee
Frank Cruz with loss of employment or sale
of the company if the Union won the election;
• Supervisor Pool threatening employees Ron
Dakin and Rudolfo Sanchez with loss of sen-
iority if the Union won the election;
• Supervisor James McMullen threatening to
transfer unit employee Lenorah Antoine to a
nonunion company;4
• Safety Manager Bill Sturdivant coercively in-
terrogating employee Howard Cranford about
the Union;5 and
• Supervisor James Reilly harassing employee
Fern Clark with threats of discipline and ter-
mination and denying her union representa-
tion during an investigatory interview.
We also adopt the judge’s findings that the Respondent
violated Section 8(a)(3) and (1) by:

hearing and are not, therefore, part of the record in this proceeding. See
Electro-Tec, Inc., 310 NLRB 131 fn.1 (1993), enfd. 993 F.2d 1547 (6th
Cir. 1993); Today’s Man, 263 NLRB 332, 333 (1982).
3 All dates are in 2000 unless otherwise indicated.
4 We do not adopt any implication in the judge’s decision that
McMullen threatened Antoine with transfer to a lower paying job.
5 In adopting the judge’s finding, we find it unnecessary to pass on
the other interrogation findings made by the judge because the findings
of additional unlawful interrogations would be cumulative and would
not materially affect the remedy for this unlawful conduct.
SOUTHERN MAIL, INC. 645
• Discharging employees John Pinkston and
Bobby Marks;6
• Transferring employees Cruz and Richard
Paiz to lowering paying routes; and
• Disciplining and suspending employee
Clark.7
We also adopt the judge’s findings that the Respondent
violated Section 8(a)(5) and (1) by:
• Unilaterally altering the Nuevo Laredo run;8
• Unilaterally altering its policy regarding driv-
ers correcting their timecards and DOT logs;
• Unilaterally altering its drug testing policy;
and
• Failing to provide the Union with information
requested on October 5, 20009 and March 12,
2001.10

6 In adopting the judge’s finding that the Respondent unlawfully dis-
charged Pinkston and Marks, we rely on the employees’ open display
of union insignia in the workplace to establish the Respondent’s knowl-
edge of their union activity. We find it unnecessary to rely on the
judge’s finding that the Respondent’s knowledge of the employees’
union activities could be inferred from their authorization card signings,
their active solicitation of other employees to sign cards, their distribu-
tion of union literature, and the Union’s margin of victory.
7 In adopting the judge’s finding, we rely on Clark’s role as a union
negotiator, as well as Clark’s invocation of her Weingarten rights to
establish the Respondent’s knowledge of Clark’s union activities. We
do not rely on the judge’s discussion of Clark’s preelection union activ-
ity to establish the Respondent’s knowledge.
8 In adopting the judge’s finding, we note that the Respondent was
required by the USPS to change the schedule for the Nuevo Laredo run
and remove two stops. However, the Respondent was not required by
the USPS to add an additional 100 miles to the run. Instead, the deci-
sion to add the miles to the run was made solely by the Respondent
without bargaining with the Union. Our finding of a violation of Sec.
8(a)(5) is limited to this discretionary change.
Member Liebman would not so limit the violation. In her view,
while the Respondent is certainly free to take the position in bargaining
that it is required to make certain changes in the Nuevo Laredo run
because of its relationship with USPS, there is no basis for excusing the
Respondent from its obligation to notify the Union and give it an op-
portunity to bargain over all the changes, even those that the Respon-
dent asserts were mandated by the USPS. Thus, in her view, all aspects
of the Nuevo Laredo run changes should be included as part of the
8(a)(5) violation.
9 We note that the Respondent’s obligation to provide information in
this request is limited only to presumptively relevant information about
bargaining unit employees. We shall leave to the compliance stage of
this proceeding the determination of the precise information in this
request which the Respondent must furnish. See WCCO Radio, Inc.,
282 NLRB 1199 fn. 3 (1987), enfd. 844 F.2d 511 (8th Cir. 1988), cert.
denied 488 U.S. 824 (1988).
10 Specifically, we adopt the judge’s finding that the Respondent vio-
lated Sec. 8(a)(5) and (1) by failing to provide the Union with the
phone numbers and employment status of bargaining unit employees.
We also adopt the judge’s finding that the Respondent did not vio-
late Sec. 8(a)(5) and (1) by failing to supply the Union with the social
security numbers of bargaining unit employees.
We further agree, for the reasons set forth in his deci-
sion, with the judge’s dismissal of the complaint allega-
tion that the Respondent violated Section 8(a)(5) and (1)
of the Act by transferring bargaining unit work to Lee-
way Transportation.
2. The judge found that the Respondent violated Sec-
tion 8(a)(5), (3), and (1) by changing its DOT log disci-
plinary policy. In light of the conclusion that the change
in log policy was unlawful, the judge found that the Re-
spondent violated Section 8(a)(3) and (1) by discharging
drivers Howard Cranford and Clyde Evans for DOT log
violations. For the reasons that follow, we affirm these
findings.
As a contract mail carrier, the Respondent is subject to
Department of Transportation (DOT) regulations that
limit the working and driving hours of covered drivers.
Specifically, the DOT regulations prohibit a driver from
driving more than 10 hours without an 8-hour break, and
more than 70 hours in 8 consecutive days.11 The regula-
tions also require drivers to maintain a log which records
their starting times, miles driven, duty status, break-
times, and other information.12 The regulations do not
specify any disciplinary measures that an employer must
take against drivers who fail to comply.
Until January 2001, the Respondent was relatively le-
nient in its approach to its drivers’ compliance with DOT
regulations and even helped its drivers circumvent the
regulations. The Respondent’s vice president of human
resources, James Reilly, testified that drivers who vio-
lated DOT regulations would speak with Safety Manager
Sturdivant and not be subject to other discipline. In fact,
from 1997 until January 31, 2001, only 3 of over 130
terminations were for violations of DOT log regulations.
Cranford testified that he was told to falsify his logs by
his terminal manager in December 1999, to avoid show-
ing a DOT violation for driving more than 70 hours in 8
consecutive days. Cranford also testified that he was
instructed by his supervisor in January 2000 to falsify his
log to avoid revealing another DOT 70-hour rule viola-
tion.
Evans did not receive instruction on DOT log mainte-
nance and compliance when he was hired in August
2000. In September, the Respondent instructed him to
make a run from Dallas to Amarillo without a required 8-
hour break when he stated he could not complete the run
with the break for personal reasons. Evans consistently
had trouble filling out his log, and dispatcher Valdez
routinely calculated his hours and filled in the “recap”
section of the log showing whether he had exceeded his

11 See 49 C.F.R. § 395.3.
12 See 49 C.F.R. § 395.8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD646
maximum allowable hours. Evans was not disciplined
for these infractions. Rather, he was required to watch a
training film after which Valdez helped him update his
log.
According to the Respondent’s records, Evans failed to
take the DOT-required break during a run on January 9,
2001. Safety Manager Sturdivant called him to discuss
the infraction on January 30, 2001, and Evans explained
that he failed to take the required break because he had to
return home for a family emergency. Sturdivant told
Evans that he was going to issue him a warning letter,
which stated, among other things: “It is our wish that this
written warning will correct a serious deficiency and that
no further corrective action up to and including dismissal
will be necessary.” One day earlier, the Respondent had
placed Cranford on off-duty status because there was a
problem with his logs.
On January 31, union bargaining committee members
Boston and Vaughn met with the Respondent to discuss
rumors that drivers had been discharged for DOT viola-
tions. The Respondent responded that drivers had been
suspended, but denied that any drivers had been dis-
charged.
However, on February 1, the Respondent discharged
Cranford, Evans, and driver Rudy Cates for DOT log
violations.13 Immediately after the discharges, the Re-
spondent issued a memo from its owner, Tish Farrell, to
its drivers blaming the Union for the terminations. The
memo stated, in pertinent part, “[s]everal drivers are up-
set and have asked about the termination of several long
term drivers. I wanted you to hear directly from me the
cause of those terminations. Two members of the
APWU Bargaining Committee quite properly brought to
the Company’s attention that certain drivers were falsify-
ing their DOT logs.”
As the judge found, the Respondent’s changes to its
DOT log disciplinary policy violated Section 8(a)(5) and
(1). Mandatory subjects of bargaining include the cir-
cumstances in which discipline will be imposed for vio-
lations of employer policies. See Pepsi-Cola Bottling
Co. of Fayetteville, Inc., 330 NLRB 900, 904 (2000),
enfd. in relevant part 24 Fed.Appx. 104 (4th Cir. 2001),
citing Frontier Hotel & Casino, 309 NLRB 761, 766
(1992), enfd. 71 F.3d 1434 (9th Cir. 1995). The record
clearly shows that the Respondent’s DOT log discipli-
nary policy changed from virtual nonenforcement to
strict enforcement in early 2001. It is undisputed that the
parties were engaged in negotiations for a collective-
bargaining agreement, that they had not reached overall

13 There is no unfair labor practice allegation relating to the dis-
charge of Cates.
impasse, and that no exception to the overall impasse
rule applied. Accordingly, the change violated Section
8(a)(5) and (1). See, e.g., Bottom Line Enterprises, 302
NLRB 373, 374 (1991), enfd. mem. sub nom. Master
Window Cleaning, Inc., v. NLRB, 15 F.3d 1087 (9th Cir.
1994).
We also find that the change violated Section 8(a)(3)
and (1). To establish a violation of Section 8(a)(3) under
Wright Line,14 the General Counsel has the burden of
establishing a prima facie case that is sufficient to sup-
port an inference that protected conduct was a motivating
factor in the Respondent’s decision to more strictly en-
force its DOT log disciplinary policy. Once this is estab-
lished, the burden shifts to the Respondent to demon-
strate that such actions would have taken place for a le-
gitimate reason regardless of the protected activities.
Like the judge, we find that the General Counsel has
met his initial burden. There is abundant evidence of the
Respondent’s motivation to retaliate against employees
for their election of a union bargaining representative.
The Respondent repeatedly threatened its drivers with
adverse consequences if the Union won the election.15
Immediately after the election, it deviated from past prac-
tice and discriminatorily discharged union supporters
Pinkston and Marks for alleged timecard violations. In
late October, the Respondent threatened to transfer em-
ployee bargaining unit member Lenorah Antoine to a
nonbargaining unit job. In early November, it discrimi-
natorily transferred drivers Cruz and Paiz to lower pay-
ing routes. Later that same month, the Respondent coer-
cively interrogated Cranford as to whether the Union had
turned the Respondent in to the DOT. The Respondent’s
abrupt change in its DOT log disciplinary policy at the
end of January 2001 was consistent with this continuum
of unfair labor practices. The Respondent’s unlawful
motivation is further demonstrated by the change in Ev-
ans’ discipline from warning to discharge and by owner
Farrell’s attempt to place the Union in disrepute with the
drivers by falsely claiming that the Union had “brought
to the Company’s attention that certain drivers were fal-
sifying their DOT logs.”
We also find that the Respondent failed to show that it
would have more strictly enforced its DOT log discipli-
nary policy even in the absence of its drivers’ union ac-
tivity. We do not question the legitimacy of an em-
ployer’s need to comply with Federal regulations in its
industry. The regulations and Respondent’s compliance
with them are not at issue here. The issue concerns how

14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
15 These threats included loss of employment, sale of the company,
and loss of seniority if the Union won the election.
SOUTHERN MAIL, INC. 647
the Respondent dealt with drivers who fail to comply
with its regulations. The record shows that the Respon-
dent felt no need to discipline drivers for failing to com-
ply with DOT regulations until after they chose to be
represented by the Union. The Respondent offers no
explanation for the change in its disciplinary policy.
Instead, the Respondent asserts that there was no change
in policy. On the contrary, until the discharges at issue,
the Respondent’s disciplinary policy with respect to
DOT log violations was lax or nonexistent. It was long
aware of log falsifications by Cranford and Evans and
tolerated them until it could seize upon these infractions
in an unjustified effort to blame the Union for the dis-
charges. Accordingly, we find the Respondent has failed
to prove that it would have changed its DOT log discipli-
nary policy in the absence of its drivers’ union activity.16
The Respondent’s unlawful change in its disciplinary
policy for DOT log violations in response to employees’
union activities discriminated against all of its employ-
ees. Thus, the discharges of Cranford and Evans violated
Section 8(a)(3) and (1) of the Act even if Respondent
was unaware of union activity by these specific individu-
als and even if Respondent had no particular unlawful
motive against specific employees. E.g., Treanor Mov-
ing & Storage Co., 311 NLRB 371(1993).17

16 Accord Hialeah Hospital, 343 NLRB 391, 392–393 (2004) (re-
spondent failed to meet Wright Line rebuttal burden of establishing that
it would have more strictly enforced departmental regulations in un-
ion’s absence by referring only to the regulation itself, which was not
enforced prior to the union’s advent).
17 Under these circumstances, we do not rely on the judge’s finding
that the Respondent was aware of Evans’ support for the Union. On the
other hand, there is direct credited evidence that the Respondent knew
of Cranford’s union activity and questioned him about the Union’s
involvement with DOT.
Member Schaumber agrees with his colleagues that the decision to
change the DOT log disciplinary policy was a bargainable matter, and
that the unilateral action taken by the Respondent was unlawful under
Sec. 8(a)(5) and (1).
Member Schaumber, however, disagrees with the majority’s finding
that the Respondent’s change in its disciplinary policy for DOT log
violations was discriminatorily motivated in violation of Sec. 8(a)(3)
and (1). In his view, the Respondent had a compelling need to ensure
that its drivers comply with applicable DOT regulations and safely
operate the Respondent’s trucks. The Respondent may have enforced
those rules more stringently in January 2001 than it had in the past, but
this more stringent enforcement was motivated by these compliance
and safety needs. It was not shown to be a response to the employees’
decision to vote for union representation 5 months earlier.
Accordingly, Member Schaumber does not agree with his colleagues
that the discharges of Evans and Cranford can be found to violate Sec.
8(a)(3) because they were pursuant to the Respondent’s disciplinary
policy for DOT log violations.
As to Cranford, Member Schaumber agrees with his colleagues that
his discharge was unlawful, but he does so for the reasons stated by the
judge. Thus, he agrees with the judge that the General Counsel carried
his Wright Line burden to prove that Cranford’s union activity was a
motivating factor in the Respondent’s decision to discharge him. The
3. The judge found, and we agree for the reasons set
forth below, that the Respondent violated Section 8(a)(5)
and (1) by failing to bargain over changes to the Dallas
to Denver run. As more fully set forth in the judge’s
decision, the Respondent notified the Union on Septem-
ber 29 that the USPS was changing the schedule for the
Dallas to Denver run on October 14. The Respondent
offered to bargain over the changes. The parties met on
October 5, and the Union requested information for the
purpose of bargaining.
On October 6, the Respondent notified the Union by
letter that it had determined that the best way to operate
the new run was to run it out of Amarillo, Texas instead
of Springfield, Colorado and that any Springfield or Dal-
las driver wishing to relocate to Amarillo should notify
the Respondent by October 10. The Respondent also
provided the Union with some of the information re-
quested the previous day, including the trip schedules
and the names of the affected drivers. However, the Re-
spondent did not provide the requested copy of the USPS
change order, an explanation of its reasons for the switch
to Amarillo and the elimination of the Springfield run, or
any details about stops on the changed run schedule. On
the same day, the Union protested the Respondent’s de-
cision to move ahead without negotiations and reiterated
that it needed the remaining requested information in
order to bargain.
On October 10, the Union again requested the balance
of the information and proposed that the Respondent
maintain the status quo. On October 11, the Respondent
informed the Union that it could not honor its request to
maintain the status quo. On October 13, the Respondent
provided the Union with the rest of the requested infor-
mation except for the USPS change order. On October
14, the Respondent implemented the changes to the Dal-
las to Denver run.
For the reasons stated by the judge in his decision, we
find that the Respondent violated Section 8(a)(5) and (1)
by failing and refusing to timely furnish the Union with
requested information concerning the proposed change to
the Dallas to Denver run. The Union has demonstrated

record shows that Cranford engaged in union activity and that the Re-
spondent was aware of this activity. The Respondent’s antiunion ani-
mus is clear from the numerous 8(a)(5), (3), and (1) violations dis-
cussed above. Finally, he finds, in agreement with the judge, that the
Respondent failed to show that it would have taken the same action in
the absence of Cranford’s union activity.
As to Evans, however, Member Schaumber finds that the General
Counsel failed to show that the Respondent’s antiunion animus was a
substantial or motivating factor in its decision to discharge him. This is
because he finds there is simply no evidence that the Respondent knew
Evans signed an authorization card, his only union activity. Moreover,
Evans was discharged in February 2001, more than 5 months after he
signed the card.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD648
that it needed the requested information in order to en-
gage in meaningful bargaining with the Respondent re-
garding the change. The information requested by the
Union related directly to the terms and conditions of em-
ployment for bargaining unit employees. As such, it was
presumptively relevant to the Union’s representative
role. See, e.g., Beverly Health Care & Rehabilitation
Services, 328 NLRB 885 (1999).
In light of the Respondent’s unlawful failure to pro-
vide this information which the Union needed to engage
in meaningful bargaining, we further find that the subse-
quent unilateral change to the run also violated Section
8(a)(5) and (1). We reject the Respondent’s contention
that it could not bargain about the change to the Dallas to
Denver run because it was mandated by the USPS. The
change order issued by the USPS required the Respon-
dent to change the start and end times of four runs,
thereby reducing each run’s total travel time. The USPS
did not require any of the other changes implemented by
the Respondent, including the decision to change the
starting point from Springfield to Amarillo. Instead, the
USPS left those decisions to the Respondent’s discretion.
By unilaterally implementing these changes in the cir-
cumstances set forth above, the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.18
4. Contrary to the judge, we find that the Respondent
did not unlawfully threaten employee Ron Dakin on Sep-
tember 15. As more fully set forth in the judge’s deci-
sion, Dakin testified that while he was in the office pick-
ing up timecards, Supervisor John Pool asked him how
the Union was coming along. Pool told Dakin that the
Respondent’s owner, Tish Farrell, was considering cut-
ting the drivers’ runs to 40 hours a week. Dakin asked
why and Pool replied that Farrell told him that if the Un-
ion got a contract that called for time-and-a-half pay over
40 hours she was not going to want to pay the extra
money and therefore was thinking of cutting runs back to
40 hours a week. Dakin was an open union supporter
who discussed union bargaining positions with Pool prior
to the election. He testified that Pool was referring to
proposals that might be made during contract negotia-
tions.
The judge found that Pool’s statement was a threat of
loss of pay in violation of Section 8(a)(1). We disagree.
Viewed in context, the statement was not a threat of re-

18 To the extent that her colleagues are limiting the 8(a)(5) violation
here to the changes not required by the USPS, Member Liebman dis-
agrees. As noted above with respect to the changes in the Nuevo
Laredo run (fn. 8, supra), she sees no basis to excuse the Respondent
from the duty to notify the Union and afford an opportunity to bargain
about all changes in connection with the Dallas to Denver run, includ-
ing the reduction in total run time required by the USPS.
prisal for employees’ support of the Union, but was in-
stead, a lawful discussion of possible contract proposals.
Indeed, Dakin acknowledged in his testimony that Pool’s
statement was a reference to proposals the parties might
exchange.19 In these circumstances, there is simply no
basis on which to conclude that Dakin would reasonably
view Pool’s statement as a threat to reduce hours worked
by employees as retaliation for their support for the Un-
ion.20
5. We also reverse the judge’s finding that the Re-
spondent violated Sections 8(a)(3) and (1) by reducing
employee Julio Gomez’s work schedule by one day. As
more fully discussed in the judge’s decision, on February
7, 2001, Gomez was asked by Supervisor John Pool to
make a run because another driver was going on vaca-
tion. Gomez protested to Pool and Terminal Manager
Richard Romero that if he worked as requested he would
violate the DOT regulation prohibiting drivers from ex-
ceeding 70 hours in an 8-day period, but eventually
worked as scheduled.
On February 11, 2001, Gomez again refused to run the
routes assigned to him because he believed he would
violate DOT regulations if he did. Gomez then told Ro-
mero that he was going to call DOT, not to report the
Respondent, but to see if he had enough hours to work.
Romero angrily told Gomez to take the whole week off,
and that he would call Gomez if his services were needed
again.
The next day, after a conversation with fellow em-
ployee Dakin, Gomez contacted Safety Manager Bill
Sturdivant who verified Gomez’s concern that he would
run over his hours if he followed Romero’s instructions.
Sturdivant proceeded to tell Gomez that he could return
to work the following day, February 13, 2001. Gomez

19 We rely on Dakin’s statement as objective evidence of the context
in which Pool discussed a possible reduction in hours, not as subjective
evidence that Dakin did not feel threatened.
20 Member Liebman would find that Supervisor Pool did threaten
employee Dakin on September 15. The majority’s reasoning that Pool
was merely discussing “possible contract proposals” with Dakin is
belied by Pool’s actual statement that if the union got a contract requir-
ing time-and-a-half for overtime, Respondent’s owner, Tish Farrell,
was thinking of cutting runs back to 40 hours a week. That statement
reasonably conveys the meaning that if the Union were to succeed in
negotiating time-and-a-half for overtime, Farrell might unilaterally
eliminate overtime. It is besides the point how Dakin construed Pool’s
words. The test under Sec. 8(a)(1) is an objective one and depends on
“whether the employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee rights under
the Act.” American Freightways Co., 124 NLRB 146, 147 (1959). The
test is met here, regardless of Dakin’s subjective construction of Pool’s
threatening comment. See Cooper Tire & Rubber Co. v. NLRB, Case
Nos. 04-1425, 04-1590 (6th Cir. 2005) (stating that test to be applied is
whether remark can reasonably be interpreted by employee as a threat,
not whether employee was in fact intimidated or coerced).
SOUTHERN MAIL, INC. 649
returned to work and on February 15, 2001, Respondent
removed 1 day from his 5 day a week schedule.
The judge found that the Respondent violated Section
8(a)(3) and (1) by reducing Gomez’s schedule by 1 day.
We do not agree with this finding.
As noted above, to establish a violation of Section
8(a)(3) under Wright Line,21 the General Counsel has the
burden of establishing a prima facie case that is sufficient
to support an inference that protected conduct was a mo-
tivating factor in the Respondent’s decision to reduce
Gomez’s hours. Once this is established, the burden
shifts to the Respondent to demonstrate that such action
would have taken place for a legitimate reason regardless
of the protected activities.
The record evidence shows general antiunion animus
on the part of the Respondent. However, the General
Counsel has failed to show that the Respondent’s anti-
union animus was a motivating factor in the decision to
reduce Gomez’s hours. The only union activity Gomez
engaged in was attending union meetings prior to the
election. Importantly, the Respondent reduced Gomez’s
hours in February 2001, more than 5 months after his
union activity, which was relatively insignificant. Nor is
there any clear evidence that the Respondent knew of this
activity.22 In these circumstances, we find that the Gen-
eral Counsel failed to show that Gomez’s union activity
was a motivating factor in the decision to reduce his
hours. Therefore, we shall dismiss this complaint allega-
tion.23

21 251 NLRB 1083, supra.
22 The judge found that Supervisor Pool once observed Gomez
speaking with Dakin and a union representative in a store used by the
Union for meetings with employees. Without more, this evidence does
little to establish that the Respondent had knowledge of union activity
on Gomez’s part.
23 While the Respondent’s brief argues for reversal of the judge’s
finding of a violation only on credibility grounds, its exceptions spe-
cifically contest the judge’s finding that Gomez’s union activity was a
motivating factor in the decision to reduce his hours and the finding
that the Respondent failed to show that it would have taken this action
in the absence of those activities. In these circumstances, we are satis-
fied that the issue is properly before us.
Although the General Counsel alleged that Gomez’s reduction in
hours was also an independent violation of Sec. 8(a)(1), there is no
evidence that the Respondent knew of any concerted activity on the
part of Gomez. Therefore, we shall also dismiss the 8(a)(1) complaint
allegation.
Member Liebman would adopt the judge’s finding that the Respon-
dent’s decision to reduce Gomez’s hours violated Sec. 8(a)(3). The
Respondent’s argument in opposition to that finding is limited to chal-
lenging the judge’s decision to credit Gomez, and the majority does not
reverse the judge’s decision in that regard. The majority nevertheless
finds that the General Counsel failed to show that union animus moti-
vated the decision to reduce Gomez’s hours, in part because of a pur-
ported absence of evidence that the Respondent knew of Gomez’s
union activity. Contrary to the majority’s finding, the evidence does
support a finding of knowledge, as it shows that Gomez attended 10 or
AMENDED CONCLUSIONS OF LAW
1. Southern Mail Service, Inc., Byrd Trucking Co.,
Inc., S&B Stagelines, Inc., Alamo Mail Services., Inc.,
E&L Mail, Inc., and H&L Mail, Inc. constitute a single
employer (Respondent).
2. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
3. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
4. The Respondent violated Section 8(a)(1) of the Act
by:
(a) Supervisor John Pool threatening employee Frank
Cruz with loss of employment or sale of the company if
the Union won the election.
(b) Supervisor John Pool threatening employees Ron
Dakin and Rudolfo Sanchez with loss of seniority if the
Union won the election.
(c) Supervisor James McMullen threatening to transfer
unit employee Lenorah Antoine to a nonunit company.
(d) Safety Manager Bill Sturdivant coercively interro-
gating employee Howard Cranford about the Union.
(e) Supervisor James Reilly harassing employee Fern
Clark with threats of discipline and termination and de-
nying her union representation during an investigatory
interview.
5. Respondent violated Section 8(a)(3) and (1) of the
Act by:
(a) Discharging employees John Pinkston, Bobby
Marks, Howard Cranford, and Clyde Evans.
(b) Transferring employees Frank Cruz and Richard
Paiz to lower paying routes.
(c) Disciplining and suspending employee Fern Clark.
(d) Unilaterally altering its disciplinary policy regard-
ing Department of Transportation (DOT) logs.
6. Respondent violated Section 8(a)(5) and (1) of the
Act by:
(a) Failing to bargain over changes to the Dallas to
Denver run.
(b) Unilaterally altering the Nuevo Laredo run.

11 union meetings, and Supervisor Pool saw him at one of these meet-
ings. Member Liebman would find that issue not properly before the
Board. In her view, the Respondent waived all arguments with respect
to the 8(a)(3) finding concerning Gomez—and also with respect to the
independent 8(a)(1) finding, which the majority also dismisses —
except its contention that Gomez should not have been credited. The
majority considers the Respondent’s unargued exceptions sufficient to
permit them to reach and reverse the judge’s findings concerning Go-
mez. Member Liebman disagrees. See Tri-Tech Services, 340 NLRB
894, 896 fn. 11 (2003) (Member Liebman, dissenting in part) (finding
unargued exceptions thereby waived). Having waived all exceptions to
the judge’s findings concerning Gomez except for credibility, nothing
is left but to adopt the judge’s findings, and Member Liebman would
do so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD650
(c) Unilaterally altering its policy regarding drivers
correcting their timecards and DOT logs.
(d) Unilaterally altering its disciplinary policy regard-
ing DOT logs.
(e) Unilaterally altering its drug testing policy.
(f) Failing to furnish presumptively relevant informa-
tion requested by the Union in its October 5, 2000 and
March 12, 2001 letters to the Respondent.
7. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
8. The Respondent has not violated the Act in any
other manner except as specifically found herein.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall be ordered to make whole John
Pinkston, Bobby Marks, Howard Cranford, Clyde Evans,
and Fern Clark in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1172 (1987).24 To the extent, if any, that the Respon-
dent’s unlawful conduct resulted in employees receiving
less than they would have been entitled to for their work
had the Act not been violated, the Respondent shall be
ordered to make those employees whole in the manner
set forth in Ogle Protection Service, 182 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, supra.
Having found that the Respondent violated the Act by
failing to provide information requested by the Union on
October 5, 2000, we shall order the Respondent to fur-
nish the Union with the information from the request
concerning bargaining unit employees determined to be
presumptively relevant at the compliance stage of this
proceeding.

24 We shall delete from the judge’s recommended remedy a provi-
sion that discriminatees be reimbursed for extra taxes resulting from
lump sum payment of the backpay award due them. Such remedial
relief is inconsistent with current precedent. See Hendrickson Bros.,
Inc., 272 NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d Cir. 1985);
Laborers Local 282 (Austin Co.), 271 NLRB 878 (1984). In Hotel
Employees and Restaurant Employees International Union, Local 26
(HERE), 344 NLRB No. 70 (2005), the majority granted the General
Counsel’s motion to withdraw its request for similar tax relief. As
explained in her dissent in the HERE case, Member Liebman remains
of the view that the Board should overrule this precedent and provide
tax compensation as part of its make-whole remedy. She acknowl-
edges, however, that such a remedy is not available under current
Board law, and therefore she concurs in deleting that remedy from the
judge’s proposed remedy.
In addition, to remedy the Respondent’s failure to pro-
vide information requested by the Union on March 12,
2001, we shall order the Respondent to only furnish the
Union with the phone numbers and employment status of
bargaining unit employees.
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, Southern Mail Service, Inc., Byrd Trucking
Co., Inc., S&B Stagelines, Inc., Alamo Mail Service,
Inc., E&L Mail, Inc., and H&L Mail, Inc., a single em-
ployer, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with loss of employment
or sale of the company because of their union or other
protected concerted activity.
(b) Threatening its employees with loss of seniority
because of their union or other protected concerted activ-
ity.
(c) Threatening its employees with transfer to a non-
unit company because of their union or other protected
concerted activity.
(d) Coercively interrogating any employees about their
union support or union activities.
(e) Harassing its employees by threatening them with
discipline and termination because of their union or other
protected concerted activity.
(f) Denying its employees union representation during
interviews when disciplinary action may result.
(g) Discharging or otherwise discriminating against
any employees for supporting the Union or any other
labor organization.
(h) Transferring its employees to lower paying routes
for supporting the Union or any other labor organization.
(i) Disciplining and suspending its employees for sup-
porting the Union or any other labor organization.
(j) Unilaterally making changes in its employees’
wages, hours, working conditions, or other conditions of
employment concerning mandatory subjects of bargain-
ing without bargaining collectively with the Union in
accordance with the requirements of Section 8(a)(5) of
the Act.
(k) Refusing to bargain with the Union by failing to
timely furnish the information in its October 5, 2000 and
March 12, 2001 letters to the Respondent that is relevant
and necessary to the Union’s performance of its function
as bargaining representative.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
SOUTHERN MAIL, INC. 651
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
John Pinkston, Bobby Marks, Howard Cranford, and
Clyde Evans full reinstatement to their former jobs or, if
their jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(b) Make John Pinkston, Bobby Marks, Howard Cran-
ford, Clyde Evans, and Fern Clark whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, with interest, in the manner
set forth in the amended remedy section of this decision.
(c) Make whole Frank Cruz, Richard Paiz, and any
other unit employee for any losses suffered as a result of
unlawful conduct that resulted in employees receiving
less than they would have been entitled to for their work
had the Act not been violated, in the manner set forth in
the amended remedy section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
John Pinkston, Bobby Marks, Howard Cranford, and
Clyde Evans, the unlawful transfers of Frank Cruz and
Richard Paiz, and the unlawful discipline and suspension
of Fern Clark, and within 3 days thereafter notify these
employees in writing that this has been done and that the
unlawful actions will not be used against them in any
way.
(e) Rescind the unilateral changes implemented by the
Respondent to the Dallas to Denver run, the Nuevo
Laredo run, the policy regarding drivers correcting their
timecards and Department of Transportation logs, the
disciplinary policy regarding Department of Transporta-
tion logs, and the drug testing policy found to be unfair
labor practices, and bargain with the Union in good faith
until an agreement or impasse is reached.
(f) Furnish to the Union in a timely manner any pre-
sumptively relevant information requested in its October
5, 2000 and March 12, 2001 letters to the Respondent in
the manner set forth in the amended remedy section of
this decision.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facilities in Dallas, Houston, and San Antonio, Texas,
copies of the attached notice marked “Appendix.”25
Copies of the notice, on forms provided by the Regional
Director for Region 16, after being signed by the Re-
spondent’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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that the Re-
spondent has gone out of business or closed the facilities
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 after July 2, 2000.
(i) 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 complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
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
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 threaten you with loss of employment or
sale of the company because of your union activities.
WE WILL NOT threaten you with loss of seniority be-
cause of your union activities.
WE WILL NOT threaten to transfer you to a nonunit
company because of your union activities.

25 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD652
WE WILL NOT coercively interrogate you regarding
your union support or activities.
WE WILL NOT harass you with threats of discipline and
termination because of your union activities.
WE WILL NOT deny you union representation during in-
terviews where disciplinary action may result.
WE WILL NOT discharge, transfer, discipline, or sus-
pend you because of your union activities.
WE WILL NOT make unilateral changes in the wages,
hours, or other terms and conditions of employment in
the bargaining unit of our employees represented by the
American Postal Workers Union, AFL–CIO, without
prior notice to or bargaining with that Union as your ex-
clusive collective-bargaining representative.
WE WILL NOT fail to furnish or fail to timely furnish
information requested by the Union that is relevant and
necessary to the Union’s functioning as the collective-
bargaining representative of the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer employees John Pinkston, Bobby Marks,
Howard Cranford, and Clyde Evans full and immediate
reemployment in their former jobs, or if those jobs no
longer exist, to a substantially equivalent position with-
out prejudice to their seniority or other rights and privi-
leges previously enjoyed.
WE WILL make employees John Pinkston, Bobby
Marks, Howard Cranford, Clyde Evans, and Fern Clark
whole for any lost earnings and other benefits suffered as
a result of the discrimination against them, with interest.
WE WILL make Frank Cruz, Richard Paiz, and any
other unit employee whole, with interest, for any losses
suffered as a result of unlawful conduct that resulted in
the employee receiving less than they would have been
entitled to for their work had the Act not been violated.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlaw-
ful action taken against John Pinkston, Bobby Marks,
Howard Cranford, Clyde Evans, Frank Cruz, Richard
Paiz, and Fern Clark, and WE WILL, within 3 days there-
after, inform them in writing that we have done so and
that our unlawful actions will not be used against them in
any way.
WE WILL rescind the unlawful unilateral changes to the
Dallas to Denver run, the Nuevo Laredo run, the policy
regarding drivers correcting their timecards and Depart-
ment of Transportation logs, the disciplinary policy re-
garding Department of Transportation logs, and the drug
testing policy found to be unfair labor practices, and
upon request bargain with the Union concerning any
proposed changes.
WE WILL furnish to the Union in a timely manner any
presumptively relevant information requested in its Oc-
tober 5, 2000 and March 12, 2001 letters to the Respon-
dent.
SOUTHERN MAIL SERVICE, INC., BYRD
TRUCKING CO., INC., S&B STAGELINES, INC.,
ALAMO MAIL SERVICE, INC., E&L MAIL, INC.,
AND H&L MAIL, INC., A SINGLE EMPLOYER
Elizabeth Washka, Esq. and Michael Rank, Esq., for the Gen-
eral Counsel.
David Curtis, Esq., Lori M. Carr, Esq., Ronald Gaswirth, Esq.,
and John Brown, Esq., of Dallas, Texas, for the Respon-
dent.
Peter J. Leff, Esq., of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF CASES
PARGEN ROBERTSON, Administrative Law Judge. This hear-
ing was held in Ft. Worth, Texas, during several days beginning
on September 5 and ending on November 6, 2001. I have con-
sidered the full record and briefs of the parties in preparing this
decision.
Respondent admitted several matters1 including service of
the various charges, jurisdiction and that the Charging Party
(Union) is a labor organization. Respondent is a Texas corpora-
tion with an office and place of business in Dallas where it is
engaged in the business of transporting mail. During the past 12
months in conducting its business operations, Respondent de-
rived gross revenues in excess of $50,000 at its Dallas business
operations, by transporting mail directly to customer locations
outside Texas. At all material times Respondent has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act. Tish
Farrell is the president of all the companies involved as Re-
spondent including Southern Mail Service, Inc., Byrd Trucking
Co., Inc., S&B Stagelines, Inc., Alamo Mail Service, Inc., E&L
Mail, Inc., and H&L Mail, Inc.
The Union conducted an organizing campaign in early 2000.
During that campaign several employees openly participated in
union activities. Ron Dakin and Rudy Sanchez testified about
union meetings at a local convenience store—the Mity Kwik.
Testimony showed that Richard Romero observed the employ-
ees engaged in union meetings at the Mity Kwik, and remained
while eating ice cream at a table near the drivers attending the
meeting. Romero offered sodas to drivers and organizers at a
Mity Kwik union meeting. John Pool came into two of the Mity

1 Respondent stipulated supervisory allegations including that Tish
Farrell is the owner, James Reilly is vice president of human resources,
Richard Romero is terminal manager in San Antonio, James McMullen
is terminal manager in Houston, Bill Sturdivant was safety manager in
Dallas until February 17, 2001, Ernest Cleveland is supervisor in Dal-
las, and John Pool is supervisor in San Antonio.
SOUTHERN MAIL, INC. 653
Kwik meetings. On the first occasion he walked in, saw the
employees, and left. Then around February or March, John
Pool came in the Mity Kwik and remained around 10 to 15
minutes. On July 20 when he received a written warning Frank
Cruz asked Romero and Pool if he was being warned because
of the Union Pool jumped up and said, “I saw you at that meet-
ing. I saw you at that meeting.”2
Respondent admitted that an election was conducted among
employees in the following bargaining unit and the results were
announced on August 31, and that the Union was certified as
the exclusive bargaining agent of those employees on Septem-
ber 8, 2000:
Included: All permanent full-time and part-time truck
drivers employed by Southern Mail Service, Inc., Byrd
Trucking Co., Inc., S&B Stagelines, Inc., Alamo Mail
Svc., Inc., E&L Mail, Inc., and H&L Mail, Inc.,3 a Single
Employer, who are assigned, stationed or dispatched from
the Employers’ terminals located in Dallas, San Antonio
and Houston, Texas.
Excluded: All other employees including profession-
als, technicals, mechanics, dispatchers, clericals, adminis-
trative employees, guards and supervisors as defined by
the Act.
The Unfair Labor Practice Allegations
The complaint4 alleged unfair labor practices by Respondent
beginning in July 2000 and extending past May 2001, which
included the following:
Respondent Engaged in Section 8(a)(1) Conduct By:
John Pool:
–Interrogating employees regarding the Union in July
2000;

2 As shown below, John Pool denied that he told Cruz that he had
seen him at a meeting. I credit the testimony of several witnesses in-
cluding Frank Cruz, regarding meetings at the Mity Kwik convenience
store. With that in mind and the full record I credit the testimony show-
ing Romero and Pool’s presence during Mity Kwik meetings.
3 The employers are sometimes referred to as Southern Mail, Byrd,
S&B, Alamo, E&L, and H&L.
4 The formal documents included a third order consolidating cases,
consolidated amended complaint (GC Ex 1(gg) plus an amendment to
amended consolidated complaint (GC Ex 1(jj)).
In its answer Respondent alleged six “affirmative” defenses. Those
included an allegation that the complaint failed to state a claim; that all
Respondent’s actions were motivated by business reasons; that Re-
spondent’s actions were taken without interference to employees’ rights
to organize; that some of the complaint allegations should be dismissed
if those allegations exceeded the scope of the underlying charges; that
the claims are barred by estoppel and waiver; and that the claims are
barred by the applicable statute of limitations. Some factors that may
touch on those defenses are discussed herein but to the extent those
matters are not discussed below, I find there was no evidence support-
ing any of the various claims.
In the amendment to amended consolidated complaint, General
Counsel seeks additional remedies including an order reimbursing
alleged discriminatees for extra Federal and State taxes; and a Mar-Jac
Poultry remedy.
–Threatening employees with loss of employment in
July 2000;
–Threatening employees that the business would close
in July 2000;
–Threatening employees with loss of pay around Sep-
tember 15, 2000.
Frank Cruz testified that he was involved in union activity
including attending union meetings and John Pool saw him at
two of those meetings. Around July 2, 2000 Pool asked Cruz
about the Union. Cruz replied, “We have to try it, because we
ain’t got nothing.” Pool replied, “Well, Frank, do you know
that we might—you might lose your job or else she might sell
the company?”
Respondent distributed a flyer (GC Exh. 2)5 to its employees
a few weeks before August 31, 2000 regarding seniority. Ron
Dakin with Rudolfo Sanchez6 talked to John Pool about that
flyer. Pool said that the Union wanted a one-company seniority.
Dakin replied that was not the Union’s position. Pool said that
the Union testified in the hearing in Ft. Worth that all the com-
panies involved were one company and, so since “we’re one
company,” if you vote the Union in we are going to go with this
one-company seniority list but if you do not vote it in we are
going to stay with our company-by-company seniority. Pool
said there were five or six drivers with high seniority that
wanted to move from Dallas to San Antonio and those drivers
would be bumping San Antonio drivers off their runs. Dakin
testified that a one-company seniority system would place some
of the drivers on the “outside.”
Ron Dakin testified that around September 15 while Dakin
was in the office getting timecards for John Pool, Pool asked
him how the Union was coming along. Pool said that he had
just gotten off the phone with Mrs. Farrell,7 and she was really

5 IF THE UNION WINS—WHAT ABOUT YOUR SENIORITY
• Thank [sic] about the union’s “one company” plan.
They’ve already asked the government to treat drivers as
if we had one company.
• SO—the union wants to change the way we bid our runs.
• NOW—We’ve always kept seniority on a company-by-
company basis. If you bid a run for SMS, an AMS, H&L,
BYRD or S&B driver cannot bump you or bid on your
run! Same goes for them. The drivers for each company
were protected.
• THEN—If the union wins, then one seniority list—that
means that drivers from another company—even from
another city—could take your route if they’ve got more
seniority, whether or not they’ve bid a regular run and
whether or not they’ve ever worked for the company you
work for.
• I think this idea is being pushed by those that stand to
gain something ONLY for themselves.
• Think about whether or not you really want that. And
think about whether the union is REALLY here to help
you OR only help their friends.
• Attached is a unified seniority list based on hire date.
Look at it and see what you think. If you think there is an
error in your hire date please let Jim Reilly in Dallas
know.
6 Both Dakin and Sanchez testified about this incident.
7 Tish Farrell is the owner of the employers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD654
considering cutting back the runs to 40 hours a week. Dakin
asked why and Pool replied that if we get a contract that calls
for time-and-a-half over 40 hours Mrs. Farrell said she was not
going to want to pay and so she was thinking of cutting the runs
back to 40 hours a week. Dakin said it would be a big blow for
that to happen. Pool replied that he was not the boss and was
just relaying the information. John Pool denied telling an em-
ployee that the Company was considering cutting back drivers’
runs or hours to 40 hours a week.
John Pool testified that he is the assistant terminal manager
for Respondent in San Antonio. He denied that he told any
driver that the Company was considering cutting back drivers’
runs to 40 hours a week. Pool denied that he told anyone that
the Company would go to a Companywide seniority system if
the Union was voted in and if the Union were not voted in, the
Company would stay with the individual company-by-company
system. He denied that he told anyone they might lose their job
or the Company might be sold if the Union was voted in. Pool
denied telling anyone that he saw him or her at a union meet-
ing. He denied that he instructed anyone to record anything
other than actual time on logs or timecards and he denied tell-
ing anyone to falsify their logs. Pool denied telling any driver
to violate DOT8 regulations.
The conclusions, credibility determinations, and findings to
all 8(a)(1) allegations are set out below at pages 35 to 39.
Respondent Engaged in Section 8(a)(1) and (3) Conduct By
–Discharging John Pinkston around September 6 and
Bobby Marks around September 7, 2000.
John Pinkston drove for Leeway Freight from April 15, 1999
until he was transferred to Southern Mail a year later. He drove
the Houston to Dallas run for Southern Mail. Pinkston’s sched-
ule on that run was to leave Houston at 10:10 p.m. and arrive in
Dallas at 6:55 a.m. On the return he left Dallas at 4:45 p.m. and
arrived in Houston at 9:40 p.m. Bobby Marks drove for South-
ern Mail from February 28, 1989 until September 7, 2001.
Pinkston became involved in union activity during July and
August 2000. About three or four times each week he wore a
union cap, union T-shirt, and union buttons. His picture was
included on a union bulletin as one of the employees that would
vote for the Union (GC Exh. 53). Around July 2000, Bobby
Marks started wearing a union cap and union buttons. He
signed a union authorization card and successfully solicited 7 or
8 employees to sign authorization cards.
The NLRB announced the election results on August 31,
2000. James Reilly testified that Pinkston made a Houston to
Dallas run that night. Reilly and Earnest Cleveland checked
Pinkston because of Pinkston’s “time problem.” Reilly was
uncertain as to the time Pinkston clocked out on the morning of
September 1, but he did recall that Pinkston did not clock out as
early as he should have. Cleveland was also unable to recall
when Pinkston ended his run, but he recalled that Pinkston
claimed more time than he should have. Reilly notified the
terminal manager in Houston, James McMullen, to check
Pinkston out on the return trip to Houston. Pinkston testified

8 The Department of Transportation.
that he arrived at North Houston between 9 and 9:15 p.m. Ter-
minal Manager McMullen wrote a memo stating:
On Sept 1, 2000 I observed John Pinkston arriving at the
North Houston P O at 2108. At that arrival the driver had time
to bump the dock and unhook and be off duty not later than
2130.
Pinkston testified that he arrived at the Houston bulk mail
center9 earlier than 9:40 but waited because he understood he
was not to bump the dock until 9:40. He was required to check
with the USPS10 expediter at the BMC to determine the proper
door, then back his truck and bump the dock. After that he un-
hooked the trailer and drove the tractor to hook up the next
trailer for the next driver. Pinkston then did his posttrip inspec-
tion, finished his duties around 10 and clocked out at 10 p.m.
From June 20, 2000, until his termination, Bobby Marks op-
erated a run from Dallas to North Houston and return by way of
Huntsville. He also made another run every other Friday. On
June 20, on his first regular Dallas/North Houston run Marks
clocked out after his return to the Dallas BMC around 8:30 p.m.
On June 21, he was told the tractor used on that run was a dou-
ble-run tractor and he should get back 30 to 45 minutes earlier.
Mike Felton told him to fill out his timecards and logs11 as the
run was scheduled in order to avoid a DOT violation. Marks
understood that he was to continue to log out at 8:30 p.m.
Marks mistakenly logged out at 2230. He made that same mis-
take almost every night he worked that run.12 Marks testified
that he did not understand the 24-hour clock and mistook 2230
for 8:30 rather than 10:30 p.m. His timecard was returned on
several occasions and he was instructed to correct the time. He
was not disciplined for writing 2230 as his clock-out time. On
June 23, Safety Manager Sturdivant called Marks in and asked
if he had made the alternate Friday run as shown on his docu-
mentation. Marks replied that was the way he made the run.
Sturdivant told him that he was an hour and a half over the 70
hours in an 8–day limit but he was not disciplined. During the

9 There was one point of confusion that was not clarified during the
hearing. According to his memo (GC Exh. 20), James McMullen ob-
served Pinkston arrive at North Houston P O at 2108. Pinkston referred
to arriving at the Houston bulk mail center before 2140 and waiting
before bumping the dock there at the BMC at 2140. Pinkston’s time-
card shows that he was on break from 20.92 until 21.17, before clock-
ing out at 22.00. Pinkston was not asked about apparently being on
break at the time he was observed at the North Houston post office. The
record does not clear up the inconsistencies noted in this footnote.
Therefore, I have not considered any of this in my deliberations regard-
ing the complaint allegations.
10 The United States Postal Service.
11 Each driver is required to maintain a log, which is based on a
graph set out on the basis of a civilian clock (i.e., showing a.m. and
p.m.). The log must be turned in each day and it then goes through a log
checker system. That checker system generates a report if a DOT viola-
tion has occurred (GC Exh. 8). Drivers were also required to maintain
daily timecards. Timecards are set on a military (24 hour) clock. Time
cards are imputed into a computer system and a timecard summary
report is generated (GC Exh. 82).
12 Marks testified to four exceptions to his logging out at 2230. On
two occasions Marks recorded his time out as 2130 when he did in fact
finish work at 9:30 p.m. and on the last 2 days he worked,—August 30
and 31—he logged out at 2030.
SOUTHERN MAIL, INC. 655
period from June 20 until September 4, that was the only occa-
sion during which a supervisor talked to Marks about his logs
and timecards.
As was the case with John Pinkston, James Reilly, and Ear-
nest Cleveland investigated Marks on the night of August 31.
Reilly and Cleveland observed Marks arrive at the Dallas BMC
around 7:15 p.m. He got back to the Dallas terminal and fin-
ished his run at 7:44 p.m.13 Reilly did not talk to Marks about
his time. Marks was placed on off-duty status. On September 4,
Marks was told to see Ernest Cleveland. Marks told Cleveland
that he needed to talk about his timecards because he had made
a mistake and caught it on August 31. Marks went in the office
with Cleveland and Mike Felton—the branch manager. Cleve-
land said, “Bobby, you’re being put on suspension for falsify-
ing timecards.” Later that week Marks talked with James Reilly
from a speakerphone in Cleveland’s office. Reilly told him that
he was terminated for falsifying timecards.
On September 6, James McMullen phoned Pinkston that he
was terminated for falsifying a timecard. Pinkston asked but
McMullen did not say which timecard. Pinkston then phoned
Ernest Cleveland and asked him why he did not tell Pinkston
that he was going to be terminated. Cleveland told him that he
did not know he was going to be terminated. Pinkston talked
with James Reilly that week but Reilly told him only that he
had been terminated for falsifying his timecard. Reilly did not
tell him which timecard he was accused of falsifying.
CONCLUSION
Credibility
I credit the testimony of Bobby Marks and John Pinkston in
view of their demeanor and the full record. Bobby Marks and
John Pinkston’s testimony was essentially in accord with that of
James Reilly, Earnest Cleveland, and James McMullen regard-
ing their arrival at various terminals. Marks and Pinkston did
not testify in conflict with evidence that Marks incorrectly
marked his timecard 2 hours after he was instructed to log out
or that Pinkston routinely showed the same check in and check
out times. The testimony of Marks and Pinkston regarding in-
structions from supervision as to their clocking in and out was
not disputed. The question was never as argued by Respondent,
(i.e., whether Marks and Pinkston’s misstated their time). In
fact, both admitted to altering their time in accord with instruc-
tions from Respondent at various times during their tenure with
the company.
Findings
Pinkston and Marks were active supporters of the Union.
Both wore union hats and buttons at work. Pinkston’s picture
and name appeared on a union leaflet titled “We’re Voting
Yes.” In view of Pinkston and Marks’ union activity, Respon-
dent’s other unfair labor practices and the timing of its actions
against Pinkston and Marks (i.e., those actions were initiated on
the day the Union won the election), it is proper to infer Com-

13 7:44 was the approximate time Marks usually finished. In accord
with his instructions from Mike Felton, he intended to log out at 8:30.
Usually, as shown above, he mistakenly logged out at 2230. Marks
caught his mistake and logged out at 2030 on August 30 and 31. He
testified that he tried to tell that to Earnest Cleveland.
pany knowledge14 of Pinkston and Marks’ union activities
(Pan-Oston, 336 NLRB 305, 305 (2001)), and in view of the
showing that Respondent engaged in numerous unfair labor
practices both during and after the union organizing campaign,
I find that Respondent demonstrated union animus (Caterpillar,
Inc., 322 NLRB 674, 678 (1996)). In view of the full record
and the showing that Respondent was aware of Pinkston and
Marks’ problems with time, long before August 31, I find that
Respondent was motivated to discharge Pinkston and Marks by
their union activities. As shown by James Reilly’s testimony,
Respondent knew of Pinkston’s “time problems” before the
Union’s election. The full record also shows that Respondent
was fully aware of Marks problem with the 24-hour clock and
his routine incorrect clock out. The question presented here is
why did Respondent wait until the Union election had been
announced to act against two employees that it knew were vul-
nerable to allegations of falsification of timecards. The only
intervening factor shown to have occurred on August 31 was
the announcement of the union victory. I find that General
Counsel proved that Respondent was motivated by its union
animus, to terminate Bobby Marks and John Pinkston.
Respondent contends that Pinkston and Marks were dis-
charged for business reasons. Pinkston and Marks falsified their
timecards. I shall fully consider that contention to determine
whether Respondent would have discharged Pinkston or Marks
in the absence of their union activities.
In the first instance, there appears to be serious doubt as to
whether Pinkston actually falsified his timecard on September
1. In fact, the undisputed evidence shows that he did not.
Pinkston testified that he was scheduled to bump the dock in
Houston at 9:40 p.m. and, even though he arrived earlier than
that, he waited until 9:40 to bump the dock. He testified that
was his understanding of his schedule (i.e., he was not to bump
the dock before 9:40 p.m.). Respondent offered no evidence to
rebut Pinkston’s understanding in that regard. After bumping
the dock, Pinkston performed the remainder of his duties in-
cluding performing his inspections and gathering his belong-
ings. He testified that he finished his run around 10. There was
no contrary evidence. No one testified that Pinkston did any-
thing else. Nevertheless, without more and without even check-
ing for Pinkston’s version of the facts, Respondent discharged
John Pinkston.
Bobby Marks presented an opposite situation. Marks clearly
marked his timecard incorrectly until he caught his error on
August 30.15 He marked his card with the same time he had
routinely marked his time out. Before August 29, Pinkston
routinely marked that he was clocking out at 10 and Marks
routinely marked that he was clocking out at 2230. In actual
fact Pinkston knew he was finishing his shift around but not
necessarily exactly at 10 p.m. and Marks finished his shift
around 30 to 45 minutes before 8:30 and thought he was log-

14 As noted above, in addition to Pinkston’s open union activities,
the one-sided victory by the Union on August 31, made it apparent that
a large majority of Respondent’s drivers favored the Union.
15 Although he routinely marked his clock out at 2230, Marks caught
his error and clocked out correctly on August 30 and 31. As shown
herein he tried unsuccessfully to explain his errors to Earnest Cleve-
land.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD656
ging out at 8:30 p.m.16 For some time before August 31, Re-
spondent had the timecards showing how Pinkston and Marks
routinely logged out. Therefore, Respondent knew that both
appeared vulnerable since it could reasonably assume that both
would log out in their routine manner on August 31 and Sep-
tember 1. In other words, Respondent knew that it had docu-
mentation that it felt would justify discharging either Pinkston
or Marks at its pleasure. It was not until the Union won the
election that Respondent decided to take advantage of those
records. Respondent refused to consider the explanation offered
by Bobby Marks on September 4. In fact, it is apparent that
Respondent knew that Marks habitually marked his time off
incorrectly at 2230, long before August 31.
There is a question of whether Respondent departed from
past practice to discharge Pinkston and Marks. If that is found
to be the case, a question arises as to whether that new practice
was itself discriminatorily applied since it came immediately
after the election of the Union. Here, again, the evidence sup-
ports General Counsel. Before August 31, by all accounts, even
those of Respondent’s witnesses, both Pinkston and Marks had
problems keeping accurate time records. Pinkston and Marks
testified that they falsified time records but at the direction of
supervisors.17 As shown throughout this record, it was Respon-
dent’s practice before August 31 to tolerate and even encourage
drivers to falsify logs and time records in order to avoid break-
ing DOT regulations. For example, Pinkston credibly testified
that he was directed to record the same start and finish times
and did so from February 200018 (GC Exh. 22).
There is also a question of whether Respondent was actually
concerned with its drivers’ time records as those records im-
pacted on an employee’s pay. It was Respondent’s practice to
pay drivers a benchmark or standard of performance amount set
by Respondent. That standard of performance depended on
Respondent’s determination of how long the particular run
should take. Drivers that exceeded the time established by the
particular standard of performance were paid the higher amount
on the basis of an hourly rate, but the driver was counseled and
discouraged against exceeding the standard of performance. On
occasion when Respondent found that a driver had received pay
for exceeding the standard of performance, that driver was
asked to sign a standard form that permitted Respondent to
deduct funds from the employee’s paycheck to repay wages
paid in excess of the benchmark (GC Exh. 15).
It was not always the case that drivers benefited through ex-
tra pay by exceeding the standard of performance. In the case

16 As shown above, Marks was instructed to log out at 8:30 p.m.
even though he finished his run 30 to 45 minutes before 8:30 in order to
return his truck for it to be ready for its double run.
17 For example, Terminal Manager McMullen and Supervisor Felton
told Pinkston in February 2000, to start his timecard for his Dallas to
North Houston run at 4:20 or 4:25. Pinkston asked if he could start his
timecard at 4:15 and McMullen and Felton agreed. Timecards show
that after his February meeting, he did start his timecards at 4:15 (16.25
as shown on Respondent’s 24-hour clock that reflects portions of the
hour by 100s (GC Exh. 22)).
18 The Respondent’s expert witness Carl Bass testified that he exam-
ined Pinkston’s 2000 timecards and found the entries to be consistently
the same. The timecards are in evidence as GC Exh. 22.
of John Pinkston on September 1, there was no evidence that
the time recorded exceeded the standard of performance for that
run. Pinkston’s testimony was consistent with his timecards
showing that he usually clocked in and out at the same times
each day.
I am convinced that Respondent would not have terminated
John Pinkston or Bobby Marks in the absence of their union
activities. I find that Respondent discharged Pinkston and
Marks because of their union activities and Respondent failed
to show that Pinkston or Marks would have been discharged in
the absence of his union activities.
Respondent Engaged in 8(a)(1) and (5) Conduct By
–Unilaterally reducing the runs of extra-board drivers
in Beaumont from about 6.5 to 5.5 hours in September
2000[;]
–Failing and refusing to furnish information requested
by the Union since about October 4, 2000;
–Unilaterally altering the hours and routes of the Dal-
las to Denver run around October 14, 2000;
–Unilaterally transferring drivers assigned to the Den-
ver–Dallas route to the extra-board around October 14,
2000;
–Unilaterally laying off Springfield drivers around Oc-
tober 14, 2000;
–Failing and refusing to meet and bargain with the Un-
ion following Union written and oral requests around Sep-
tember 29, October 6, October 9, October 10 and October
12, 2000;
–Failing and refusing to bargain with the Union con-
cerning the alteration in the hours and route of the Dallas
to Denver runs since September 29, 2000;
–Failing and refusing to furnish information requested
by the Union since about October 5, 2000, regarding the
alterations in the Dallas to Denver runs;19
–Unilaterally laying off Springfield drivers around Oc-
tober 14, 2000.
On September 29, 2000, Respondent notified the Union that
it had received notice from USPS that effective October 14,
2000, the schedule of the Dallas to Denver runs would change
and that those changes would affect 10 jobs. Respondent was
willing to negotiate over changes (Jt. Exh. 1). The Union gave
Respondent a letter during October 5, 2000 negotiations,20 that

19 The Union’s request included:
• A copy of the United States Post Office change order,
• Employer’s proposal of how the runs were to be altered,
• The lengths of layovers,
• Intermediate stops,
• A list of drivers impacted by the alteration,
• All reports or studies considered by the Employer in con-
nection with the alteration, and,
• A list of specific schedule alterations being proposed by
the Employer.
20 The letter, which was dated October 4, requested, among other
things:
2. Any and all records of discipline for unit employees in the
past 5 years.
SOUTHERN MAIL, INC. 657
requested information for the purposes of bargaining (Jt. Exh.
2).
On October 6, Respondent faxed the Union a letter21 contain-
ing old and new schedules with the names and locations of the
affected drivers (Jt. Exh. 3). Respondent notified the Union. It
had determined that the best way to operate the new run was
out of Amarillo, Texas, and it proposed that Springfield, Colo-
rado drivers be given the option of relocating and working out
of Amarillo but that drivers wishing to relocate must notify it
by October 10, 2000. Respondent provided the Union with the
names of the affected drivers and trip schedule information.
Respondent did not provide the Union with the USPS change
order, the reasons why Respondent no longer planned to run the
trips out of Dallas and close down the Springfield relay point,
or which stops were included in the changed runs. (Jt. Exhs. 4
and 5).
On that same day,—October 6—the Union responded to Re-
spondent’s letter. The Union protested that no negotiations
were held on the Dallas/Denver matter when the parties met on
October 5, and that Respondent had unilaterally made changes

5. Copies of all current contracts with the USPS and all
changes to those runs since the commencement of each contract.
6. Copies of all current run schedules as issued by the USPS.
7. Seniority lists covering all current bargaining unit employ-
ees as they have been used in the past for the run bidding process.
We will need a separate list for each company or extra board by
terminal.
9. A wage history of each current employee, both unit and
non-unit, including the current wage, the date and amount of the
last increase, and the wage paid to each employee for each of the
past three years.
11. All past disciplinary records and other information related
to the recent discipline of Bobby Marks, John Pinkston, Todd
Colburt, Tony Martinez and Mark Wallace within the past 5
years.
14. Wage rates and benefits information provided to Leeway
drivers. We also need a list of any postal mail haul run performed
by a Leeway driver in the past year including names, dates, em-
ployee addresses, and run number for Leeway drivers who have
hauled mail for Leeway in the past year.
15. Copies of contracts or other documents related to the hir-
ing of Drivers Unlimited for postal runs. We also need a list of
any postal mail haul run performed by a Drivers Unlimited driver
in the past year including names, dates, employee addresses, and
run numbers.
16. The actual 401(k) plan and SPD for White & Lasater,
Inc., 401(k) Profit Sharing Plan; Information on company contri-
bution levels; Present funding for the plan; Complete portfolio;
Contracts with administrators and investment directors; and name
with titles of all trustees. Include company earnings information
as used to determine profit sharing for unit employees.
21 Among other things the letter included:
[T]he Company has determined that the best way to operate
the new run is out of Amarillo, Texas. The Company pur-
poses that the Springfield drivers be given the option of relo-
cating and working out of that location. If any Springfield (or
Dallas) driver wishes to relocate, we must be notified by noon
on October 10, 2000. [The Company] has no other operations
in the Springfield, Colorado area. I am advised there is avail-
able work for affected Dallas based drivers. Each of them will
be given opportunity for dispatches.
including that the work will be moved to Amarillo and the
Springfield, Colorado relay point would be shut down; that no
negotiations had been made regarding the impact of Respon-
dent’s changes; and that the October 10 deadline for receipt of
notice from drivers was premature. The Union protested that it
needed the remaining information so that it could bargain over
the changes in the Dallas/Denver runs; that it wished to negoti-
ate over how trucks would be relayed, where layovers would
be, seniority rights, transfers, lay-offs, the right of Dallas driv-
ers to bid on other work and Respondent’s responsibility to
notify affected drivers; and the Union protested Respondent’s
decision to move work to Amarillo and shut down the Spring-
field relay point (Jt. Exh. 4).
The Union sent a letter on October 10 requesting the balance
of the requested information (Jt. Exh. 5). The Union com-
plained to Respondent that it had not been provided with re-
quested information and the Union specifically proposed con-
tract language to the effect that the runs would continue out of
Dallas and continue to relay out of Springfield, Colorado. On
October 11, Respondent advised the Union that its proposal to
maintain the status quo could not be honored (Jt. Exh. 6). By
phone on October 11, the Union notified Respondent it was still
waiting for the information it had requested on October 5. Re-
spondent supplied the Union with the requested information on
October 13 for the runs that were to be implemented the next
day. Respondent did not forward to the Union the USPS change
order. Instead Respondent stated that it had not yet received
that change order. The Springfield, Colorado drivers were ter-
minated or laid off and the Dallas drivers were placed on the
extra board. The Union phoned Respondent’s attorney stating
the Union had not received all the requested information. Re-
spondent wrote the Union on October 13, enclosed leave/arrival
times on the new routes and stated that more information would
be sent to the Union upon receipt (Jt. Exh. 8). Respondent im-
plemented the changes the next day—October 14, 2000.
Respondent wrote the Union on October 19 and rejected the
Union’s proposal to maintain the status quo and stated it was
willing to discuss any proposals, including severance, preferen-
tial hiring, recall, etc., Respondent stated it would provide the
USPS change order upon receipt by it and at that time, it would
schedule a meeting to discuss the matter.
As shown above, the Union also sought information regard-
ing collective bargaining in its information request dated Octo-
ber 4 and given to Respondent on October 5 (fn 19, supra). On
November 20, Respondent responded to those requests and
provided information relative to Union requests 1, some of 3,
10, 12, 13, and 17. Respondent refused to provide information
in response to Union requests 2, 5, 6, 9, 11, and 14. Names
were provided in response to Union request 3 but not current
schedules, run numbers, terminals, and employment status (Jt.
Exh. 2). In response to request number 7, Respondent provided
a Companywide seniority list even though its practice was to
recognize seniority within the six different companies. Regard-
ing 16, Respondent conditionally offered a brochure promoting
a 401(k) plan.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD658
CONCLUSIONS
Credibility
The facts regarding these allegations are generally found in
the joint exhibits, which were stipulated in evidence by all par-
ties. To that extent there is no credibility dispute. To the extent
credibility determinations are required, I shall make those de-
terminations below under findings.
Findings
Respondent is obligated to refrain from making unilateral
changes in unit employees’ terms and conditions of employ-
ment unless the parties have reached agreement or overall im-
passe (Bottom Line Enterprises, 302 NLRB 373, 374 (1991)).
Two exceptions are provided to the rule in Bottom Line, includ-
ing an exception when an employer establishes that it is con-
fronted with an economic exigency compelling prompt action
short of any type relieving the employer of its obligation to
bargain entirely. In that instance the employer’s duty is to pro-
vide the union with adequate notice and an opportunity to bar-
gain (RBE Electronics of S.D., 320 NLRB 80 (1995)). General
Counsel argued that Respondent failed to establish an exception
to the Bottom Line rule.
The information sought by the Union was probably relevant
or could have been of use to the Union in carrying out its statu-
tory duties (Public Service Electric & Gas Co., 323 NLRB
1182, 1186 (1997), enfd. 157 F.3d 222 (3d Cir. 1998); Finn
Industries, Inc., 314 NLRB 556 (1994)). Respondent did not
provide the Union with some of the requested information,
which was relevant to bargaining over the Denver/Dallas runs
until after it had permanently implemented the changes.22 The
evidence illustrated there was an unreasonable delay in provid-
ing requested information that constituted an unfair labor prac-
tice of refusal to bargain (Bundy Corp., 292 NLRB 671 (1989)).
General Counsel and Charging Party also argued, that Respon-
dent’s conduct made it impossible for the Union to negotiate
over the effects of the unilateral changes in the Dallas/Denver
runs (Miami Rivet of Puerto Rico, 318 NLRB 769, 771
(1995)).23 Respondent’s alleged unlawful action resulted in the
layoff of several drivers with their regular runs removed.
Whenever a union requests information, an employer is obli-
gated to furnish information with reasonable dispatch when
there is a probability that the desired information is relevant
and that it will be of use to the union in carrying out its statu-
tory duties and responsibilities (NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967); Finn Industries, Inc., 314 NLRB 556
(1994)).24

22 Although the USPS required initiation of changes on October 14,
there was no showing that Respondent’s actions including the deadline
for notice from drivers as to relocation, was necessary in order to sat-
isfy the USPS directive.
23 Respondent’s unlawful failure to provide requested and relevant
information prevented my finding a waiver of its rights by the Union
refusing to meet to negotiate over the effects of Respondent’s Dal-
las/Denver changes (FMC Corp., 290 NLRB 483, 488 fn. 14 (1988)).
24 Respondent contented that the Union is a business competitor and
that some of the requested information is confidential and must not be
disclosed to a competitor. The Board has decided that question in favor
of the Union. In a recent case the Board found that the AFWU is not a
Even though Respondent expressed a willingness to bargain
over changes in Dallas/Denver, it did not provide the Union
with requested information, before it permanently changed
working conditions for unit employees, in regard to the Dal-
las/Denver run. From the full record it is apparent that Respon-
dent unilaterally altered the hours and routes of the Dal-
las/Denver run, unilaterally transferred Dallas/Denver drivers to
the extra board, on October 14; unilaterally required Springfield
drivers to notify it by October 10 or their intent to relocate,
failed and refused to furnish information requested by the Un-
ion since October 5 regarding alterations in the Dallas/Denver
runs; and unilaterally laid off Springfield drivers on October
14. Despite the USPS change order requiring changes on Octo-
ber 14, Respondent failed to show an economic necessity that
required it to engage in the unilateral changes and refusal to
provide requested information. Respondent failed to show why
it was impossible for it to comply with the USPS order without
making those unilateral changes and without timely furnishing
information requested by the Union and negotiating after the
Union had a reasonable opportunity to consider that informa-
tion. An example of Respondent’s unlawful action was its de-
mand that Springfield drivers notify it by October 10 of their
intent to relocate. Until Respondent supplied the Union with
requested relevant information, there could be no meaningful
negotiations on the necessity for Springfield drivers to relocate.
Therefore, the deadline for those drivers to notify of their intent
in that regard was premature.
I do find that Respondent engaged in unlawful conduct as
proscribed in Section 8(a)(1) and (5) when it failed and refused
to furnish the Union with requested information which was
relevant to the Union’s duties as exclusive collective-
bargaining representative of Respondent’s employees from
October 5; unilaterally altered hours and routes of the Dal-
las/Denver run on October 14; unilaterally transferred drivers
assigned to the Dallas/Denver run to the extra board on October
14; unilaterally required Springfield drivers to notify it of their
intent regarding relocation by October 10; unilaterally laid off
Springfield drivers on October 14; and refused to meet with the
Union concerning the alteration in the hours and route of the
Dallas/Denver runs by failing to timely furnish the Union with
requested information which was relevant to the Union’s du-
ties.25
I find the record does not show that Respondent unilaterally
reduced the runs for extra-board drivers in Beaumont.
Respondent Engaged in Section 8(a)(1) Conduct By
James McMullen:
–Interrogating an employee regarding the Union
around October 28; and threatening an employee with
transfer to a lower paying job with a non-union company
around October 28, 2000.

competitor of mail haulers for USPS (CMT Inc., 333 NLRB 1307
(2001)).
25 As shown below, these unfair labor practices must be remedied
by, among other things, making whole those bargaining unit drivers for
wages and benefits lost because of Respondent’s unlawful action in
violation of Sec. 8(a)(1) and (5).
SOUTHERN MAIL, INC. 659
Lenorah Antoine was involved in the union campaign. She
passed out pins and pamphlets in the summer of 2000, and she
was on the negotiating committee. On October 28, 2000, An-
toine submitted a timesheet requesting 2 days off to attend a
collective-bargaining session. She was called back in and met
with Terminal Manager James McMullen. McMullen threw the
timesheet across the desk and asked Antoine what that was.
Antoine replied that her understanding was that “we had to fill
this out in order to be off the two days in November to attend
the meeting in Dallas.” McMullen replied: “Well, can you af-
ford to take two days off? What is the Union promising you?”
Antoine replied that all she knew was they were going to take
care of that. McMullen then stated “Well I was fixing to change
you over to Leeway.”26 McMullen denied that he ever said “can
you afford to take two days off” to Lenorah Antoine and he
denied that he ever asked her “what is Union paying you?” He
denied that he told Antoine that he was going to transfer her to
Leeway. On cross-examination, McMullen testified that when
Lenorah Antoine brought in a time off request, he “asked her,
was the Union paying her, or something to that effect.”
McMullen admitted that Leeway Transportation is based out of
the H&L terminal in Houston, that the Farrells own Leeway
and that McMullen is responsible for the general operations of
Leeway Transportation. He admitted that one driver has been
transferred from H&L to Leeway Transportation.
The conclusions, credibility determinations and findings to
all 8(a)(1) allegations are set out below at pages 35 to 39.
Respondent Engaged in 8(a)(1) and (3) Conduct By
–Transferring Frank Cruz and Richard Paiz to lower
paying routes around November 4, 2000.
Respondent Engaged in 8(a)(1) and (5) Conduct By
–Unilaterally altering the hours and route of the San
Antonio and Nuevo Laredo drivers in September 2000.
Frank Cruz has been a driver for Alamo Mail for about 35
years. Richard Paiz has been a driver for about 30 years and has
driven for Alamo Mail for 11 years. Both participated in union
activities during the 2000 campaign. Cruz talked to drivers
about signing union cards and attended about 12 union meet-
ings at Mity Kwik. During one meeting John Pool came in and
looked directly at Cruz and the union representative. As shown
herein on July 20, 2000, Cruz asked Pool if he was getting a
writeup because of the union and Pool repeated several times
that he had seen Cruz at that meeting. Cruz wore a union T-
shirt and a union hat at least once a week. Paiz attended three of
the union meetings and his name was on a union leaflet distrib-
uted before the election (GC Exh. 3).
Cruz and Paiz ran the Nuevo Laredo, Mexico run. Cruz
made the run for about 6 years and Paiz was also on the run
during a time with Cruz—from March or April 2000. The two
remained on the run until November 4, 2000. Cruz and Paiz
alternated positions on the run. Until September the run ran
from a point at exit 325 near Waco, Texas to Nuevo Laredo and
returned. The run started when the truck was met at exit 325,

26 On October 28, Antoine was a driver with H&L Mail. H&L driv-
ers are included in the bargaining unit but Leeway Transportation driv-
ers are not included in the unit.
and either Cruz or Paiz drove to San Antonio, which was ap-
proximately midway to Nuevo Laredo. Then the other driver,
either Cruz or Paiz, drove on to Nuevo Laredo and returned to
San Antonio where the other would take the run back to exit
325 where he met George Nichols. Nichols was the driver that
ran between exit 325 and Dallas. Cruz and Paiz had no trouble
with the run.
In April or September 2000,27 a new commercial traffic
bridge was opened at the border. From that time there were
delays on the run caused by: (1) traffic on the new bridge
caused at least in part, by the bridge opening at 8 a.m. each
day28 resulting in a backup of traffic waiting for that opening;
(2) the addition of approximately 25 miles driving each way to
the new bridge; (3) a change in handling by customs when cus-
toms started a new screening program that included x-raying of
trucks; and (4) loss of a privilege—(i.e., at the old bridge the
customs officials would allow the truck to pass other traffic but
on the new bridge the truck was required to line up and go
through customs with the other commercial traffic). Respon-
dent made changes in the run on September 9.29 The starting
time was moved back from 6:45 a.m. to 2 a.m. and the time for
the run to return from Nuevo Laredo was moved to 2 p.m. Two
stops were removed and the run was extended by 100 miles,30
to run past exit 325 all the way to the Dallas airport interna-
tional mail service.
As shown above, the Union was declared winner of the elec-
tion on August 31, and certified bargaining representative on
September 8, 2000. I find the Respondent made the above
changes on the day after the Union was certified. At that time
Respondent had a duty to notify and bargain over mandatory
conditions of employment. It failed to notify the Union prior to
the September 9 changes in the Nuevo Laredo run.
After the September changes, Richard Romero made a run
with Cruz and said that the run could not be made on the allot-
ted schedule. Nothing was done to change the run and enable
the drivers to run on schedule. About a month after Romero
rode with Cruz, he told Cruz and Paiz that they were getting
5500s31 every time they ran late on the Nuevo Laredo run.
During the third week of September 2000, Richard Romero
confronted Cruz and Paiz stating they needed “to start doing
something about this run because it’s coming in late. The USPS
is talking about pulling the run or canceling the run.” Romero
demanded that Cruz drive faster on the route to make up the

27 There was conflicting evidence regarding when the bridge first
opened (R. Exh. 23). I find that dispute is not material in view of other
evidence showing that Respondent made changes in the run in Septem-
ber.
28 The bridge closed each night at midnight.
29 Respondent argued that no changes were made to the Nuevo
Laredo run until after Cruz and Paiz were removed from that run. GC
Exh. 37 shows under item 7 that a change was made on September 9,
2000.
30 Before September 9 the run ended near Waco but was extended on
September 9 to the Dallas International Service Center located at the
Dallas airport.
31 A form 5500 (contract route irregularity report) was issued by the
Postal Service whenever Respondent failed to complete a run within the
allocated time designated by the Postal Service.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD660
lost time caused by the delays.32 Cruz and Paiz agreed among
themselves that they would not exceed the speed limit in order
to make up the delays because that could jeopardize their driv-
ers’ license.
On November 4, 2000, Cruz was told by John Pool that he
was being changed to the McCallan run and that he should see
Richard Romero if he had questions. Cruz went to Romero who
said they had decided to put new people on the Nuevo Laredo
run. Cruz asked if his seniority did not count. Romero told him
to either take the McCallan run or they would use the extra
board. Both Cruz and Paiz were taken off the Nuevo Laredo
run. Cruz accepted the McCallan run and has continued to drive
that run since that day. He makes less than he did on the Nuevo
Laredo run. Respondent placed Anselmo Sanchez on the Nuevo
Laredo run, and used extra-board drivers on the U.S. side of the
border. It required Sanchez to run each leg of the run continu-
ously rather than the practice it had used with Cruz and Paiz of
alternating from week-to-week on each leg of the run. Sanchez
continued to make the run late as had Cruz and Paiz and he left
the route after a week. Dela Fuente was then assigned the Mex-
ico leg of the run and Michael Brown was assigned to drive the
U.S. leg.33
CONCLUSION
CREDIBILITY
I was impressed with the demeanor and testimony of both
Frank Cruz and Richard Paiz and I credit their testimony.
FINDINGS
General Counsel argued that Respondent transferred Cruz
and Paiz off the Nuevo Laredo run because of their union ac-
tivities. Both Cruz and Paiz engaged in union activities and
Respondent was aware of their union activities. As shown
above, Cruz and Paiz attended union meetings and Respondent
observed those meetings. Both Richard Romero and John Pool
went into Mity Kwik while meetings were in session and on
two occasions, Romero or Pool remained for several minutes
observing the employees at the meeting. Cruz wore union hats
and shirts and solicited other drivers to sign union cards and
Paiz’ name appeared on a union leaflet distributed to employ-
ees.34
The credited evidence shows that Respondent was motivated
by the union activities of Cruz and Paiz and especially by those
activities of Cruz. On July 2, 2000, John Pool asked Cruz about
the Union and Cruz replied the employees have to give it a try.
Pool told Cruz that he might lose his job or the Company may

32 Before November 2000, Respondent replied to the Postal Service
5500s by stating that run was delayed because there was not enough
time on the Mexico trip and crossing through U.S. Customs (GC Exh.
44).
33 Fuente and Brown continued to receive 5500s on November 14,
17, 22, December 4, 5, 6, 7, 10, and 13. Neither Fuente nor Brown has
been replaced. General Counsel argued that USPS never penalized
Respondent for tardiness on the Mexico run (GC Exh. 39).
34 Approximately 80 percent of the employees voted for the Union—
i.e., 193 to 45. Therefore, even in the absence of all other evidence,
Respondent had a reason to believe its employees favored the Union
(Pan–Oston Co., 336 NLRB 305, 308 (2001)).
be sold if the union is voted in. On July 20, Cruz asked if he
was receiving a writeup because of the union and Pool replied
that he had seen Cruz at that meeting. Finally, it is reasonable
to assume that the involuntary transfer of drivers, especially
when one was such a visible union advocate as Frank Cruz, had
the effect of discouraging membership in the Union (Elec-
tromedics, Inc., 299 NLRB 928, 937, affd. 947 F.2d 953 (10th
Cir. 1991)). On the basis of the record and especially in light of
the above findings, I am convinced that Respondent was moti-
vated by its union animus in changing Cruz and Paiz from the
Nuevo Laredo run (J.R.L. Food Corp., 336 NLRB 435, 454
(2001); Tocco, Inc., 323 NLRB 480 at 487).
General Counsel also argued that Respondent was motivated
by Cruz and Paiz collectively deciding to refuse to drive faster.
I am unable to find support for that argument in view of the
absence of evidence that Respondent knew of that concerted
activity. Therefore, I find that the evidence fails to support a
finding that Respondent was also motivated by animus against
that concerted activity.
As to whether Respondent would have transferred Cruz and
Paiz from the Nuevo Laredo run in the absence of union activ-
ity, I have considered the testimony of Vice President Lance
Farrell. Farrell testified that, among other reasons, the drivers
were transferred because of their gross insubordination. Cruz
and Paiz made the runs on November 1 and 2, which were al-
leged by Respondent as being holidays in Mexico. The USPS
schedule did not include those two dates as holidays. Farrell
testified that the schedule was incorrect and that Respondent
had a letter from the postmaster in Laredo stating the run
should not be made on November 1 or 2, but Respondent failed
to produce that letter after being directed to do so.35 There was
no documentation that Respondent investigated whether Cruz
and Paiz made the run on either November 1 or 2 without justi-
fication.
The testimony of Lance Farrell tended to show, among other
things, that the changes brought about by the new bridge and by
Respondent changing the route, had little to do with Respon-
dent’s decision to transfer Cruz and Paiz. I find that Respondent
failed to prove that Cruz and Paiz engaged in gross insubordi-
nation and Respondent failed to prove that Cruz and Paiz did
anything else other than their union activity, which justified
their transfer. I find that Respondent’s purported unhappiness
with Cruz and Paiz was a pretext designed to hide its true rea-
son for their transfers. I find that Respondent engaged in con-
duct in violation of Section 8(a)(1) and (3) by transferring Cruz
and Paiz off the Nuevo Laredo run and Respondent failed to
prove it would have transferred Cruz or Paiz in the absence of
their union activity. The evidence showed that Respondent
made September changes in the Nuevo Laredo run without
notice or bargaining with the Union. I find that Respondent
engaged in conduct in violation of Section 8(a)(1) and (5) by
unilaterally changing the Nuevo Laredo run in September 2000.
Respondent Engaged in 8(a)(1) Conduct By
By Bill Sturdivant

35 There was no documentation showing that Cruz and Paiz were ad-
vised of the alleged letter from the Laredo postmaster.
SOUTHERN MAIL, INC. 661
–Interrogating an employee about the Union and the
Union’s involvement in a Department of Transportation
investigation around November 15, 2000.
While in Houston during his work in the second week of
November 2000, Howard Cranford stopped and talked with
Safety Manager Sturdivant.36 Sturdivant asked, “By the way,
did—did the Union have anything to do with turning the Com-
pany into DOT?” Cranford responded that he “did not know but
he thought about it himself.”
The conclusions, credibility determinations and findings to
all 8(a)(1) allegations are set out below at pages 35 to 39.
Respondent Engaged in 8(a)(1) and (5) Conduct By
–Unilaterally altering its policy regarding drivers cor-
recting their time cards and DOT logs in February 2001.
–Unilaterally altering the disciplinary policy regarding
DOT logs in February 2001.
James Reilly testified that it is Respondent’s policy to issue
verbal warnings, written warnings and suspension or even dis-
charge for violating DOT regulations. He testified that falsifica-
tion of a log might justify termination.37 Prior to the August 31,
2000 election and after June 1997, only three employees were
terminated for falsification of a log (GC Exh. 9).38 Those three
were discharged in 1997, 1998, and April 2, 1999.
Vice President Reilly testified that whenever payroll em-
ployees noticed errors in timecards they would alert the dis-
patcher who would have the driver correct the timecard, and
whenever there was a problem with a driver’s log, the Com-
pany would routinely return the log with the driver’s paycheck
so that the log could be corrected. Before August 31, Respon-
dent did not routinely terminate employees for timecard errors.
Even repeat offenders were often times ignored or, at most,
often times received verbal counseling. Before the end of Au-
gust, drivers were not closely monitored. Respondent’s dis-
patcher Valdez admitted that the drivers had frequent problems
maintaining their logs. Valdez would correct logs for drivers.
Respondent called David Mohon as an expert witness. Mohon
testified that he examined Respondent’s timecards and drivers’
logs and, before March 2001, the Company did not have any
formal procedure for checking timecards against logs. Logs and
timecards were checked separately. As shown above—(fn.
11),—drivers were required to turn in their logs each day. The
log went through a log checker which generated a report when-
ever a DOT violation occurred. Drivers also maintained daily
timecards which were imputed into a computer which gener-
ated for Respondent a timecard summary report.
Evidence including testimony by John Pinkston, Bobby
Marks, and Julio Gomez shows that it was Respondent’s policy
before and in some instances even after August 31, to ignore

36 The parties stipulated that Bill Sturdivant was a supervisor and the
safety manager in Dallas until February 17, 2001.
37 Despite Reilly’s testimony, Respondent argued that it has prac-
ticed a zero tolerance policy for DOT falsification since 1994.
38 Respondent’s schedule of terminations (GC Exh. 9) shows the fol-
lowing employees were terminated for falsifying logs: Ronald Swag-
gerty on March 2, 1998, Emit Tasker on April 22, 1999, and Orville
Wheat on June 20, 1997.
timecard and log errors, and to even encourage its drivers to
falsify logs.39 Drivers running from Louisiana would drop off
their logs and timecards in Dallas before finishing their runs in
Fort Worth. Since those drivers had not finished their runs it
was obvious to Respondent that those logs and timecards were
not always accurate.
Respondent reacted immediately after the Union’s August 31
victory by changing its policy regarding timeclocks. John
Pinkston and Bobby Marks were discharged for alleged time
infractions even though neither had received any prior discipli-
nary action. Respondent’s action against Pinkston and Marks
tends to illustrate that Respondent changed to a less flexible
timeclock policy after the August 31 election. Respondent took
other actions toward a new policy. Immediately after the elec-
tion Supervisors Felton and Cleveland started checking time-
cards against logs.
During and after the union organizing campaign, Respondent
engaged in threats to change working conditions. For example,
around July 2, 2000 John Pool threatened Frank Cruz that Cruz
might lose his job or else Respondent may sell the company
because of the union; on July 20 Pool implied to Frank Cruz
that Cruz was receiving a writeup because Pool saw him at a
union meeting; a few weeks before August 31, 2000, Respon-
dent threatened to change to an all company seniority system;
around September 15 John Pool threatened Ron Dakin that
Respondent was considering cutting back the runs to 40 hours a
week; in late October James McMullen threatened to transfer
employee Lenorah Antoine out of the bargaining unit; in No-
vember Respondent changed the Dallas–Nuevo Laredo run and
transferred drivers Cruz and Paiz off that run; and in December
2000, James Reilly threatened to fire anyone that drove in ex-
cess of the speed limit.40
The record illustrated that Respondent’s disciplinary policy
regarding DOT logs took a turn around February 1, 2001. Re-
spondent discharged three more employees and on that occa-
sion—(unlike the situations with Pinkston and Marks),— the
discharges were for alleged log falsifications. As shown below,
General Counsel alleged that two of those—Howard Cranford
and Clyde Evans—were unlawfully discharged.
Dwight Boston and Willie Vaughn met with James Reilly
and Earnest Cleveland on January 30, 2001 regarding a rumor
that a number of employees had been fired. Reilly replied that
drivers had been suspended and not fired. Soon thereafter Re-
spondent discharged drivers Howard Cranford, Clyde Evans,
and Rudy Cates and Respondent President Tish Farrell issued a
memo to all drivers, regarding those terminations (U. Exh. 1):

39 In February 2001, Romero and Pool encouraged Julio Gomez to
make a run for another driver even though that would cause Gomez to
go over his DOT limit. Romero told Gomez to go to Pool and learn
how to fix his logbooks. As shown above, Gomez was suspended for
refusing to make a run that would cause him to exceed the DOT hours
limit. In June 2000, Felton told a driver to make a run differently from
the schedule but log it as scheduled. Romero pressured Dakin and
Sanchez in December 2000 to falsify timecards to show breaks they
had not taken, and to falsify their logs to match the timecards.
40 Reilly told Ron Dakin that he would fire anyone that drove over
the speed limit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD662
Several drivers are upset and have asked about the
termination of several long term drivers. I wanted you to
hear directly from me the cause of those terminations.
Two members of the APWU Bargaining Committee
quite properly brought to the Company’s attention that
certain drivers were falsifying their DOT logs.
Bill Sturdivant carefully investigated the allegations.
In addition, Jim Reilly and Earnest Cleveland spoke to the
affected drivers. They admitted to falsifying their logs.
We informed the DOT and have terminated the drivers
identified. We had no choice under applicable law under
our view.
I urge each and everyone of you to refresh your mem-
ory of DOT regulations and Company policy that says that
the falsifying of DOT logs is an offense for which you will
be discharged. The DOT also has the power to fine and/or
prosecute the affected drivers.
I too am very upset these people are no longer with us.
Several of these drivers are long term employees and
friends of mine but there was no choice. The DOT can
shut the Company down if it condoned or tolerated such
behavior. In that case no one has a job. I cannot and will
not put all of you and your families at risk for such behav-
ior.
Farrell’s letter shows that Respondent changed its policy re-
garding DOT logs and alleged to its employees that change was
caused by complaints from the Union.
CONCLUSIONS
Credibility
As shown herein, I credit the testimony of John Pinkston,
Bobby Marks, and Julio Gomez. I also credited the evidence
showing the Respondent threatened its employees because of
their union activity. I also credit the testimony of Dwight Bos-
ton in view of his demeanor and the full record.
Findings
As shown above the allegations regarding Respondent and
its alleged change in that policy, regarding DOT logs, raises
questions under Section 8(a)(5). Under Section 8(a)(5) it is
necessary to show that Respondent changed a condition of em-
ployment that was a mandatory subject of bargaining (Pepsi–
Cola Bottling Co. of Fayetteville, 330 NLRB 900 (2000)),
without notifying or bargaining with the Union before the
change (Filene’s Basement Store, 299 NLRB 183 (1990)).
Respondent failed to notify the Union of its plan to change
its time and logs policies in August and February. Hours, plant
rules, and discipline are mandatory subjects of bargaining
(American Warehousing, 311 NLRB at 386; Local Union No.
189, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL–CIO v. Jewel Tea Co., 381 U.S. 676, 691
(1965); Schraffts Candy Co., 244 NLRB 581 (1979); National
Licorice Co. v. NLRB, 309 U.S. 350 (1940)), and an employer
may not lawfully change or modify the terms and conditions of
employment without giving the collective-bargaining represen-
tative notice of the intent to change and an opportunity to bar-
gain. I find that Respondent violated Section 8(a)(1) and (5) by
unilaterally changing its rules regarding time and logs mainte-
nance; and by unilaterally altering the disciplinary policy re-
garding DOT logs.
Respondent Engaged in 8(a)(1) and (3) Conduct By
–Imposing more onerous working conditions by alter-
ing its disciplinary policy regarding DOT logs around Feb-
ruary 1, 2001.
–Terminating Howard “Bo” Cranford and Clyde Evans
around February 1, 2001.
As shown above, Dwight Boston and Willie Vaughn, on be-
half of the union, met with James Reilly and Cleveland on
January 30, 2001 regarding a rumor that a number of employ-
ees had been fired. Reilly replied that drivers had been sus-
pended and not fired. Soon thereafter Respondent discharged
drivers Howard Cranford, Clyde Evans, and Rudy Cates. On
February 1, 2001, Respondent’s Owner Tish Farrell issued her
memo—(quoted above)—alleging that the Union had brought
to her attention that certain drivers were falsifying their DOT
logs.
The General Counsel alleged that the discharges of two of
those drivers,—Cranford and Evans,—were unlawful. Howard
Cranford drove with Southern Mail from May 5, 1989 until he
was fired on February 1, 2001. Cranford was a visible union
supporter. He solicited drivers to sign union cards and was
successful in signing up from 6 to 9 employees. He wore union
T-shirts on Fridays and a union hat all the time. Clyde Evans
started as an extra-board driver out of Dallas for Southern Mail
on August 8, 2000. Evans signed a union authorization card on
his first day of work.
Cranford testified that he was told to falsify his logs by his
terminal manager in December 1999 in order to avoid truthfully
showing that he was running over the DOT 70 hours in 8-days
rule.41 Again in January 2000 he was instructed to falsify his
log—(this time by Supervisor Cleveland)—in order to avoid
revealing violation of the 70-hour rule. Supervisor Felton asked
Cranford in March or April 2000 why his logs and timecards
did not match and Cranford told him that the run could not be
made legally but that his timecards were accurate. Cranford
was not disciplined.
After showing up at the terminal, Cranford refused to take an
assigned run on September 30, 2000. When Cranford showed
up for work the next evening, Dispatcher Anthony Valdez told
him that he could not make his run because he had refused to
make a run the night before. On October 2, 2000, Cranford
explained to Cleveland and Sturdivant that he had stopped mak-
ing runs that would put him in violation of the 70-hour rule. He
explained the situation that had started in 1999 later that day in
a meeting with James Reilly and Cleveland. At that time Cran-

41 After running over 70 hours per 8 days Cranford’s logs were re-
turned and he spoke to a Dallas terminal manager. The manager,
Sparks, told Cranford how to falsify his logs in order to avoid revealing
violation of the 70-hour rule. Nevertheless, Cranford’s was showing a
70-hour violation on his log in January 2000. At that time Earnest
Cleveland told Cranford that he needed to take care of his logs and
Cleveland showed Cranford how to falsify his log and avoid showing
70-hour violations.
SOUTHERN MAIL, INC. 663
ford received a written warning (GC Exh. 54).42 On occasions
after October 2 Cranford reminded Reilly and Cleveland of the
problem. Respondent argued that Cranford continued to falsify
his log throughout the last half of 2000. With the exception of
October 2 (GC Exh. 54), Cranford was not disciplined until
January 29, 2001.
Evans did not receive instructions on how to complete a log
after starting work in August 2000. Safety Manager Sturdivant
was scheduled to instruct Evans but Sturdivant had an emer-
gency and failed to give Evans those instructions then or later.
In September 2000, Evans was assigned a run from Dallas to
Amarillo. Evans told Dispatcher Valdez that he could not make
the run because he had small children and the run required an
8-hour break. Valdez told him to make the run without the 8-
hour break. He made the run on September 15 without taking
an 8-hour break.43 Evans was not disciplined for that incident.
In the fall 2000, Anthony Valdez called Evans in and said
Evans was having trouble with his logs. Valdez told Evans he
had to come in and watch a film regarding maintaining DOT
logs before he could drive again. After Evans watched the film
Valdez helped him update his logbook. Evans was not disci-
plined.
On January 29, Sturdivant told Cranford there was a problem
with his log. Cranford said that he would continue to log the
runs as ran and Sturdivant put him on off-duty status. Clyde
Evans was called in to talk with Safety Manager Sturdivant on
January 30, 2001. When they met Evans reminded Sturdivant
that Sturdivant had never shown Evans how to prepare his logs.
Sturdivant looked at Evans’s log and said that Evans had run
over on a previous run.44 Evans testified that he had received an
emergency phone call on that run while in route to Amarillo,
that his father had been rushed to the hospital. Evans testified
that he made the turn around in Amarillo without taking a re-
quired 8-hour break. Sturdivant told Evans that he was going to
give him a warning letter (GC Exh. 32).
Cranford met with Reilly and Sturdivant on January 30, but
Reilly said he could not continue the meeting when advised that
Cranford had brought in driver Jerry McCoy to act as his union
representative.
On January 31, Sturdivant phoned Evans to come into the of-
fice. Evans met with James Reilly and Sturdivant. Reilly asked

42 The warning said nothing about Cranford falsifying his log or vio-
lating the 70-hour rule. Instead it read:
1. Failed in your affirmative duty to notify dispatch of your
available driving hours causing a trip to be late resulting in a
5500.
2. Failed, in your duty to record duty status changes as man-
dated by DOT regulations.
43 Evans had trouble filling out his logs and the dispatcher, Valdez,
routinely calculated Evans’ hours and filled in the recap showing
whether the driver was over on hours. Evans completed the graph on
his logs such as the September 15 log, and Valdez did the calculations
and recap. The September 15 graph shows that Evans was on duty from
9:30 a.m. until 12 p.m. without taking an 8-hour break (GC Exh 87).
44 Evans testified that he could not recall when that run occurred but
recalled that it was before Sturdivant called him in on January 30. Re-
cords (R. Exh. 21) showed that Evans had failed to take a DOT break
during a January 9, 2001 run. The graph showed that Evans was on
duty from 8:30 a.m. until 9:30 p.m. without taking an 8-hour break.
Evans to explain his failure to take the rest break and Evans
explained about the emergency call. Reilly said that what Evans
had done was against DOT regulations and he was going to
have to terminate him.
Reilly and McCoy met with Cranford again on February 2.
Reilly told Cranford that his logs had been perfect until July.
Cranford reminded Reilly that was so because Terminal Man-
ager Sparks had told him to falsify his logs. Reilly sent Cran-
ford home. He phoned later that day and told Cranford he was
discharged.
CONCLUSIONS
Credibility
I was not impressed with the demeanor of Howard Cranford.
His testimony conflicts with substantial evidence showing that
he falsified logs during the 6 months before his discharge.
Therefore, I shall not credit his testimony to the extent it was in
conflict with other evidence that was not specifically discred-
ited. I was impressed with the testimony of Clyde Evans and I
credit his testimony. As shown below, I do not credit the testi-
mony of James Reilly or Earnest Cleveland.
Findings
I shall question whether Respondent was motivated to dis-
charge Cranford and Evans because of its union animus. Cran-
ford engaged in open union activity and Evans signed a union
authorization card on his first day of work.
Cranford was told there was a problem with his log and he
was placed in off-duty status on January 29, 2001. As shown
above, according to Cranford’s testimony Respondent was fully
aware of Cranford falsifying his log on numerous occasions
before January 2001. First the then general manager, Tommy
Sparks, told Cranford to falsify his log.45 During the spring
2000, Michael Felton asked about Cranford’s log and timecard
not matching. Cranford explained the run was too long and
would put him over on hours but, again, Cranford was not dis-
ciplined (R. Exh. 31).
Respondent argued that Cranford did regularly falsify his log
during the second half of 2000. Nevertheless, the record shows
that Cranford was not disciplined until after the Union won the
August 2000 election. In October he was disciplined after tell-
ing Reilly and Cleveland that he had been instructed to falsify
his logs. Even then Cranford was not disciplined for falsifying
his log. He was disciplined for not recording his duty status and
not notifying dispatch of his available driving hours (GC Exh.
54).
Evans received a warning letter on January 30, and was dis-
charged on January 31, 2001 for failing to take an 8-hour break.
He had failed to take an 8-hour break on the Dallas/Amarillo
run on January 9, 2001. During that run Evans learned of his
father’s hospitalization and returned to Dallas without a break.
Evans had seven other 10-hour infractions before January and
was not disciplined.46 As an example, in September 2000, Ev-
ans had made the same Dallas/Amarillo run without an 8-hour

45 Cranford’s testimony about Sparks was not rebutted. Sparks did
not testify.
46 No records were produced pursuant to General Counsel’s sub-
poena for, among other things, Evans’s disciplinary records.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD664
break and was not disciplined. On that occasion he protested
that he could not make the run with the 8-hour break because
he had young children to care for. Dispatcher Valdez told him
to make the run without an 8-hour break and Evans did so. In
October or November Evans met with Valdez and was told to
complete grids47 regarding his runs and Valdez completed the
numbers for Evans, on the freight line and recap column. Evans
was not disciplined even though he had incorrect logs.
The full record including evidence showing Respondent’s
knowledge of drivers’ union activities, the 80 percent vote for
the Union and Respondent’s unfair labor practices tend to show
that Respondent knew of Cranford and Evans’s union activity.48
At issue is whether Respondent was motivated by its union
animus and whether Respondent was motivated to discharge
Cranford and Evans in an effort to blame the Union for their
terminations.
Tish Farrell attributed the discharges to the Union bringing
to the Company’s attention that certain drivers were falsifying
their logs. Dwight Boston credibly testified that even though he
and driver Willie Vaughn met with James Reilly to discuss the
suspension of seven drivers, neither named drivers who were
falsifying their logs. In fact in contesting the allegations that the
Union had “(fingered) drivers about running illegal runs,” the
Union raised the question of how anyone other than the Com-
pany could know which drivers were falsifying logs (GC Exh.
80).
Respondent claimed that upon learning from the Union of
drivers falsifying logs, it investigated the Union’s information.
If that is true, then Respondent must have acted very quickly.
Boston and Vaughn met with Reilly on January 30. But Re-
spondent had already confronted Cranford about his log on the
29th when Safety Manager Sturdivant told Cranford that he had
a problem with his log and placed Cranford on off-duty. Evans
was warned on January 30 for his January 9 run.49 The credited
evidence tends to show that Respondent was not truthful in
Tish Farrell’s January 30 memo and it also tends to show that
Respondent issued that memo in an effort to place blame on the
Union for an action it had already commenced. That evidence
and the full record show that Respondent was motivated to
discharge Evans and Cranford because of its union animus.
(Caterpillar, Inc., 322 NLRB 674, 678 (1996)).
Respondent contended that Evans and Cranford were not
discharged out of union animus and I shall consider whether
Respondent would have discharged either in the absence of

47 Each driver log is set up as a graph or grid. In order to complete
each day’s log it is also necessary to compile figures. Valdez was tell-
ing Evans to line out the graph and that he (Valdez) would compile the
figures.
48 Under one of General Counsel’s arguments it is not necessary to
prove that Respondent actually knew that both Cranford and Evans
favored the Union. General Counsel argued that Respondent discharged
the two because of their union activity and that Respondent discharged
the two in order to blame the Union for the discharges. Under the sec-
ond argument it is unnecessary to show that Respondent knew both
were union advocates.
49 In view of the above, it is apparent that Respondent’s records in-
cluding Evans’ January 9 log and records generated by its log checker,
showed that Evans had violated DOT regulations on January 9.
union activity. As shown herein, Cranford had several contacts
with supervision regarding his log problem and Respondent had
Evans’ log showing his failure to take an 8-hour break in its
possession since Evans finished his January 9 run. The record
illustrated that Evans had several other 10-hour violations be-
fore January but was not disciplined. Here, as was the case in
the discharges of Pinkston and Marks, Respondent was aware
of the vulnerability of Cranford and Evans. After the January
30 meeting with representatives of the Union, Respondent
elected to act on that knowledge and blame the Union for its
discharge of two more union supporters. I find that Respondent
discharged Evans and Cranford because of its union animus and
that Respondent failed to show that it would have discharged
either Evans or Cranford in the absence of union activity.
Respondent Engaged in 8(a)(1) and (3) Conduct By
–Reducing Julio Gomez’s route by one day around
February 15, 2001.
Julio Gomez has been a driver for about 20 years and has
been a driver for Alamo Mail since about 1998. He was in-
volved in the 2000 union campaign. Gomez attended about 10
or 11 of the union meetings. During one of those meetings Go-
mez was with Ron Dakin and a union representative when John
Pool came in. Pool bought something, then turned around and
saw Gomez, Dakin and Union Representative Dan Henderson
talking. Pool remained in the store for about 10 or 15 minutes.
On February 7, 2001, at a Conoco gas station, John Pool told
Gomez that he had to work on his days off. Gomez said that he
had other plans and Pool replied that he had to work. Gomez
stated that he would go over his hours if he worked all the days.
Pool told him to go ahead and work. The next day Gomez
called Richard Romero and told Romero that he was going to
go over his hours. Romero told him to talk with John Pool the
next day when he returned from San Antonio and see if he
could fix Gomez’s log book so that Gomez would have fewer
hours. Gomez replied that he was not going to lie on his log-
book. Romero told him to just come on over and see Pool. Go-
mez phoned driver Ron Dakin and told Dakin what had hap-
pened with Pool and Romero. Dakin accompanied Gomez to
see Pool but Pool had already left. Gomez worked as sched-
uled. When he returned back in Laredo on Sunday, February
11, he calculated his hours at 67. Under DOT regulations, driv-
ers are prohibited from exceeding 70 hours in an 8-day period.
Gomez was scheduled to work the remainder of that day and
the next day. He phoned Romero and told him of the 67 hours.
Romero told him to take the remainder of the day off and start
Monday morning. Gomez replied that was not possible because
he was to leave on his regular run at 1 p.m. on Monday. Ro-
mero said that he was placing Gomez on Anselmo Sanchez’s
run. Gomez again replied that was impossible because he
would not be able to take the required 8-hour break. Romero
told him to go ahead and take the rest of the week off. Gomez
said that he was going to call the DOT to see if he had enough
hours to work or what. Romero asked if he was calling the
DOT on him. Romero told him to take the rest of the week off
then changed and said that he would call Gomez if he needed
him again.
SOUTHERN MAIL, INC. 665
Gomez then phoned Ron Dakin and Dakin advised him to
phone Safety Manager Sturdivant. When Gomez phoned,
Sturdivant said he had already talked with Romero and was
being mailed a copy of Gomez’s timecard and logbook. Later
that day Gomez phoned Sturdivant again and Sturdivant said
that Gomez had been right and that he could start back to work
the next day—i.e., Tuesday. On Tuesday Gomez was assigned
to make a trip with another driver—(Ruben Gomez),—and
Julio Gomez logged the trip as on duty not driving.50 On
Thursday John Pool told Gomez to phone Richard Romero.
Romero told Gomez that Respondent was removing 1 day from
his 5-day a week schedule and that he could drive that extra day
if anyone went on vacation. Since then Gomez has run a 4–day
schedule and his pay has been reduced each week by the one
day he no longer works.
CONCLUSION
Credibility
Respondent argued that Gomez should be discredited be-
cause he failed to answer some questions on cross-examination
(Tr. 143–145). Mr. Gomez illustrated some difficulty in re-
sponding to a question about a conversation with Richard Ro-
mero. Most of Gomez’s testimony is unrebutted. Therefore, and
in consideration of his demeanor, I have not discredited Go-
mez’s testimony to the extent it was supported by credited evi-
dence and to the extent it was not rebutted by credited evi-
dence. In that regard I credit Gomez’s testimony regarding his
above-cited conversations with Richard Romero and Bill
Sturdivant. That testimony was not rebutted. Neither Romero
nor Sturdivant testified. I also credit his testimony about his
conversations with John Pool. Pool was not asked about his
conversations with Gomez. Pool did testify that he never in-
structed a driver to violate DOT regulations. As shown below, I
do not credit Pool’s testimony.
Findings
The above evidence is convincing that Richard Romero told
Gomez to take the rest of the week off and that he would phone
him if he needed him again, because of Gomez’s union activity
and his protests against being required to drive in violation of
DOT regulations. Both his union activity and activity in pro-
testing Respondent’s efforts to force him to drive in violation of
DOT regulations, constitute protected conduct (Alumina Ce-
ramics, Inc., 257 NLRB 784 (1981)). Gomez’s contact with
Safety Manager Sturdivant and his protests of Romero’s action,
was also protected activity (Terminix International Co., 315
NLRB 1283, 1287 (1995)). In consideration of those facts and
Respondent’s union animus, I find that Respondent was moti-
vated to initially suspend and subsequently, to reduce his work-
load, because of Gomez’s union and protected activity.
I have also considered whether Respondent would have
taken those actions against Gomez in the absence of his union
and protected activity. The record revealed there was no inter-
vening action between Gomez’s protected activity and his sus-
pension or his reduction in work. Gomez was told that he might

50 Each log form has four options for the driver to fill in: (1) off
duty; (2) sleeping berth; (3) driving, and (4) on duty, not driving (GC
Exh. 7).
be used to cover for drivers on vacation. Gomez had a regular
run unlike extra-board drivers, and other drivers with regular
runs were not used as extra-board drivers.
Respondent argued that the change in Gomez’ route was not
discriminatory because the USPS mandated it. Respondent
failed to show that it was necessary to place Gomez on a
shorter workweek because of the USPS. Therefore, I find that
Respondent failed to prove that it would have suspended and
reduced the work of Julio Gomez in the absence of his union
and other protected activity. (Wright Line, 251 NLRB 1083
(1980); Ingles Markets, Inc., 322 NLRB 122 (1996)).
Respondent Engaged in 8(a)(1) Conduct By
James Reilly around March 15, 2001:
–Advising an employee that he would monitor and
keep an eye on the employee for 30 days;
–Threatening to discipline and terminate an employee
if the employee did not increase the speed on the em-
ployee’s route; and denying employee Fern Clark’s re-
quest to allow a Union representative to participate in an
interview, which Clark reasonably believed, would result
in discipline.
Respondent Engaged in 8(a)(1) and (3) Conduct By
–Issuing a written warning to Fern Clark around Feb-
ruary 26, 2001.
–Suspending Fern Clark around March 13, 2001.
–Issuing a written warning to Fern Clark around
March 16, 2001.
Respondent Engaged in 8(a)(1) and (5) Conduct By
–Unilaterally transferring bargaining unit work
to Leeway Transportation.
Fern Clark drove for Respondent from October 1997. She
participated in the 2000 union organizing campaign by solicit-
ing employees, distributing union literature, and having her
picture on a union pamphlet distributed to others. She lived in
Monahans, Texas, where she drove the Monahans/El Paso route
from Fridays through Sundays. She transferred and moved to
Dallas on February 18, 2001. She was assigned the Dallas/Van
Horn, Texas route and James McMullen told her she would
start the route on Monday, February 26. Clark called in on Feb-
ruary 24 and the dispatcher told her that she was late for an
assigned run. Clark came in but was 2 hours late leaving and
arriving in Van Horn. Instead of taking her required 8-hour
break, she took a 6-hour 45-minute break in order to return on
schedule. Cleveland issued Clark a writeup on Monday for
being late for a scheduled run. He told Clark that she would be
fired if it happened again. On March 12, she received another
writeup and was placed off-duty for that same failure to take an
8-hour break, when she met with McMullen and Allen (GC
Exh. 58).
James Reilly and McMullen met with Clark on March 15.
Reilly went into several matters including her failure to take an
8-hour layover on February 24; her taking 15-minute breaks
instead of 30-minute breaks; and her not driving fast enough.
Clark brought along driver Dwight Boston as her union repre-
sentative but Reilly instructed Boston that he was there only as
a witness and he could not speak or ask questions during the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD666
meeting. James Reilly told Clark she would be monitored for
30 days. Reilly issued Clark a disciplinary writeup the next day.
CONCLUSION
Credibility
As shown herein, I was impressed with Fern Clark’s de-
meanor and her full testimony. I credit her testimony in full.
Findings
As shown above, the evidence illustrated that Clark was
questioned by Cleveland about being late, and then warned by
Cleveland, McMullen, and Reilly for failing to take a full 8-
hour break on February 24. The record shows that Respondent
was inconsistent in enforcing DOT regulations. In fact, as
shown above, before the Union was elected on August 31, 2000
Respondent tolerated and even participated in helping employ-
ees to circumvent DOT rules. Nevertheless, when it discovered
that Clark had failed to take a full 8-hour break Respondent
issued two warnings to Clark and cautioned her against engag-
ing in other activities forbidden by its Vice President James
Reilly. I am convinced that Respondent treated Clark in a dis-
parate manner and that it was motivated to do so by her union
affiliation. On the day before Reilly issued his disciplinary
writeup to Clark, she came to a meeting with a union represen-
tative—Dwight Boston. Reilly permitted Boston to remain but
he told Boston that he could not speak during the meeting with
Clark. I find that Clark was unreasonably denied her right to
representation during that interview which she reasonably be-
lieved could have resulted in disciplinary action51 (NLRB v. J.
Weingarten, Inc., 420 U.S. 251 (1975); cf. Southwestern Bell
Tel. Co. v. NLRB, 667 F.2d 470, 473–474 (5th Cir. 1982)).
Although it is not disputed that Clark failed to take an 8-hour
break on her February 24 run, the record shows that Respon-
dent did not start to routinely enforce DOT rules until the Un-
ion was elected. I find that General Counsel proved that Re-
spondent engaged in conduct in violation of Section 8(a)(1) by
advising Clark she would be monitored; by threatening to dis-
cipline and terminate Clark if she did not increase her speed;
and by denying Clark the use of a union representative during
an interview in which she reasonably believed she would be
disciplined. I find that Respondent engaged in 8(a)(1) and (3)
activity by issuing warnings to Clark on February 26 and
March 16, and by suspending Clark on March 13, 2001, be-
cause of its union animus.
I shall consider whether Respondent illustrated that it would
have disciplined Clark in the absence of union activity. As to
whether Respondent proved that it would have warned Fern
Clark for being late returning from her Amarillo/Dallas run,
warned her for violation of the 8-hour break violation, and cau-
tioned her for taking 15-minute breaks and not driving fast
enough, the record illustrated that Respondent did not routinely
discipline employees in that manner before the Union was
elected. The record shows that Respondent placed Clark in
position where she could not avoid being late on February 24
and 25, because James McMullen had advised her that she did

51 Clark had been suspended by McMullen for DOT violations be-
fore she was called in to meet with McMullen and Reilly over that and
other issues.
not work until February 26. Shortly after her February 18 trans-
fer to Dallas; Clark was told she would have no assignment
before Monday, February 26. Without her knowledge and de-
spite what she had been told by McMullen, she was assigned a
run out on February 24, which was to be followed by her re-
turn, all before Monday, February 26. Clark was already late
for that run when she phoned in on February 24. At that point
Clark had done nothing other than follow the direction of James
McMullen. Nevertheless, she was late and as a result of that
tardiness, she was disciplined. I find that Respondent unrea-
sonably placed Clark in a position where she could not avoid
disciplinary action and, as a result she was warned and sus-
pended. I find that Respondent failed to prove that it would
have taken action against Fern Clark for her activities on Feb-
ruary 24 and 25, in the absence of her union activities.
Counsel for General Counsel argued in its brief that James
Reilly corroborated that Fern Clark drove extra trips from
Monahans to El Paso and he corroborated that extra trips were
being handled by Leeway Transportation drivers. In that regard
General Counsel cited an affidavit given by Reilly (GC Exh.
52). Nevertheless, there was no showing that those assignments
to Leeway constituted a change in mandatory bargaining condi-
tions. Reilly also testified in that affidavit, “I do not believe that
any extra runs to Monahans were taken away from regular
Monahans drivers and given to Leeway drivers.” I find the
evidence failed to prove that Respondent engaged in 8(a)(1)
and (5) activity by transferring bargaining unit work to Leeway
Transportation. The record failed to show that Respondent did
anything different in that regard that had been its practice be-
fore the Union was elected.
Respondent Engaged in 8(a)(1) Conduct By
An Unknown Agent:
–By following an employee on the employee’s route
from Monahans to Dallas.
After Fern Clark transferred to Dallas and received a writeup
from Earnest Cleveland and warnings from James McMullen
and James Reilly, Reilly told her that she would be monitored
for 30 days.
Clark testified that after a 9-hour breakdown on her March
27, 2001 run, during which she called in to her dispatcher, a
white vehicle followed her from Midland, Texas. The vehicle
turned away when she entered Sweetwater but she noticed it
behind her again about 20 minutes after she left Sweetwater.
She stopped at a rest stop but did not notice the white vehicle
until she returned on the freeway. The white vehicle then reap-
peared and followed her all the way to the bulk mail center.
Clark could not identify the driver.
The conclusions, credibility determinations, and findings to
all 8(a)(1) allegations are set out below at pages 35 to 39.
Respondent Engaged in 8(a)(1) and (5) Conduct By
–Unilaterally altering the random drug test to its em-
ployees from March 15, 2001.
Until March 2001, Respondent conducted a random drug test
policy. Employees were given 24 hours to complete a drug test
at a clinic.
SOUTHERN MAIL, INC. 667
Respondent used a different practice in March 2001. It did
not notify the Union of a proposed change. Employee James
McCoy was required to complete a random drug test immedi-
ately upon demand and was not permitted to leave the premises
for the test (GC Exh. 16 at 7; Jt. Exh. 65 at 1). McCoy was not
given 24 hours to complete his drug test. On March 15, 2001,
driver David James was also required to take a drug test and
James was not given 24 hours to complete a drug test. Instead
James was required to take a drug test immediately at Respon-
dent’s facility.
CONCLUSIONS
Credibility
The evidence is not in dispute regarding this allegation. Re-
spondent admitted that it changed from a policy of permitting
employees to take random drug tests at off premises clinics
within 24 hours to an immediate on-premises clinic testing. I
was impressed with the demeanor and testimony of James
McCoy and David James and I credit their testimony.
Findings
An employer is obligated to notify and bargain with its em-
ployees’ bargaining representative before it makes changes in
terms and conditions of employment which constitute manda-
tory subjects of bargaining (Tocco, Inc., 323 NLRB 480, 488
(1997); Edgar P. Benjamin Health Care Center, 322 NLRB
750, 753, 754 (1996)). Drug testing procedures are mandatory
subjects of bargaining because of their effect on discipline and
job security (Johnson-Bateman Co., 295 NLRB 180 (1989)).
By failing to notify and give the Union an opportunity to bar-
gain before it changed its drug testing policy, Respondent en-
gaged in 8(a)(1) and (5) conduct.
Respondent Engaged in 8(a)(1) and (5) Conduct By
–Failure to provide the Union with requested informa-
tion.
The Union submitted an information request on March 12,
2001, seeking a list of all bargaining unit employees, their
street addresses, phone numbers, social security numbers, and
employment status. The Union phoned Respondent on March
14, and Respondent promised to get the information requested
on March 12. Respondent replied on May 15, but failed to in-
clude phone numbers, social security numbers, and employ-
ment status. The Union has not received that information even
though Respondent stated on March 20, that it would provide
that information.
CONCLUSIONS
Credibility
Except as specifically noted, I have based the findings in this
section on records including among others, the joint exhibits,
other documentary evidence where the authenticity is not in
dispute, and on testimony which is not disputed by Respondent.
Findings
Information concerning employees in the bargaining unit is
presumptively relevant (Sheraton Hartford Hotel, 289 NLRB
463 (1988)). Respondent acted unlawfully in failing to provide
the Union with information it requested on March 12, 2001. I
find that Respondent engaged in conduct in violation of Section
8(a)(1) and (5) by not supplying the Union with phone numbers
and employment status of bargaining unit employees, since
March 12, 2001. As to the Union’s request for unit employees’
social security numbers, I am not convinced that information is
relevant to the Union’s bargaining duties and I find that Re-
spondent did not act unlawfully in refusing to furnish its em-
ployees’ social security numbers.
Conclusions to Allegations that Respondent Engaged
in Conduct in Violation of Section 8(a)(1)
Credibility
In determining credibility I have considered the demeanor of
all witnesses. I considered the full record as to the versions of
events presented by the many witnesses. In that regard I took
special notice of evidence showing consistency and inconsis-
tency in the events recalled by many witnesses.
As to specific testimony I have considered many factors in-
cluding those raised by the parties in their briefs. As to the John
Pool allegations, Respondent argued that Ron Dakin admitted
that Pool did not threaten him during their conversation. Da-
kin’s assessment as to whether Pool’s comments constitute a
threat is not material to my determinations. Nor does Dakin’s
assessment to that effect show inconsistency in his other testi-
mony. He testified as to what Pool told him and even though he
feels that does not constitute a threat, there was no showing that
Dakin felt his other testimony was in error.
Respondent also argued that Dakin’s testimony is filled with
hearsay.52 Respondent evidently referred to Dakin’s testimony
that Supervisor Pool told him what was said to Pool by Re-
spondent’s Owner Tish Farrell. In that regard it is important to
keep in mind that the complaint allegations do not include Tish
Farrell as engaging in unlawful threats. Instead, the complaint
alleged that John Pool uttered the threats. With that in mind it is
clear that the General Counsel seeks to prove that Pool’s com-
ments were unlawful and that it is not material whether Tish
Farrell actually said anything to Pool. In other words, Dakin’s
testimony was received for what Supervisor John Pool said to
Dakin—an employee. The testimony was not received to show
what Mrs. Farrell may or may not have said to Pool or whether
or not Farrell engaged in unlawful conduct by telling Pool that
Respondent was considering cutting back the runs. Therefore,
as received, the testimony did not contain hearsay.
I observed John Pool’s demeanor. As shown above he testi-
fied in opposition to several witnesses to the effect that he did
nothing in the way of threatening employees because of the
union, telling employees he saw him at a union meeting, or did
or suggested anything contrary to DOT regulations. I also ob-
served the demeanor of several witnesses that testified in direct
conflict with John Pool, including Ron Dakin, Frank Cruz,
Rudolfo Sanchez, Richard Paiz, and Julio Gomez and I saw
nothing in their demeanor which caused me to doubt their tes-
timony concerning Pool. On the other hand I found Pool’s de-
meanor wanting as he testified that he did nothing regarding the
union including threatening employees or saying he saw an
employee at a union meeting and that he did nothing to encour-

52 See FRE Rule 801(c).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD668
age employees to circumvent DOT regulations. I do not credit
Pool to the extent his testimony conflicts with that of Dakin,
Cruz, Sanchez, Paiz, or Gomez. On the other hand I do credit
the conflicting testimony of all those witnesses other than Pool.
James McMullen, like Pool, denied, that he made statements
as alleged by Lenorah Antoine. McMullen denied asking An-
toine if she could afford to take 2 days off and that he asked her
what was the Union promising her. McMullen denied telling
Antoine that he was going to transfer her to Leeway Transpor-
tation. McMullen also denied telling any driver to falsify logs
or timecards or to violate DOT regulations or put anything
other than actual times on logs. Nevertheless, under cross-
examination McMullen admitted that when Lenorah Antoine
brought in a request for time off, he asked her “was the Union
paying her, or something to the effect.” I was not impressed
with McMullen’s demeanor or testimony and I do not credit his
testimony. I credit the testimony of Lenorah Antoine in view of
her demeanor and the full record. In view of my observations
of demeanor and my findings above, I credit the testimony of
Ron Dakin and Fern Clark regarding contact with James Reilly.
I also credit Fern Clark’s testimony that a white vehicle fol-
lowed her on March 27, 2001. As shown above, I was not im-
pressed with the demeanor and testimony of Howard Cranford.
His testimony regarding Bill Sturdivant was not disputed.
Sturdivant did not testify. Therefore, I credit Cranford in that
regard.
Findings
The credited evidence proved that John Pool questioned
Frank Cruz during the summer of 2000, about the Union and
Pool threatened Cruz with loss of his job and the possible sale
of the Company. Pool threatened Ron Dakin and Rudolfo San-
chez that Respondent may go to a companywide seniority sys-
tem if the Union was voted in and he promised that Respondent
would remain with the current company-by-company seniority
system if the employees did not vote in the Union. Pool threat-
ened there were five or six drivers with high seniority that
wanted to move from Dallas to San Antonio and he implied that
those drivers might move if the Union was voted in and Re-
spondent went to a companywide seniority system. Pool ques-
tioned Ron Dakin, on how the union was coming along. Pool
threatened Dakin that Respondent may cut back runs to 40
hours a week if the Union succeeded in getting a contract for
time-and-a-half.
The evidence proved that James McMullen interrogated
Lenorah Antoine on October 28 about her request to take two
days off to attend union business, whether she could afford to
take that time off and what was the Union promising her.
McMullen then threatened that he was going to transfer An-
toine out of the bargaining unit to Leeway Transportation.
The Board has found “in the final analysis, our task is to de-
termine whether under all the circumstances the questioning at
issue would reasonably tend to coerce the employee at whom it
is directed so that he or she would feel restrained from exercis-
ing rights protected by Section 7 of the Act.” Westwood Health
Care Center, 330 NLRB 935 (2000); where the Board cited,
among other cases, Bourne v. NLRB, 332 F.2d 47 (2d Cir.
1964); Perdue Farms Inc. v. NLRB, 144 F.3d 830 (D.C. Cir.
1998); Timsco, Inc. v. NLRB, 819 F.2d 1173 (D.C. Cir. 1987).
Counsel for General Counsel argued that Pool’s otherwise in-
nocuous interrogation of Cruz was unlawful because it was
accompanied by two clear threats: (1) the company might be
sold; and (2) Cruz might lose his job; and neither threat in-
volved a prediction of business consequence beyond Respon-
dent’s control. She cited Bourne v. NLRB, 332 F.2d 47 (2d Cir.
1964); Rossmore House, 269 NLRB 1176 (1984).
Here, all the evidence regarding interrogation involved
known union advocates. Ron Dakin, Frank Cruz, Lenorah An-
toine, Fern Clark, and Howard Cranford all admitted to being
involved in activities for the union. As shown below, I find that
Respondent knew of each of their union activities (see Ross-
more House, supra). All the incidents alleged as 8(a)(1) viola-
tions53 involved more than interrogation. John Pool threatened
Ron Dakin that Respondent’s owner was considering cutting
hours back to 40 a week if the Union came in. Pool threatened
Frank Cruz that Cruz may lose his job or Respondent may sell
the company if the Union came in. Pool threatened Dakin and
Rudolfo Sanchez that the Company may go to an all company
seniority system if the Union came in. Pool misrepresented that
the Union was seeking an all company seniority system.54
James McMullen threatened Lenorah Antoine with a transfer
out of the bargaining unit to another Farrell company. James
Reilly denied Fern Clark full union representation during a
meeting that was likely to result in discipline and harassed
Clark for failing to take an 8-hour break and for not driving fast
enough.55 The Board and courts have consistently found threats
of the type found herein, to be violations of Section 8(a)(1)
(Addicts Rehabilitation Center Fund, Inc., 330 NLRB 733, 741
(2000); Castaways Management, Inc., 285 NLRB 954, 972
(1987); ITT Fed. Services Corp., 335 NLRB 998, 1002 (2001);
Poly–America, Inc. v. NLRB, 260 F.3d 465, 484 (5th Cir.
2001)).
As argued by counsel for General Counsel, Pool’s postelec-
tion threats occurred during the time when the employees ex-
pected their bargaining agent to press for the fruits of collective
bargaining and were not couched in terms of legitimate busi-
ness consequences of unionization citing G.B. Electric, 319
NLRB No. 88 (1995).
James Reilly prohibited Dwight Boston from speaking dur-
ing the interview that Reilly and McMullen held with Fern
Clark. Before that interview Clark had been warned twice for
failure to take an 8-hour break and she reasonably expected that
to be one topic in the interview. I find that Clark reasonably
believed that interview may result in discipline. Therefore,
Respondent violated Section 8(a)(1) (Southwestern Bell Tele-
phone Co., 251 NLRB 612, 613 (1980)).
As to the allegation that Respondent engaged in an unfair la-
bor practice by following Fern Clark’s truck on March 27,

53 With the exception to the alleged interrogation of Howard Cran-
ford by Bill Sturdivant in November 2000.
54 Pool contended the Union’s argument during the representation
proceeding that all the companies constituted a single company, illus-
trated the Union’s desire to have an all company seniority system.
55 As shown herein, Clark’s warnings and suspension is also consid-
ered as a 8(a)(3) violation and is considered under the Wright Line
standard.
SOUTHERN MAIL, INC. 669
2001, I find the evidence is insufficient to support such a de-
termination. It is true that James Reilly threatened to monitor
Clark for 30 days and that March 27 fell within the 30 days
after Reilly made that threat and it is also true that some suspi-
cion arises from strange behavior of the white vehicle that fol-
lowed Clark. That alone does not establish that an agent of
Respondent drove the car. Furthermore, even if I assume for the
sake of discussion, that the driver was an agent or employee of
Respondent, there is no showing that the driver was engaged in
unlawful conduct. Fern Clark phoned in a breakdown and she
was delayed for 9 hours. Therefore, even if the vehicle was
from the Company, there was no evidence that it was not there
to lend assistance if needed following Clark’s breakdown. With
all that in mind, I am unwilling to conclude on the basis of the
record, that Respondent unlawfully followed Clark’s truck. I
find that General Counsel failed to prove that Respondent en-
gaged in an unfair labor practice by following Fern Clark on
March 27, 2001.
I find that Respondent engaged in activity in violation of
Section 8(a)(1) by John Pool threatening its employee with loss
of employment, that the business would close, and with loss of
pay; by James McMullen threatening an employee with transfer
to a lower paying job; and by James Reilly threatening to ter-
minate its employee for not increasing her speed and by deny-
ing employee Fern Clark an opportunity to use her union repre-
sentative during a meeting she reasonably believed could result
in disciplinary action.
Conclusions to Allegations that Respondent Engaged
in Conduct in Violation of Section 8(a)(1) and (3)
I find that Respondent discharged John Pinkston, Bobby
Marks, Howard Cranford, and Clyde Evans; transferred Frank
Cruz and Richard Paiz to lower paying routes; imposed more
onerous working conditions on its drivers by altering its disci-
plinary policy regarding DOT logs; reduced Julio Gomez’s
route by one day per week; and issued warnings and suspended
Fern Clark, because of its union animus and Respondent failed
to prove that it would have taken any of those actions in the
absence of its drivers’ union and other protected activities. As
shown herein, the record does show, among other things, that
Respondent was inconsistent in enforcing DOT regulations.
Clark, (Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982)).
Conclusions to Allegations that Respondent Engaged
in Conduct in Violation of Section 8(a)(1) and (5)
I find that Respondent was obligated to recognize and bar-
gain with the Union as exclusive collective-bargaining repre-
sentative of its drivers from August 31, 2000; that Respondent
unilaterally altered the hours and routes of the Nuevo Laredo
runs; failed and refused to furnish information requested by the
Union; unilaterally altered the hours and routes on the Dal-
las/Denver run; unilaterally transferred drivers from the Dal-
las/Denver route to the extra board; unilaterally laid off Spring-
field drivers around October 14, 2000; failed and refused to
bargain with the Union concerning the alteration in hours and
route of the Dallas/Denver runs since September 29, 2000;
unilaterally altered its policy regarding drivers correcting their
timecards and logs; unilaterally altered its policy and its disci-
plinary policy, regarding drivers correcting timecards and DOT
logs in February 2001; and unilaterally altered its employee
random drug test policy on March 15, 2001.
CONCLUSIONS OF LAW
1. By its conduct shown below in paragraphs 2, 3, and 4,
Southern Mail Service, Inc., Byrd Trucking Co., Inc., S&B
Stagelines, Inc., Alamo Mail Service, Inc., E&L Mail, Inc., and
H&L Mail, Inc., a single employer and the respondent herein,
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1), (3), and (5) and Section
2(6) and (7) of the Act.
2. By threatening its employees56 with loss of employment,
that the business would close, with loss of pay, with transfer to
a lower paying job with a company not in the bargaining unit,
with disciplinary action and termination if the employee did not
increase her speed on the employee’s truck route and by advis-
ing an employee that it would monitor her for 30 days, all be-
cause of the Union; and by denying an employee union repre-
sentation during a meeting that she reasonably believed would
result in disciplinary action, Southern Mail Service, Inc., Byrd
Trucking Co., Inc., S&B Stagelines, Inc., Alamo Mail Service,
Inc., E&L Mail, Inc., and H&L Mail, Inc., a single employer,
the respondent herein, violated Section 8(a)(1).
3. By discharging its employees John Pinkston, Bobby
Marks, Howard Cranford, and Clyde Evans, by transferring its
employees Frank Cruz and Richard Paiz to lower paying routes,
by reducing its employee Julio Gomez’s route by one day each
week, and by issuing written warnings and suspending its em-
ployee Fern Clark, Southern Mail Service, Inc., Byrd Trucking
Co., Inc., S&B Stagelines, Inc., Alamo Mail Service, Inc., E&L
Mail, Inc., and H&L Mail, Inc., a single employer and the re-
spondent herein, violated Section 8(a)(1) and (3).
4. By unilaterally changing the hours and routes of the Dal-
las/Denver run; by unilaterally transferring drivers assigned to
the Dallas/Denver route to the extra board; by unilaterally lay-
ing off its Springfield drivers; by failing and refusing to bargain
with the Union concerning the alteration in the hours and routes
of the Dallas/Denver run; by unilaterally altering the hours and
route of the Nuevo Laredo run; by failing and refusing to fur-
nish information requested by the Union; by unilaterally alter-
ing its policy regarding drivers correcting their timecards and
DOT logs; by unilaterally altering its disciplinary policy re-
garding DOT logs; and by unilaterally altering the random drug
test practice for its employees; Southern Mail Service, Inc.,
Byrd Trucking Co., Inc., S&B Stagelines, Inc., Alamo Mail
Service, Inc., E&L Mail, Inc., and H&L Mail, Inc., a single
employer and the respondent herein, violated Section 8(a)(1)
and (5).
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.

56 Unless otherwise stated the terms employee(s) or driver(s) refer to
bargaining unit employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD670
The Respondent having engaged in unlawful conduct by dis-
criminatorily discharging employees Pinkston, Marks, Cran-
ford, and Evans, it must offer them reinstatement to each of
their former jobs, or, if one or more of those jobs no longer
exists, to a substantially equivalent position; and by discrimina-
torily transferring its employees Cruz and Paiz to lower paying
routes and by discriminatorily reducing its employee Gomez’s
pay, it must offer to restore each of them to his former job or, if
that job no longer exists, to a substantially equivalent position;
and by suspending its employee Clark, Respondent must make
Pinkston, Marks, Cranford, Evans, Cruz, Paiz, Gomez, and
Clark, whole57 for all loss of earnings and other benefits, com-
puted on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]

57 Respondent must reimburse Pinkston, Marks, Cranford, Evans,
Cruz, Paiz, Gomez, and Clark, for all extra Federal and State income
taxes that result from a lump sum payment of the award herein.