Overnite Transportation Company

OVERNITE TRANSPORTATION COMPANY Overnite Transportation Company and Freight Driv- ers and Helpers Local Union No. 557, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 5-CA-9399 September 26, 1979 DECISION AND ORDER BY MEMBERS PLNEI.LO, MURPHY, AND TRUESDALE On June 21, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to crediblity unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. In addition to his exceptions, the General Counsel filed with the Board a motion for a heanng de novo on the ground that the Administrative Law Judge was personally biased and prejudiced against dischargee Charles Hol- quist, and thus could not render an objective decision based on the record herein. In this regard, the General Counsel refers, inter alia, to a statement made by the Administrative Law Judge in his Decision suggesting that Hol- quist's testimony had been "doctored." In reaching our decision herein, we place no reliance on this apparently gratuitous remark for which we find no foundation in the record. We also disavow any implication of impropriety by counsel for the General Counsel that may be contained in the Administrative Law Judge's statement However, based on our careful examination of the entire record and the Administrative Law Judge's Decision, we find no suffi- cient basis for concluding that the Administrative Law Judge demonstrated a bias against Holquist in his analysis or discussion of the evidence. or in his credibility resolutions. Thus, we find Holquist's testimony to be incoherent. internally inconsistent, and largely contradicted on critical facts by the testi- mony of Union Organizer James Hahn. another witness for the General Counsel, as well as by the testimony of Terminal Manager Bobby Eddins, whom the Administrative Law Judge specifically credited. Accordingly, we find no grounds for reversing the Administrative Law Judge's findings. In support of his motion the General Counsel also alleges that a remark, which he asserts the Administrative Law Judge made off the record during the heanng. is further evidence of the Administrative Law Judge's bias. We note that the General Counsel did not raise this issue until after the Admin- istrative Law Judge had issued his Decision and the case was transferred to the Board. In so doing, the General Counsel did not comply with the re- quirement of Sec. 102.37 of the Board's Rules and Regulations. The General Counsel's attempt to raise this issue for the first time along with its excep- tions to the Board is untimely Powell Valles Electric Cooperative. 236 NLRB 1040 (1978). In view of the foregoing, the General Counsel's motion is hereby denied. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. DECISION SIAIEMEN.I OF IIe CASE THOMAS A. Ric((l, Administrative Law Judge: A hearing in this proceeding was held on October 26. 1978 and on March 14, 1979, in Baltimore. Maryland. on complaint of the General Counsel against Overnite Transportation Com- pany. here called Respondent or the Company. The com- plaint issued on May 24, 1978, on a charge filed on April 24, 1978 by Freight Drivers and Helpers Local Union No. 557, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America. here called the Union. The issue of the case is whether Respondent dis- charged one Charles Holquist, in violation of Section 8(a)(3) of the Act. Briefs were filed by the General Counsel and the Charging Party. Upon the entire record, and from m, observation of the witnesses. I make the following: FINI)IN(S 01 FA(CTI 1. HE BSINlSS OF RESPONDENI Overnite Transportation Company, a Virginia corpora- tion, is engaged in the operation of freight terminals in sev- eral States and in local and interstate transportation of freight by motor carrier. During the 12 months preceeding issuance of the complaint. a representative period, it had gross revenues exceeding $50,000 from the interstate trans- portation of freight. I find that Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. The Question Presented This case presents no more than a straight question of fact. Charles David Holquist. one of about 200 employees at the Company's Elkridge terminal, was discharged on April 5. 1978. Two weeks earlier, a company truck had been damaged and management learned, 4 or 5 days before the discharge, the Holquist had done the damage while moving a truck from one parking place to another in the yard, or, while "jockeying" vehicles, a regular part of his job. Bobby Eddins, the terminal manager, told Holquist. when discharging him, the reason was because the em- 245 NLRB No. 58 423 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee had not reported the accident to management when it happened, and thereby violated a fixed company rule. Holquist denied, both to Eddins at the time of the events and at the hearing 10 months later, that it was he who had done the damage. All this happened while Teamsters Union Local No. 557 was trying to organize the employees at the terminal. Holquist was active in soliciting union cards: he distributed leaflets and obtained a number of signed cards, about 10 or 15. The complaint alleges that the reason why Respondent discharged Holquist was because of his union activity, and that therefore it violated Section 8(a)(3) of the statute. An unstated allegation, but a contention clearly advanced at the hearing, is that management must have known Holquist had not been responsible for the damage to the truck. As to the necessary correlative and affirmative assertion that management had knowledge of Holquist's union activity, there is a separate allegation in the complaint. It is that 2 days before the discharge the terminal manager saw Hol- quist engage in union activities; indeed that by so seeing him do that Eddins engaged in illegal surveillance, and committed an independent violation of Section 8(a)( ). At first blush it would appear that the question is, did Holquist damage the truck or did he not: the testimony is conflicting. Actually, the more important question may be-did the Company believe he did it, or did it have rea- sonable basis for so concluding. A second questions, also one of a pure fact, is whether it is true Eddins knew of Holquist's personal participation in the prounion activities. The Respondent denies that commission of any unfair labor practices. The Evidence B. A Preliminary Matter As in all complaint proceedings before the Board, after the charge was filed Board agents investigated the case. Also in the usual way the Respondent's representatives jus- tified the discharge as perfectly lawful, and in the process told the investigators who had been involved and could talk about the defense assertions. Among the names so fur- nished was that of Michael Hughes, another employee, who had told the supervisors he saw Holquist do the damage, and had even signed a statement to that effect before the discharge. Again in due course, the Board investigator spoke to Hughes, as well, I assume, as to other possible witnesses. Hughes told the same story to the investigator, and gave two statements which were reduced to writing, one of them regularly signed. All this before the General Counsel issued his complaint. At the hearing among the first persons the General Coun- sel called as witnesses-more importantly before calling Holquist-was Hughes, and then proceeded to cross-exam- ine him with the object of getting him to admit he was a liar. But Hughes, under oath, held firm. He said that during the night shift starting at 11 p.m. on Thursday, March 16, and ending at 7 a.m. the next morning, while both he and Holquist were working, he saw Holquist inadvertently back a truck, while parking it, too close to another one and dam- age the left door of the already parked one. While arguing with the witness to make him change his testimony, the General Counsel made frequent reference to the man's two earlier statements. In the second one, Hughes made a change, saying, in contrast to his first statement, that he did not actually see Holquist get out of the truck cab after the collision between the two vehicles. Still from the witness stand, Hughes explained this partial retraction as his reac- tion to intimidating acts towards him by other employees resulting from his havng snitched on a fellow employee. Be that as it may. and the evidence about quarrels and phys- ical misconduct among employees is vague and unreliable the fact is Hughes never deviated from his clear testimony about who damaged that truck that day. All this about the witness' prior statements appears in the transcript of testimony as selective comments by the Gen- eral Counsel as he held them in his hands while talking during the hearing. He did not himself offer to put them into evidence. This means, of course, that it was not a mat- ter of confronting a witness with prior inconsistent state- ments, which sometimes happens. In short, this was the prosecutor, before presenting his own affirmative proof in support of the allegations in his complaint. calling an ordi- nary employee he thought was going to testify in support of a defense assertion, for the purpose of destroying him. The Respondent objected to the General Counsel's lead- ing questions, to this entire method of proceeding: I sus- tained the objections. Asked on what basis he could justify such opening cross-examination of Hughes, the General Counsel said it was because "this man was presented by the company in the investigation," and then cited Section 611 for authority. Rule 61 I(c) of the new Federal Rules of Evi- dence provides as follows: "Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testi- mony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness idenitified with an adverse party, interrogation may be by leading questions." If the General Counsel's postion is correct, it means he can call for cross-examination each and every person he knows a respondent may conceivably later offer as a de- fense witness. Restated, what the contention amounts to is that when a Board investigator learns of any person whose version of events may be adverse to an intended complaint, and it does not really matter whether he gets the name from the prospective respondent or anywhere else, that person is to be deemed "hostile," or management, or "an adverse party." One argument at least is not made; there is not, and there could hardly be, a claim of surprise in this instance. If a person does not fall within the coverage of Section 6(11), he remains just another witness said by the General Counsel to tell the truth about what happened. The Gen- eral Counsel's statement on the record in this case that he was not vouching for his [Hughes'] credibility, will not do. The unspoken, and necessary implication arising from the fact he called the witness is that he wants him to be be- lieved. How may General Counsel briefs have I read that single out only the words spoken by his witnesses as Gospel truth. totally ignoring what anybody else swore to. The General Counsel is not only in the inescapable posture of vouching for his own man, but he has to live with whatever comes out of his mouth, no matter where the chips than 424 OVERNITE TRANSPORTATION COMPANY fall. I do not think the Union in this case, as the Charging Party, stands in any different position. It is a fact the truck in question was damaged. to what extent may be a question. The General Counsel's witnesses belittled it, while Eddins, for the Company, said it cost $300 to repair. And the testimony by company officers that fail- ure by an employee who causes any such damage to a vehi- cle in the yard to report the fact to management is cause for dismissal, is uncontradicted. It was also shown, from com- pany records, that other employees who had violated this rule were in fact dismissed. Indeed, one or two from this very terminal. Only two witnesses spoke about the acci- dent-Holquist, who said he did not do it, and Hughes. who said he saw Holquist do it. Both were the General Counsel's witnesses. I credit Hughes. Trucks loaded with freight keep arriving at this terminal and are backed to numbered unloading docks. When emp- tied they are moved to the parking areas, also numbered places. With the scheduled flow of work, trucks are then moved from parking areas to appopriate docks for loading and when ready are driven away to make deliveries. The yard employees, as distinguished from the drivers, include dockmen, who load and unload the trucks, and others who move the trucks from place to place all over the large termi- nal. The shifts worked by Holquist and Hughes overlapped over midnight. From the moment the day shift of Friday ends in late afternoon no one works in this terminal until the following Sunday evening. Hughes said he saw Holquist do the damage at about midnight during the Thursday night to Friday morning shift on March 16, at parking lot number 69. He said Hol- quist was backing an empty trailer to park it and hit the other truck as he did so. Holquist said he first noticed the damage early Monday morning, during his Sunday night to Monday morning shift, and that it was then parked at load- ing dock number 39. He reported the damage but dis- claimed responsibility. A number of arguments are advanced as supporting an inference that Hughes could not be telling the truth. If the damage was done at midnight Thursday. how come nobody noticed it until Monday morning? There is some confusion in testimony as just where the damaged truck was first seen. Cross and Chappell, both management agents, indicated by their testimony that they first learned of it Monday morn- ing. Loading dock number 29 is ordinarily used to load up for shipments to Andrews Airforce Base, and an entirely different kind of tractor trailer is used for those runs. How explain the presence of the damaged truck there at all? If the truck was moved from 60 to 39. is it not more likely the unknown driver who moved it did the damage? One witness testified the damaged truck was in "jackknife" position at number 39, i.e., not in straight, parallel alignment with those next to it, and even that there was glass on the ground nearby. That all these facts raise a doubt as to just where the damage was done, or just where the truck was standing on that special Thursday night, is true. But then, was there ever a statement of fact as to which some question could not be raised? Even the measured passage of time has been shown to be short of an absolute. To offset this issue of probability so raised by the prosecution, Respondent called Bernard Chappell. the operations manager. lie talked from a large bundle of records in his hands. documents detailing all the loading and unloading of trucks during the days involved, and deliveries made. With repetitive referrals to them, he attempted to prove it was logical to conclude the damaged truck must have been in parking lot number 69 Thursday night, and moved to dock number 39 after the week end. There would be no value in repeating here all the quotations he gave from the records. because by the time Chappell was through he candidly admitted he did not know as fact where that truck was at any time before the damage was reported at dock number 39. His testimony is riddled with comments such as "it follows" such and such must have been true, in "normal circumstances" this would be so, "I would assume" such and such.' All this amounts to is Chappell did not know where that truck was at any par- ticular hour. As is always true where the parties dispute somebody's direct testimony, there are related facts cutting both ways on the question of credibility. The General Counsel showed Thursday night was a rainy one with some snow, and with low visibility. He says Hughes could not possibly have seen Holquist's face at such a distance. But it is also true the whole terminal is always greatly illuminated throughout the night, with powerful lights everywhere. With so many peo- ple working all night. constantly moving trucks and trailers all over the place, it had to be good vision everywhere. Next: Hughes hoped himself to progress to the job of jock- eying, like Holquist. and even practiced on his own time. driving trucks around the yard. Does it follow, as the Gen- eral Counsel hints, he made up the story to get rid of the competition? But nothing can change the fact it was Hol- quist who was doing the jockeying that night, and therefore presumptively the man who moved the truck when it was damaged. Again, Hughes changed his story a little in his second statement to the investigator. now saying he did not see Holquist get out of the truck cab. Does this alone make him a liar altogether? I think, as well, his explanation is perfectly plausible that he had been intimidated. or feared reprisal for having turned to management against a fellow employee. I do not know that it happened here, but such reaction by other employees in like circumstances is not unknown. Hughes also said that because he did do some practice jockeying. he might have himself been blamed. On this total record I see no sufficient reason for rejecting Hughes' clear and direct testimony. We come to the affirmative burden of proof requisite for supporting the complaint. Can it be said Eddins discharged Holquist because he favored the Union? Insofar as Eddins was conerned, it did not really matter whether he could prove to anybody else that Holquist was guilty. He did not see the accident, and therefore could not "know" in any philosophical sense. Hughes told him and he had no reason From Chappell's record testimony: Q. Your forms don't tell us anything about how 44506 got to he at 39 door Sunday evening when ou saw the damage and Holquist old ou it was damaged? A. No, they don't. Q. Now. ou assumed and I think that is your testimon'y that it was taken over to the pad A Yes, sir. 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not to believe him. Despite all the tangential arguments made, there is no substantial ground for holding Eddins should not have believed Hughes. But employers have been known to use even admitted misconduct by an employee as a pretense to cloak illegal motivation when discharging a man. This brings us to this second part of the case. At about 8:30 on the morning of April 3, James Hahn, the Teamsters organizer, was distributing union literature at the employee entrance to the terminal, near where the employees park their cars. Hahn was standing on the com- pany side of the road. Holquist drove out on his way home and stopped on the other side of the street. Hahn walked across the road to him and Holquist handed him some signed union authorization cards. Hahn also said that Hol- quist was accompanied by his brother Odel, and even by a third employee Chappell, and that as he, Hahn, was being handed the cards, "one of the Holquists-I don't know if it was David or Odel- . . said, . . . there is Bob Eddins. sitting up on top of the hill in his car." Whereupon Hahn then told the men "no use in making a big scene out of this or stretching it out. Why don't you fellows go get a cup of coffee?" This is the testimony of Hahn, who testified the first day of the hearing. It must be clearly understood, and it is that Holquist, with his brother, stopped his car on the side of the street opposite the Company property, that the Teamsters agent went to him there, that when Holquist handed over the union cards somebody thought he saw Eddins "up the hill." that Hahn immediately told them to get out of sight, and that right away they did so- Holquist. his brother, and whoever else may have been in the car with them. One could read this testimony as showing that Hahn did not want to risk the manager recognizing Holquist as an employee having anything to do with him. For the least, it proves Hahn did not want Eddins to get any impression Holquist was participating in the distribution of union lit- erature at the employee entrance, on the company side of the street. Eddins' testimony is that he was told that morning some- body was giving out union material on company property and that he therefore got into his car to go there and see. He reached the employee gate and saw Hahn, who said he was off the company property. This is all that was said between the two, even according to Hahn. Eddins said he recognized no one except Hahn that day. Considering the testimony of all three men- Hahn, Eddins, and Holquist I believe Eddins. At the end of the first day there was a four and a half month recess in the hearing, by agreement of all parties. Holquist was the first witness after the recess and after, of course, Hahn's testimony had been fully digested by the prosecution side. His total study, enlarging upon and in most critical part conflicting with that of Hahn, only serves to discredit Holquist completely. He said he was alone in his car when he arrived at the other side of the road that morning, that he parked his car, walked over to the other side, and for 10 minutes helped Hahn distribute union lit- erature. He added that it was after this 10 minutes that his brother and Chappell arrived, each in a separate car. But Hahn spoke of only one car with both brothers in it and of everybody being on the opposite side of the road at all times. If Holquist had been at all active in union literature distribution at that moment, while, as the witnesses con- tended, Eddins was "surveilling" things, surely the Team- sters organizer would have said so. Holquist's testimony continues that after his brother and Chappell had also spent about 5 minutes with him and Hahn on the company side of the street, "Mr. Hahn ... turned his head and looked up there ... and said ... there is a car up there looking down on us." Can this be reconciled with Hahn's clear statement that one or the other of the Holquists first noticed the car up the hill? And finally, Holquist said he was there at the entrance of the plant engaging in protected union activity -- "half an hour" before anyone looked up the hill and recog- nized Eddins' car. Hahn's testimony, given 4 months ear- lier, clearly put Holquist there no more than a minute or two. There can be no question but that Holquist's testi- mony was doctored in the interval. I do not believe him. Asked about how far away was Eddins parked when looking down the hill, when the men were told to leave, Hahn first avoided answering. In the end he said it was "300 yards." I am reminded, these days, of a football field, 100 yards long. If a spectator in the cheap seats, behind one of the goal posts, knows who scored the touchdown at the other end, it is only because the runner carries a very large number on his back. What are the chances this spectator could recognize anyone of the players with out numbers from a distance three times the length of a football field? Very little. The burden upon the General Counsel to prove the necessary element of knowledge in this case is not "very little.' This record does not suffice of prove Eddins saw Hol- quist in the company of Hahn that morning. A final tidbit: the Teamsters agent signed two prehearing investigation af- fidavits. In neither is there mention of his having seen Eddins' car parked at the top of the hill. CO(N(LtSIoNs o L.AW I find that the evidence in totality falls short of proving the essential allegations of the complaint. It is an inference case; there is no direct proof of illegal motivation in the discharge. It is a fact a truck was damaged: it is a fact Hughes told management he saw Holquist do the damage; it is a fact Eddins told the man this was the basic reason for the dismissal and it is a fact others were discharged for the same reason. And, there is no evidence the Respondent had reason to believe Holquist was a union protagonist. As explained above, there are always questions that can be asked. Hughes' written statement attesting to his having seen Holquist do the damage is dated March 29, but the man was discharged on April 5. Why did the Company wait so long to release him? A brief by the Respondent might have explained this seeming puzzle, but there was none. When asked, at the first day of the hearing, why the discharge, Eddins listed a number of reasons, including both this incident and Holquist's bad record of many repri- mands for past errors on the job. At the later hearing date he went out of his way to specify the real reason was the unreported damage. It is argued that this shifting of posi- tion proves Eddins was hiding an illegal motive. There could as well be another explanation. When a man is dis- missed for a dischargeable offense, I think it not unnatural 426 OVERNITE TRANSPORTATION COMPANY for his employer to remind him that for some time he had not been a very desirable employee anyway,. even if his prior derelictions fell short of justifying release. That this could have been what Eddins was doing when telling Hol- quist he was through is indicated by three company records of dismissals for failure to report damages in the case of Helms, Grayson, and Griffin. The records of each of these men show he was dismissed both for not reporting an acci- dent and for other reprimandable offenses. And finally. there is no direct proof of any kind on this record, of anti- union animus on the part of the Respondent. Doubts do not take the place of affirmative proof to support a complaint. Unfair labor practices must be established b substantial affirmative evidence on the record as a whole.. L. R. B. v. Glenn Raven Silk Mills. Inc.. 203 F.2d 949 (4th Cir. 1953). ORDER' I IS HEREBY RI('OMMENi)DED that the complaint be, and it hereby is dismissed. 2 In the event no exceptions are filed as provided bs Seclion 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions. and recommended Order herein shall, as prosided n Section 102.48 of the Rules and Regulations, he adopted bh the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed waived for all purposes 427