Here is some of the transcription the NLRB court record-
B. The Meetings of November 25 and 29
According to bike messenger Jeff Webb, about 1-1/2 weeks after he signed his authorization card on November 16, he, like Washington, received a pager message advising him of a company called employee meeting to discuss the independent contractor issue. The meeting was actually held on Saturday, November 25. Thus, the pager message which he received probably occurred within a day or so after the Union’s election petition was filed on November 21.
Webb surreptitiously tape-recorded most of the meeting, although the meeting continued after the tape ran out. Webb authenticated both the tape and a typescript of the tape. I have reviewed the typescript, comparing it with the audio, and have determined it to be reasonably accurate. Both are in evidence; see General Counsel’s Exhibits 5 and 6.
Tait announced that Respondent had decided that its employees would join the National Independent Contractor Agency (sic). He said that Respondent’s owner had determined that his only alternative was to go with NICA, which could supply substitute insurance which would allow Respondent to remain in business. He painted a picture describing the dire consequences an accident might have, not only on the messengers, but on the Company as a whole if a large judgment were entered against it. He concluded by saying, “I find myself being here for another 20 years, this is where I’m gonna our raise my children, pay my mortgage. I want to ensure that I’m going to have a job next year, 5 years, and 10 years down the road. The only way I can do it, the way I see it, is to convert to NICA. I don’t have a choice. That is the way the ownership have decided to handle their insurance.�
The typescript also shows that Tait told the employees that Respondent’s owner, Elisha Gilboa, had determined that he could no longer afford to pay for workers’ compensation insurance. He asserted that workers’ compensation insurance was so costly that it didn’t leave Respondent with a sufficient profit to remain in the industry.
He then introduced a NICA representative, who on this record was only named “Bob.� The NICA representative sought to explain what the conversion to independent contractor status would mean to each of them and explained the benefits of NICA membership. He embarked upon an explanation of what NICA was, how it operated, and what benefits it offered to its members. He explained that for a weekly fee of $19.75, NICA offered its independent contractors occupational/accident insurance coverage.[8] It also would serve as a payroll agency, directly paying the messengers biweekly based upon Respondent’s contributions to NICA’s payroll system. Membership also allowed for assistance with each member’s State and Federal tax returns, allowing for a withholding to make the quarterly payments to the tax agencies. It also offered assistance in preparing the annual tax returns.
Toward the end of the meeting, biker/court researcher Chris Young asked Tait if the employees were being required to convert to independent contractors because the Company was afraid of the union drive. He also asked Tait if the conversion was due to the Company’s fear of the organizing drive at the competitor, Express Network. Young testified that Tait answered, “[Y]es,� to both questions. Webb, Votour, and Roberts all corroborate him. By that time Webb’s tape had run out. Tait never denied the accuracy of their testimony.
A second meeting was conducted on Thursday, November 29. Webb surreptitiously tape recorded it as well. The meeting was conducted by Elisha Gilboa and he introduced Tom McGrath as the owner of NICA. Gilboa amplified what Tait had said before. He repeated that insurance was the primary reason for the conversion. He also tried to persuade the couriers that conversion was to their advantage, claiming that in many cities he had couriers who worked for more than one company, implying that the same flexibility would be available and beneficial to the San Francisco staff. There was a short debate regarding whether that would be allowed, or whether what Gilboa was saying was inconsistent with what Tait had said earlier. It soon became clear that Respondent wanted the messengers to be available to Respondent to the exclusion of outside work; it would continue to pay them showup time to force them to be on hand when Respondent needed them. According to Gilboa, no one would lose any pay in this changeover.
At one point, an employee began a discussion concerning whether they could sign the independent contractor agreement with language of reservation, such as “under duress� or “under protest.� The employee explained that they had been given no time to make the decision. Gilboa replied that he did not want them to sign under duress, going on to say, “No, what I would really like . . . my colleagues is [sic] to explain to [you] and hopefully be able to convince you. If I don’t accomplish that, then you can make a decision or you can tell me, ‘You know it did not convince me, I don’t buy what you’re selling me. I don’t care [for] what you want. But I will sign it anyway’ or you can tell me, ‘No, I don’t want to sign.’ And then you will go and work for a different company . . . then it’s okay.� An employee responded: “So, we’ll get fired if we don’t sign it, is [that] what you’re saying?� Gilboa replied: “Yes.�
Another employee[9] then interjected, “So we’ll get fired if we don’t sign it, well, I already got fired once this week. Again, one week later here I am again. That’s a shame.� Gilboa then went on to say, “It’s on the same issue. We need for our peace of mind. I need to make sure that I can provide insurances. Right is right. If something going to happen to you, and you’re not part of NICA in a legally [sic] the way. Unfortunately, we don’t have insurance to cover you. It’s a matter of life or death for [the San Francisco] office.�
C. Christopher Atkinson
Christopher Atkinson was a bicycle messenger and process server who had worked for Respondent during 1999 and early 2000. While with Respondent he had performed process serving, court filings, and performed court research. In January 2001, in the course of his subsequent employment with another firm, he had run into Meredith Crawford as she served as the in-house at Lillick & Charles. They had previously worked together both at another firm and for Respondent. She had been his boss at the other firm and was very familiar with his capabilities. She told him that she thought he would be the perfect person to replace her at Lillick & Charles, as she expected to be transferred to another law firm. They had several telephone conversations about this subject and on January 26, 2001, he telephoned her in a continuation of that discussion. During the call Crawford told Atkinson that the Company wanted him and asked how much money he would be willing to take. They haggled. He jokingly said that he wanted $30 an hour, to which she responded that she didn’t know about that much, but half that would be fair, $15 an hour. Eventually, they settled on a salary of $2300 per month plus a percentage of the gross of the Lillick business.
She told him that he would need to dress well and train for a week on the computers at the office and another week at Lillick. She told him he was to report to the office at 9 a.m., Monday, January 29, 2001. He agreed.
On that Monday, he reported about 15 minutes early. He spoke first to Romana Macalinao who told him to wait. About an hour later, David Tait came out and asked him to wait some more. Eventually, Tait told him that they were extremely busy and he did not have anybody to help train him. Tait asked him to come back tomorrow or the next day, saying, “We want to get you started the next day or two, but we can’t—we just don’t have enough extra people to get you on a computer right now.�
That same morning, January 29, 2001, an article had appeared in the San Francisco Daily Journal, concerning the organizing drive at Express Network. It suggested that union organizing may have caused Express Network to have gone out of business a week earlier. In addition, the article included a photograph of Maria Atkinson, Christopher’s wife. Also a bike messenger, she is shown posing on her bicycle. The cutline under the photograph says that she had been spat upon by the Express Network dispatcher. The story recites employee claims of harassment because of their union organizing efforts and further observes that Maria Atkinson had reported the spitting incident to the NLRB.
Respondent did not call Atkinson back to complete the hiring process. Atkinson heard nothing further until he called Crawford about 3 days later. He testified that Crawford “sounded like she was very angry, and she said that they did not want to hire me because of our—they thought that I was involved with the Union. They saw my wife’s picture in the Journal, and they didn’t want to get involved with anybody that had union ties.� Atkinson responded that he didn’t have any union ties and that his wife had just happened to get her picture taken.[10] He asserted that the article didn’t have anything to do with him at all. His appeal was to no avail. He realized then that he had been dismissed on the very day that he had appeared for work.
Tait denied any knowledge of union organizing elsewhere in the industry in San Francisco. He also denied any knowledge of stories on that subject printed in any local newspapers. His denial is rejected as entirely improbable. Furthermore, he was most unimpressive on the witness stand with regard to this matter. His presentation was clipped and defensive. I find that he not only was aware of the organizing at Express Network, I also find he had seen the Daily Journal article on the morning it was published. That newspaper is a mainstay for the legal profession in the Bay Area. Indeed, I further find it was that article which caused Tait to stop dealing with Chris Atkinson that day.
D. The Meeting of April 19, 2001
Both Tait and the members of the union organizing committee had their own reasons for wanting a meeting in mid-April 2001. Tait had heard that some employees were unhappy with the NICA situation and were considering a strike. The organizing committee was concerned about the recent discharge of bike messenger Sandro Mascarenhas. As a result, about 5:30 p.m. on Thursday, April 19, 2000, Tait conducted a staff meeting. There was some misunderstanding concerning the purpose of the meeting and who the attendees were supposed to be. Members of the union organizing committee were present, thinking they were going to be discussing the Mascarenhas discharge and they were initially concerned that nonmembers of their committee were also present.
Most of the meeting was surreptitiously recorded by court researcher Charles Annen on a voice-activated microcassette recorder. Both the cassette and a typescript are in evidence as General Counsel’s Exhibits 13 and 14. Shortly after the meeting, Annen gave the cassette and the recorder to union organizer Jerry Martin. Shortly afterwards, Martin began listening to it while sitting in his personal vehicle. He was interrupted by a cellular telephone call. Unfamiliar with the operation of the device, he mistakenly set it to “record,� instead of turning it off. As a result, a portion of the meeting was recorded over by the cellular conversation. That portion also appears in the typescript. It is readily separable from the meeting itself.
As can be seen from the typescript, beginning on the bottom of page 2, Tait has some issues with the employees. He says he didn’t want to call the meeting, but had heard through the grapevine that he had a disgruntled labor force. He said that made him “nervous.� He observed that he knew people were still having issues with the NICA independent contractor situation, but said there was nothing he could do about it. He did not want the “meeting to go down that road,� observing that the matter was in litigation. He said, “t’s in the courts, nothing you say to me or I say to you, is going to change anything ‘cause my owner is going to stand hard where he is regardless. This whole company can shut down tomorrow and he is not going to change his fuckin’ mind.’� He asserted that further discussion of the topic would be a waste of time.
He then said he believed some other issue was bothering them. “What bothered me, from a management point of view, was that my labor force was going to strike without calling me up and saying, ‘Hey, Dave, we got an issue, do you feel like listening to us or should we just tell you to fuck off and strike.’ . . . You give me that phone call, I’m going to respond. I’m going to sit down and I’m gonna give you that time . . . . But I’ll tell you that I got upset enough to the point, if my labor force ever wants to strike without trying to settle the differences with me first and giving me that respect, you might as well consider it your last day of employment. I’m not going to put up with that shit. . . . I wouldn’t treat you that way and I don’t expect you to treat me that way.�
He continued in a similar fashion:
Now [if] we have a meeting about something that is your concern and we can’t settle it and you feel adamant and you feel strong and you still decide to strike, there may be a soft part in my heart, if I see any validity toward your concerns. But if I feel that you’re just creating problems and you’re a burden to me, the inevitable is going to happen. We are not a union organized company. We are not. I know some of you want, or all of the want it to be, but the bottom line, we are not. The word strike amazes me because you can’t strike if you aren’t the union. [interrupted by an employee who disagrees.] Well, you can if you want but I mean . . . . Yeah, I mean you can call it a strike. I mean you can call it anything you want. But the bottom line is I will terminate anybody and everybody who strikes. I’m 100 percent prepared to do so. I’ve got three companies in the city, willing to back me up. Do my work, yes, bicycle messengers included, already set up. I got five drivers coming in tomorrow from one end. Five drivers coming from another end. I could fly up a truckload of messengers . . . . You guys are not going to disrupt my business. It’s not going to happen. I’m raising a family, I’m paying a mortgage, I got car payment. So do ten or twelve other people in this office. I’m not going to allow somebody to fuck that up, without giving me the opportunity to resolve the issues verbally in the meeting first. So I was upset, I have aired it to you guys, you understand why I got upset? The floor is yours, why the hell are we striking?
At this point there was some commentary from the floor that related to the discharge of Mascarenhas and whether it was appropriate to have noncommittee members present. Eventually, the conversation turned to Tait’s claim that he had never heard of the union organizing committee until the day before when he had been asked to go down to the union hall. When an employee asked what was wrong with that, Tait replied, “What’s wrong with that? I’ll tell you the same thing that’s wrong with you asking my employees or labor force or management to leave this room. This is my company. I run it. There is no Union. I am the last say in this office.� An employee then asked if they were being paid for their time at the meeting, cajoling Tait to “meet us halfway.� Tait replied, “[M]eeting you halfway is giving you the opportunity to salvage your job right now in this meeting. Because you can walk out this door. You guys can all unite together and strike. Tomorrow, next day, next week, next month, bottom line, what you created, a jobless day. That is what you create. Every single one of you.� An employee asked if Tait had just threatened to fire them and he responded, “Absolutely, absolutely.�
Tait then tried to turn the matter in a different direction asking an employee (presumably Charles Annen) if he had threatened to strike. The employee responds that he had not and another employee asserts that he didn’t even recollect anybody ever using that word. A third employee said, “We didn’t even use that word. What are you talking about?�
Tait then claimed to have a list of eleven people in his back pocket and said, “[Y]ou guys are harassing them.� That was disputed vociferously. When challenged, Tait refused to reveal who the employees were, saying it was probably members of the committee who were committing the acts he was hearing about. When told that the entire committee was there in the room, he tried to say that it was some other committee. (“Not necessarily your committee. Whatever committee.�) Tait went on:
I don’t know how the union works. They tell me I’m on the organizing committee of the Union and I don’t know all . . . and the technical terms, if we wanted to throw them out right now we could use, IC, labor force, we could use employees, we can use fire, we can use terminate contract, . . . . You[‘re] taking this to [a] level that it doesn’t exist at. This is not a union company. This is an “at will� company that hires employees by the California state law “at will� and subcontracts to independent contractors. That is what this company does. If an independent contractor purposely prevents, or does something malicious to affect my business during the day, that person will no longer get jobs from us. That is why Sandro was fired.
Tait then asserted that Mascarenhas had been fired because he turned down work because it didn’t pay enough. He contended Mascarenhas had attempted to make his own schedule.
Tait repeated that he minded being threatened with a strike without being asked for his input. The employees responded once again that they had not ever threatened to strike. Tait claimed it was so well known he had heard about it on airplane 500 miles away. He then asserted that Jerry Martin had told him that, momentarily misspeaking and using the name of a celebrity, daring the employees to call Martin on the phone, asserting that Martin had told him the day before that a strike was imminent.
The meeting started to break down over accusations of lying, but an employee, using a speaker phone, was almost immediately able to reach Martin. Martin’s voice is heard saying that he had told Tait that a “work action� was imminent, but had never use the word strike. The phone conversation was then terminated. Tait accused Martin of changing his words. There was a short disagreement over what the phrase “work action� meant and Tait accused the group of “playing a game.�
The conversation then became a little more civil and turned to Mascarenhas’s situation again. Once more, Tait addressed employees expressing the right of independence in the way they chose to work. Alleging that refusals to work were disrespectful, he said, “This is a professional place of work. If you come in and tell us that you are going to work, we expect you to work. Not what you want to do, but what we want you to do.�
He repeated that there was harassment coming from the union people and that he was attempting to protect others from that harassment. “As long as it’s the Union versus Management and anybody who sides here or sides there, is an outcast one way or the other. I won’t have that.� This resulted in a debate between Tait and Annen concerning whether the discussion of unionizing qualifies as harassment. Tait then said that his primary interest was to protect the Company and that was the reason he had made his arrangements with other companies to obtain cover in case of a strike. He concluded: “The owner [Gilboa] . . . if the courts came down, the owner would tear the fuckin’ door down.�
Tait swung his commentary to independent contractor status. He said, “[Gilboa’s] company does business this way [using independent contractors] in four states, nineteen other offices; it’s all explained in the court literature. It’s all backed up by case precedent. This is the way we do business. We are not going to lose the fuckin— hearing, regardless. At that time that you guys were asked, correction, you were employed, asked to be [ ] independent contractors. What did the president of the company say? . . . if you don’t want to work here, I will pay you until you go and find another job.� Some employees argued that Gilboa had not said that. Tait maintained that he had, but went on to say he would “supersede� what Gilboa had said, offering anyone who had been employed prior to the NICA changeover, 2 weeks’ pay to go find another job. He even offered to call competitors on behalf of anyone who took him up. He then pointed to the three leaders and repeated the offer. He continued:
We are not forcing you to work at this company. I will do everything I can, that will make it as easy as possible. I don’t have to set up that account with Road Rage [presumably one of the deductions under the NICA contract]. I don’t have to do that. Its a fuckin pain in the ass to monitor that and take it out of you guys’ check. I do it as a convenience for you guys. I don’t have to pay the wages I pay. I still can get employees in here. I don’t have to be . . . I don’t even have to have this fuckin meeting with you guys, I can just let you guys do whatever . . . I can just fire everybody. . . .
Someone urged Tait to calm down. He went on: “I just want to have a happy work environment. I know the labor issue with NICA is your huge issue. We know it’s in the courts. God bless the courts if they can somehow get you guys back in here, the fuckin– Union comes in here and the doors stay open. God, let’s go forward . . . I don’t give a fuck. That is the way the owner runs the business. It don’t matter how much pressure you put on me or the industry, people never change. He will shut the door before he changes.�
An employee asserted that Gilboa was “absolutely scared� of the International Longshoremen and Warehousemen’s Union and Tait responded, “Of course he is.� The employee then said the ILWU was an honorable outfit. Tait responded that he had his marching orders and he couldn’t do anything about it. There follows a short discussion concerning Mascarenhas and his perceived unwillingness to recognize what a good deal he had. At that point the tape is interrupted by the previously mentioned cell call received by Martin.
When the tape again takes up the meeting, Tait is discussing the accident insurance under NICA and the deductions connected to that. They also speak of some other matters related to the NICA agreement. Eventually, Tait said that the employees could pursue it,
ut let’s be sure that we do, like Chris says, conduct a business properly so that we have a business to work for. And God forbid, that the courts end up closing us down because my owner is pigheaded. The courts are pigheaded . . . . It will end up in another worst-case scenario or even sooner. Once the NLRB thing winds up, let’s say two out of every three cases that go to the NLRB sides with the Union. Gee, I wonder why . . . then [the] NLRB issues an order, for compliance, for union organization, blah, blah. That order is not enforceable in California. Not enforceable. Oh, they bring that order to us and we say “fuck your order� and then they have to file their petition and their judgment. Oh yeah, ask Jerry [Martin]. They might have [to] take their petition into federal court. Federal court overturns one of every three NLRB hearings—because the NLRB is obviously, prejudice[d] towards labor issues. The court is not a prejudicial entity. It hears both sides of the story and one out of every three NLRB [orders] gets turned over in federal court. And that is where we are going to end up. And that goes on for years. So we’re a couple of years from here. We’re months with the NLRB, but I got news for you, it ain’t over there.
The meeting ends with Tait again making the 2 weeks’ pay offer if anyone who had been forced to become an independent contractor wished to quit. He assured everyone that he was a good guy and would not mistreat anybody.