Advance Transportation Co.

National Labor Relations Board - Board Decisions

Oct 29, 1990

300 N.L.R.B. 569 (N.L.R.B. 1990)

569
300 NLRB No. 63
ADVANCE TRANSPORTATION CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 In adopting the judge’s finding that the Respondent unlawfully discharged
employee Bidwell, we rely in particular on the credited evidence establishing
that the Respondent knew about Bidwell’s protected concerted activities, that
it harbored animus and an unlawful motivation to discharge Bidwell because
of these activities, that Bidwell complied with the Respondent’s ‘‘call-in’’ rule,
that the Respondent knew that he complied with the rule by his call on April
24, 1989, when he reported that he would be attending, under subpoena, a
Board hearing that might last 2 or more days, and that the Respondent did
not meet its burden of showing that it would have discharged Bidwell absent
his having engaged in protected concerted activities.
1 The complaint inaccurately gives this docket number as ‘‘18143.’’
Advance Transportation Company and Harry
Bidwell. Case 13–CA–28575
October 29, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 20, 1990, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief, and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Advance Transportation
Company, Bedford Park, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Andrew Iserson, Esq., for the General Counsel.
Leonard R. Kofkin, Esq., of Chicago, Illinois, for the Re-
spondent.
Harry P. Bidwell, of Lockport, Illinois, pro se.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me on October 5 and 6, 1989, in Chi-
cago, Illinois, pursuant to a charge filed by Harry P. Bidwell
on April 27, 1989, and a complaint issued on June 7, 1989.
The complaint alleges that Respondent, Advance Transpor-
tation Company, violated Section 8(a)(1), (3), and (4) of the
National Labor Relations Act (the Act) by discharging
Bidwell because of his protected concerted activities; because
he joined, supported, or assisted the Highway Drivers,
Dockmen, Spotters, Rampmen, Meat, Packing House and Al-
lied Products Drivers and Helpers, Office Workers and Mis-
cellaneous Employees, Local Union Number 710, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO (the Union); and be-
cause he testified in Cases 13–CA–28088, 13–CA–28143,1
and 13–CA–28362, Advance Transportation Company &
Daniel A. Tuffs Jr., an individual, Richard Kubat, an indi-
vidual, and Donovan Bauldry, an individual (the Tuffs case).
The transcript of testimony in the Tuffs case, which was
heard by Administrative Law Judge David L. Evans, was re-
ceived in evidence as an exhibit in the case before me.
On the basis of the entire record, including the demeanor
of the witnesses who testified before me, and after due con-
sideration of the briefs filed by Respondent and by counsel
for the General Counsel (the General Counsel), I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Bedford Park, Illinois. Respondent is engaged as
a motor carrier in the transportation of commodities in inter-
state commerce. During the calendar year preceding the
issuance of the complaint, Respondent derived gross reve-
nues exceeding $50,000 for the transportation of freight and
commodities from Illinois directly to points outside Illinois.
I find that, as Respondent admits, Respondent is engaged in
commerce within the meaning of the Act, and that assertion
of jurisdiction over its operations will effectuate the policies
of the Act.
The Union is a labor organization within the meaning of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union and Respondent have had a contractual rela-
tionship, with respect to drivers, since about 1948. Between
April 1985 (at least) and March 31, 1988, there existed a
voluntary stock ownership program for all Respondent’s em-
ployees represented by the Union. Employees who elected to
be covered by this plan underwent a deduction of 12 percent
of the contractual wages paid them. Of these sums, 10-per-
centage points were returned to Respondent and 2-percentage
points were used to purchase stock in Respondent for the
participating employees.
Regional Manager Thomas Horvath, who is the highest
ranking company official at Respondent’s Bedford Park ter-
minal and is admittedly a supervisor, testified before Judge
Evans that Horvath talked to just about every employee in
an effort to induce them to join the voluntary plan. He testi-
fied that he did this in order to enable Respondent to stay
in business and that deregulation in 1979–1980 had caused
many competitive companies to go out of business. In Feb-
ruary 1986, Horvath told employee Daniel Tuffs Jr., who had
refuged to participate in the stock ownership plan, that Re-
spondent wanted 100-percent participation in the plan. Tuffs
replied that he could not afford it and was not interested.
Horvath asked whether Tuffs’ wife worked. Tuffs, who had
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
two small children, told Horvath that she stayed home to
look after the Tuffs’ children. Horvath suggested that she
should get a job so she could help out. Tuffs rejected this
proposal. Then, Horvath told him that if he did not partici-
pate in the program, there would be a layoff and it would
be Tuffs’ fault. Between the beginning of 1985 and February
1986, Company Vice President Ronald Lindner, Company
Treasurer Richard Lindner, and Operating Manager Glen
Carroll (admittedly a supervisor) unsuccessfully tried to con-
vince Tuffs that he should participate in the program.
In late 1987, during negotiations for a 3-year bargaining
agreement to replace the agreement which was scheduled to
expire in March 1988, Respondent proposed to substitute for
the voluntary stock ownership program a compulsory profit-
sharing program which was to be in effect for a 5-year pe-
riod to begin in April 1988. The Union said that it could
agree to such a proposal only if it was approved by a major-
ity of the employees in a special referendum. Such a ref-
erendum was scheduled for December 18, 1987.
About December 11, 1987, Regional Manager Horvath and
Operations Manager Carroll conducted a meeting of about 60
drivers, dockmen, and clerical workers at Respondent’s Bed-
ford Park facility. Carroll told the employees that if more
than half the employees voted in favor of the profit-sharing
plan, all the employees would be contractually required to
permit a 12-percent deduction from their pay to go toward
the plan. Carroll stated that in order to operate, Respondent
needed the money which it would receive if the profit-shar-
ing plan were made compulsory. Management also said that
Respondent needed additional funds to support its expansion
plan, and stated that several competing trucking companies
had gone out of business.
Questions regarding the plan were addressed to Carroll by
about 20 employees, including Bidwell, Tuffs, Denny Thom-
as, Charles Coleman, and Dale Miller. Carroll answered
some of the questions, and ignored others. Bidwell, who
asked the most questions, asked Carroll exactly what
Bidwell’s benefits would be, how much he would be contrib-
uting, what would happen to his contributions if he died
while the plan was in effect, whether the plan had ever been
submitted to any governmental regulatory agency for ap-
proval, and why (in view of the Union’s wage concessions
since 1982) participation in the plan had to be mandatory
rather than voluntary. Carroll answered a few of Bidwell’s
questions, but avoided most of them. Coleman, who asked
the second largest number of questions, asked why Respond-
ent needed the money, in view of the fact (at least according
to Coleman) that Respondent’s owners also owned the leases
on the terminals and, by raising rentals, could eliminate any
profits which Respondent would otherwise receive. Coleman
asked those who did not want the program to raise their
hands, and almost all the employees raised their hands. Tuffs
asked those who favored the program to raise their hands,
and two did so. Tuffs told them that he needed his money
to support and educate his small children. Toward the end
of the meeting, Bidwell became angry. He told Carroll, ‘‘all
of this is reversed Robin Hood economics. You are stealing
from the poor and you are giving to the rich. And that is not
the way things are supposed to be in this country.’’ At this
point, Bidwell walked out of the meeting for a few minutes.
On the morning of the Union’s referendum, a petition
drafted by Tuffs was circulated among the employees by
Bidwell, Tuffs, Coleman, Miller, and employees identified in
the records as ‘‘Ed’’ and ‘‘Fred.’’ More than 80 employees
signed this petition. Tuffs offered it to Michael Zudycki, who
at that time occupied the admittedly supervisory position of
office manager; Zudycki said, ‘‘Get that thing away from
me.’’ The referendum was conducted at the terminal by
Union Business Agent James Ramirez; the Union provided
the ballot box and ballots for the vote, appointed employees
to an election committee to serve as ballot watchers, and su-
pervised the counting of the ballots. The profit-sharing plan
proposal was defeated by a vote of 123 to 67.
During the subsequent negotiations, Respondent insisted
that it needed the compulsory program for economic sur-
vival, and asked the Union to join in conducting another vote
on the matter. The Union refused, but suggested that the pro-
gram might be more palatable to the employees if its dura-
tion were no longer than the 3-year agreement then being ne-
gotiated and if it included a pay raise above whatever would
be called for by the National Master Freight Agreement,
which at that time was also under negotiation. Then, Re-
spondent campaigned among the employees for the compul-
sory program, proposing a duration which was the same (3
years) as the bargaining agreement then under negotiation,
and further proposing a wage increase of 35 cents an hour.
Although refusing to participate in a second referendum, the
Union did, through Union Steward George Leicht, furnish
ballots and give advice on the proper voting procedures. The
second referendum was conducted by Respondent on Feb-
ruary 25, 1988, with about four-fifths of the eligible voters
participating. The revised compulsory profit-sharing proposal
was approved by a tally of 142 to 52. The Union accepted
the vote and entered into a compulsory profit-sharing agree-
ment.
After the February 1988 ratification vote, Bidwell and his
attorney prepared form grievances eventually filed by at least
51 drivers, dockmen, and clerical employees. The grievances
were directed against both the profit-sharing plan and the
way it had been instituted. At a grievance meeting on April
27, 1988, before a 6-man joint management and union griev-
ance panel, Bidwell stated that his money was his personal
property, that he had the right to his personal property, and
that the Union and Respondent did not have the right to enter
into a collective-bargaining agreement deciding the disposi-
tion of his property. At this meeting, opposition to Respond-
ent’s plan was also expressed by about nine other employees,
including Tuffs, Coleman, Jim Wydatt, Dominic Sentoro, and
Alfredo Ricci. The grievances were deadlocked at that meet-
ing, and were submitted to arbitration.
The compulsory profit-sharing plan became effective on
April 1, 1988. More than 30 employees, including Bidwell
and Tuffs, failed to cash the checks made out to them in
connection with this plan.
In September 1988 an internal union election was held
among the Union’s 12 or 14 thousand members. Seven mem-
bers ran on the ‘‘Eagle Slate,’’ which opposed wage conces-
sions in bargaining agreements; and which also opposed the
implementation of compulsory profit-sharing plans, and com-
pulsory stock-purchase plans, calling for compulsory deduc-
tions from the employees’ pay checks. Four Eagle Slate can-
didates worked for employers other than Respondent; the re-
maining three were Respondent’s employees Bidwell, Cole-
man, and Al Brown. Inferentially about the first week in Au-
571ADVANCE TRANSPORTATION CO.
2 Judge Evans found that Respondent entertained animus against employees
who opposed the compulsory profit-sharing program, but further found that
there was no evidence that Respondent had any hostility toward the activities
in support of the Eagle Slate (see sec. E, below; sec. F,1, below). Cf. infra
fn. 4.
3 ‘‘Replacement drivers,’’ who are used to fill in for absent ‘‘seniority driv-
ers,’’ do not accumulate bargaining unit seniority and cannot file grievances.
4 My findings in this paragraph are based on Bauldry’s testimony before me.
When testifying for Respondent before me, Blake was not asked about this
conversation with Bauldry. Before Judge Evans, Bauldry gave a rather similar
version of this conversation with Blake, and further attributed to Blake the
statement (not referred to in Bauldry’s testimony before me) that Respondent
would eventually ‘‘get’’ all the drivers who opposed the profit-sharing pro-
gram and the program in general, and that they ‘‘wouldn’t be working at the
Company.’’ Over Blake’s partial denials, Judge Evans credited most of
Bauldry’s testimony regarding this conversation, including the testimony about
the threats to all drivers who opposed the profit-sharing plan. Although
Bauldry’s version of this conversation to Judge Evans did not include any ref-
erence to the union election, I do not regard this omission as sufficient to war-
rant discrediting Bauldry’s testimony about it before me, in view of Blake’s
failure to deny at either hearing the remarks which in October 1989 Bauldry
attributed to him regarding the union election. Before the Board, Respondent
did not except to Judge Evans’ factual findings as to the Blake-Bauldry con-
versation.
gust 1988, Coleman and Bidwell asked Dispatch Manager
Richard Blake for a leave of absence to run for union office.
Blake approved both requests, but they had to be approved
by Horvath as well. The record fails to show whether Cole-
man asked for Horvath’s approval or received a leave of ab-
sence. About mid-August, Bidwell asked Horvath’s approval
for a 3-week leave of absence, explaining that Bidwell need-
ed it in order to campaign adequately. Initially, Horvath said
that Bidwell would have to submit a letter, explaining why
he wanted a leave of absence, 10 days before starting it.
However, when Bidwell said that his need was urgent and
that he knew other employees who had started a leave of ab-
sence immediately, Horvath granted the leave of absence im-
mediately. At that election, all the incumbents were re-elect-
ed. Bidwell, who received 400 fewer votes than his oppo-
nent, received 1465 votes, and was the top vote getter on the
Eagle Slate. Bidwell testified before me that management
paid no attention to him and his campaign, and basically, just
avoided him. Dispatch Manager Blake, Bidwell’s immediate
supervisor, testified in substance before Judge Evans that
Blake knew that Bidwell was running for office on the Eagle
Slate but did not know until at least the beginning of 1989
what the slate stood for. Judge Evans credited, in effect,
Blake’s testimony that he had not known about what the
Eagle Slate stood for.2
B. The September 1988 Bauldry-Blake Conversation
Regarding the Profit-Sharing Plan
About the last week in August 1988, Respondent’s drivers
received their first profit-sharing checks, which averaged $8
or $9. The drivers joked among themselves about the size of
these checks, which amounted to less than the amounts they
had put into the program. Among the jokers was employee
Donovan Bauldry, who had put in about $20 a week for
about 2 months and had received a profit-sharing check for
$1.88.
About late August or early September 1988, just before
the union election discussed above, Dispatch Manager Blake,
admittedly a supervisor, called Bauldry into the office and
said that another driver had accused him of ‘‘bum rapping
the company.’’ Bauldry denied this. Blake said that Bauldry
should not be criticizing the profit-sharing program, that ‘‘It
was money that [Bauldry] would not have had anyway,’’ but
that Respondent needed it ‘‘for survival.’’ Blake said that
Bauldry’s action in opposing and laughing at the profit-shar-
ing plan ‘‘wasn’t appreciated.’’ Blake further said that
Bauldry ‘‘should not associate with certain people who were
opposing this profit-sharing plan’’ because ‘‘the Company
needed it.’’ Blake went on to say that because Bauldry was
a ‘‘replacement driver,’’ he could be terminated at will.3
Blake said that employee Richard Kubat, who had been dis-
charged in early August 1988, was not working because he
did not like the profit-sharing program. In addition, Blake
said that if Bauldry associated with some other employees
(whom Blake did not name) who had brought a proceeding
against Respondent and the profit-sharing plan, Bauldry
would be terminated. Bauldry said that he knew Bidwell be-
cause they both engaged in the hobby of restoring old cars,
and that Brown said hello to Bauldry every morning. Blake
told Bauldry not to even say hello to Brown, that that could
get Bauldry fired. Blake further said that ‘‘there were guys
from’’ Respondent that were running for office in the Union,
and that if they ever got into office it would not be good
for the relationship between Respondent and the Union.4
C. The Unfair Labor Practice Proceeding in the
Tuffs case
On January 6, 1989, an order was issued scheduling the
Tuffs unfair labor practice hearing for Monday, April 24,
1989. The arbitration hearing on the previously mentioned
grievances by Bidwell and others was conducted in down-
town Chicago on January 10, 1989. After Ricci and Bidwell
had testified at this hearing, Bidwell went to the Board’s of-
fice, in downtown Chicago, and conferred with Board Field
Examiner Yvonne Coleman. Coleman and Bidwell went over
Bidwell’s affidavit, which he had given in September 1988,
and she advised him of the date on which the NLRB Tuffs
hearing was scheduled. On April 10, 1989, the arbitrator de-
nied the grievances in their entirety.
In the morning of Friday, April 14, 1989, Bidwell had a
doctor’s appointment. He called in sick that morning and re-
ceived sick pay for the day; Respondent’s counsel stated on
the record in October 1989 that Bidwell sent the money
back, but the record fails to show when he did so. Bidwell’s
medical appointment was in Maywood, Illinois, about 5
miles from Respondent’s Bedford Park facility and about 10
miles from downtown Chicago. Bidwell’s home in Lockport,
Illinois, is about 30 miles from downtown Chicago. After
keeping his doctor’s appointment in Maywood, Bidwell
drove to the Board’s office in downtown Chicago, where he
discussed the forthcoming Tuffs case with Andrew Iserson,
counsel for the General Counsel at both the hearing before
Judge Evans and the hearing before me. Between 1 and 3
p.m. that day, Iserson physically gave Bidwell a subpoena ad
testificandum requiring him to appear at the Board’s office
in downtown Chicago at 11 a.m. on Monday, April 24. At
this time, Iserson advised Bidwell that it was very possible
that the hearing would take more than 1 day, and that Blake,
who was Bidwell’s immediate superior, had been subpoenaed
and would be appearing for Respondent.
Bidwell had already made vacation arrangements to attend
a Long Beach, California, reunion of veterans of the Viet
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 My finding that his flight left on April 14 is based on his credited testi-
mony. At the request of Respondent’s counsel, Bidwell went into the witness
room to fetch his personal calendar, and gave his testimony about the date of
the flight after inspecting the calendar, which according to Bidwell also gave
the flight number and departure time. Although Respondent’s counsel had the
opportunity to inspect this calendar, he made no claim that it failed to show
an April 14 departure date. Accordingly, I accept Bidwell’s testimony that his
departure date was April 14 notwithstanding the statement in his prehearing
affidavit that he ‘‘left for vacation’’ on April 17. Bidwell’s pay for this week
of vacation began on April 17.
6 Such duties are discharged by the dock foremen on Mondays because no-
body is on duty in the office on Sundays or until 7 a.m. on Mondays.
7 My findings as to the substance of this conversation are based on
Bidwell’s testimony and on statements in the grievance he filed in connection
with his discharge, which grievance was offered by Respondent, and received
into evidence, without limitation or objection. See American Rubber Products
Corp. v. NLRB, 214 F.2d 47, 52–53 (7th Cir. 1954); Today’s Man, 263 NLRB
332 (1982). I accept Bidwell’s version of this conversation for reasons set
forth, infra, part II,F,1. In thus crediting Bidwell, I am aware of his testimony
that he had previously been advised that at the hearing Respondent would be
represented by Blake, whom Bidwell (according to his testimony) nonetheless
asked Harper to advise of Bidwell’s status. However, the hearing was not
scheduled to open until 11 a.m., several hours after Blake usually began his
work day at Respondent’s facility, and that facility is about 45 minutes from
the Board’s office.
8 Bidwell was able to recall only one specific instance in the preceding few
years where he did this without first checking by telephone with Respondent’s
office. Nowever, he testified that ‘‘quite frequently’’ during his 15 years of
service, the customer did not have a certified check available, and that when
Bidwell was unable to get through to Respondent for instructions, he would
sometimes accept a company check if the amount involved was less than
$1000. Judge Evans’ decision does not refer to Bidwell’s testimony regarding
acceptance of an uncertified check. However, this decision did not issue until
almost 3 months after Bidwell’s discharge.
9 Finding that what constituted a ‘‘volume’’ run was ‘‘murky at best,’’
Judge Evans concluded that a driver was permitted to take a coffee break be-
fore his first stop if, but only if, he was on a one-stop run. In so concluding,
Judge Evans found that Bidwell’s testimony corroborated Respondent’s posi-
tion that the timing of Tuffs’ coffee break was improper because he was on
a multistop run (see sec. D, below).
Nam police action. His packed luggage was in the auto-
mobile which he had driven that morning from his Lockport
home to the Chicago downtown area to confer with Iserson
and perform other errands. After leaving the Board’s office
that afternoon, Bidwell drove to the Maywood, Illinois, of-
fice of his wife, who used his car to drive him to pick up
his plane at O’Hare Field in northwest Chicago.5
On Tuesday, April 18, Bidwell attended a dinner, which
was followed by a lecture, in Camp Pendleton, California. As
discussed in greater detail infra, Respondent has a toll-free
telephone number which drivers are permitted to use to ad-
vise Respondent if they are to be absent from work. Between
the dinner and the lecture, Bidwell attempted to dial this
number in order to advise Respondent that he would not be
coming to work on Monday, April 24, because he had been
subpoenaed to testify at the Board proceeding. He received
a recording that this number was inaccessible from his dial-
ing area. Bidwell admittedly did not know whether this inac-
cessibility was due to the fact that he was calling from a
military base. He further admitted that he knew Respondent
had an ordinary commercial number, and that a telephone
was in the Chicago office where on the afternoon of April
14 he conferred with and received his subpoena from
Iserson. Bidwell returned from California to his home at an
undisclosed hour on Sunday, April 23. Except for his unsuc-
cessful April 18 attempt to use Respondent’s toll-free num-
ber, Bidwell admittedly made no effort, between his January
10 notice that the hearing would be held on April 24 and the
morning of the hearing, to advise Respondent of his antici-
pated absence.
Drivers who are scheduled to work on a particular day but
who are not going to report for work are supposed to advise
Respondent at least an hour before their scheduled reporting
time that they will be absent. Bidwell’s scheduled reporting
hour was 8 a.m. At about 6 a.m. on April 24, Bidwell tele-
phoned Respondent from his residence. The telephone was
answered by John Harper, who was then Respondent’s dock
foreman and whose Monday morning duties included receiv-
ing such calls from drivers.6 Bidwell asked Harper to advise
Dispatch Manager Blake that Bidwell would not be in that
day. Bidwell said that he was just coming off of vacation,
that he had a subpoena to appear before the National Labor
Relations Board, that he had been advised by the Board that
he would likely be there 2 or more days, and that Bidwell
would call Respondent and advise it of his status. Harper,
who had been on duty since about 10 p.m. on April 23 and
whose duties included loading and unloading trailers on the
dock and supervising dockmen as well as answering the tele-
phone in the office, replied, ‘‘That sounds like personal busi-
ness to me,’’ and abruptly hung up.7
Bidwell reached the Board office on April 24 at 8:30 or
9 a.m. He saw and greeted Blake in the hall. Blake was
present throughout the hearing when the record was open,
and saw Bidwell in the hall during the lunch break. During
the first day of that hearing, April 24, Tuffs testified that
Bidwell had participated in circulating the December 1988
petition which protested the proposed profit-sharing plan;
Blake testified on April 25 that until April 24 he had not
known anything about the petition. Also on April 24, Tuffs
testified that the Eagle Slate opposed the compulsory profit-
sharing and stock-purchase plans. As previously noted, Blake
testified on April 25, 1989, before Judge Evans, in substance,
that although Blake had known Bidwell had run for union of-
fice on the Eagle Slate, until at least the beginning of 1989
Blake had not known about such opposition by the Eagle
Slate; and Judge Evans in effect credited his testimony in
this respect.
Bidwell, who testified for the General Counsel on April
24, 1989, gave testimony at least purporting to support the
Tuffs complaint allegation that Tuffs had been discharged in
October 1988 because of his union and protected concerted
activity in connection with his opposition to the compulsory
profit-sharing program. Respondent was contending that
truck driver Tuffs was discharged partly for accepting during
a C.O.D. delivery a company check rather than (as instructed
on the freight bill) a certified check, and for taking a coffee
break at an unauthorized time. Truckdriver Bidwell testified
that, without being disciplined, he had on occasion accepted
a company check rather than (in accordance with written in-
structions) a certified check,8 and that a driver was permitted
to take a coffee break before his first stop (as Tuffs had
done) if he was on a ‘‘volume run’’ (as Tuffs testified he
had been).9
Iserson rested in the Tuffs case in the afternoon of April
24, whereupon the hearing was adjourned until 9 a.m. on
April 25. At about 4 or 4:30 p.m. that day, he came into the
witness room, where were seated all of the four witnesses
whom he had called that day, and told all of them that they
would have to return to the Board’s office at about an hour
before trial time on the following day. Iserson told Bidwell
573ADVANCE TRANSPORTATION CO.
10 My findings as to Bidwell’s April 25 efforts to reach Respondent through
his home telephone are based on his testimony, which gains some indirect cor-
roboration from the absence of evidence that during his 15 years of employ-
ment with Respondent he had ever failed to give sufficient advance notice of
an absence. Although Blake testified that Respondent had had no difficulties
with its telephone system since about March 1988, when Respondent installed
its current telephone system, he did not specifically deny Bidwell’s credible
testimony that about mid-March 1989, when he told Blake about being unable
to get through to ‘‘dispatch’’ for 2 hours, Blake said that ‘‘we are having a
problem with’’ the telephones.
11 My finding in this sentence is based on the testimony of Tuffs and
Bauldry. Respondent objected to such testimony on hearsay grounds, to which
the General Counsel responded that he was offering it for a nonhearsay pur-
pose. In view of this colloquy, I do not rely on such testimony to show that
Bidwell in fact made such efforts to telephone Respondent. Cf. Rule
801(d)(1)(B) of the Fed.R.Evid., referred to by me at the hearing but not re-
ferred to by counsel.
12 My findings as to the occasion when Bidwell was put on hold are based
on the testimony of Bidwell and Bauldry, which I credit notwithstanding the
testimony of Blake and volume dispatcher Michael Hanlon that after a line
in the dispatch office is on hold for 2 minutes, a beeping ground comes on
the telephone ‘‘and it has to be picked up.’’ Respondent’s pushbutton toll free
service had not been operating normally that day, and, in any event, a man
who is standing at a pay phone in a hallway a few minutes before a hearing
at which he may testify might well overestimate the length of time he has re-
mained on ‘‘hold.’’ Hanllon, who was on duty in the dispatch office on the
morning of April 25, denied receiving a call from Bidwell that morning. How-
ever, Bidwell testified that the telephone had been answered by an unfamiliar
voice, Hanlon testified that he had spoken to Bidwell often enough to recog-
nize his voice, and Respondent unexplainedly failed to call as a witness Ray
Latza, the other dispatcher on duty that morning, whom Respondent considers
to be a supervisor and who was still in its employ at the time of the hearing.
13 My findings as to Bidwell’s efforts to reach Respondent after he reached
the Board’s offices are based on his grievance and his testimony, partly cor-
roborated by Tuffs and Bauldry. Bidwell’s testimony varied as to whether he
was put on hold during the first or during the second call. Except to the extent
bearing on his credibility, this variance is immaterial. Respondent contends
that as to Bidwell’s efforts to reach Respondent from the pay telephone, the
testimony of all three is impeached by their further testimony that neither
Tuffs nor Bauldry explained to Blake (whom Tuffs and Bauldry saw that day
in the Board’s offices), or suggested that Bidwell explain to Blake, why
Bidwell was not at work. However, Blake’s failure to see Bidwell that day
was an unlikely fortuity, and I credit Bauldry’s testimony that at least he be-
lieved Blake saw Bidwell. Moreover, Bidwell’s efforts to reach Respondent
ceased on the resumption of the hearing that morning.
that there was a very good possibility that he would be called
back to the stand.
Drivers who will be absent on a particular day, or who en-
counter difficulties on the road, are supposed to telephone
Respondent’s dispatch office. When making calls for such
purposes, drivers are permitted to use a toll free line which
is also available to special customers. When this toll free
service is operating properly, the caller receives a tape re-
corded answer which tells him that to reach Respondent’s
dispatch office, he should punch in number 210 if he is call-
ing from a pushbutton phone, and should wait for an oper-
ator if he is calling from a rotary phone. When a caller from
a pushbutton telephone punches in number 210, the tele-
phone is supposed to ring in the dispatch office. If the tele-
phone remains unanswered after a given number of rings
(about six), the call is supposed to be routed to the switch-
board. After 8 a.m., the switchboard operator handles such
unanswered calls on the toll free line from pushbutton tele-
phones, and also handles all calls on Respondent’s commer-
cial line and on the toll free line from rotary telephones.
However, because no switchboard operator is on duty before
8 a.m., after about six unanswered rings a tape recorded mes-
sage, ‘‘Sorry, your party does not answer,’’ is supposed to
be received by any caller before 8 a.m., whether he used the
toll free or the commercial line, and whether he used a push-
button or a rotary telephone.
At about 6:15 a.m. on April 25, Bidwell used his home
pushbutton telephone to call Respondent on its toll free num-
ber. He received the usual recorded instructions to punch
210. When he did so, he heard a very short ring and then
received a recorded message, ‘‘Sorry, your party does not an-
swer.’’ A quarter or half hour later, and still using his home
telephone, he called Respondent’s toll free number again. He
heard static and then a dial tone.10 He did not try to call Re-
spondent again, either through its toll free line or through its
commercial line, before his departure for the Board’s office
at 7:10 or 7:15 a.m. At that hour, he could not have reached
the dispatch office through Respondent’s commercial line,
but there is no evidence that Bidwell knew this.
After a drive of about an hour and ten minutes, Bidwell
reached the Board’s office at between 8:15 and 8:45 a.m., at
least 15 minutes after the arrival time required by Iserson.
Bauldry, Tuffs, and Kubat were already in the witness room.
Bidwell told them that he was a little late because he had
tried to telephone Respondent a couple of times and had
been unable to get through.11 Then, he said that he would
have to try to call Respondent. He went to a pushbutton pay
phone a few feet outside the witness room, punched in Re-
spondent’s toll free number, received the usual tape recorded
instructions to punch 210, and then did go. An unfamiliar
voice answered the telephone. Bidwell asked to speak to a
dispatcher, whereupon Bidwell was put on hold. After re-
maining on hold for what he testimonial described as a
‘‘considerable amount of time’’ (his grievance says 8 to 10
minutes) and Bauldry described as ‘‘quite [an] amount of
time,’’ Bidwell hung up and returned to the witness room.
He said that he had been unable to call Respondent, that he
was being put on hold when he did reach Respondent, and
that he was going to try again.12 Then, he returned to the
telephone, again punched in Respondent’s toll free number,
again received the usual tape recorded instructions to punch
in 210, and again punched in 210. After the telephone had
rung five or six times, he got a recording, ‘‘Sorry, your party
does not answer.’’ Then, he punched 210 again. After five
or six more rings, he again received a recording, ‘‘Sorry,
your party does not answer.’’ Then, he hung up.13
Bidwell’s efforts to reach Respondent’s facility by tele-
phone ended at 10 or 15 minutes to 9 a.m. Iserson told his
prospective witnesses, including Bidwell, that once the hear-
ing had begun, they were to stay in the area of the witness
room and ‘‘not to be out wandering around.’’ Bidwell stayed
in the witness room between 9 a.m. and the lunch break. He
made no further efforts that day to reach Respondent by tele-
phone, which is right outside the door to the witness room.
Of the witnesses called by Iserson during his case in chief,
all but Bidwell (Iserson’s only witness who still worked for
Respondent) testified on rebuttal. However, Bidwell did not
testify on that day.
The evidence conflicts as to whether Blake saw Bidwell
at the Board’s office on April 25. The August 25 hearing
began at 9 a.m., broke at about 11:30 a.m. for lunch, and re-
convened about 1 p.m. Bidwell, and the three witnesses
(Tuffs, Bauldry, and Kubat) who were called by Iserson as
rebuttal witnesses on that date, sat in a room reserved for the
General Counsel’s witnesses during almost the entire period
when the hearing was in session that day, except when testi-
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 For demeanor reasons, I do not accept Blake’s testimony that at this time
the door to the witness room was shut.
15 Bidwell’s May 5, 1989 grievance and his prehearing affidavit of May 4,
1989, stated that he had seen Blake look into the witness room. Bidwell’s May
11, 1989 prehearing affidavit stated, ‘‘after further thought, I cannot say for
sure that I did see him. Instead, I recall now that I saw someone go by the
door of the witness room and asked Danny Tuffs who that was, and he told
me he thought it was Blake.’’ Tuffs denied making such a remark to Bidwell.
Bauldry testified to having ‘‘probably’’ made such a remark to Bidwell, but
this was not corroborated by Bidwell or Tuffs.
16 The significance of the quoted words is discussed, infra, part II,F,1.
17 Blake testified that on April 25, he put on Bidwell’s timecard the notation
‘‘no call no show.’’ As noted in the text, Bidwell did not see his timecard
on April 26; nor did he see it, so far as the record shows, at any time after
this notation was allegedly entered on it. The timecard was not offered into
evidence, nor was its absence explained; see infra, part II,F,1.
18 My finding that Blake was present is based on Close’s testimony and
Bidwell’s grievance, which, because it was closer in time to the event than
was Bidwell’s testimony, I believe to be more reliable than his hearing testi-
mony that Blake was not there. Blake’s testimony at least implies that he was
not there. Close testified that Thomas Harper was present during this con-
ference. Because of ambiguities in Harper’s testimony as to this matter, I ac-
cept Bidwell’s denial.
19 For reasons set forth, infra, part II,F,1, I do not credit Close’s testimony
in this respect. However, for reasons there indicated, I find that by the time
that this conference began, Close knew that Bidwell had testified on April 24
and had been at the Board’s offices on April 25.
20 My findings as to this conversation between Close and Bidwell in Blake’s
presence are based on a composite of Bidwell’s grievance and credible parts
of his and Close’s testimony.
fying or in the men’s room. A person who proceeded be-
tween the hearing room and the men’s room or the elevator
bank had to pass by the door to this witness room. Blake
was in the hearing room at all times when the hearing was
in session. I accept Blake’s testimony that he did not see
Bidwell at the Board’s offices on April 25. Credible parts of
the testimony of Blake, Tuffs, Bauldry, and Bidwell do show
that at the beginning of the lunch break Blake (preceded by
Judge Evans and then by company attorney, Leonard R.
Kofkin) went by the witness room at a time when the door
was open and Bidwell was sitting in the witness room in a
position where he was visible through the doorway.14 How-
ever, in the absence of corroboration by Tuffs, I do not ac-
cept Bauldry’s testimony that Blake in fact looked into the
room.15 Further, in the absence of corroboration by Bidwell,
I do not accept Bauldry’s or Tuffs’ testimony, denied in ef-
fect by Blake, that the three employees were congregated
outside the doorway to the hearing room when Blake left it
on the close of the hearing. Nor do I credit Bauldry’s
uncorroborated testimony, denied by Blake, that Blake
passed by the witness room, when it was occupied by
Bauldry and Bidwell and the door was open, ‘‘about five
times that day minimum.’’
D. Bidwell’s Discharge
The hearing before Judge Evans closed at about 3:30 or
4 p.m. on April 25. Bidwell’s work shift ended at 4:30 p.m.,
and he did not return that day to Respondent’s terminal,
which is 45 minutes from the Board’s Chicago offices. How-
ever, after the hearing had ended, Blake did return to the ter-
minal. He testified that when he arrived, he checked ‘‘the
sheet’’ to see who was off that day, April 25.16
On the morning of April 26, Bidwell arrived at the ter-
minal between 7:30 and 7:45 a.m., and found that his time-
card was not in the rack. He pointed this out to Blake, who
said that he would take care of it and, ‘‘Don’t worry about
it. See me at 8 o’clock.’’ Then, Bidwell got a driver’s
tripcard, punched it, put it into his pigeonhole mailbox, and
went downstairs to drink a cup of coffee. At 8 a.m.,
Bidwell’s starting time, he again looked at the timecard rack,
and found that he still did not have a timecard.17 When he
drew this to the dispatcher’s attention, the dispatcher said
that he did not have a load for Bidwell at that time, that
Bidwell should get a cup of coffee, and that when there was
a load for him the dispatcher would call Bidwell on the inter-
com. Bidwell did so.
At about 8:10 or 8:15 a.m. Blake used the intercom to call
Bidwell to ‘‘dispatch.’’ When Bidwell reported there, Blake
told him that labor specialist William Close (admittedly a su-
pervisor) wanted to see Bidwell in Close’s office. Then,
Bidwell proceeded to an office where Close and Blake were
present.18 Close testified before me that Blake had told him
on April 25 that Bidwell had testified at the Board on April
24.19 When Bidwell entered the office, he said, ‘‘I under-
stand you want to gee me,’’ whereupon Close ‘‘just looked
at’’ Bidwell. Then, Bidwell said, ‘‘I am Harry Bidwell. I un-
derstand you want to talk to me.’’ Close asked him to sit
down; Bidwell said that he was more comfortable standing.
Close said that there was a problem, that Bidwell had called
in sick Monday (April 24) and that on Tuesday (April 25)
he had not shown up for work or telephoned to advise Re-
spondent of his status. Bidwell said that on both Monday and
Tuesday he had been at the National Labor Relations Board,
and that he had been subpoenaed to appear as a witness on
behalf of Tuffs. Bidwell went on to say that on Monday,
April 24, he had reached someone at Respondent’s facility
who had identified himself as a dock supervisor named John,
and that Bidwell had told him that Bidwell had a subpoena
from the NLRB to testify that day, the hearing would likely
take 2 or more days, and he would call Respondent advising
it of his status. Bidwell further said that on Tuesday, April
25, he had repeatedly telephoned Respondent from home
without being able to get through. Bidwell said that later that
day he had reached someone at Respondent’s facility who
(he thought) was Jerry Meyers, a driver whose doctor had
put him on light duty and who was working in the dis-
patcher’s office. Bidwell said that the supposed Meyers had
put him on hold, and he had hung up when he had to go
to the witness room. Close said that Respondent had no
record of Bidwell’s being under subpoena, and that Bidwell
had called in Monday, April 24, saying he was sick. At
Close’s request, Bidwell then left the office. There is no evi-
dence that Blake said anything during this conference.20
About 5 minutes later, Terminal Manager Thomas Harper
(admittedly a supervisor, but no kin to then Dock Foreman
John Harper) went into the office where Bidwell had left
Close and Blake. A few minutes later, Close and Thomas
Harper went to the latter’s office, into which Blake escorted
Bidwell. Close told Blake to fetch Union Steward Leicht.
After Leicht had arrived, Harper told Bidwell that he was
being suspended ‘‘pending investigation.’’ Bidwell asked
why he was being suspended. Harper said that Bidwell was
being suspended for failure to follow instructions. Bidwell
asked what instructions he had failed to follow. Harper said
that Bidwell had failed to call in the previous morning.
Bidwell said that he had been subpoenaed by the NLRB to
appear as a witness. He further said that on April 24 he had
so advised a dock foreman named John, and had also told
575ADVANCE TRANSPORTATION CO.
21 My findings in the paragraph to which this footnote is attached are based
on a composite of Bidwell’s grievance and credible parts of the testimony of
Bidwell, Close, and Blake. Harper was not asked what was said at this con-
ference.
‘‘John’’ that the hearing would likely take at least days.
Bidwell went on to say that he had tried to telephone Re-
spondent the previous morning at about 6:30 a.m. from his
home, and had also tried to telephone Respondent later that
morning but had been unable to get through except on one
occasion, when he had been left on hold by someone who
he thought was Meyers. Then, Bidwell asked Leicht for the
Union’s position on Bidwell’s suspension. Leicht shrugged,
and said that under the circumstances this was a normal pro-
cedure. Bidwell said that he wanted Respondent to give him
immediately a letter stating the reason for his suspension.
Close said that he would send Bidwell a certified letter.21
Later that morning, management decided to terminate
Bidwell. At about 11 that morning, Bidwell telephoned
Union Business Agent Ramirez, and told him that Respond-
ent had suspended Bidwell. Ramirez asked why. Bidwell
said, ‘‘Failure to follow instructions.’’ Ramirez asked what
had happened. Bidwell said that he had been ‘‘petitioned’’
to appear on Tuffs’ behalf at the Board, that Respondent said
Bidwell had not called in on April 25, and that Bidwell had
tried to call in but had not been able to get through to any-
one. Ramirez put Bidwell on hold and telephoned Close,
who said that Respondent had decided to discharge Bidwell.
At Ramirez’ request, Close agreed to meet with him and
Bidwell on the following day, April 27. Then, Ramirez
picked up on Bidwell’s line, told him that he had been dis-
charged, and, inferentially, advised him of the arrangements
to meet Close on April 27.
On the following day, Close met with Bidwell, Ramirez,
and Leicht. During this meeting, Bidwell again said that he
thought the person who had put him on hold on April 25 was
Meyers, and someone accurately said that Meyers had not
been on duty that morning. Also during this meeting,
Bidwell asserted that Blake had seen him at the Board’s of-
fice on April 25. Close thereupon called in Blake, who said
that he had seen Bidwell on April 24 but not on April 25.
Close testified that those present ‘‘reviewed the facts again
in reference to what had transpired the previous two days.
And there didn’t seem to be any really new evidence or
things that I hadn’t heard before. So I advised [Ramirez] that
basically we would have to go to grievance hearing on it to
get them to make a decision.’’
Regional Manager Horvath testified before Judge Evans on
April 25, 1989, that ‘‘recently,’’ Respondent’s main office
had arranged for computerized files which enabled manage-
ment to ‘‘pull up’’ all of the reprimands and letters of warn-
ing issued to any individual employee. Two or three days
after being orally advised of his discharge, Bidwell received
by certified mail the following letter from Close, dated April
26:
LETTER OF DISCHARGE
Mr. Bidwell:
On April 24, 1989, you called in to the Terminal advis-
ing that you were sick and would not be at work. You
made no reference to your illness being extended be-
yond that day. On April 25, 1989, you failed to show
up for work or call in.
You have had previous warnings for failure to follow
instructions. You were warned and suspended on Octo-
ber 21, 1988 for failure to follow instructions. On No-
vember 16, 1988, you were sent a warning letter for
failure to follow instructions. On November 17, 1988,
you were advised of a one day suspension for failure
to follow instructions.
The above record indicates your lack of concern in fol-
lowing Company instructions and you leave us no alter-
native but to discharge you for the above offense, effec-
tive immediately.
Close testified before me that ‘‘really contractually’’ Re-
spondent could discharge employees for three infractions
within a 9-month period. Later, he testified that the bar-
gaining agreement says ‘‘you only need one prior warning
unless it is for intoxication or drugs.’’ He went on to testify:
Q. [by counsel for the General Counsel] When you
refer to one prior warning, one prior warning for what
type of offense?
A. For anything. You know say an accident, what-
ever. For no show, no call.
Q. You are referring to more egregious offenses then
aren’t you when you are talking about they can be fired
for one offense if it is intoxication?
A. Well, that you don’t need a prior warning.
Q. Okay.
JUDGE SHERMAN: It is your position that except for
egregious offenses you can have one warning for one
offense and for another a second entirely different of-
fense the employee can be discharged?
THE WITNESS: If it is within a category such as fail-
ure to follow instruction. Yes, Your Honor. Such as a
daily trip card. Let’s say they fill that out wrong. We
spend a lot of time telling them how to fill this card
out and go forth. Eventually, somebody just doesn’t
care to fill it out correctly. We send them a warning
letter on that. That is failure to follow instructions. If
you don’t call in or show up for, that is very clearly
stated a serious offense. We send them a warning letter
for that.
Close went on to testify that except for egregious offenses
(such as intoxication, drugs, burning a building, or mali-
ciously hurting someone else), Respondent’s policy (some-
what more liberal than permitted by union contract) has been
to give a warning, then a suspension, and then discharge.
Regional Manager Horvath, who did not testify before me,
testified before Judge Evans that Respondent observes the
following procedure for issuing disciplinary letters to drivers:
we will take dispatch for an example . . . . If [Blake]
finds there is an absenteeism or tardy problem. Or a
problem with the driver out in the street, he would re-
search the individual’s folder . . . . If [the driver has
done it before he would be issued a letter. We have a
process of three letters for the union contract. Three let-
ters would result in a termination for any one item.
Failure to follow instructions, or tardiness, or absentee-
ism. And that has to be within the nine month period.
However, Blake testified as follows before Judge Evans:
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 However, as to Tuffs, whether the relevant period was 6 months or 9
months would appear to be immaterial to Respondent’s case.
23 The August 1 letter, also issued by Blake, was captioned ‘‘Warning Letter
Tardiness’’ and stated, inter alia, that the warning was ‘‘for excessive tardiness
and . . . future violations of this nature could result in more severe discipli-
nary action, up to and including discharge.’’
A. 710’s policy is that you cannot suspend a driver
or terminate a driver, unless he has got three offenses
for the same three letters for the same offense. Now I
can be tardy today. I can be absent tomorrow. I can get
in an accident the week after and be issued three letters.
But I am not suspended or day off because they are
three different offenses. Now if I get another letter for
absenteeism within six months say I get two more, I
can get suspended and terminated.
If I have a couple of more accidents within the six
month period you are issued a letter and you get termi-
nated. But I have four different letters but nothing will
come of it because they are not the same offense.
Q. [by Respondent’s counsel] What is the signifi-
cance then of the phrase that we have seen in a number
of documents called, ‘‘Failure to follow instructions?’’
Does that make it a continuance single one type of of-
fense?
A. Yes, it does. It is the same offense time and time
again.
Q. And consistent with 710’s policy, the union pol-
icy, you understand that you are in a position to termi-
nate?
A. We can terminate them after three letters. Within
a six month period though. If it is over six months, you
can’t.
. . . .
Q. [by counsel for the General Counsel] Mr. Blake,
consistent with 710’s policy then regarding then how
many disciplinary warnings are required before an em-
ployee can be terminated. It is true isn’t it that an em-
ployee who receives nine disciplinary warnings, as long
as each one relates to a completely different incident
that that person need not be terminated?
A. It all depends how they categorized it. Failure to
follow instructions. You have to watch it. There are so
many things that that could be under.
Q. Let’s say if each category was separate and dis-
tinct for each warning then for each other warning.
A. It is very possible, but there aren’t that many oc-
casions where you can get nine different letters. There
aren’t nine different things you can do.
Q. Let’s take it down to four letters. If an employee
got four warning letters and each one was completely
unrelated to the other warning letter, separate incidents.
That employee would not be terminated.
A. If they are different, yes. Definitely he would not.
Q. Then your ability to terminate an Advance em-
ployee depended upon how you categorized each of-
fense that that driver was charged with.
A. If it was a repeated offense, yes.
Judge Evans found, ‘‘Blake testified . . . that Respondent
and the Union have an agreement that employees who com-
mit three violations of the same rule within a 6-month period
are subject to discharge.’’ Respondent did not except to this
finding and in August 1989, more than 2 months after the
issuance of the instant complaint as to Bidwell, stated in con-
nection with Respondent’s contention that Tuffs was lawfully
discharged, ‘‘The Judge [Evans] found that Respondent’s
uncontradicted policy is to subject to discharge employees
who commit violations of the same rule within a six month
period’’ (see R. Br. 15 to the Board in the Tuffs case).22
Nevertheless, Respondent’s brief to me states, ‘‘it is erro-
neously noted that a six-month period applies, rather than
nine months.’’ (As noted, before Judge Evans Blake three
times testified to a 6-month period. However, before Judge
Evans Horvath testified to a 9-month period, as did Close be-
fore me.) The October 21, 1988, warning/suspension referred
to in Bidwell’s discharge letter was issued by Blake more
than 6 months, but less than 9 months, before April 24,
1989. That October 21 warning letter, of which Close and
Horvath were sent courtesy copies, read, in part:
SECOND WARNING LETTER WITH ONE DAY
SUSPENSION
On August 1, 1988 you were issued a warning letter
for tardiness.23 Again on October 21, 1988 you were
late for work.
This letter is your warning for the offense and carries
with it a one day suspension. The day of suspension is
Monday, October 24, 1988.
Be advised that your failure to follow instructions in
the future will subject you to stronger disciplinary ac-
tion up to and including discharge.
The November 16, 1988 warning letter referred to in the
discharge letter was also issued by Blake with courtesy cop-
ies to Close and Horvath, and stated, in part:
WARNING LETTER FAILURE TO FOLLOW
INSTRUCTIONS
. . . .
A review of your daily trip card on November 15,
1988 indicates that you failed to show your last deliv-
ery, your lunch period and where taken, your coffee
break is also not shown.
You have been instructed in the past on filling this
form out properly. This is a warning letter for failure
to follow instructions. Further violation of failure to fol-
low instructions shall result in more severe disciplinary
action up to and including discharge. Please govern
yourself accordingly.
The November 17, 1988 warning letter referred to in the
discharge letter was also issued by Blake with courtesy cop-
ies to Close and Horvath, and stated, in part:
ONE DAY SUSPENSION FAILURE TO FOLLOW
INSTRUCTIONS
. . . .
A review of your tachography for November 15,
1988 indicates that you took an unauthorized stop from
4:00 pm to 4:30 pm.
You have been previously instructed in reference to
unauthorized stops.
This letter is to advise you that you are being sus-
pended for one day. That day being Friday, November
577ADVANCE TRANSPORTATION CO.
24 In making my credibility findings, I have taken into account Bidwell’s
testimony, before Respondent had these absenteeism warnings marked for
identification, that he had never had a problem with his absenteeism record.
25 Cf. Superior Forwarding Co., 282 NLRB 806 fn. 1 (1987); Postal Serv-
ice, 282 NLRB 686, 693–694 (1987).
18, 1988. Future incidents of failure to follow instruc-
tions shall result in more severe disciplinary action.
Govern yourself accordingly.
Bidwell also received a warning letter from then Office
Manager Zudycki (with a courtesy copy to Horvath) on
March 18, 1988, for ‘‘excessive absenteeism’’ with respect
to four dates between December 1, 1987, and March 18,
1988. The letter stated, inter alia, that ‘‘future violations of
this nature could result in more severe disciplinary action.’’
On August 9, 1988, Bidwell received another warning letter,
signed by Blake with courtesy copies to Close and Horvath,
for ‘‘excessive absenteeism . . . since April 1, 1988,’’ citing
eight dates between April 6 and July 13, 1988. This letter
stated, inter alia, ‘‘a continued practice will result in further
disciplinary action up to and including discharge.’’ Respond-
ent makes no contention that either the March 18 or the Au-
gust 9 letter played a part in the discharge decision. The Au-
gust 9 letter was issued less than 5 months after the March
18 letter but did not refer thereto. Nor was either the March
18 or the August 9 letter referred to in any of the warning
notices which (Respondent contends) form part of the basis
for the discharge decision.24
Bidwell filed grievances with respect to an undisclosed
number, but not all, of the warning letters and suspensions
he received between August 1, 1988, and his April 1989 dis-
charge. All these grievances were denied. On undisclosed
dates between his October 1973 date of hire and August 1,
1988, he received two warning letters because of motor vehi-
cle accidents. No contention is made that these two warning
letters had anything to do with his discharge.
In July 1987, Respondent wrote the following letter to
Union Business Agent Ramirez, with a copy to, inter alia,
Union Steward Leicht:
Due to the amount of tardiness and failure to call in
at least one hour before an intended absence the fol-
lowing guidelines are being posted:
1st. Offense—Warning letter
2nd. Offense—Final warning letter with one day sus-
pension
3rd. Offense—Discharge.
Close testified that this was Respondent’s policy of progres-
sive discipline, that it was enforced ‘‘all of the time,’’ and
that it was in effect when Bidwell was terminated.
E. Aftermath
As previously noted, Bidwell filed the instant charge with
the Board on April 27, 1989, the day after his discharge. On
May 5, 1989, he filed a grievance, with respect to his dis-
charge, under the Union’s bargaining agreement with Re-
spondent. Thereafter, his grievance came before the contrac-
tually established grievance committee, which deadlocked the
case to arbitration. At the Union’s request, a scheduled arbi-
tration hearing on the grievance was canceled because of the
pendency of the instant Section 8(a)(1), (3), and (4) com-
plaint.25
In May 1988, regional manager Horvath had posted a no-
tice that an employee who missed work because of being
sick would automatically be paid sick pay (if he had it com-
ing) for that day, unless he notified his supervisor and
marked his timecard ‘‘sick no pay.’’ As previously noted,
when Bidwell reported to the terminal on the morning of
April 26 after his absence on April 24 and 25, his timecard
was not in the rack; that same morning, he told Close, Blake,
and Harper that Bidwell had not called in sick on April 24;
and later on April 26, Respondent decided to discharge him.
On an undisclosed date, Respondent paid Bidwell for April
24. Respondent’s counsel stated on the record (about 4-1/2
months after Bidwell’s discharge) that he had sent the money
back. The record fails to show when he did so.
As of April 24, 1989, Respondent’s active employees in-
cluded ‘‘Fred,’’ who had participated with Bidwell in the
December 1987 circulation of a petition against the compul-
sory profit-sharing plan, and Brown, who (like Bidwell) had
run for union office on the Eagle Slate. Bidwell testified on
October 5, 1989, more than 5 months after his discharge, that
so far as he knew, Respondent’s active employees still in-
cluded Thomas, who (like Bidwell) had asked questions dur-
ing management’s December 1987 meeting about the profit-
sharing plan, Wydatt and Sentoro, both of whom (like
Bidwell) during the April 1988 grievance meeting had ex-
pressed opposition to the profit-sharing plan, and Ricci, who
had expressed such opposition at that meeting and (like
Bidwell) had testified for the grievant at the January 1989 ar-
bitration hearing protesting that plan. Also on October 5,
1989, Bidwell testified that Miller (who had participated with
Bidwell in circulating the petition against compulsory profit-
sharing, and like Bidwell had asked questions during man-
agement’s December 1987 meeting about the matter) was
still in Respondent’s employ when Bidwell was terminated
in April 1989, but that Bidwell had heard ‘‘rumors’’ Miller
was no longer with Respondent.
As previously noted, Judge Evans’ Decision issued on July
18, 1989. He found that Respondent’s discharge of Bauldry
and Kubat did not violate the Act. However, Judge Evans
found that Respondent did violate the Act by discharging
employee Tuffs because of his protected concerted activity of
opposing the compulsory profit-sharing program; by creating
an impression to employee Bauldry (through Blake) that the
employees’ protected concerted activities in opposition to the
compulsory profit-sharing program were under surveillance;
by threatening Bauldry (through Blake) that employees
would be discharged, and employee Kubat would lose job
advancement, because of opposition to the compulsory profit-
sharing program; and by instructing Bauldry (through
Blakenot to associate with other employees because of their
opposition to that program. Respondent reinstated Tuffs on
an undisclosed date between April 25, 1989 (the second day
of the hearing before Judge Evans) and October 5, 1989 (the
first day of the hearing before me). At the time that the in-
stant decision was signed, Judge Evans’ decision was pend-
ing before the Board on exceptions by the General Counsel,
Respondent, and Bauldry.
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Respondent’s drivers’ manual states, ‘‘Do not use illness claims as a
method of taking time off from work. Proven false claims of illness . . . will
result in disciplinary action.’’
27 The term ‘‘office form’’ was used by former dock foreman John Harper.
For the purposes of clarity, this term will be used herein to refer to such
forms, even though they are headed ‘‘Employee Absentee Report.’’ The com-
pilation is referred to in the record as the ‘‘absentee report,’’ and will be so
referred to herein.
28 One of these dispatchers was Ray Latza, who at the time of the hearing
was still working for Respondent as a dispatcher. However, the third indi-
vidual on duty in the dispatch office may have been rank-and-file employee
Neyers, a driver temporarily assigned to work there for medical reasons.
29 Close testified that after these transfers were made, ‘‘I would assume
sometime after that the record [prepared by the person who received the call]
is no longer necessary.’’ It is unclear whether he was referring to the office
form. As discussed infra, Respondent offered into evidence a purported office
form for Bidwell on April 24. At the hearing before Judge Evans on April
25, 1989, the day before driver Bidwell’s discharge and a week before Re-
spondent received his charge, Respondent produced a company record which
showed (inter alia) the reasons for all absences of each regular driver for var-
ious periods in 1988. See Tr. 209–210, which was received as an exhibit in
the instant case.
30 Golden State Bottling Co. v. NLRB, 414 U.S. 168, 173–174 (1973); NLRB
v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1269 (7th Cir. 1987); Zapex
Corp., 235 NLRB 1237, 1239 (1978), enfd. 621 F.2d 328 (9th Cir. 1980).
31 Harper’s typewritten statement times Bidwell’s call as ‘‘approximately
6:00 a.m.’’; the slip handwritten by Dock Foreman David Hoffner which alleg-
edly constituted a transcription of the note which Harper made immediately
upon receiving Bidwell’s call times the call as 6:50 a.m.; and Harper’s testi-
mony gives the time as approximately 6:30 a.m. See also, material attached
to fn. 32, infra.
F. Analysis and Conclusions
1. The April 24 conversation between Bidwell and John
Harper, and related matters
At the outset of the hearing, Respondent’s counsel ex-
pressly disclaimed any contention that Respondent dis-
charged Bidwell because, when telling Dock Foreman John
Harper on April 24 that Bidwell was not going to report to
work that day, he allegedly gave the false explanation that
he was sick. However, for reasons which will appear, wheth-
er Bidwell made such a representation to Harper nonetheless
presents an issue significant to the result here.
As previously indicated, I accept Bidwell’s testimony that
he told Harper that Bidwell would not be in that day because
he was under subpoena to appear before the Board, that he
had been advised by the Board that he would likely be there
2 or more days, and that he would call Respondent and ad-
vise it of his status. I do not accept Harper’s testimony that
Bidwell said he would be absent because he was sick and
made no reference to possible absence on subsequent days.
Even disregarding Bidwell’s credited testimony that he had
previously been informed by Iserson that Bidwell’s imme-
diate Supervisor, Blake, was going to attend the NLRB hear-
ing, Bidwell must have realized that he would be observed
by a representative or representatives of Respondent when he
was testifying, and that his action in this respect would have
shown Respondent that his absence was not in fact due to
illness and have caused Respondent to suspect, at the very
least, that his illness claim was due to a desire to cheat Re-
spondent out of pay for that day even though he was not en-
titled thereto.26 Furthermore, Blake testified before Judge
Evans that in order to assist Respondent in deciding how
many replacement drivers must be called in for a particular
morning, the dispatcher will ‘‘make up an absentee form the
day before. We know who is on vacation. Who is off on job
injury. Who may be off the following day, on birthday anni-
versary, miscellaneous absenteeism’’ (emphasis supplied).
Notwithstanding John Harper’s denial of Bidwell’s testimony
that he told Harper on April 24 that Bidwell was under sub-
poena and would likely be absent on April 25 as well, Re-
spondent unexplainedly failed to offer into evidence the copy
of this form prepared on April 24 to help Respondent deter-
mine how many replacement drivers to call in for April 25.
Moreover, although Close routinely sees every morning a
single-page ‘‘absentee report’’ which includes the dis-
patchers’ compilation of every ‘‘office form’’ prepared by
the dock foreman for each driver who called in that morning
to say he would be absent,27 Respondent unexplainedly
failed to offer into evidence this compiled ‘‘absentee report’’
for April 24. Further, although both the anticipatory ‘‘absen-
tee form’’ and the compiled ‘‘absentee report’’ are prepared
by the dispatchers, whom Respondent regards as supervisors,
when calling dispatcher Hanlon as a witness Respondent did
not ask him what entry as to Bidwell had been made on ei-
ther report, and did not call as a witness either of the other
dispatchers who were on duty on April 24.28 Moreover, al-
though Close testified that the notation made by the person
who receives a call, which notation states that a driver called
in and the reason why he was not going to come to work,
is transferred to the driver’s personnel file and ‘‘into the
computer,’’ Respondent failed to produce either the relevant
portions of Bidwell’s personnel file or the relevant computer-
ized records.29 I infer that these records, if produced, and the
testimony of these dispatchers, if adduced, would have
shown that according to such records, on April 24 Bidwell
gave attendance under subpoena at the Board hearing as the
reason for his absence and said that for this reason, he would
likely be absent on April 25 as well. Further, I infer, from
Respondent’s failure to produce Bidwell’s timecard for April
25 or the ‘‘sheet’’ whose April 25 examination by Blake al-
legedly led him on April 25 to write ‘‘no call no show’’ on
the timecard, that such documents would have impeached
Blake’s testimony that he made that notation.30
In view of the foregoing, and for demeanor reasons, I do
not accept John Harper’s testimony that on April 24, and
without making any reference to April 25, Bidwell advised
him that Bidwell ‘‘would be off today. He would be sick.
Please inform Rick [Blake] in dispatch.’’ Although Harper
was no longer in Respondent’s employ at the time of his Oc-
tober 1989 testimony before me, he was in Respondent’s em-
ploy when Respondent tied down his testimony by inducing
him (through Close and Office Manager JoAnne Budnick) to
sign under oath a statement, typewritten by her, which in
some respects corroborated the testimony which he gave be-
fore me.31 It is true that Respondent offered into evidence
a purported ‘‘office form’’ for Bidwell on April 24 (in this
connection, the only document offered by Respondent which
even resembles an ordinary business record) which states that
he had called in sick on that day and bears Dock Foreman
Harper’s purported signature. It is also true that when called
by Respondent, Harper testified that this ‘‘office record’’ was
an accurate transcription, made in accordance with ordinary
business practice, of a notation which, in accordance with or-
dinary business practice, he put on a blank pad of paper
upon receiving Bidwell’s telephone call and was destroyed
after being transcribed. However, Respondent unexplainedly
failed to call as a witness Dock Foreman David Hoffner,
579ADVANCE TRANSPORTATION CO.
32 See supra fn. 31.
33 Harper did testify that Close asked him to prepare a statement about the
matter after asking Harper on April 25 or 26 what Bidwell had told him on
April 24. However, Harper eventually dated this conversation with Close as
April 25, and was not asked the date of Close’s alleged request. Moreover,
Harper later testified that he dictated and signed his April 26 notarized state-
ment at the request of Office Manager Budnick.
34 See NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962); Aero Corp.,
237 NLRB 454 fn. 1 (1978); David’s, 271 NLRB 536, 538 fn. 17 (1984).
who according to Harper wrote Harper’s name on and other-
wise filled in this ‘‘office form.’’ Nor did Respondent call
as a witness any individual who would have been able to tes-
tify whether this ‘‘office form’’ had in fact been preserved
in Respondent’s records as a matter of business routine; in-
deed, Close’s testimony suggests that such documents are or-
dinarily destroyed (see supra fn. 29). Furthermore, a sham
document of this kind would be easy to prepare, and John
Harper, who authenticated the document, had necessarily
seen a number of ‘‘office forms’’ during the 9 or 10 months
he worked for Respondent as a dock foreman; indeed, at the
hearing Harper’s recollection of the purported Bidwell ‘‘of-
fice form’’ was so poor that before seeing it, he inaccurately
testified, ‘‘My name is not on it, I don’t think.’’ Moreover,
the suggestion that Dock Foreman Harper’s April 26, 1989,
notarized statement constituted merely a memorialization of
his own honest, disinterested, and independent recollection is
undermined by Respondent’s failure to call Office Manager
Budnick to explain why, in typing that statement, she in-
cluded the indicated underlining in the statement that Bidwell
‘‘told me he would be off Monday because he was sick. He
also told me to inform Rick Blake in dispatch that he would
not be in Monday.’’32 This underlining, which was not pro-
posed by Harper, seems crafted to anticipate Respondent’s
eventual contention that Bidwell was discharged at least part-
ly because of his admitted failure to call in on April 25 that
he would be absent on that day, and to meet Bidwell’s claim
that his admitted call on Monday, April 24, alerted Respond-
ent to his probable absence on Tuesday, April 25, because
of his subpoena.
My finding as to what Bidwell told Dock Foreman Harper
on April 24 is to some extent supported by certain peculiar-
ities in the testimony of Respondent’s witnesses. Thus, al-
though Close testified that after the April 26 meetings with
Bidwell Close asked Dock Foreman Harper about his alleged
‘‘sick’’ note regarding Bidwell, Harper did not testify to any
conversation with Close on April 26.33 Moreover, Close tes-
tified that his ‘‘investigation into the situation’’ began on
April 25 because of the alleged ‘‘no call no show’’ notation
on the compiled April 25 ‘‘absentee report’’ which he saw
that morning, and that Blake told Close later that afternoon
that Bidwell had testified at the Board on April 24—alleg-
edly, Close’s first information that Bidwell had testified at
the Board. If Close had in fact been conducting a good-faith
investigation of a genuine Bidwell April 25 ‘‘no call no
show’’ notation and in the course of that investigation had
in fact learned for the first time, from Blake, that Bidwell
had been absent on April 24 because he had testified before
the Board, it would have been natural for Close to ask Blake
(who had thus shown himself knowledgeable about the
events at the April 24 hearing, and who Close must have
known had just come in late because of attendance at the
hearing on April 25) to ask whether the allegedly ‘‘no call
no show’’ Bidwell had attended the hearing on April 25 as
well as April 24. However, Close did not testify to asking
such a question. Moreover, Blake did not corroborate Close’s
testimony about this alleged April 25 conversation. Accord-
ingly, I do not credit Close’s uncorroborated testimony about
his alleged April 25 conversation with Blake. Also, I note
that although Close testified to having asked Regional Man-
ager Horvath (who on April 25 testified for Respondent be-
fore Judge Evans) on April 26 whether Horvath had seen
Bidwell at the Board office the previous day, Close did not
testify in terms to what Horvath told him and Horvath
unexplainedly did not testify before me.
Furthermore, in view of Respondent’s failure to produce
either the compiled April 24 absentee record seen by Close
that morning or the form prepared that day to anticipate the
number of replacement drivers to be called in on April 25,
and in view of my finding as to what Bidwell told Dock
Foreman Harper on April 24, I do not credit Close’s testi-
mony that this compiled April 24 record stated that Bidwell
had called in sick, or his and Harper’s testimony that Harper
so advised Close. Rather, I find that the compiled April 24
absentee record which Close saw that morning accurately re-
flected what Bidwell had told Harper—that is, that Bidwell
would be absent that day because he had a subpoena to ap-
pear before the Board and would likely be absent on April
25 for the same reason—and that Harper accurately related
to Close what Bidwell had told Harper. See cases cited
supra, fn. 30. Finally, in view of my inference as to what
was shown on the compiled April 24 absentee report which
Close saw that morning, Close’s untruthfulness about the al-
leged Close-Blake conversation on April 25, and for de-
meanor reasons, I do not credit Close’s gratuitous concomi-
tant testimony that this was his first information that Bidwell
had testified before the Board.34
2. Whether Bidwell’s discharge was unlawful
Briefly, the credited evidence shows as follows:
At various times between February 1986 and about Sep-
tember 1988, Respondent expressed the view that a compul-
sory stock-purchase or compulsory profit-sharing plan was
necessary to Respondent’s survival. During an employee
meeting conducted by Respondent about December 11, 1987,
Bidwell stated that a compulsory profit-sharing plan would
constitute ‘‘stealing from the poor and . . . giving to the
rich.’’ After Respondent’s compulsory profit-sharing proposal
was nonetheless ratified by the employees and accepted by
the Union, Bidwell initiated grievances about the matter and
stated at the subsequent joint grievance meeting that the
Union and Respondent did not have the right to enter into
such an agreement; opposition to the plan was also expressed
by other employees at that meeting. In late August or early
September 1988, just before an internal union election where
employees Bidwell and Brown were to Blake’s knowledge
running on the Eagle Slate against the incumbent union offi-
cials, Dispatch Manager Blake reproved employee Bauldry
for criticizing the profit-sharing program; told him not to as-
sociate with employee opponents of the program because Re-
spondent needed it; told him that if he did associate with
them he would be terminated; told him that he could be fired
if he even said hello to employee Brown (on the Eagle Slate
with Bidwell); and told Bauldry that if certain of Respond-
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 As previously noted, Close admitted being aware, before this interview,
that Bidwell had testified on April 24.
ent’s employees succeeded in their efforts to obtain union of-
fice, this would not be good for the relationship between Re-
spondent and the Union. In January 1989, Bidwell testified
on his own behalf at the arbitration proceeding generated by
his grievance against the compulsory profit-sharing program.
On April 24, 1989, during the Tuffs hearing conducted by
Judge Evans in the presence of Dispatch Manager Blake, em-
ployee Tuffs testified that Bidwell had participated in circu-
lating a December 1988 petition against the profit-sharing
plan. When Tuffs had offered this petition to then Supervisor
Zudycki, he had said, ‘‘Get that thing away from me;’’ Blake
testified that until April 24, 1989, he had not known anything
about the petition. Also on April 24, 1989, Tuffs testified
that the Eagle Slate opposed the compulsory profit-sharing
and stock-purchase plan; Blake testified that although he had
known Bidwell had run for office on the Eagle Slate, at least
until the end of 1988 Blake had not known about such oppo-
sition by that slate. Also on April 24, Bidwell gave testi-
mony purportedly in support of the complaint allegation be-
fore Judge Evans that Tuffs had been discharged in October
1988 because of his union and protected concerted activity
in connection with his opposition to the compulsory profit-
sharing plan.
On instructions from Iserson, counsel for the General
Counsel, who had served Bidwell with a subpoena requiring
his appearance on April 24, he came to the Board’s offices
again on April 25, and stayed there until the hearing had
ended. On the following morning, after Bidwell’s timecard
had been removed from the rack, Close told Bidwell in
Blake’s presence that Bidwell had called in sick on April 24,
and that on April 25 Bidwell had not shown up for work or
telephoned Respondent of his status. Bidwell truthfully ad-
vised Close that on both April 24 and 25, Bidwell had been
at the National Labor Relations Board, and that he had been
subpoenaed to appear as a witness on behalf of Tuffs. In ad-
dition, Bidwell truthfully said that on April 24 he had tele-
phoned the Dock Foreman that Bidwell had a subpoena to
testify before the Board on April 24 and the hearing would
likely take more than 1 day, and that on April 25 he had at-
tempted to call in but had been unable to get through. Close
replied that Respondent had no record of Bidwell’s being
under subpoena, and that Bidwell had called in sick on April
24. Blake’s silence during this exchange demonstrates his
awareness that Close knew from the outset of the meeting
that he was directing false charges against Bidwell; for, if
Blake had believed Close was acting in good faith in assert-
ing that Bidwell had called in sick on April 24 and that Re-
spondent had no record of his being under subpoena,35 Blake
would almost certainly have interjected that Bidwell had tes-
tified in his presence on April 24 and was not sick or entitled
to sick pay for that day. Close thereupon told Bidwell to
leave the office, and then conferred with Blake and Terminal
Manager Thomas Harper. After this conference, Harper told
Bidwell that he was being suspended, ‘‘pending investiga-
tion,’’ for failing to call in the previous morning, April 25.
Bidwell truthfully said that he had been subpoenaed by the
NLRB to appear as a witness, truthfully said that on the
morning of April 24 he had told the dock foreman that
Bidwell would likely be at the Board’s offices on April 25
as well, and truthfully went on to say that on April 25 he
had repeatedly tried to telephone Respondent but had been
unable to get through except on one occasion, when he had
been left on hold by someone who he thought (mistakenly)
was Jerry Meyers. Close testified that following this con-
ference, he asked Terminal Manager Horvath, who (like
Blake) testified before Judge Evans on April 25, whether
Horvath had seen Bidwell at the Board office on April 25.
Close did not testify in terms to Horvath’s reply, and
Horvath unexplainedly did not testify. Later that morning,
Respondent terminated Bidwell. Close’s discharge letter to
Bidwell, dated that same day, reiterated the baseless claim
that Bidwell had called in sick on April 24. During an April
27 meeting about the matter, Respondent impliedly expressed
doubt about the truth of Bidwell’s assertion that he had been
at the Board’s office, under subpoena, on April 25. However,
there is no evidence that Respondent ever got in touch with
Iserson, or anyone else from the Board, to ascertain whether
Bidwell had in fact been at the Board’s regional office, under
subpoena, on April 25.
At least prima facie, the foregoing credible evidence
shows that Respondent discharged Bidwell, at least in part,
because he engaged in the protected concerted and union ac-
tivities of attempting to induce his fellow employees to peti-
tion and vote against including a compulsory profit-sharing
plan in the bargaining agreement, of initiating and partici-
pating in the prosecution of a grievance which protested such
inclusion, of running for union office on a slate which op-
posed the compulsory profit-sharing plan, and of testifying
before the Board in support of a claim that Respondent had
discharged a fellow employee because of his union and pro-
tected concerted activity in connection with his opposition to
the compulsory profit-sharing plan. Accordingly, an unlawful
discharge has been established unless Respondent can prove
by a preponderance of the evidence that Bidwell would have
been discharged for permissible reasons even if he had not
been involved in protected activity. NLRB v. Transportation
Management Corp., 462 U.S. 393, 400–404 (1983); NLRB v.
Del Rev Tortilleria, Inc., 787 F.2d 1118, 1123 (7th Cir.
1986); Dorothy Shamrock, supra. 833 F.2d at 1266–1267
(7th Cir. 1987); Howard Electric Co., 285 NLRB 911, 912
(1987), enfd. 873 F.2d 1287 (9th Cir. 1989); Moore Business
Forms, Inc., 288 NLRB 796 fn. 3 (1988); Taylor & Gaskin,
Inc., 277 NLRB 563 fn. 2 (1985); Springfield Manor, 295
NLRB 17 fn. 2 (1989). Respondent has failed to discharge
that burden.
In contending that Bidwell would in any event have been
discharged because of his alleged ‘‘no call no show’’ on
April 25, Respondent railage partly on its July 1987 letter to
the Union stating that as to tardiness and failure to call in
before an intended absence, an employee would receive a
warning letter for the first offense, a ‘‘final warning letter’’
and a 1-day suspension for the second offense, and a dis-
charge for the third offense. However, Bidwell’s ‘‘second
warning letter’’ for tardiness was issued outside the 6-month
limitation period testified to by Blake and, rather then un-
equivocally stating that Bidwell would be discharged for a
third offense, advised him that ‘‘your failure to follow in-
structions in the future will subject you to stronger discipli-
nary action us to and including discharge’’ (emphasis sup-
plied). Respondent also relies on management’s testimony
that Respondent follows the practice of discharging an em-
581ADVANCE TRANSPORTATION CO.
36 ‘‘Eventually, somebody just doesn’t care to fill [the daily trip card] out
correctly. We send them a warning letter on that. That is failure to follow in-
structions. If you don’t call in or show up for [work], that is very clearly stat-
ed a serious offense. We send them a warning letter for that.’’
37 NLRB v. Western Clinical Laboratory, 571 F.2d 457, 460 (9th Cir. 1978);
Scranton Lace Co., 294 NLRB 249 (1989); Fuqua Homes (Ohio), 211 NLRB
399 (1974); Longshoremen Local 1329 (Metals Processing Corp.), 252 NLRB
229 (1980); Better Monkey Grip Co., 115 NLRB 1170, 1171 (1956), enfd. 243
F.2d 836 (5th Cir. 1957), cert. denied 353 U.S. 864 (1957). See generally
Eastex, Inc. v. NLRB, 437 U.S. 556, 565–570 (1978).
38 NLRB. v. Burnup & Sims, 379 U.S. 21, 22–24 (1964); Richmond Record-
ing Corp. v. NLRB, 836 F.2d 289, 295 (7th Cir. 1987); Quality Inn Albany,
283 NLRB 1146 fn. 2 (1987); Pioneer Press, 297 NLRB 972 (1990).
ployee upon his receiving a total of three warning letters for
the same offense. However, Respondent has failed to dis-
charge its burden of showing either that Respondent in fact
follows this practice, or that Bidwell’s failure to call in on
April 25 constituted a third offense in the same category.
Thus, although the discharge letter states that Bidwell’s fail-
ure to call in constituted a ‘‘failure to follow instructions,’’
and similarly described the offenses set forth in all three of
the warning letters (dated October 21, November 16 and 17,
1988) which the discharge letter refers to, Bidwell was not
in fact discharged in connection with the November 17 warn-
ing letter, which merely advised him of a 1-day suspension
and that further incidents of failure to follow instructions
would result in ‘‘more severe disciplinary action,’’ without
giving any specifics. Further, although the body of the Octo-
ber 21, 1988 warning letter for tardiness, and Close’s testi-
mony before me, characterize such tardiness as ‘‘failure to
follow instructions,’’ in April 1989 Horvath (who was sent
a courtesy copy of this October 1988 letter) testified before
Judge Evans, in effect, that tardiness and failure to follow in-
structions are two different categories of offenses. Moreover,
there is no evidence, other than Respondent’s action in label-
ing all three offenses as ‘‘failure to follow instructions,’’ that
Respondent customarily includes in the same category of-
fenses like the unauthorized stop which was the subject of
the November 17 warning letter, and the failure to make trip-
card notations which is the subject of the November 16
warning letter, and the alleged ‘‘no call no show’’ which al-
legedly triggered Bidwell’s April 26 discharge; indeed,
Close’s testimony suggests that he regards at least the latter
two offenses as falling into two different categories.36 Fur-
thermore, Blake testified before Judge Evans that Blake’s
ability to terminate an employee depends on how he cat-
egorizes each offense that the driver was charged with.
For the foregoing reasons, I find that by discharging
Bidwell, Respondent violated Section 8(a)(1), (3), and (4) of
the Act.
My analysis up to this point has assumed, sub silentio, that
the legality of Bidwell’s discharge turns on whether at least
part of the real reason for his discharge was Respondent’s re-
sentment of his activity in connection with the compulsory
profit-sharing plan and of his April 24 conduct in testifying
before Judge Evans, as the General Counsel contends, or
whether (as Respondent contends) the real triggering reason
was solely his alleged ‘‘no call no show’’ on April 25. How-
ever, it is undisputed that Bidwell’s absence on that day was
due to the fact that he was still under Board subpoena; and
by Respondent’s own admission, Bidwell so advised Re-
spondent before it discharged him. Compliance with a Board
subpoena constitutes an activity protected by Section 7 of the
Act.37 Accordingly, Respondent could not lawfully discharge
Bidwell for alleged misconduct in connection with that ab-
sence if such misconduct did not in fact occur.38 I have
found that Bidwell did not in fact engage in the misconduct
which Respondent attributes to him in connection with his
April 25 absence from work in compliance with the Board’s
subpoena—namely, failure to give Respondent advance no-
tice of his absence. More specifically, I have found that at
about 6 a.m. on April 24, Bidwell advised Respondent’s
dock foreman that Bidwell’s attendance at the Board hearing
would likely require his absence on April 25 as well as on
April 24; I infer from Close’s April 26 discharge letter,
which relied in part upon Bidwell’s alleged failure to advise
Respondent on April 24 that he might be absent on April 25
as well as on April 24, that this April 24 notification was
sufficient to comply with Respondent’s call-in rule. More-
over, I have found that before Bidwell left his residence for
the Board’s office on April 25, he tried to telephone Re-
spondent that he would be absent on that day but was unable
to get through; indeed, it is undisputed that before his dis-
charge, he advised Respondent of his unsuccessful efforts to
call in on April 25. Accordingly, Bidwell’s discharge vio-
lated the Act whether or not it was really motivated partly
by Respondent’s failure to receive a telephone call from him
on April 25 that he would not be in that day.
My discussion up to this point has attached no particular
significance to the fact that the statutorily protected activity
which caused Bidwell’s April 25 absence from work was his
presence at the Board’s office under subpoena. However, the
evidence shows that Bidwell made a reasonable effort to
comply with Respondent’s call-in rule, by attempting to use,
at about 6:15 and 6:45 a.m. on April 25, the toll free line
which he ordinarily used for this purpose. Because Respond-
ent’s switchboard operator does not go on duty until 8 a.m.,
by the time he found out that the toll free line was not work-
ing properly there was no means by which he could have
complied with Respondent’s rule requiring him to call in by
7 a.m. and also reached the Board’s office by 8 a.m., the
hour Iserson had told him to arrive. Accordingly, and be-
cause before being discharged Bidwell told Respondent why
he was absent on April 25, I conclude that Respondent vio-
lated the Act by discharging Bidwell on the basis of his
April 25 ‘‘no call no show,’’ even assuming that Respondent
would have discharged him if he had been absent, without
being able to call in, for other reasons. See Western Clinical
Laboratory, 225 NLRB 725 (1976), enfd. in material part
571 F.2d 457, 460 (9th Cir. 1978); U.S. Precision Lens, 288
NLRB 505 (1988).
Under the circumstances of this case, I attach no signifi-
cance to Bidwell’s failure to attempt to reach Respondent
through its commercial line. Respondent could not be
reached through that line until 8 a.m., 1 hour after the latest
time Bidwell was supposed to call in under Respondent’s
rules. Moreover, there is no evidence that Respondent would
have acted differently if Bidwell had unsuccessfully tried to
reach Respondent before 7 a.m. on that line, or if Bidwell
had reached Respondent on that line after 8 a.m. Indeed,
there is no evidence that Respondent at any material time
asked Bidwell which line or lines he had tried to use. Al-
though Bidwell did not try to use Respondent’s commercial
number after his 8:15 to 8:45 a.m. arrival at the Board’s of-
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
40 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
fice, Respondent would not have benefitted much, if at all,
from receiving at that hour any clarified or new information
about whether Bidwell was coming to work that day. Most
of the drivers are dispatched, like Bidwell, at 8 a.m.; and the
purpose of the call-in rule is to enable Respondent to arrange
for an extra or replacement driver, or another cartage com-
pany, to haul any load to which the absent driver would oth-
erwise have been assigned after reporting to work.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1), (3), and (4) of
the Act by discharging Harry Bidwell.
4. Such unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be required to
cease and desist therefrom, and from like or related conduct,
and to take certain affirmative action necessary to effectuate
the policies of the Act. Affirmatively, Respondent will be re-
quired to offer Bidwell immediate reinstatement to the job of
which he was unlawfully deprived, or, if such a job no
longer exists, to a substantially equivalent job; and to make
him whole for any loss of pay (less net interim earnings) or
other benefits he may have suffered by reason of his unlaw-
ful discharge. Loss of pay is to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
All sums due herein are to be paid with interest as called for
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Also, Respondent will be required to expunge from its files
any reference to Bidwell’s suspension and termination on
April 26, 1989, his alleged action in calling in sick on April
24, 1989, and his alleged ‘‘no call no show’’ on April 25,
1989, and notify him that this has been done and that evi-
dence of such action will not be used as a basis for future
personnel actions against him. See Sterling Sugars, 261
NLRB 472 (1982). In addition, Respondent will be required
to post appropriate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended39
ORDER
The Respondent, Advance Transportation Company, Bed-
ford Park, Illinois, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because they have engaged in
protected concerted activities.
(b) Discouraging membership in Highway Drivers,
Dockmen, Spotters, Rampmen, Meat, Packing House and Al-
lied Products Drivers and Helpers, Office Workers and Mis-
cellaneous Employees, Local Union Number 710, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, or any other labor
organization, by discharging employees or otherwise dis-
criminating in regard to hire or tenure of employment or any
term or condition of employment.
(c) Discharging or otherwise discriminating against em-
ployees because they have filed charges or given testimony
under the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Harry Bidwell immediate and full reinstatement
to the job of which he was unlawfully deprived or, if such
a job no longer exists, to a substantially equivalent job, with-
out prejudice to his seniority or other rights or privileges pre-
viously enjoyed.
(b) Make Harry Bidwell whole for any loss of earnings
and other benefits suffered as a result of his discharge, in the
manner set forth in the remedy section of this decision.
(c) Remove from its files any reference to Harry Bidwell’s
suspension and termination on April 26, 1989, his alleged ac-
tion in calling in sick on April 24, 1989, and his alleged ‘‘no
call no show’’ on April 25, 1989, and notify him in writing
that this has been done and that evidence of such action will
not be used as a basis for future personnel action against
him.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in Bedford Park, Illinois, copies of
the attached notice marked ‘‘Appendix.’’40 Copies of the no-
tice, on forms provided by the Regional Director for Region
13, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
583ADVANCE TRANSPORTATION CO.
WE WILL NOT discharge you because you have engaged in
protected concerted activities.
WE WILL NOT discourage membership in Highway Driv-
ers, Dockmen, Spotters, Rampmen, Meat, Packing House and
Allied Products Drivers and Helpers, Office Workers and
Miscellaneous Employees, Local Union Number 710, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, or any other union,
by discharging you or otherwise discriminating in regard to
hire or tenure of employment or any tern or condition of em-
ployment.
WE WILL NOT discharge or otherwise discriminate against
you because you have filed charges or given testimony under
the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under
the Act.
WE WILL offer Harry Bidwell immediate and full reinstate-
ment to the job of which he was unlawfully deprived or, if
such a job no longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights or privileges
previously enjoyed.
WE WILL make Harry Bidwell whole, with interest, for any
loss of earnings and other benefits suffered as a result of his
discharge.
WE WILL remove from our files any reference to Harry
Bidwell’s suspension and termination on April 26, 1989, his
alleged action in calling in sick on April 24, 1989, and his
alleged ‘‘no call no show’’ on April 25, 1989, and notify
him in writing that this has been done and that evidence of
such action will not be used as a basis for future personnel
action against him.
ADVANCE TRANSPORTATION COMPANY