Transport South, Inc.

730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Transport South, Inc. and Joseph G. Morin. Case 10-CA-24184 September 17, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On April 26, 1990, Administrative Law Judge Philip P McLeod issued the attached decision The Charging Party filed exceptions The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptons and has decided to affirm the judge's rulings, findmgs, 2 and conclu- sions3 and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed The Charging Party filed a document entitled "Motion to File an Appeal and a New Trial," which we will treat as exceptions 2 The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless a clear prepondarance 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings 3 The Charging Party contends that various individuals Involved with the case engaged in improper conduct We have examined the record in light of these contentions and find them to be without support DECISION STATEMENT OF THE CASE PHILIP P McLEop, Administrative Law Judge I heard this case on August 31 and September 6, 1989, in Atlanta, Georgia The charge which gave rise to this proceeding was filed on June 8 and amended on July 20, 1989, by Joseph G Morin, an individual A complaint and notice of hearing issued on July 21, 1989, which al- leges, inter aim that Transport South, Inc (the Respond- ent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by threatening to dis- charge employees, by threatening to close its facility if employees engaged in union activities, and by chscharg- mg Joseph G Morn because of union activities engaged in by him In its answer to the complaint, Respondent admitted certain allegations mcludmg the filing and servmg of the charge, its status as an employer within the meaning of the Act, and the status of certain individuals as supervi- sors and agents of Respondent within the meaning of Section 2(11) of the Act Respondent denied havmg en- gaged in any conduct which would constitute an unfair labor practice within the meaning of the Act At the trial herein, all parties were represented and af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence Fol- lowing the close of the trial, all parties filed timely bnefs with me which have been considered 1 On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Transport South, Inc is and has been at all times mate- rial a Georgia corporation with an office and place of business located in Doraville, Georgia, where it is en- gaged in the trucking industry In the course and con- duct of its business operations, Respondent annually re- ceives revenues in excess of $50,000 from the interstate transportation of freight Respondent is and has been at all times material an employer engaged in commerce withm the meaning of Section 2(6) and (7) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background Transport South, Inc is engaged m the business of hauling petroleum products, primarily gasoline, in tanker trucks to various locations throughout North Georgia Joseph G Morin was hired as a truckdnver by Re- spondent in November 1987 Morin was discharged m 1988, and Morn filed charges with the Board concerning that discharge Pursuant to a settlement of that case, Morn was reinstated by Respondent with backpay Re- spondent then discharged Morn's supervisor who was responsible for that alleged unfair labor practice Morm continued working for Respondent until his discharge on May 11, 1989, which is the subject of this case B General Counsel's Case Respondent held monthly safety meetings with em- ployees Morin testified that at such a meeting in April 1989 he addressed Respondent on behalf of employees and protested elimination of a monthly safety bonus Morn also testified that on May 9 he mailed Respondent a letter in which he complained of several unresolved problems affecting not only him, but other drivers as well Morn mformed Respondent that smce it was not responsive to the concerns of employees, Morn would proceed to contact a union regardmg representing Re- spondent's employees conclusion, Morin informed Re- After posthearmg briefs were filed, first Respondent and then the Charging Party both tried to supplement the record herein on critical matters relating to credibility by various documents entitled either "Notice" or "Motion" Neither party has filed a motion to reopen the record herein, which is the only appropriate method provided by Board Rules and Regulations for supplementing a record in a manner such as that attempted by Respondent and the Charging Party I, therefore, refuse to consider the materials proffered both by Respondent and the Charging Party after the filing of posthearmg briefs 299 NLRB No 112 TRANSPORT SOUTH 731 spondent that he desired to take some vacation time in June for the purpose of contacting a union to represent employees Morn testified that after being off work for the pre- ceding 2 days, on May 10, Monn arrived at about 1 30 pm at the Interstate Truck Lease lot where Respondent parks its vehicles while not in use and discovered that the left bumper of his assigned truck was bent and the left fender was cracked Morn asserted that he complied with company policy by promptly reporting the damage by telephone to dispatcher Richard Donnelly Monn denied showing the damage to another driver that day Morn claimed that dispatcher Donnelly told him to bring the truck to Respondent's Doraville office, and that he did so Morin testified, however, that when he arrived Donnelly was not there Morin claimed he point- ed out the damage to billing clerk Dwayne Johnson, and that he asked Johnson to take a picture of the damage so that Morin would not be blamed According to Morin, Johnson searched the office but when he could not find a camera, Morin received his dispatches and left to begin work Morn testified that on May 11, when he arrived at Respondent's Doraville, office to pick up his dispatches for the day he overheard Terminal Manager William Roberts speaking on the telephone to Director of Oper- ations Steve Kirkland about Mom's May 9 letter Seeing Morn, Roberts finished his conversation with Kirkland and called Morn into his office According to Morin, Roberts showed him the May 9 letter and asked what the letter was about Roberts asked Mom n if he actually intended to try to get a union to represent the employ- ees Morn responded "yes" Roberts then told Morin that he was in deep trouble because of the letter Roberts allegedly stated Morin knew that Respondent would not allow a union at its facility, and that before a union was successful Respondent would lock the doors and sell all of its equipment According to Mom, Roberts then commented that if Respondent terminated Morin, Momn would undoubtly go to the National Labor Relations Board Morin stated yes, that he would go to the Board Mom n testified that Roberts then telephoned Kirkland again and asked if Morn should be allowed to work Morn testified that although Roberts was told not to give Morn any dispatches, Roberts nevertheless told him to go to work Morn testified that Roberts telephoned him the next day, May 12, at home and told Morn to come to Re- spondent's terminal around 4 p m, to meet with Roberts and Kirkland According to Morn, however, he left right away and arrived at the terminal between 1 and 2 p m When he arrived, Morn heard laughter coming from Roberts' office While Morin eavesdropped, he al- legedly heard Roberts, Safety Director George Rosselle, and fellow employee Stanley Kennedy talking in Rob- erts' office When Kennedy left, Morn asked him what was going on According to Morn, Kennedy said that the conversation had something to do with testifying against Morin, and Kennedy asked Morn to call him later that evening Morn was then called mto Roberts' office Morn testified that he first asked Roberts if this would be another harassment meeting Roberts said "no," and explained that Rosselle was there to respond to the safety matters raised in Morn's May 9 letter At that time, Rosselle was called away to speak to Kirkland on the telephone When Rosselle returned, he asked Morin to leave Morn testified that he again eavesdropped out- side Roberts' door and overheard the conversation be- tween Rosselle and Roberts According to Mom, Ros- selle reported that Kirkland had instructed him to fire Morin immediately because of his union activities Momm testified that in response to Roberts' question about what to put down on the termination notice Rosselle suggested they again call Kirkland Morin testified that as he con- tmued to eavesdrop, Roberts, Rosselle, and Kirkland agreed to fire Morin for failing to report an accident on May 10 because Morn would then have "no case" before the Board Morn testified that Roberts and Ros- selle discussed their belief that if Morn went to the Board it would be his word against management's word, and Morin would not be believed because he is a foreign- er According to Mom, he was then brought back into Roberts' office and informed of his discharge C Respondent's Case Respondent denies that it ever received the letter dated May 9 from Morn which complains of certain working conditions and advises Respondent that Morn would want time off in June to contact a union Re- spondent argues that not only was it unaware of any umon activities by Morin, but that in fact neither he nor other employees were engaged in any union activities at any point in time near his discharge At the monthly drivers' meeting in February, Respondent announced the institution of a "quality club" performance bonus as a re- placement for the $50-per-month performance bonus According to corporate President William Prevost, the drivers asked a variety of questions about the new bonus at that meeting, but no complaints were voiced by anyone at that meeting or at any later meeting I found Prevost a very credible witness Truckdnver Kennedy testified that there was no talk of unions among the truckdnvers at any time prior to Morn's discharge Kennedy had no recollection of Morin ever speaking out at driver meetings, other than to crack jokes, or of Mom discussing or speaking out about safety complaints or benefits Truckdnver Richard Holland testified similarly that Morin never said any- thing about unions to him or fellow truckdnvers prior to Morn's discharge Truckdnver Glenn Smith also testi- fied that prior to Morn's termination there had been no talk among drivers about umons or union organizing On May 10, Assistant Terminal Manager Philip Monroe and billing clerk Johnson were on duty at Re- spondent's Doraville Terminal Dispatcher Donnelly was at an orientation meeting at corporate headquarters on the opposite side of Atlanta, and therefore could not have spoken to Morin at any time that day At approxi- mately 2 pm, Monn arrived at the Doraville terminal in his truck to pick up dispatches for the day Monroe and Johnson saw Morn arrive Neither observed any damage 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to Monn's truck Morin came into the terminal, took his dispatches, and left Mom said nothmg about any damage to his truck On the morning of May 11, billing clerk Johnson sorted the dnvers' paperwork from the previous day which had been left in a mailbox outside Respondent's Doraville office by drivers who ended their shifts after the office closed for the day Johnson noticed on Monn's May 10 vehicle condition report a statement that some- one had hit and damaged the left front bumper and fender of his assigned truck Attached to the report was a note describing the damage Johnson testified that be- cause he was aware that company policy required dnv- ers to immediately report any damage to their vehicles, Johnson took the report and the note to Roberts Rob- erts testified that after reviewing the report and the at- tached note he told Monroe to direct Morin to report to the terminal before delivering any loads that day Morin arrived at the terminal around 4 p m Roberts admits meeting with Monn on May 11 Rob- erts, however, denies that their discussion had anything whatever to do with Monn's May 9 letter to Respond- ent Roberts, and indeed all of Respondent's witnesses, testified that they had never seen Morm's May 9 letter pnor to /us discharge Roberts testified credibly that the conversations between him and Morin on May 11 related solely to the damage to Morn's truck and Mom's delay in reporting the damage Roberts testified that when he first met with Morn on May 11, Morn told Roberts he had arrived at work between 1 pm and 130 pm on May 10 and had immediately observed the damage to the truck When Roberts asked Mom why he had not called the office immediately to report the damage, Morn re- sponded that he had forgotten to call When Roberts pressed for more details concerning the damage, Morn gave conflicting versions of when he discovered the damage Roberts then reminded Morin that company policy required drivers to call immediately to report any damage Morin disagreed, claiming that the handwntten note was sufficient Roberts then read Morin the portion of the Company's dnver's manual which sets forth the policy 2 Roberts and Morin then went to examine Mom's truck and to photograph the damage 3 Roberts testified he then informed Monn that he was not satisfied with Monn's explanation, and that Respondent would continue to investigate the matter further Roberts told Monn that in the meantime Morn should go ahead with his assigned route Morin then left to begin work Roberts telephoned Kennedy, a fellow driver to whom Morin claimed to have shown the damage on May 10 immediately on discovering it at about 1 p m or 1 30 p m Roberts asked Kennedy whether he had seen Morin where the trucks are parked at around 1 30 p m the pre- ceding day Kennedy informed Roberts that he had not 2 The driver's manual provides in part that a driver is responsible for notifying the terminal manager "immediately" about any dents, damages, or scratches discovered The manual also provides that failure to report an accident or property damage may result in immediate discipline up to, and including, discharge 3 Morin claimed that he was never with Roberts when Roberts exam- ined the damage to the truck and, further, that he was not with Roberts when Roberts photographed the damage met Morn at about 1 30 but rather at about 4 p m when Kennedy went off duty Roberts was suspicious of Mann's story because of the discrepancy in the times that Mann and Kennedy claimed to have met at the truck terminal Roberts then reviewed Mann's paperwork from May 10 Roberts con- firmed with Monroe and Johnson that Morin had arrived at the office about 2 p m to pick up his dispatches Mann's paperwork established that Mann had delivered his first load on May 10 at 2 35 p m Kennedy's paper- work established that Kennedy had gone off duty at 345 pm and had been in West Georgia delivering a load be- tween 1 and 2 p m, the time that Mann claimed to have first discovered and shown the damage to Kennedy Mann's paperwork also showed that Mann had picked up his second load at 444 pm Roberts concluded that Mann had returned to the truck parking area after deliv- ering his first load and before picking up his second Be- cause of his suspicions about Mann's story, Roberts con- tacted Kirkland and informed him that Mann had failed to immediately report damage to his vehicle Roberts also informed Kirkland that Mom's story did not match the facts and that he felt "something was up" On the morning of May 12, Kirkland came from cor- porate headquarters to the Doraville terminal and re- viewed the facts with Roberts Roberts informed Kirk- land that he intended to speak with Mann again that afternoon, and that unless Mann provided a reasonable explanation for the events of May 10, Roberts intended to terminate Morn Roberts asked Kirkland to be a wit- ness at that interview, and Kirkland agreed Kirkland telephoned Roberts later that day to say that he would not be able to make it that afternoon, but that he was sending Rosselle in his place Rosselle did go to the Doraville terminal, and shortly after he arrived, dnver Kennedy came in to drop off his paperwork Rob- erts asked Kennedy to tell Rosselle what he had told Roberts dunng their conversation the preceding day Kennedy did so, and his version remained consistent When Roberts and Kennedy left the office, they saw Mann waiting Mann showed surpnse upon seeing Ken- nedy there Roberts returned to his office to confer with Rosselle about Kennedy's account of the facts and about Mann's pnor disciplinary record In early Apnl, Mann had been suspended for 3 days for failing to report spill- ing 10 to 25 gallons of gasoline at one of the stations where he delivered After conferring with Rosselle, Rob- erts called Mann into the office While Roberts and Rosselle were conferring, Morn followed Kennedy out of the office Kennedy testified that Mann asked him what he had told Roberts and Ros- selle Kennedy said he had told them the truth, that he had seen Mann at the truck parking area around 4 p m on May 10 Mann came into Roberts' office in an excited state Before anything else could be said, Monn stated that he had forgotten to tell Roberts that he had returned to the truck parking area around 4 p m on May 10 and that it was then he had seen Kennedy Roberts asked Morm why he had returned to the truck parking area at that time Mann claimed that he had returned to have his TRANSPORT SOUTH 733 brakes adjusted Roberts then immediately telephoned the maintenance supervisor and asked to check the records and see if Morin had his brakes adjusted on May 10 After doing so, Roberts was informed that there was no record of any maintenance work being done on Morn's truck on May 10 Roberts and Rosselle then conferred Roberts told Rosselle he thought they should termi- nate Morin immediately for dishonesty Rosselle agreed that Morin should be terminated, but felt it was better to fire Morin for failing to immediately report the damage to the truck On the basis of Morn's disciplinary record for a similar offense, Roberts agreed that Rosselle's posi- tion was sound, and Roberts prepared a termination notice Roberts then called Morin back into the office and discharged Morin for his failure to follow company policy Morn refused to sign the termination notice, and left Analysis and Conclusions Rarely, if ever, have I been presented with such mutu- ally exclusive versions of events leading up an alleged unlawful discharge Morn claims he spoke out on behalf of himself and other employees at monthly meetings held by Respondent Both management representatives and fellow employees testified that Morin did no such thing Monn proffered a letter allegedly delivered to Respond- ent in which he discusses unresolved complaints and ad- vises Respondent that he will seek time off in the imme- diate future for the purpose of contacting a union to rep- resent employees Fellow employees denied that there was any discussion with Morin or among themselves about working conditions or the possibility of contacting a union Respondent denies that it ever received such a letter from Morin Morin claims the letter was discussed with various representatives of Respondent Every repre- sentative of Respondent named by Morin denies ever dis- cussing the letter with Morin or ever being aware of the letter or its contents The critical credibility resolutions in this case would undoubtedly be much easier were it not for the fact that Momm exudes such an affable character The difficulty strikes home in a most unsettling manner when one real- izes that Morin is a person who you very much want to believe, thereby realizing at the same moment that you do not Rejecting Morm's testimony is made particularly difficult because it contains every element of a prima facie case union or concerted activity with other em- ployees, knowledge by the Respondent (through the May 9 letter), animus by the Respondent (through the al- leged conversations on May 11 and 12), and the resulting discharge To reject Mom's testimony necessarily im- plies finding that an individual is so clever or crafty that he has concocted a story with such detail to meet every element of a prima facie case Be that as it may, I am thoroughly convinced from ob- serving Respondent's witnesses that none of them saw Monn's alleged May 9 letter prior to Morn's discharge, that none of them discussed its contents with Monn prior to his discharge, and that Morn's discharge result- ed solely from Morn having damaged Respondent's ye- hide and then having tried to conceal it from Respond- ent One of the easier conclusions that can be drawn in this case is that Morn was not a spokesman for other drivers and never raised complaints with management at any of the driver meetings Morn alone testified that he en- gaged in such conduct Not only management, but Monn's fellow drivers testified that they never discussed such matters with Monm and that Morm never spoke out at driver meetings about employee complaints or work- ing conditions I credit Respondent witnesses that they never received or saw Monn's alleged May 9 letter I also credit Respondent's witnesses that neither the May 9 letter nor its contents were discussed during conversa- tions with Monn on May 11 and 12 In this regard, I find particularly credible the testimony of Respondent's safety director, George Rosselle, who I found to be a se- nous, truthful witness Rosselle and Terminal Manager Roberts both testified credibly that Morm's alleged May 9 letter was never mentioned in any conversation, that in fact they had never seen such a letter, and that conversa- tions with Mann on May 11 and 12 related solely to the damage to Mann's truck and Mann's delay in reporting the damage Although certainly not the deciding factor, in resolving these credibility issues against Monn and in favor of Respondent witnesses, I also note the testimony of driver Richard Holland, who spoke with Morn on at least two occasions after Morn's discharge Holland tes- tified credibly that in a conversation with Morn very shortly after Morn's discharge, Morin said nothing about threats directed at him concerning union activity and nothing about having overheard management plotting his discharge as a result of union activity According to Hol- land, Mann mentioned only the failure to report damage to his truck In a second conversation 2 weeks after Morn's discharge, Morin showed Holland the letter dated May 9 which he allegedly sent to Respondent Holland's testimony is but one of many factors which leads me to reject Mann's version of the facts I find that Monn was discharged by Respondent for failing to follow company policy requiring him to immediately report damage to his vehicle Accordingly, I shall dis- miss the complaint 4 CONCLUSIONS OF LAW 1 Respondent Transport South, Inc is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 4 Though it is not alleged by counsel for the General Counsel, I have no reason whatever to believe that Respondent was Influenced in its deci- sion to discharge Morin in any way because of the earlier charge he filed with the Board which resulted in Monn's reinstatement Monn's rein- statement was voluntarily Moreover, after his reinstatement, Morin en- gaged in several instances of misconduct which resulted in reprimands and which could easily have served as the basis for his discharge if Re- spondent was looking for a reason to terminate Morin Morn, however, remained employed In view of my conclusion, I find it unnecessary to consider Respond- ent's alternative argument that Morn would have been fired in any event and/or should not be reinstated because Morn allegedly provided Re- spondent with fraudulent letters of reference which he may have written himself and on which he may have forged other peoples' signatures 734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Respondent did not Interrogate employees concern- ing union activities, threaten employees with reprisals for engagmg in union activities, threaten employees that it would close its facility if employees engaged in union ac- tivities, nor threaten employees with discharge for en- gaging m union activities as alleged in the complaint 3 Respondent discharged Joseph G Morin because he failed to follow company policy and timely report damage to his vehicle, and not because Monn engaged in concerted or union activity with other employees On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 5 ORDER It is recommended that the complaint be dismissed a If no exception are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided m Section 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses