Bestway Trucking

National Labor Relations Board - Board Decisions

Mar 12, 1993

310 N.L.R.B. 651 (N.L.R.B. 1993)

651
310 NLRB No. 113
BESTWAY TRUCKING
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Drywall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent also has excepted, inter alia, to the judge’s failure
to make any findings of fact regarding the testimony of the Re-
spondent’s certified public accountant, Christopher J. Bechtler.
Bechtler’s entire testimony related to the Respondent’s decision to
discontinue one phase of its business (the ‘‘less than truckload’’ or
‘‘LTL’’ phase) because it was not profitable. We note that the judge
specifically found that the Respondent’s decision to discontinue the
LTL business was not alleged as a violation of the Act. Thus, we
find that Bechtler’s testimony is immaterial to any issue presented
in the case. Accordingly, we find that the Respondent was not preju-
diced by the judge’s failure to specifically address this testimony on
a collateral matter and that he did not err in disregarding it.
1 All subsequent dates are between Febraury 1, 1991, and January
31, 1992, unless otherwise indicated.
2 Some punctuation of long quotations is supplied; extraneous us-
ages of ‘‘you know,’’ ‘‘okay,’’ ‘‘uh,’’ and the like are omitted. I
also omit repeated usages of ‘‘I said’’ or ‘‘he said’’ where a witness
is continuing a long quote. The following corrections to the record
are ordered: p. 73, L. 2, ‘‘Hardy’s’’ is ‘‘Carney’s’’; p. 86, L. 11,
‘‘meeting’’ is ‘‘needing’’; p. 154, L. 6 (and elsewhere), ‘‘outlawed’’
is ‘‘out loud’’; p. 186, L. 21, ‘‘personality’’ is ‘‘dramatis personae’’;
p. 277, L. 24, ‘‘alive’’ is ‘‘allied’’; p. 453, L. 23, ‘‘write’’ is
‘‘drive’’; and p. 481, L. 22, ‘‘oathes’’ is ‘‘those.’’
Bestway Trucking, Inc. and Douglas McDaniel and
John S. Bouchey and Michael R. Murphy and
Edward Carney and Jimmie Story and Richard
W. Stump and Donald Walker and Elijah
Pasley. Cases 9–CA–28843–1, 9–CA–28843–2,
9–CA–28843–3, 9–CA–29255–1, 9–CA–29255–2,
39–CA–29255–3, 9–CA–29255–4, and 9–CA–
29255–5
March 12, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 7, 1992, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent 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 exceptions1 and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions 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, Bestway Trucking, Inc.,
Jeffersonville, Indiana, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
David L. Ness, Esq., for the General Counsel.
I. Joel Frockt, Esq. (Frockt & Klingman), of Louisville, Ken-
tucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This matter
before the National Labor Relations Board (the Board) was
tried before me in Louisville, Kentucky, on March 18–20,
1992. On March 2, 1992, the General Counsel issued a con-
solidated complaint and notice of hearing (the complaint)
which alleges violations of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act) by Bestway Trucking,
Inc. (the Respondent). The complaint is based on charges
filed by eight individuals, to wit: On August 20, 1991, Doug-
las McDaniel1 filed the charge in Case 9–CA–28843–1; on
August 23, John S. Bouchey and Michael R. Murphy filed
the charges in Cases 9–CA–28843–2 and 9–CA–28843–3, re-
spectively; and on January 22, Edward Carney, Jimmie
Story, Richard W. Stump, Donald Walker, and Elijah Pasley
filed the charges in Cases 9–CA–29255–1 through 9–CA–
29255–5, respectively. The charges and the complaint allege
that Respondent discharged, outright or constructively, the
Charging Parties because of their union or protected con-
certed activities, including their memberships in, or activities
on behalf of, General Drivers, Warehousemen and Helpers,
Local Union No. 89, a/w the International Brotherhood of
Teamsters, AFL–CIO (the Union). As well as by the dis-
charges, the complaint alleges that Respondent violated Sec-
tion 8(a)(3) by other forms of discrimination against the
Charging Parties, including a written warning notice to Mur-
phy and more onerous work assignments to all of the Charg-
ing Parties except McDaniel. Also, the complaint alleges
that, by its supervisors and agents, Respondent interrogated
one employee and threatened several employees, and the
complaint alleges that Respondent conducted surveillance of
an employees’ organizational meeting, all in violation of Sec-
tion 8(a)(1) of the Act.
Respondent duly answered the complaint, admitting juris-
diction of this matter before the Board and the status of cer-
tain supervisors under Section 2(11) of the Act, but denying
the commission of any unfair labor practices as defined by
the Act.
On the testimony and exhibits in the record,2 on my obser-
vations of the demeanor of the witnesses, and on consider-
ation of the briefs that have been filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and truck ter-
minal in Jeffersonville, Indiana, where it is engaged in the
business of hauling freight on a local and interstate basis.
During the year preceding the issuance of the complaint, in
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the conduct of that business, Respondent derived gross reve-
nues in excess of $50,000 for the transportation of freight
from its terminal directly to points outside Indiana.
Therefore, Respondent is now and has been at all times
material an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, and the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. FACTS OF THE CASE
A. Respondent’s Operations and the Discharge
Allegations
Respondent began operations in 1983. Before July 15, Re-
spondent operated its local and long-distance trucking serv-
ices from a terminal in Louisville; about July 15, the ter-
minal facilities were moved to Jeffersonville, Indiana, which
is just across the Ohio River from Louisville. The coowners
of Respondent are David Summitt and Henry Benningfield.
Summitt is also company president and chief executive offi-
cer; Benningfield is corporate secretary-treasurer. Since May
1990, Hardy Bullock has been director of operations; he di-
rectly supervises Respondent’s dispatchers and over-the-road
truckdrivers; other drivers are directly supervised (or, at
least, given their assignments) by the dispatchers. Respond-
ent had two daytime dispatchers at the time that this case
arose, Fred Chinn and John Thomas; its evening dispatcher
was Louis Robertson. Respondent admits that all of these in-
dividuals, except Thomas, were supervisors within Section
2(11) and agents within Section 2(13).
Thomas was discharged by Respondent on August 10. He
gave testimony that was extremely adverse to Respondent.
The General Counsel introduced no evidence in support of
the allegation that Thomas was a supervisor or agent of Re-
spondent and does not discuss the point on brief. Thomas is
not alleged to have engaged in any conduct which would
bind the Respondent; his only role in this case was to give
testimony about alleged conduct and admissions of admitted
supervisors, testimony that would neither be enhanced nor di-
luted by a conclusion that Thomas was a statutory super-
visor. Accordingly, I shall recommend dismissal of the alle-
gation that Thomas was Respondent’s supervisor within Sec-
tion 2(11) (or an agent within Sec. 2(13)), rather than burden
this decision with a pointless analysis of the (nonconflicting)
evidence which might point one way or another.
On February 23, pursuant to a petition filed by the Union,
the Board conducted an election among Respondent’s em-
ployee truck drivers and mechanics. There were approxi-
mately 40 eligible voters; 9 voted for union representation;
36 voted against; and there were 4 challenged ballots.
At the time of the election Respondent’s business con-
sisted of three types of runs: over-the-road runs which were
conducted by nonemployee owner-operators as well as em-
ployees, local runs, and ‘‘Bloomington runs.’’ The over-the-
road runs went anywhere in the United States; the local runs
covered a 150-mile radius from Louisville; and the Bloom-
ington runs were twice daily, 90-mile, runs between Louis-
ville and a General Electric plant in Bloomington, Indiana.
General Electric in Bloomington shuts down three or four
times a year for periods of up to 3 weeks. During the
‘‘Bloomington shutdowns,’’ as they were called, the
‘‘Bloomington drivers,’’ as they were called by the witnesses
(including Summitt), were assigned to other truck driving du-
ties as needed. The General Counsel contends that, before the
events of this case, Bloomington drivers were never sent on
overnight trips during Bloomington shutdowns. As I find,
infra, the General Counsel failed to prove this contention.
The over-the-road runs performed by some of Respond-
ent’s employees (and owner-operators) required drivers regu-
larly to be away from the Louisville/Jeffersonville area for
several nights at a time; the local and Bloomington drivers
were able to be home each night (or most of each night).
The complaint alleges that on August 7 Respondent dis-
charged Murphy, Bouchey, and McDaniel in violation of
Section 8(a)(1) and (3) of the Act. The activity about which
most of the General Counsel’s case revolves was the com-
position and sending of a letter from Murphy to Summitt; the
letter was misdated, but it was received by Summit on July
27, and I shall refer to it as the ‘‘July 27 letter.’’
On January 10, Respondent changed from the classifica-
tion of local or Bloomington drivers, to the classification of
over-the-road drivers, Carney, Story, Stump, Walker, and
Pasley. The five employees quit rather than accept those
changes in classifications. The General Counsel contends that
the over-the-road jobs were so much more difficult and un-
pleasant than the local or Bloomington jobs that the five em-
ployees were forced to resign. The General Counsel contends
that Respondent reclassified these five individuals, and then
constructively discharged them, because of their known or
suspected union or protected concerted activities or sym-
pathies and that, by this conduct Respondent also violated
Section 8(a)(3) of the Act.
B. Background
Thomas testified that about 3 days before the February 23
election, Summitt asked him and Benningfield to write down
the names of drivers whom they thought would vote for the
Union. Thomas wrote 10 names, three of which are those of
Charging Parties Pasley, Story, and Walker. Thomas testified
that immediately after the election, he again met with
Summitt and Benningfield. Summitt asked Thomas and
Benningfield to list those whom they thought had voted for
the Union. Benningfield and Thomas agreed on some, in-
cluding Story and Pasley, but not on others. According to
Thomas, Summitt concluded the discussion with the com-
ment: ‘‘[W]ell, it don’t matter. It’s history; . . . we won by
[a] three-to-one vote, and those drivers will have their day.’’
Summitt admitted going over the list of employees with
Thomas and Benningfield before the election. He was not
asked by Respondent if he, Benningfield and Thomas went
over lists of voters after the election. Instead, on direct exam-
ination, Summitt was only asked, and he testified:
Q. Shortly after the election in February of 1991—
and I mean that evening—did you make a statement to
Mr. Thomas to the effect that, ‘‘those drivers will have
their day?’’
A. No, sir.
That is, rather than ask if there was another head-count meet-
ing after the election, and what was said, and calling for a
specific denial (if there was one to be made), Summitt was
simply led to this denial, and Respondent left the matter at
that. This came after repeated objections by the General
653BESTWAY TRUCKING
3 I refer to Thomas’ response to Respondent’s question about
which employees he placed on a ‘‘seniority’’ list.
4 This is especially true about Bullock’s testimony.
5 The complaint does not allege this interrogation to have been
violative of Sec. 8(a)(1). 6 Murphy did not mention the June meeting at this point.
Counsel and warnings by myself that answers to such lead-
ing questions, and answers to questions that called for ulti-
mate conclusions, would be difficult, or impossible, to credit.
John Thomas is not an individual who bears discernable
traits of attractive character; he engaged in profanity to an-
swer a question that did not call for a quotation; later he
feigned confusion at my instruction about using, versus
quoting, profanity. At another point, Thomas gave an answer
which can only be categorized as insolent and insulting to
forum.3 Moreover, Respondent proved that Thomas bears a
seething antipathy toward Summitt and Respondent; Thomas
was not called in rebuttal to deny testimony that he threat-
ened Summitt with bodily harm after Thomas’s discharge.
Because ofthese elements, and elements mentioned elsewhere
in this decision, it is clear to me that Thomas was present
for an agenda other than presenting the whole truth.
Therefore, I decline to credit Thomas except where his tes-
timony is undenied or where I found Respondent’s witnesses
even more incredible than Thomas because of the objectional
nature of the questions they sometimes answered, because of
their demeanor, because of incredible claims of lack of mem-
ory,4 or because of the extrinsic facts that otherwise belied
their testimony.
On the instant credibility question, Thomas’s testimony
was more credible than Summitt’s denial, especially in view
of the objectional nature of the question that was put to
Summitt, and I credit Thomas.
In February, Stanley Houghton was a (nonunit) billing
clerk. Houghton credibly testified that a few days after the
election Summitt asked him who he thought had voted for
the Union. Houghton also named Pasley and Story, as well
as two others. Summitt admits going over ‘‘yes’’ and ‘‘no’’
votes with Houghton after the election, but he testified that
Houghton interrogated him, not the other way around. I cred-
it Houghton.5
Bouchey and Stump were hired on February 3 and 4, re-
spectively; Murphy was hired on March 4. Each was hired
as a Bloomington driver. Bouchey and Murphy remained
Bloomington drivers until their discharges on August 7.
Stump was made a local driver in May, and he remained
such until January 10.
In early May, Murphy, Bouchey, and Stump went to
Summitt’s office to ask for higher wages for the Bloom-
ington drivers. Murphy was spokesman for the group. After
Murphy had his say, Summitt replied that all drivers were
evaluated each June and that he would be talking to the driv-
ers after that evaluation.
About June 1, with the encouragement of Thomas, Mur-
phy contacted a representative of the Union. Murphy was
told that, because there had been an election among Re-
spondent’s truckdrivers in February, it would be too early to
start circulating union authorization cards until October or
November.
In mid-June, when no raises were forthcoming, Murphy,
Bouchey, and Stump again went to see Summitt about wages
and other employment benefits of the local and Bloomington
drivers. Summitt told the employees that the matter was still
being studied. At the time of this second meeting, Bouchey’s
wife was ill. Bouchey testified that he asked if he could be
at home during a Bloomington shutdown that was scheduled
for August 5. According to Bouchey and Murphy, Summitt
acknowledged that in the past it ‘‘wasn’t a problem’’ to as-
sign the Bloomington drivers to nonovernight runs during
previous Bloomington shutdowns. Further, according to
Bouchey and Murphy, Summitt, in effect, promised that Re-
spondent would not make over-the-road assignments to the
Bloomington drivers during the scheduled August 5 Bloom-
ington shutdown.
The General Counsel relies heavily on this testimony to
support the allegation that Murphy, Bouchey, and Carney
(another Bloomington driver) were unlawfully given over-
the-road runs during the August 5 Bloomington shutdown.
Summitt testified that he told Bouchey that Respondent
would do its best to make it possible for the drivers to be
at home overnight during the Bloomington shutdown, but
that he made no promises.
I do not believe that Summitt promised the employees that
Respondent would not send the local and Bloomington driv-
ers on overnight trips during the August 5 shutdown. If the
matter had been certain, and there had been such an ironclad
past practice that Summitt allegedly admitted to have existed,
there would have been no point in asking about it, as the em-
ployees did. Moreover, it is undisputed that, at all times ma-
terial in this case, Respondent needed over-the-road drivers.
Without better evidence, I cannot find that Summitt, just for
the asking, irrevocably cut Respondent off from the potential
source of over-the-road drivers that the Bloomington drivers
would present at the inception of the August 5 Bloomington
shutdown.
However, this is not to say that I do not believe the testi-
mony that Summitt said that Respondent had been able to as-
sign nonovernight runs to Bloomington drivers in the past.
Summitt did not deny that part of Bouchey’s testimony.
C. Murphy’s July 27, 1991 Letter
During the week of July 22, Murphy drafted a four-page
letter to Summitt. Murphy testified that, when he finished it,
he took the letter to Respondent’s office area where he met
Benningfield. Murphy asked Benningfield if he could use the
copying machine to copy a letter. Benningfield told Murphy
that he could. Murphy did not know how to operate the copi-
er; Benningfield showed him. When Murphy finished, he
gave a copy to Benningfield. Benningfield did not deny this
testimony.
Murphy sent the letter, certified, to Summitt. Summitt re-
ceived the letter on Saturday, July 27. (Murphy also left a
copy of the letter at the machine; the copy was found by a
secretary, and then everybody knew about it, even before
July 27.)
Murphy states in the letter, among other things, that: (1)
he, Stump, and Bouchey had waited for answers to their mid-
May requests6 but had gotten nothing; (2) the three employ-
ees had done an ‘‘in-depth study’’ and found that Respond-
ent was paying lesser benefits than three other lines handling
Bloomington-Louisville freight; (3) the Bloomington and city
drivers needed more money, better insurance, and better
overtime pay; (4) the Bloomington and city drivers were
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 As noted, Murphy, Stump, and Bouchey were not employed by
Respondent at the time of the February 23 election.
8 As he admits, Summit used the word ‘‘threatening’’ in this con-
versation. Also, see the word ‘‘threat’’ as used in Summitt’s reply
letter quoted below.
working hard but being ‘‘neglected’’; (5) when the other7
employees had voted againstthe‘‘TEAMSTERS’’ (capitaliza-
tion original), they gave Summitt a chance to be fair; (6)
‘‘Rumor has it that the TEAMSTERS will return again’’; (7)
Summitt should meet with some of the employees and reach
an agreement ‘‘allowing Bestway to continue on, without or-
ganized labor’’; (8) Summitt should ‘‘feel free’’ to talk to
Murphy about these topics, and Murphy will ‘‘make myself
available, upon request, anytime’’; and (9) ‘‘Union[s] can
make companies and they can break companies.’’
On July 30, when Murphy next reported to work, Summitt
called him to a glass-enclosed space in the dispatch area. Ac-
cording to Murphy:
He asked me why I had to send a certified letter to
him. . . . He asked me what I wanted. I said we had
talked about money. And he says, ‘‘No.’’ He says,
‘‘What do you—What’s the idea behind the letter?’’
And I said, ‘‘I want better working conditions for the
people at Bestway.’’ He was furious because I had sent
the letter certified. And he says—He reminded me that
we had an open-door policy. I told him that the open-
door policy hadn’t worked thus far, that I had visited
him in his office twice with no real response and he
constantly avoided the issue. So, I wanted to document
my efforts in letter form and make sure that he did re-
ceive it. . . . And [Summitt] says, ‘‘You’ve put a lot
of pressure on me, Mike. This certified letter . . . I’ve
never had anyone to ever send me something like that.
I’m boiling mad. I’m not going to take this lightly.
We’ve went through this union thing once already and
I’m not going through it again. Don’t be foolish and
back me into this corner ’cause I’ll do things that
. . . . When I’m backed in a corner, I’ll do things that
I ordinarily wouldn’t do.’’ I asked him if that was a
threat and he said, ‘‘Take it any way you want to.
. . .’’
He said repeatedly that he didn’t think that this was
going to get any place, that I was headed for trouble
and that I had broke the law in trying to get a union
to come back in again. He said, ‘‘Did you know you
have a waiting period? We’ve done went through this
stuff. I could put your ass on the street today. It’s—I’ve
done it once and I can do it again.’’ Then he got into
this letter, that I had mailed him this ‘‘threatening’’[8]
letter, again, telling me that his attorney . . . had ad-
vised him to prosecute me for that letter and that he—
he wasn’t for sure at this time what he was going to
do about it, but we might have to have another meeting
because he, too, had sent me a letter. And he said,
‘‘You might find it offensive, as well.’’ Then he . . .
said to me that I was a union guy, trying to start some
trouble with the people at Bestway; there’s going to be
a lot of innocent people to lose their jobs. . . . I told
him that I was going to press on for the union because
I believed in what I was doing and I tried to show him
that by sending the letter to him. . . . He said, ‘‘Well,
the issue . . . is there’s not a union at Bestway.
Bestway will never be union and any employee trying
to . . . trying to get a union to come in will be dealt
with accordingly. I think you understand where I’m
coming from. Don’t be the chicken that lays his head
on the chopping block. . . . I said, ‘‘Is that a threat?’’
And he says, ‘‘You take that any damn way you want
it. I’m just telling you. Don’t back me in a corner,
Mike. I’m serious about this. Don’t back me in no cor-
ner.’’ That is. . . . That’s what took place in the
meeting, sir.
Murphy was asked to think and see if he had left anything
out. Murphy then testified:
Oh, yeah. There was one thing. I informed him at
the meeting that I was going to try to take and get the
opinion from the rest of the drivers and dock people
there about what they wanted and try to . . . try to find
out what they really wanted and what they were look-
ing for that would make Bestway a better place to
work. And I told him that we were going to have a
. . . that I had planned on having a meeting with the
men and he asked me. . . . He was concerned about
this. He said, ‘‘Do you know where you’re going to
have this meeting?’’ And I told him that a good possi-
bility would be a restaurant very close to the terminal
that drivers from Bestway frequent and I would prob-
ably use it, Jerry’s Restaurant. He said, ‘‘You got an
idea when this meeting’s going to take place?’’ I said,
‘‘Well, I would like to get started on immediately.
There’s a good possibility that we can get something
done this week, Saturday.’’ He said, ‘‘Great.’’ I think
you’re going to find out that I’m a fair person. You’re
going to hear that from a lot of people.’’
Then Murphy testified that his August 30 confrontation with
Summitt ended at the reference to Jerry’s Restaurant.
Summitt was asked on direct examination, and he testified:
Mr. Murphy had asked me how things was going,
casual talk to come into the meeting. I said that we was
getting a little better organized from the [July 15]
move. And he asked me . . . if I had received his let-
ter. And I said, yes, I had received his letter. My next
comment was, ‘‘Everybody in the office knew that I
was getting the letter before I got the letter. . . . I told
Mr. Murphy that two different people within the office,
Ron Block and Beverly Raney, had told me that I was
going to be getting a certified letter. . . . Mr. Murphy
didn’t really have a comment on that. The next part of
the conversation was, Mr. Murphy asked me what I
thought of it. And I told him I felt that it was a force-
ful, threatening type letter. . . . He denied it. He said
he thought the letter was . . . a normal type business
letter.
Summitt further testified that he told Murphy that Respond-
ent was paying the best wages that it could; Murphy said that
the wages were not acceptable; Summitt replied that Murphy
knew what the wages were when he took the job; further
that:
655BESTWAY TRUCKING
9 Murphy had dated his letter ‘‘August 1’’; however, he had
mailed earlier, and Summitt had received it on July 27.
[Murphy] said, ‘‘If you don’t do some things around
here to improve the pay and benefits, you’re going to
have a Union back in here. . . . I’m talking to you
as your friend, that if you talk to me and tell me what
you’re capable of doing, I will talk to the drivers for
you.’’ And I told Mr. Murphy, ‘‘Mr. Murphy, I have
an open-door policy. If the drivers have a problem, they
can come see me.’’
Summitt further testified that he offered Murphy an over-the-
road job if he wanted to make 2 cents per mile more, but
Murphy declined stating that he had taken employment with
Respondent ‘‘to run Bloomington.’’ Summitt testified that,
several times, Murphy stated that
[H]e felt that I was backing him into a corner, that
I wasn’t leaving him any way out, that he wasn’t going
to settle for what I had told him, that he was going to
keep on until we increased our pay. We sat there for
just a few seconds in conversation, general conversa-
tion. Mr. Murphy said, ‘‘I think you know I’m going
to keep trying to get more money and better benefits
for these drivers, that they deserve it.’’ I said, ‘‘Mr.
Murphy, I wouldn’t expect anything less of you but to
do so.’’ He stood up and he said, ‘‘Well, a lot of peo-
ple around here tell me I’m going to be fired for writ-
ing you this letter.’’ And I said, ‘‘No, sir.’’ I said, ‘‘I
will tell you up front that I did not agree with the letter,
especially since it was, in my opinion, a forceful let-
ter.’’ And [I commented that] certain words, like Union
Local 89, were printed in a different print than normal
print. And that he referred to other – that his working
conditions were bad. And he referred to other carriers,
non-Union carries, as he put it in his letter. And I told
Mr. Murphy, I said, ‘‘Two of these carriers are, in fact,
Union carriers.’’ We went on for a few minutes. And
Mr. Murphy said, ‘‘Well, I don’t think the letter is
forceful. And people tell me I’m going to be fired for
doing so.’’ I told Mike, I said, ‘‘No, sir. I did take the
letter personal. You [will] have my reply in the mail.’’
I said, ‘‘Have you got it?’’ And he said, ‘‘No.’’ And
I said, ‘‘Well, then, I suggest you read my reply and
get back to me at a later date.’’
Summitt further testified:
When Mr. Murphy had told me that he felt like he
was being backed into a corner, and I told him in re-
turn, I said, ‘‘Well, I feel like you’re backing me into
a corner because I have no alternatives.’’
Summitt denied telling Murphy that he was ‘‘boiling mad’’;
that he would not take the matter lightly; that Murphy’s ap-
proach would cause him to do things that he ordinarily
would not; that he told Murphy that he would ‘‘put your ass
on the street;’’ that Murphy could be prosecuted for sending
the letter; that innocent people would lose their jobs as a re-
sult of Murphy’s conduct (Summitt testified that he told
Murphy that if Respondent had to raise its prices, the Bloom-
ington run, and everyone’s job, could be lost); that anyone
who assisted the Union would be ‘‘dealt with accordingly’’;
or that he told Murphy not to be ‘‘a chicken with his head
on the block.’’
Summitt denied that any drivers’ meetings were mentioned
in his conversation with Murphy.
Murphy was asked on cross-examination and testified:
Q. Did he say ‘‘I’m boiling mad?’’
A. No, sir. I assumed that because of the way he
looked and the way he spoke and . . . .
The entirety of the General Counsel’s case for actual
knowledge of McDaniel’s union activities rests on Respond-
ent’s surveillance of the August 3 meeting, and Murphy as-
suredly knew it. If Murphy thought that his tipping Summitt
off had caused McDaniel’s discharge, it is unlikely that Mur-
phy would have forgotten this in his first attempt to narrate
his confrontation with Summitt. I believe that Murphy would
have forgotten this part of the narrative on his first attempt
only if it had not really happened. Moreover, I do not believe
that Summitt would have said that he thought the Saturday
drivers’ meeting would be ‘‘great’’ because it would be an
opportunity to find out that Summitt was a fair man. Nor do
I believe that Summitt asked where the meeting was; and I
certainly do not believe that Murphy told him. As Murphy
testified, Summitt had already said that ‘‘innocent people’’
would lose their jobs over what Murphy was doing. Murphy,
who is not unintelligent, would have been most unintelligent
to have told Summitt where the meeting was going to be and
potentially subject the other ‘‘innocent’’ drivers to what
Summitt was threatening. (Also, being obviously fearless for
himself, Murphy would not have had the least compunction
about refusing to answer Summitt’s question, or, at least, he
would have attempted evasiveness.) Finally, there was a per-
ceptible change in Murphy’s demeanor as he started his pre-
viously forgotten, ‘‘oh, yeah,’’ testimony about telling
Summitt about the coming meeting at Jerry’s Restaurant;
Murphy assumed a seemingly feigned air of insouciance at
that point, and he became incredible for this part of his testi-
mony.
I found Summitt credible in his denials of a mention of
an employee meeting while he and Murphy conversed, and
Summitt credibly denied the statement about the ‘‘chicken.’’
Otherwise, however, I credit Murphy’s testimony, as amend-
ed by his acknowledgement of a seemingly honest confusion
between his impression of Summitt being ‘‘boiling mad’’
and Summitt’s saying that he was ‘‘boiling mad.’’ Murphy
had a more credible demeanor, except on his testimony about
the coming driver meeting, and I do not believe Summitt ap-
proached the confrontation in the dispassionate mood that he
sought to portray. I fully believe that Summitt, as he ac-
knowledged on cross-examination, really did feel that Mur-
phy’s letter was ‘‘threatening and coercive.’’ Moreover,
Summitt’s remarks, as quoted by Murphy, are fully con-
sistent with the letter which Summitt sent Murphy and
which, as I find and conclude infra, included a violative
threat and written warning.
Summitt’s letter to Murphy, dated July 29 begins:
This letter is written in response to yours of August
1, 1991.9 The letter appears on its face to be a threat
and [an] attempt to coerce the management of the cor-
poration. This type of behavior is totally inappropriate
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for an employee who has been with the company less
than five (5) months.
Summitt then disputes certain figures in Murphy’s letter and
follows:
The employees of Bestway Trucking are not rep-
resented by a union. The company recently won an
election regarding representation by a 3–to–1 margin.
We believe that this entitles us to run our company
using our best business judgment[,] and we will con-
tinue to do so.
Summitt then disputes other assertions made by Murphy, and
explains certain business conditions; then he ends the main
body of his letter with:
Finally, if the main thrust of your letter is that you
desire to earn more money, the company would be glad
to assist you with changing your position to allow you
to earn additional money on a different route. If this
does not meet with your satisfaction, then it would be
more appropriate for you to seek employment else-
where.
After this ‘‘closing,’’ and his signature, Summitt adds:
P.S. It has come to our attention that you have been
in the office disturbing and interrupting office personnel
who are trying to work, and further that you made use
of the company copying machine without prior ap-
proval in preparing your letter. Therefore, based upon
these activities, you are receiving a write up to your
personnel file.
Respondent offered no evidence that Murphy had adversely
affected the work of any of the office personnel.
D. Employee Meeting of August 3, 1991
The complaint alleges that Respondent, by Sales Manager
Richard Torp, conducted surveillance of an employee organi-
zational meeting on August 3. The General Counsel also re-
lies on the alleged surveillance as evidence of actual knowl-
edge of the activities of those present.
Jerry’s Restaurant is about 1 mile from Respondent’s ter-
minal. Murphy testified that on Saturday, August 3, he met
with five other drivers there: Bloomington drivers Bouchey,
McDaniel, and Carney; and local drivers Ron Underwood
and Dennis Collins. At the meeting, the drivers discussed the
issue of a second organizational attempt. At the time of the
August 3 meeting, Respondent had four Bloomington drivers;
the only one not present was Rick Oster.
Murphy testified that while the employee meeting was
going on:
It was brought to my attention that somebody was
standing there and I turned and looked and I saw a
sales representative for . . . . Now, I don’t know him
personally, but he’s a sales rep[resentative] for Bestway
and his name is Dick Torp. He was at the counter as
if to order something. I never saw him order anything
. . . . [H]e acted like he was going to come back [our]
way and . . . like he was shocked to see us all there.
And then he turned around and went back to the
counter . . . . I did see him through a window as he
was leaving, but I didn’t pay a whole lot of attention
to him while he was there.
Torp testified for Respondent; he denied that he had been in
Jerry’s Restaurant at any time during 1991.
On cross-examination, Murphy was asked to describe
Torp. He did a poor job of it, as demonstrated when Torp
testified. Moreover, Murphy raised a suspicion when he in-
dulged in the passive voice to say that ‘‘it was brought to
my attention’’ that Torp was there, rather than name whoever
had pointed out Torp to him. Certainly, whoever brought the
alleged presence of Torp to Murphy’s attention was not
asked to testify to the fact. Indeed, Bouchey, McDaniel, and
Carney also testified that they were at the meeting, but none
of them was asked by the General Counsel if they could
identify Torp, or anyone who looked like Torp, at the res-
taurant. Carney remained employed by Respondent until Jan-
uary 10; McDaniel was discharged on August 7, but then
was reinstated on October 14, and he is still employed; there-
fore, by time of trial, both McDaniel and Carney necessarily
had been provided ample opportunity to identify Torp subse-
quent to the August 3 meeting, if they had seen Torp, or
someone who looked like Torp, there. Because there is this
suspicion about Murphy’s testimony, and because the Gen-
eral Counsel did not attempt substantiation of Murphy’s testi-
mony even from the other of his witnesses who were present
at the meeting (much less call Underwood and Collins,
something else that the General Counsel did not do), and be-
cause I found Torp credible in his denial, I discredit Mur-
phy’s testimony that he saw Torp at Jerry’s Restaurant on
August 3.
E. August 7, 1991 Assignments and Discharges
1. Assignment to and discharge of Murphy
Murphy’s discharge on August 7, was preceded by a rel-
evant memorandum to Murphy’s personnel file on August 6.
Murphy’s case is a quagmire of conflicting, overlapping, tes-
timony. The scheme of the narrative is this: I first present
the conflicts, in chronological order (necessarily including
elements that touch on the August 7 discharges of McDaniel
and Bouchey, but excluding, at this point, a relevant con-
frontation between Summitt and Thomas that occurred on
August 6); then I state the respective positions of the parties;
then I enter my credibility resolutions on the Murphy dis-
charge.
a. Conflicting testimony on Murphy’s discharge
(1) Monday, August 5, 1991
Thomas testified that he had taken a vacation in late July,
and returned to work on August 5, the first day of the 3-
week Bloomington shutdown. He examined the city and
Bloomington dispatch boards and noticed that some city and
Bloomington drivers, specifically Murphy and Bouchey, were
not scheduled for shorter runs such as Cincinnati, Indianap-
olis, and other such runs. Thomas testified that he asked Op-
erations Manager Bullock about it:
Well, I told Hardy that the Bloomington drivers in
the five years that I’d worked there had always been
given short runs, and, was he still going to keep them
657BESTWAY TRUCKING
10 Bullock described the location of Big Rock, Virginia: ‘‘It’s not
on the Atlas. You can’t find it anywhere. It’s in the Appalachian
Mountains. It’s by Pennington Gap, if you’re familiar with that
area.’’
on short runs. And he said that Mike Murphy—‘‘just
because Mike wrote David a letter doesn’t mean that
I’m going to give him any special privileges.’’I said,
‘‘Well, David told him that they’d be on short runs and
[Bouchey’s] wife was sick, and he was promised to be
home every night. They were promised to be home
every night.’’ He said, ‘‘[W]ell, I don’t care what
David says. They’re mine.’’ Bullock was called by Re-
spondent. He testified that his reference to the Bloom-
ington drivers being ‘‘mine’’ was simply as statement
that they were needed for over-the-road driving.
Bullock was also asked on direct examination, and he testi-
fied:
Q. Yes. Did you ever make any statement to Mr.
Thomas about Mr. Murphy and which related to the let-
ter that Mr. Murphy sent to the Company?
A. Not that I can recall.
I shall discuss other credibility resolutions below. How-
ever, I am constrained to note at this point that, on August
5, as they testified, Murphy had been sent to another cus-
tomer in Bloomington, and Bouchey had been sent to Indian-
apolis; that is, they both were on short runs that day. This
factor necessarily erodes the premise for Thomas’ supposed
editorial comments to Bullock about the history of what had
happened during the previous 5 years during other General
Electric shutdowns. That is, I do not believe that Thomas re-
cited this history to Bullock, and I will draw no adverse in-
ference against Respondent because Bullock did not deny or
contest this part of Thomas’ testimony. (Moreover, neither
Thomas nor any other of the General Counsel’s witnesses
testified that, in fact, the local and Bloomington drivers were
assigned only short runs during prior General Electric shut-
downs.)
However, I credit Thomas’ testimony, over Bullock’s
claim of lack of memory, that Bullock said that morning that
the Bloomington drivers ‘‘are mine’’ and indicated Murphy
was in peril because he ‘‘wrote David a letter.’’
(2) Tuesday, August 6, 1991 (before 6 p.m.)
On Tuesday, August 6, Murphy had an assignment to
drive, starting at 2 a.m., from Jeffersonville to Respondent’s
terminal in Nashville, then to Lebanon, Tennessee, then back
to Respondent’s terminal in Nashville where he was to drop
one trailer and pick up another, and then drive to Elizabeth-
town, Kentucky; then he was to drive back to Jeffersonville
(all of which he did). Drivers on such trips are required to
call the terminal on specified occasions, one of which is
when drops are made.
When he made the drop in Nashville, Murphy called the
Jeffersonville terminal and spoke to Bullock. Murphy testi-
fied that he asked Bullock whether he should claim a $10
drop pay premium when he finished the trip. Bullock told
Murphy that he would talk to Murphy about that when he
returned to Jeffersonville. When Murphy called Bullock from
Elizabethtown, he again asked Bullock if he should claim the
drop pay when he did the paperwork. Murphy testified that
Bullock replied, ‘‘just bring it on to the house [the Jefferson-
ville terminal].’’ Murphy testified that no more was said on
the matter, and he returned to Jeffersonville about 4:30 p.m.
Murphy’s personnel file contains the following memo-
randum, a ‘‘Driver Write-Up’’ that is dated August 6, at 2
p.m.; it recites:
Mike Murphy . . . called in from [Elizabethtown]
wanting to get drop pay for dropping empty trailer [at
Nashville] yard [and] picking preload[ed] trailer to [go
to Elizabethtown]. Tried to explain drop pay to him. He
stated [that] I was unreasonable [and] didn’t pay right.
Got irritated when told to drop his trailer at RC [abbre-
viation unexplained]. Demanding trip pay.
The only testimony that Bullock gave about the Elizabeth-
town incident was on the General Counsel’s first asking him
why Murphy was discharged. Bullock testified:
It’s just a bad attitude that he had about helping out
Bestway in a rough time. . . . The decision—or the
straw that broke the camel’s back was he was in Eliza-
bethtown, Kentucky, and wanted to get stop pay for
picking up a preloaded trailer. Then he was requested
to drop the empty [trailer] after he got through in Eliza-
bethtown, in to a customer of ours in Louisville, and
he wanted stop-off pay for that, which, plans—our
plans was for him to pick up a preloaded trailer, which,
we already [had] loaded for him. There’s no pay for
that. . . . It was somewhere in regards that ‘‘Bestway
don’t pay right.’’ He was showing his dissatisfaction.
On cross-examination, Bullock testified that driver writeups
were issued only for ‘‘serious’’ offenses.
On Murphy’s arrival at the terminal, he was given an as-
signment to drive to Big Rock, Virginia. The complaint al-
leges that, by this assignment, Respondent ‘‘imposed onerous
and rigorous terms of employment’’ on Murphy in violation
of Section 8(a)(3). Respondent discharged Murphy the next
day and, as noted, the complaint alleges Murphy’s discharge
also violated Section 8(a)(3). Respondent defends the dis-
charge on the ground that Murphy refused the Big Rock run
as assigned. On brief, Respondent does not offer a reason for
the assignment of the Big Rock run to Murphy; Bullock’s
testimony on that separate issue is quoted below.
Big Rock, Virginia, is 245 miles from Jeffersonville. It is
a community which Rand-McNally lists as having an approx-
imate population of 450. It is located in the Cumberland
Mountains that divide far southeastern Kentucky and far
southwestern Virginia.10 It is, according to an American
Automobile Association map of the area, on a secondary
road, about 1 mile off U.S. Highway 460; U.S. Highway 460
is two lanes from Shelbiana, Kentucky, to the turnoff to Big
Rock, a distance of 29 miles. Shelbiana appears to be the
closest point that a driver could pick up a more easily
driveable four-lane highway.
Respondent’s customer in Big Rock is a warehouse for
storage of barrels of oil. There are no potential pickups in
the area, so a driver who is assigned to the Big Rock run,
just gets back on the road and calls in for another destination
when he gets to a telephone, if he was not assigned another
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
destination before leaving the Jeffersonville terminal. Bullock
admitted that the Big Rock run is almost always done by an
owner-operator, or an over-the-road, driver.
Murphy testified that on his 4:30 p.m., August 6, return
to the Jeffersonville terminal he went to the dispatch area to
get his next day’s assignment. Present in the dispatching of-
fice, an area separated by a glass window from the drivers’
room, were dispatchers Chinn and Thomas, and Bullock. Ac-
cording to Murphy:
I just simply asked [Chinn] what was the line-up for
tomorrow and he said, ‘‘Hang on.’’ . . . He went over
and he had to walk next to Hardy [Bullock] and he
come back to the window and he had a thing and he
says, ‘‘I’ve got something special for you. . . . Big
Rock, Virginia.’’
I said, ‘‘That’s an overnighter. . . .’’ And he says,
‘‘Well, look at it this way, the more driving you do,
the less time you’ve got to write.’’ And then he started
to smile. . . .
I said to Fred Chinn, ‘‘Who gave this to you?’’ And
he said, ‘‘This is from Hardy [Bullock] to you.’’
The complaint alleges that Respondent violated Section
8(a)(1) by Chinn’s statement to Murphy that the arduous as-
signment was being given because of Murphy’s letter-writing
activities. The shipment was due in Big Rock at 8 a.m. on
August 7. Murphy testified that at some point in their ex-
changes, Chinn told him that he should leave by 10 p.m.
Thomas also testified that Bullock, as well as Chinn and
he, were present, on the office side of the glass that separates
the drivers’ room from the office, when Murphy appeared at
the window to get his next day’s assignment. According to
Thomas:
[Murphy] came to the window and says, ‘‘[D]o you
know, Fred, where I’m going tomorrow?’’ Fred told
him, ‘‘Let me ask Hardy.’’ Mike said, ‘‘Well, I’m
going to sit down and get caught up on some of my
paper work.’’ So he kind of went over [to] the driver’s
room. . . . Fred asked Hardy, ‘‘Where you got Mike
Murphy going?’’ [Bullock] said, ‘‘I want to send him
on the longest run we got.’’ Fred said, ‘‘Which one’s
that?’’ [Bullock] said, ‘‘I want him to go on the Big
Rock, Virginia. That’s about the longest and roughest
run I got.’’ And at that time, Fred kind of smiled, and
Hardy smiled. And Fred called Mike back to the win-
dow . . . Fred Chinn said, ‘‘Hardy saved a special run
for you.’’ Mike said, ‘‘Well, what does that mean?
Does that mean I’m getting screwed or what does it
mean?’’ [Chinn] said, ‘‘Well, he’s sending you to Big
Rock, Virginia.’’ Mike says ‘‘that’s not [sic] an over—
overnight run. You don’t have anything any shorter?’’
And Fred says, ‘‘all I can tell you is Hardy told me to
save this run especially for you, and this is where
you’re going. Look out on a positive point of view.’’
Mike said, ‘‘How can I look at this in a positive point
of view? I feel you’re screwing me.’’ [Chinn] said,
‘‘Well, look at it this way. By you going on this long
run—it’s two hundred and forty-eight miles—it’s going
to do a couple things for you. You can make some
money, and you can stay out of trouble. At least this
way, Mike, you won’t have time to write no more let-
ters to David.
Chinn testified for Respondent about the assignment of the
Big Rock run to Murphy and Murphy’s response:
And I come out onto the dock, because [Murphy]
was out there with some of the fellows out on the dock.
They was a loading a trailer. And I told him that Hardy
had a load—a good load for him. And that he needed
to get on going so he could get down there, because
it—we’d missed a load the day before getting it down
there. And he needed to be sure and be down there by
eight o’clock the next morning. [Murphy] said that,
‘‘Well, I might— might get sick.’’ And then I walked
on back into the office after that.
Chinn acknowledged that, ‘‘from time to time,’’ drivers
make sarcastic remarks like, ‘‘Maybe I just won’t show up,’’
when they get unfavorable assignments.
Murphy, however, does not claim that he made a remark
about the possibility of becoming ‘‘sick’’ when Chinn gave
him the Big Rock run; Murphy flatly denies that he made
any such remark; Thomas supports Murphy in this denial.
Chinn was further asked and testified on direct examina-
tion:
Q. Did you make any statements to Mr. Murphy
about a letter he may have written the Company?
A. I don’t recall making any statements about that.
Chinn testified that he could remember no discussion of the
Big Rock assignment to Murphy that occurred in the dis-
patch area; he could remember only an exchange with Mur-
phy on the dock.
On cross-examination, Chinn acknowledged that the Big
Rock run was one of the five that the drivers complained
about the most. But he added: ‘‘There’s nothing really bad
about the run.’’ When asked why he referred to the Big
Rock run as a ‘‘good load’’ when he gave the assignment
to Murphy, Chinn replied: ‘‘Well, it’s a good load. It’s 245
miles. You can get down there and back in one day, basi-
cally.’’
Night dispatcher Robertson testified for Respondent that
he was in the dispatch area when Murphy got the Big Rock
assignment. Robertson agreed with Murphy and Thomas that
Murphy got the Big Rock assignment in the dispatch area,
not on the dock as Chinn testified. On direct examination,
Robertson testified:
Well, he took the assignment. And I think it was in
a joking manner or some way; he said, ‘‘The runs are
getting a little longer every day—that the runs were
getting a little longer, that he could get sick that night
or something.’’
Bullock was asked if he was in the dispatch area when
Chinn informed Murphy of the assignment; Bullock replied:
‘‘Not that I can recall.’’
Robertson testified that he was sure that Bullock was not
in the dispatch area when Murphy got the Big Rock assign-
ment, although he testified that he believed that Bullock was
still in the building.
659BESTWAY TRUCKING
(3) Tuesday, August 6, 1991 (after 6 p.m.)
Murphy testified that when he got home on August 6 his
elderly father appeared ill, and it appeared that he would
have to take his father to the hospital. (More particularly,
Murphy testified that the nurse had put too tight support hose
on his father and his leg was becoming discolored.) Murphy
further testified that he called back to dispatch and spoke to
Robertson.
According to Murphy, Robertson said that Murphy’s son
had called just after Murphy had left the terminal; and Rob-
ertson asked Murphy what was going on. Murphy told Rob-
ertson about his father’s apparent illness, and further told
Robertson to ‘‘mark me off.’’ Murphy further testified that
Robertson replied ‘‘just keep me posted. . . . The main
thing is to take care of Dad.’’
Murphy then testified that later in the evening of August
6 he called Robertson again and reported that his father was
all right, and that he would be able to take the Big Rock run
out. Murphy testified:
[Robertson] says, ‘‘Don’t worry about it. It’s [the
Big Rock load is] not hot, so just take and do like I
told you in the beginning. Just call Hardy in the morn-
ing around nine, nine-fifteen, and get a new dispatch.’’
And he was tickled to death to hear that Dad was all
right.
Murphy did not go to the terminal that night.
A ‘‘hot’’ load is one that requires special attention, such
as next-day delivery.
Thomas, who worked that evening, corroborated Murphy.
Thomas testified that Robertson told him that Murphy had
called in and reported that his father was ill. Thomas further
testified that Robertson told him that he had told Murphy not
to worry about it. Thomas further testified that later in the
evening Robertson told him that Murphy had called in again
and stated that he could take the Big Rock run, but that Rob-
ertson had told Murphy not to worry about it because it was
not a ‘‘hot’’ load.
Robertson testified that after Murphy left the premises
about 6 p.m. on August 6, Murphy’s adult son telephoned
the dispatch office, but that Murphy did not call him that
night. Robertson was asked by neither counsel what the per-
son purporting to be Murphy’s son said.
Robertson further testified that, later in the evening, after
Murphy’s son called, ‘‘John [Thomas] had told me that Mike
[Murphy] had called and said he couldn’t go out because he
was taking his father to the doctor or hospital, something.’’
(4) Wednesday, August 7, 1991
Thomas testified that during the morning of August 7 Bul-
lock approached him. Bullock asked Thomas what had hap-
pened to Murphy. Thomas testified that he told Bullock that
Murphy had called in and Robertson had given Murphy per-
mission to miss the Big Rock run. Bullock told Thomas to
reschedule the Big Rock run.
On direct examination, Bullock testified that he did not re-
member Thomas telling him on August 7 what had happened
to Murphy the night before. Bullock was further asked, and
he testified:
Q. Did you—all right. When do you first recall find-
ing out that Mr. Murphy did not make the run?
A. When some young man called me on the phone
to tell me that his father had been in the hospital, or
something was wrong with his father. . . .
Q. Okay. When did you take that call?
A. It was in the morning sometime. I don’t know
what time. It’s very possible that I would have found
out about it earlier, during a lot check.
On cross-examination Bullock, on a line of questioning that
began with Bullock’s first writeup of Murphy, Bullock was
asked, and he testified:
Q. What else is bad about his attitude as far as this
thing in Elizabethtown? By the way, he didn’t refuse to
finish that run, did he?
A. I can’t recall if he did what he was told to do
or not.
Q. Well, was that the reason he was fired?
A. Not totally. There was a. . . . We was going to
put him back out that afternoon on a load and I didn’t
hear it but a dispatcher, he referred to going home and
getting sick. So. . . .
Q. You didn’t hear that yourself?
A. No, I did not.
Q. Who told you that?
A. My dispatcher, Fred Chinn.
Q. Where were you at the time that this comment
was made?
A. I was probably in another office.
Q. Did you ever ask Murphy about that comment be-
fore he was fired?
A. I can’t remember.
Q. Well, didn’t you want to get his version of the
situation before you fired him?
A. I think, from the past history and the attitude that
he had shown, I could plainly see in my mind what his
attitude was.
Bullock was not asked when Chinn told him of the ‘‘might
get sick’’ remark by Murphy.
Thomas testified that after his exchange with Bullock
about the Big Rock run he called the customer and blamed
‘‘equipment failure’’ for the delay. The customer’s represent-
ative told Thomas that the delay did not matter. (As dis-
cussed below, Respondent’s records indicate that the load
went out at 6 p.m. the next day, August 8, for delivery at
8 a.m. on August 9.)
Thomas testified that shortly after Bullock told him to re-
schedule the Big Rock run Summitt arrived. Thomas testi-
fied:
Then Hardy [Bullock] told David [Summitt], ‘‘We
seem to have a problem with some of the Bloomington
drivers Douglas McDaniel, supposedly, his car broke
down, and he couldn’t make it. Mike Murphy, sup-
posedly, his dad is sick, and he may have to go to the
hospital, but he didn’t show up either. John Bouchey
has been complaining about his runs and bitching and
complaining about his assignments. You know, we real-
ly got a problem. It seems like these Bloomington driv-
ers—we got a conspiracy going on.’’ What do you
want to do?’’ And David [Summitt] looked at him and
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Here lies another problem with Thomas’ credibility. Thomas tes-
tified that in arguing with Bullock about Murphy’s excuse for not
taking the Big Rock run, he told Bullock that Murphy had often
taken off to take his father to the hospital.
kind of smiled and said . . . ‘‘fire all three of the
son[s] of bitches. I didn’t like them anyway, and that
way we won’t have no more problems with them.
. . .’’ Hardy said, ‘‘That’s all I needed to know.
That’s all I need to hear. It’s done.’’
Summitt denied making this statement; Bullock was asked,
and he testified:
Q. Did Mr. Summitt ever say to you on the morning
of the 7th to ‘‘fire all three of the sons-of-bitches?’’
A. Not that I can recall.
Murphy testified that he called the terminal about 9 a.m.,
as Robertson had instructed. Chinn answered the telephone.
According to Murphy:
[Chinn] said, ‘‘How’s your Dad doing?’’ And I said,
‘‘Well, he’s doing a lot better.’’ He said, ‘‘Did they
have to take him to the hospital?’’ I said, ‘‘No.’’ And
I explained to him what it was and I said, ‘‘What am
I going to do today?’’ And he said, ‘‘Well, hang on and
I’ll let you talk to Hardy.’’ Hardy got on the phone,
real nice in the beginning. He said, ‘‘How’s your
Dad?’’ I said, ‘‘He’s doing fine.’’ He said, ‘‘What hos-
pital is he in?’’ I said, ‘‘He didn’t have to go to the
hospital.’’ He said, ‘‘He didn’t have to go?’’ I said,
‘‘No.’’ And he said, ‘‘Mike, I’ve got something to tell
you.’’ And then he paused and I was put on hold for
a little while and then he come back to the phone and
he said—And I mean I was on the phone for five min-
utes, at least. And then he got back on the phone and
he said, ‘‘You’ve been terminated, Mike.’’ And I said,
‘‘For what?’’ And he says, ‘‘I was just told to fire
you.’’ And I said, ‘‘Have you. . . . Are . . . you the
one firing me?’’ He says, ‘‘I’m the one firing you.’’
And I said, ‘‘Well, what’s the reason?’’ He said, ‘‘You
turned down the Big Rock run.’’ I said, ‘‘That’s not
true. You know that’s not true. I’ve never missed’’—
I was going to tell him that I’d never missed a day with
Bestway, ever, and he slammed the phone down. That
was the end of it.
Bullock testified that he made the decision to discharge
Murphy, and that he discharged Murphy, but he could not re-
member what he told Murphy when he did so.
Bullock testified twice that he first learned that Murphy
had not taken the Big Rock load when a ‘‘young man’’
called the terminal during the morning and stated that Mur-
phy had taken his father to the hospital. Bullock testified that
Chinn told him of Murphy’s ‘‘might get sick’’ statement, but
he did testify when Chinn told him about it.
Murphy testified that after Bullock hung up on him, he
called Summitt. Murphy was asked and he testified:
I said, ‘‘David, this is Mike Murphy. Hardy says
I’ve been discharged and I’d like to know why.’’ And
he says, ‘‘Talk to my lawyer.’’ And I said, ‘‘Well, did
your lawyer fire me or did you fire me?’’ And he says,
‘‘I fired you.’’ I said, ‘‘For what?’’ And he said, ‘‘For
turning down the Big Rock run.’’ I said, ‘‘I didn’t turn
down the Big Rock run.’’ And he said, ‘‘Well, Mike,
you know, you’ve missed a lot of time at Bestway.’’
I said, ‘‘I think you’re wrong.’’ I said, ‘‘I’ve never
missed a day with Bestway.’’[11] He says, ‘‘Well, I’m
not going to argue about it. You turned down the Big
Rock run and you’ve been discharged.’’ And [he said
that] if I wanted to know anymore about it, I had to
talk to his lawyer.
Summitt was asked what was said in his telephone call
with Murphy, and he testified:
[Murphy] asked me why he had been fired. I told
him for refusal of work. And he said something to the
extent about that he didn’t refuse anything.
And my reply was that dispatch had informed me
that Mr. Murphy did not take the load, and that he had
made a statement that he was going to call in sick, or
that he was going to be sick. And the load never got
moved. We never received a phone call later that night.
Therefore, it was my opinion that he should be termi-
nated.
Summitt did not deny that he told Murphy that he had
missed a lot of time.
Summitt testified that he did not direct Bullock to dis-
charge Murphy and that he first learned of the discharge
when Bullock informed him of it afterwards. Summitt testi-
fied that he had learned from Bullock the information that
he gave to Murphy about the discharge.
b. Reasons advanced for Respondent’s actions
Respondent did not ask Bullock why Murphy was dis-
charged, even though Bullock and Summitt stoutly main-
tained that Bullock made the decision. Bullock was asked
several times by the General Counsel why Murphy was dis-
charged. The response that Bullock gave the first time the
General Counsel asked is quoted above (in reference to the
August 6 driver writeup).
When the General Counsel asked Bullock again, Bullock
testified that Murphy was discharged solely for the matters
covered in two driver writeups. The second driver write up
which, according to Bullock, formed the basis of Murphy’s
discharge is dated August 7, 7:50 a.m. It recites as the ‘‘oc-
currence’’:
Mike Murphy . . . [on] trip 67734 . . . was as-
signed Big Rock VA, on 8–6–91 [at 4 p.m.] for deliver
8–7–91 [at 8 a.m.] [Murphy] made the comment to
Fred Chinn, ‘‘Don’t be surprised if I come down with
a cold or something.’’ [Murphy’s] son called in [at 7
p.m.] on 8–6 [and] said [that] they took their father to
the hospital. Called in [at 7:50 a.m.] 8–7 asking for
Ron Block. Made the comment that he only had 10
hours available on his log book.
Under ‘‘Suggestion,’’ Bullock entered:
Failed to service our Customer; missed del. app.
[H]as been running Bloomington only & has gotten
spoiled. We ask for their help on road runs for 3 weeks
661BESTWAY TRUCKING
12 After the documentary refutation of Chinn’s testimony was
brought out, Respondent recalled Summitt (not Chinn or Bullock
who would have had first-hand knowledge) to state why the Big
Rock load might not have been listed as ready for dispatch on Au-
gust 6. This testimony was probative of nothing.
while Bloomington is down. Lack of dedication to
Bestway’s interest is the reason I decide [sic] to dis-
charge this man.
On cross-examination, Bullock was asked about the Big
Rock run and how it was handled:
Q. Aren’t there often occasions where this delivery
for Big Rock, it’ll wait at you all’s terminal for a day
or two before it gets there . . . if you don’t have avail-
able drivers?
A. It has happened before, yes. . . . Because a lot
of drivers don’t like the run because it’s very moun-
tainous country and hilly.
Q. You’ve heard various drivers talk about that?
A. Right.
Q. The drivers consider that one of the most unpleas-
ant runs, don’t they?
A. Well, some of them like it. They like the scenery,
you know. They like to get out in the country.
Q. But if you don’t like to drive through the moun-
tains, it’s not considered very pleasant, correct?
A. Correct.
I was constrained to ask:
JUDGE EVANS: Do you know why Mr. Murphy got
the Big Rock assignment? If you had twenty-five over-
the-road drivers and fifty . . . owner-operators, why
would Mr. Murphy have got the assignment like that?
THE WITNESS: Well, we move between—throughout
our system between a hundred and a hundred and forty
loads a day, truckloads of freight. If—And we try to
stagger these drivers on long runs, short runs, long
runs, short runs, so they can be rested enough to satisfy
customer needs.
During the day when freight is booked, the oppor-
tunity to take more business, you know, if you’ve got
more drivers in the fleet that you know about that
should be lending support, then more business can be
handled.
So, we assumed that we were going to have a larger
amount of support on the road with the Bloomington
shut-down, so more business was attained.
No other reason for assigning the Big Rock run has been
advanced by Respondent.
Although Summitt, Thomas, and former dispatcher Hough-
ton testified that the Big Rock run was normally not a ‘‘hot’’
run, or a run that had special priority, Chinn testified that the
Big Rock load that was assigned to Murphy was ‘‘hot’’ be-
cause it had been ready for shipment on August 6, and it
should have gone then, but there were no drivers to take it.
Also Chinn testified that at 8:30 a.m., on August 7, a sales-
man (otherwise unidentified) got a call from the warehouse
in Big Rock complaining that the scheduled 8 a.m. delivery
to the warehouse was one-half hour late.
c. Credibility resolutions
Taking the last-mentioned testimony first, Chinn testified
falsely as he attempted to aggrandize the alleged dereliction
of Murphy by insisting that it was this load to Big Rock, of
all loads to Big Rock, that had to be there the next day. Cer-
tainly, Chinn did not testify that when he gave Murphy the
dispatch or when Murphy said that he ‘‘might get sick,’’ he
told Murphy that the load was ‘‘hot.’’ But, more importantly,
Bullock identified Respondent’s dispatch records for the
week of August 5. Contrary to Chinn’s testimony, the Big
Rock load had not been listed as originally scheduled for de-
parture on August 6.12 Also, Respondent’s records show that
the load that Murphy was originally scheduled to deliver
(load number 67734) was not rescheduled as ‘‘out bound’’
until 6 p.m. on August 8, for delivery at Big Rock at 8 a.m.
on August 9. This factor completely disproves Chinn’s testi-
mony that there was any priority to the load. Moreover, even
when rescheduled, the trip is not marked ‘‘hot,’’ although
others are.
Thomas’ testimony that he called the customer and ex-
plained an ‘‘equipment failure’’ is not denied. Also, I found
to be absolutely incredible Chinn’s testimony that a salesman
had received a complaining telephone call from the customer
about 8:30 a.m. Aside from the fact that Chinn’s testimony
(about what some salesman said that someone who identified
himself as the customer said) was double hearsay, ware-
houses are unlikely to waste long distance tolls to complain
about half-hour delays.
All of which is to say that the Big Rock run had no spe-
cial priority on August 6; there was no call from the cus-
tomer on the morning of August 7; the only contact with the
customer was the telephone call that Thomas made to the
customer to give the ‘‘equipment failure’’ explanation for the
delay, and the customer replied that it did not matter.
Moreover, Chinn testified falsely when he stated that he
used the term ‘‘good’’ to describe the Big Rock run because
a driver could get down and back in a day. Bullock admitted
that the Big Rock run was one which the driver goes to a
third point to pick up another load, that no one knew where
Murphy would be assigned to go after he unloaded in Big
Rock, that the driver who ultimately did take the load did,
in fact, stay out a second day, and that Murphy would have
been on the road another night before returning to Jefferson-
ville.
On most all other points, Bullock was generally incredible.
As the above quotations reflect, for about every critical ques-
tion put to him, Bullock replied ‘‘I don’t remember’’ or ‘‘I
don’t recall.’’ Assuredly, Bullock was a busy man, and most
of the vicissitudes of life at the terminal would not be re-
tained in his memory. However, Murphy’s letter and his al-
most immediate discharge are probably two of the most dra-
matic events that Bullock has experienced while serving as
Respondent’s operations manager. It is unlikely to the point
of disbelief that Bullock’s above-quoted claims of memory
failure are genuine, and I discredit all of them, and hold
them to constitute admissions, except for Bullock’s claim
that he did not remember if he was in the area when Murphy
go the Big Rock assignment; this exception is because Rob-
ertson, as I discussed infra, was more credible than either
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Most assuredly, I do not believe Thomas’ testimony that, when
giving the Big Rock dispatch to Chinn (to give to Murphy), Bullock
said (as if for Thomas’ benefit, once, much less twice) that Big Rock
was the ‘‘longest,’’ or ‘‘longest and roughest’’ run that Respondent
had availble.
14 I do not believe Thomas’ testimony about him telling Bullock
on the morning of August 7 that Robertson had told him that Rob-
ertson had given Murphy permission to miss the Big Rock run.
Thomas or Murphy, and Robertson credibly testified that
Bullock was not there.13
Chinn testified that he could not remember if, when he
gave the Big Rock assignment to Murphy, he referred to
Murphy’s letter writing activities. Again, Murphy’s letter
likely was one of the most exciting things that had ever hap-
pened around the terminal; Chinn would have remembered,
one way or another, if he had mentioned the letter when giv-
ing the Big Rock assignment to the letter’s author. Like Bul-
lock, Chinn was using a claimed inability to remember to
avoid an even more blatant lie. I credit Thomas and Murphy
on the point.
Bullock’s claimed inability to remember that which as-
suredly would be remembered, one way or another, serves to
discredit Summitt on a most important point. Thomas testi-
fied that on the morning of August 7, referring to Murphy,
McDaniel, and Bouchey, Summitt told Bullock to ‘‘fire all
three of the sons of bitches.’’ Respondent’s counsel did not
ask Bullock why Murphy, McDaniel or Bouchey were fired;
when counsel for the General Counsel asked Bullock about
Murphy’s discharge the first time, Bullock did not even men-
tion the Big Rock incident. Finally, Bullock testified that he
could not remember what he told Murphy when he dis-
charged Murphy, even though the decision to discharge Mur-
phy was solely his, and even though he had written the
elaborate driver writeup of August 7 that is quoted above.
All of which is to say that: (1) Bullock and Summitt testified
falsely when they claimed that Murphy’s discharge was Bul-
lock’s decision; (2) Summitt told Bullock to discharge Mur-
phy (and Bouchey and McDaniel); and (3) Summitt told Bul-
lock to discharge Murphy (and Bouchey and McDaniel) in
the categorical, and profane, terms described by Thomas.
The one witness whom I consistently found credible was
Robertson. As we shall later see, McDaniel was fired for
supposedly turning down an assignment on August 7. How-
ever, Robertson testified that McDaniel did not do so. Also
Bullock testified that Bouchey was fired, in part, for alleg-
edly for insubordinate behavior when Robertson gave him an
assignment on August 6 and for abusing Robertson in a tele-
phone conversation on August 7; however, Robertson testi-
fied that neither such thing occurred. Although Murphy
would have been more of a thorn in the side of this, as I
find, virulently antiunion, antiprotected concerted activity,
Respondent than either McDaniel or Bouchey, I nevertheless
do not believe that Robertson would tell the truth in the
cases of McDaniel and Bouchey, and then flatly lie about not
talking (at all) to Murphy on the evening on August 7. But
more than that, I found Robertson to have a completely cred-
ible demeanor, and I do credit his testimony that he did not
talk to Murphy on the evening of August 6 and give him
permission not to take the Big Rock run on August 7.
Even without Robertson’s testifying, I would discredit
Murphy’s testimony that on August 6 he received permission
from Robertson to miss the Big Rock assignment on August
7. Murphy testified that when he called in on the morning
of August 7, both Chinn and Bullock indicated that they be-
lieved that Murphy had taken his father to the hospital. Un-
less an elaborate contrivance, involving the credible Robert-
son, was concocted overnight (through the exercise of a de-
gree of sophistication that is not apparent), Chinn and Bul-
lock would not have made these remarks if they had received
word (from Thomas or Robertson) that Murphy had made a
second call and stated that his father was all right, that his
father was not in the hospital, and that Murphy would be
able to take the Big Rock load. That is, Murphy’s testimony
of what Chinn and Bullock said on the morning of August
7 is perfectly consistent with Respondent’s theory of the
case, that the last information it had was that Murphy had
called in and stated that he could not take the Big Rock run
because his father was ill and Murphy had to take him to
the hospital. Further to be noted in Murphy’s testimony is
the statement that, when Bullock hung up on him on the
morning of August 7, he was cut off from arguing the merits
of his attendance record; Murphy did not testify that he was
cut off from saying anything like, ‘‘Hey, Robertson said not
to worry about it.’’ Murphy then got Summitt on the tele-
phone; he did not attempt such an explanation then, either.
If Murphy had been in anything like the righteous position
that he and Thomas sought to portray, Robertson’s purported
permission would have been the first thing out of his mouth
when Bullock told him that he was he was fired for turning
down the Big Rock run; it would have been the second thing
out of his mouth after he got Summitt on the telephone.
Additionally, as he gave it, I found incredible Murphy’s
testimony of Robertson’s granting him, in elaborate and effu-
sive terms, permission to decline the Big Rock assignment.
My original impression has not left me. Moreover, I do not
believe Thomas’ too-complementary testimony that, when
Robertson got off the telephone after the ‘‘second’’ call from
Murphy, Robertson stated that he had given Murphy permis-
sion not to take the Big Rock assignment; nor do I believe
Thomas’s testimony that on the next morning he told Bul-
lock that Robertson had given Murphy such permission.
I believe, and find, that Murphy called the terminal on the
night of August 6, but he talked only with Thomas, as Rob-
ertson testified.14
I further credit Robertson that he heard Murphy, at the dis-
patch window, say during the afternoon of August 6, ‘‘in a
joking manner’’ that he ‘‘could get sick’’ rather than take the
Big Rock run. Again, Robertson was more credible than
Murphy (or Thomas, who supported Murphy’s version of
what Murphy said). Moreover, although Respondent com-
mitted rather crude violations of the Act, as found here, and
although I am confident that, because of his exercise of Sec-
tion 7 rights, Respondent was more than eager to seize on
anything Murphy might do as a ‘‘reason’’ for discharging
him, I do not believe that Respondent created, out of whole
cloth, the ‘‘I could get sick’’ response by Murphy when he
was given the Big Rock assignment. I also believe that
Chinn also heard this remark by Murphy; his placing Mur-
phy on the dock when he said it is inexplicable, except in
terms of honest misrecollection (in this one instance).
Finally, in regard to Murphy’s conversations on the morn-
ing of August 7 with Bullock and Summitt, I fully credit
663BESTWAY TRUCKING
15 These short runs for McDaniel further belie Thomas’ testimony
that he asked Bullock, on August 5, why all the Bloomington drivers
had all gotten long runs.
Murphy’s testimony over the denials of Bullock and Summitt
(to the extent that Summitt’s testimony, and Bullock’s
claimed memory loss, can be said to constitute denials).
d. Evidence of discriminatory treatment
The General Counsel introduced into evidence seven such
writeups issued to employee Robert Summers who was hired
on February 13 (or about the same time as Murphy,
McDaniel, and Bouchey) and who was still employed at the
time of the hearing. The first writeup is dated May 23; the
last is dated October 25. Five of the writeups are for failure
to keep in touch with dispatch. (As noted, drivers on longer
trips are required to call dispatch after each delivery.) One
of those five writeups recites that Summers replied ‘‘f—k
you’’ when the dispatcher asked why Summers had not
called in; for that, Summers was given a 1-week suspension
by dispatcher Williams. Another of the five writeups that
Summers received for not calling in recites that Summers re-
plied ‘‘just because’’ when asked why he had not called in;
for that failure to call in, or the retort, Summers received a
‘‘strong verbal rep[rimand].’’ Another of the seven writeups
issued to Summers is for backing into a pole and damaging
the truck’s fuel tank; the final one is for ‘‘running late’’ and,
when asked why, replying, ‘‘Don’t start on me.’’ This last
one was signed by Bullock. Bullock testified being cursed by
drivers does not bother him.
Driver Tony Lupo was issued six writeups between June
22 and July 19, 1990, all while he was on indefinite proba-
tion for other offenses. Lupo had been discharged by the
time of the hearing.
On cross-examination, dispatcher Williams was asked, and
he testified:
Q. And drivers, from time to time, complain about
the runs they have to make, don’t they?
A. Correct.
Q. And just about every driver has complained about
their runs, haven’t they?
A. At one point in time, yes.
Q. And from time to time, drivers will make com-
ments about how they don’t like the run they’re as-
signed; correct?
A. Correct.
Q. That’s a common occurrence?
A. Correct.
Q. And it’s a fairly common—strike that. From time
to time, drivers will miss their runs; is that correct?
A. Correct.
Q. And from time to time, it’s because they’ve over-
slept; is that right?
A. Correct . . . .
Q. And some of those occasions are when a driver
has already been assigned a run, and he just doesn’t
make the run; is that correct?
A. That has happened, correct.
Q. And they don’t even call in; is that right?
A. Correct.
Q. And those drivers are still working for the Com-
pany; is that right?
A. They get wrote up. . . . Then, after a certain
amount of times that they’re wrote up, they’re talked to
or let go or whatever.
Respondent offered no evidence in conflict with this testi-
mony by its witness Williams.
1. Discharge of McDaniel
McDaniel was hired as a Bloomington driver on May 7.
He attended the August 3 driver meeting at Jerry’s Res-
taurant (but, as noted, could not identify anyone whom he
believed was a member of management).
On Monday and Tuesday, August 5 and 6, McDaniel was
assigned short runs out of Jeffersonville.15 He returned to the
terminal about 3:30 p.m. on August 6 and was told by a dis-
patcher (unnamed, but probably Robertson) that his run for
the next day would be to the Indianapolis area, and that he
should leave the Jeffersonville terminal about 4:30 a.m.
After getting this assignment, McDaniel left the terminal.
Within an hour he called back to the terminal and spoke to
Robertson. McDaniel testified that he reported to Robertson
that the automobile that he was driving had become disabled,
that he would have to spend the next day getting license and
insurance for another automobile, and that he would have no
way to get to work the next morning to take the Indianapolis
load. Robertson did not dispute this testimony. Robertson
further admitted that he told McDaniel that ‘‘I would get his
load covered for him.’’
As he was instructed by Robertson, McDaniel called the
terminal the on August 7, about 5 p.m., to ask what his as-
signment for August 8 was to be. According to McDaniel,
Robertson put him on hold and:
That’s when Mr. Bullock got on the phone and he
says, ‘‘As of now, you are terminated. . . .’’ I asked
him why. He didn’t give me no answer. I tried to tell
him that I had permission to be off that day to get my
car tagged and insured and he said something about I
could have got a cab; and before I could say anything,
he slammed the phone down in my ear.
Respondent placed in evidence the following ‘‘Driver
Write-Up,’’ dated August 7, that is signed by Bullock:
Doug McDaniels [sic] . . . on GE load [to] cam-
bridge City, IN [and] Richmond, IN—for del[ivery at]
0830 [on] 8–7—called in [at] 1900 [on] 8–6 [and] was
having trouble with his car. Couldn’t go out.—Termi-
nated.
On direct examination Bullock was shown this document. He
admitted signing it. Nothing else of significance was asked
of Bullock about the document or the discharge.
On October 11, by letter of that date, counsel for Respond-
ent notified McDaniel:
I have had an opportunity to review the cir-
cumstances surrounding your termination with Bestway
Trucking. After conference with Mr. Summitt, it would
appear that the absence from work which led to your
termination was for valid and reasonable grounds, and,
therefore, upon specific authorization of Mr. Summitt,
you are here by notified that your termination is re-
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The General Counsel does not contend that McDaniel received
anything less that full reinstatement on October 14.
scinded. You should immediately report to Bestway
Trucking in order that you may be put back to work.
McDaniel returned to work immediately, reporting to work
on October 14. McDaniel testified that when he reported to
work he gave Safety Director Block certain documentation of
the troubles that he had experienced with his automobile on
August 6. McDaniel was placed back on the Bloomington
runs; an assignment that he kept until he suffered an injury
later in the autumn.16
Bullock did not advance any reason for firing McDaniel,
although he insisted that it was his decision, not Summitt’s.
Summitt testified that he thought the documentation on
McDaniel’s automobile had been given to Block before the
offer of reinstatement, and hinted that the discharge was re-
scinded only after that documentation was produced. Block
did not testify about the matter.
3. Assignment to and discharge of Bouchey
Bouchey was hired as a Bloomington driver on February
3; he also was discharged on August 7.
As noted previously (in discrediting Thomas), Bouchey
was given short runs for August 5 and 6. On the evening of
August 6, Robertson assigned Bouchey an August 7 run to
Indianapolis.
On August 7, Bouchey left the Jeffersonville terminal
about 5 a.m., and made the Indianapolis delivery at 8:30 a.m.
Thomas testified that, during the morning of August 7,
after Summitt had told Bullock to fire ‘‘all three of the sons
of bitches,’’ referring to Bouchey, Murphy, and McDaniel,
Bullock asked those in the dispatching area if anyone had
heard from Bouchey. Glen Williams, a new dispatcher, asked
why Bullock was looking for Bouchey. Bullock replied,
‘‘he’s mine.’’ Further according to Thomas:
Then Glen said, ‘‘[W]ell, what do you mean?’’ [Bul-
lock] said, ‘‘when Bouchey calls, he’s mine. I want to
talk to him. I have a special run for him. I’m going to
send him to Carmel, Indiana to pick up this long run,
and then I’m going to make him drive.’’ Then Glen
said, ‘‘[W]ell, why are you going to send him to Lex-
ington, Tennessee. [Bullock] says, ‘‘because—just be-
cause . . . he thinks complaining a little bit or being
friends with Mike Murphy and that he’s going to get
special treatment. He’s not going home with his wife.
He’s going to Lexington, Tennessee.’’ Shortly after
that, Joan [an office clerical employee] answered the
phone, and it was John Bouchey. He was at Indianap-
olis.
Williams testified on direct examination that he did not
hear Bullock ask about Bouchey’s whereabouts or say ‘‘he’s
mine’’ in reference to Bouchey. Williams was not asked
whether he heard the reference to Bouchey’s as a friend of
Murphy.
On direct examination, Bullock was asked, and he testi-
fied:
Q. On the morning of August the 7th, did you come
in and make an inquiry about Mr. Bouchey’s where-
abouts?
A. Not that I can recall.
Q. Do you recall making a statement to Mr. Thomas,
and referring to Mr. Bouchey, saying, ‘‘He’s mine?’’
A. No. . . .
Q. Did you make a statement to Glenn Williams that
you had picked the run from Carmel to Lexington for
Mr. Bouchey to show him that complaining to the
Company and being friends with Mr. Murphy wouldn’t
solve his problems?
MR. NESS: [for the General Counsel] Objection.
A. Not that I can recall.
JUDGE EVANS: Overruled.
THE WITNESS: Not that I can recall.
After he made the Indianapolis delivery, Bouchey called
the Jeffersonville terminal and was told, by an unnamed dis-
patcher or office clerical, to go next to Carmel, Indiana,
which is located on the outskirts of Indianapolis. Bouchey
went to Carmel and got reloaded, a process which took until
about 2 p.m. He called the terminal again and spoke to
Joanll, a clerical, and asked where he was to take the
Carmel load. Bouchey testified:
I told her I was loaded and gave the load informa-
tion, which was normal. And she said to take the load
to Lexington, Tennessee. I replied, ‘‘I hope not.’’ She
said, ‘‘Why? Are you a Bloomington driver?’’ I said,
‘‘Yes.’’ She said, ‘‘All right, just a minute,’’ and put
me on hold. After being on hold for about five minutes,
Hardy Bullock picked up the phone and said, ‘‘What’s
the problem?’’ Well, I told him that David had told us
we’d be home at night, we’d get the short runs during
this shutdown. I think what he recalled [sic] was,
‘‘Well, I’ll call Nashville and see if we can drop it
there.’’ [He] put me on hold again. I was on hold for
approximately another five minutes. After about five
minutes of being put on hold, the phone picked up
again. Fred Chinn was on the phone. He tells me, he
says, ‘‘Well, what’s wrong with it?’’ I said, ‘‘Well,
what do you mean?’’ He said, ‘‘Take it to Lexington.’’
I said, ‘‘Well, wait a minute now. Hardy’s calling
Nashville to see if we can take it there. What’s the deal
here?’’ He said, ‘‘Well, hold on a minute.’’ So, I was
put on hold again. Hardy picked the phone back up a
few minutes later and said, ‘‘Bring it to the yard,’’ and
slammed the phone down.
Bouchey did return to the Jeffersonville terminal with the
load; when he got there, he asked Robertson what his assign-
ment was for the next day. According to Bouchey:
[Robertson] says, ‘‘Hardy says he doesn’t need you
anymore.’’ So, I asked, I said, ‘‘What’s this mean? I’m
fired?’’ He goes, ‘‘I guess so.’’ So, I went and cleaned
my truck up and went home.
Contained in Bouchey’s personnel file is the following
‘‘Driver Write-Up’’ that is dated August 7 and signed by
Bullock:
665BESTWAY TRUCKING
17 I make this finding because Blaho is never mentioned as a city
or Bloomington driver.
18 This was not accurate; Oster was still employed. Houghton
could have meant that Carney was the only prounion driver left, but
that is not what he said.
19 On brief, the General Counsel represents the transcript as indi-
cating also that Benningfield also stated carney ‘‘wouldn’t last
long’’; however, Houghton’s testimony is not clear that remark was
an assertion by Benningfield or a speculation by Houghton.
John Bouchey . . . did not want to take a load to
Indy (GE)—got hostile with Louis [Robertson] and
threatened to quit! He stated that according to the wage
and labor board he didn’t have to run anything but
Bloomington—Terminated.
Joan did not testify. Chinn, as I have noted, testified, but
not on this issue.
Bullock was first called by the General Counsel and asked
about Bouchey’s discharge. Bullock claimed that he could re-
member nothing about Bouchey or the discharge. When
shown the driver writeup on Bouchey and asked if it stated
the reasons for the discharge, Bullock replied, ‘‘Obviously.’’
Bullock was then asked about the discharge on direct ex-
amination. Bullock agreed that when Bouchey first talked to
him on August 7, Bullock made an attempt to call Nashville
to see if someone could take the load from there (if Bouchey
would deliver it there). The Nashville dispatcher told Bullock
that there would be no one there who could take the load
from Nashville to Lexington. Bullock was then asked, and he
testified:
Q. And after you learned that, then did you get back
on the phone with Mr. Bouchey?
A. Yes.
Q. All right. What did you tell him?
A. That it had to be run to Lexington.
Q. What did he say after that?
A. I can’t recall.
Q. Did he agree to make the run?
A. No.
Q. So, what did you say to him?
A. To bring it into our yard.
Q. Was there anything further said?
A. Not that I can remember.
On cross-examination, Bullock testified that he, alone, made
the decision to discharge Bouchey, and that the reason for
the discharge is what is stated in the above-quoted driver
writeup. Bullock further testified that Robertson had been
upset by the Bouchey’s remarks described in the writeup;
and Bullock testified that Robertson recommended issuance
of a writeup.
When called by Respondent, Robertson denied that
Bouchey had argued with him about the original Indianapolis
assignment on August 6. He also denied that he and Bouchey
had any telephone conversation on August 7. He further tes-
tified that, when Bouchey returned to the Jeffersonville ter-
minal, the only thing said by Bouchey was to ask what he
should do. Robertson was not asked if, and he did not testify
that, Bouchey had made the remarks attributed to him in the
above-quoted driver writeup. Moreover, Robertson did not
testify, as Bullock claimed, that he recommended that
Bouchey be disciplined.
Bouchey denied refusing the Lexington load, or saying
anything to indicate that he was refusing that load. Because
no one has testified to anything that would constitute such
a refusal, there is really no credibility resolution to make;
however, to resolve any question about the matter, I state
here that I found Bouchey credible in his testimony about
what he said about the Lexington assignment to Joan, to
Chinn, and to Bullock.
The complaint alleges that the Lexington run was an as-
signment that was ‘‘more onerous work; i.e., lengthier and
[more] undesirable’’ and that, by making the assignment to
Bouchey, Respondent violated Section 8(a)(3). Robertson tes-
tified that the Carmel-Lexington run could have been made
a 2-day trip and that had Bouchey accepted the assignment
he could have driven from Carmel to Jeffersonville on Au-
gust 7, arriving about 5 p.m. (as he did) and then after ap-
proximately 6 hours at home he could have left the Jef-
fersonville terminal at midnight and delivered the load to
Lexington, as scheduled, at 6 a.m. on August 8. Respondent
further points out that Bouchey did not testify that Joan,
Chinn, Bullock, Robertson, or anyone else told him to drive
straight through from Carmel to Lexington.
According to Respondent’s records, the driver who did
take the load, one Blaho, an over-the-road driver or owner-
operator,17 did not return to the Jeffersonville terminal until
August 9.
F. August 12–14, 1991 Assignments to Carney
The complaint alleges that, in violation of Section 8(a)(3),
Respondent assigned to Carney ‘‘an over-the-road driving as-
signment lasting approximately 1 week,’’ thereby imposing
more ‘‘onerous and rigorous terms and conditions of employ-
ment.’’ At trial, the General Counsel clarified the allegation
to confine it to assignments that kept Carney away from
home on the successive nights of August 12 and 13.
Carney was hired as a Bloomington driver on May 6; the
complaint alleges that Carney was constructively discharged
on January 10. Relevant to both the instant allegation and the
constructive discharge allegation is certain testimony by
Stanley Houghton (again, the former employee who was
once a billing clerk and then, in late August, became a dis-
patcher).
Houghton testified that on August 9, 2 days after Murphy,
Bouchey, and McDaniel were discharged, he had a conversa-
tion with Benningfield at the terminal. Houghton observed
that Carney was the only Bloomington driver left.
Benningfield said that Carney ‘‘seemed like a trouble
maker.’’18 Houghton responded that Carney ‘‘looks like a
union steward.’’ Benningfield, as he admitted in his testi-
mony, replied, ‘‘Yes, he does.’’19
During the first week of the August 5 Bloomington shut-
down, Carney was assigned two overnight trips. Those as-
signments are not the subject of any allegation of the com-
plaint.
On Monday, August 12, Carney was dispatched to Cin-
cinnati, then to Newport, Kentucky, just across the Ohio
River from Cincinnati. He called the Jeffersonville terminal
from Newport. Dispatcher Williams told him to take his load
to Cleveland. Carney protested that would force him to stay
(again) overnight and that he did not have a change of
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clothes with him. Williams told him to go anyway, which
Carney did, sleeping in the truck on the way.
When Carney unloaded in Cleveland on Tuesday, August
13, he called the terminal again. That time he was told by
a dispatcher (unnamed by Carney) to drive a load from
Cleveland to West Elizabeth, Pennsylvania, near Pittsburgh.
When, during the afternoon of August 13, Carney got to
West Elizabeth, he unloaded and reloaded. He called the ter-
minal again and was told to drive the load to Nashville.
Carney got as far as Cincinnati when he ‘‘ran out of
hours.’’ He slept in the truck again.
On the morning of August 14, Carney continued on to Jef-
fersonville where he changed clothes at home. Then he con-
tinued on to Nashville where he made the delivery as as-
signed. He returned to Jeffersonville at 7 p.m. on August 14.
Houghton testified that when a second Bloomington shut
down occurred in December he was present in an office area
with Benningfield and Summitt when Carney walked into
sight. According to Houghton:
Well, Ed Carney walked in the office, and Hank
[Benningfield] turned to me and said, ‘‘here comes the
Union steward.’’ David [Summitt] was in the office
also. He looked up and said, ‘‘what do you mean by
that?’’ or ‘‘who’s that?’’ Hank pointed at [Carney].
[Summitt] said, ‘‘He seems like the kind of guy that
would be.’’
Summitt and Benningfield denied this testimony, but I found
Houghton credible.
Carney testified that when he returned from Cincinnati on
August 16 he was told by someone that he would not be re-
ceiving drop pay for work he had done there. He questioned
Summitt about it. Summitt affirmed that Carney would not
receive the drop pay. As he left the room in which they met,
Carney turned and, further according to Carney:
I stopped at the door and asked him if he was going
to hire Mr. Murphy and Mr. Bouchey back, and he said
not unless he got a federal court order. He said there
wouldn’t be no Union at Bestway as long as he’s an
owner. So I turned around and left.
Summitt denied this testimony; however, I found Carney
credible on the point.
Carney further testified that he continued to be assigned
long-distance (but, apparently not overnight) runs after the
August shutdown by General Electric was over, but other
drivers were assigned the Bloomington runs. He went to see
Bullock about the matter. Carney testified:
Well, we talked about the Bloomingtons. I had told
him that I married—I remarried my wife. We have two
small kids, and I do not want to go out on the road.
That’s why I was at Bestway. That’s why I hired on
for Bloomingtons. I wanted my Bloomington runs back,
that they were there, and I should have them. Mr. Bul-
lock replied that if I was more for the Company and
not my other activities, then I probably wouldn’t have
this problem.
The complaint alleges that by Bullock’s remark, Respondent
violated Section 8(a)(1).
Bullock was asked on direct examination whether Carney
had discussed his Bloomington runs with him. Bullock re-
plied, ‘‘Not that I can recall.’’ I credit Carney.
At some point in September, Carney was reassigned to the
Bloomington runs. (The complaint does not allege that the
delay in reassigning Carney to the Bloomington runs was
violative.)
On direct examination, Bullock confirmed Carney’s de-
scription of his August 12–14 itinerary, but he was not asked
why Carney, rather than one of Respondent’s 75 regular
over-the-road drivers were not given those assignments, al-
though Bullock did testify, generally, that during that period
of time Respondent did not have enough over-the-road driv-
ers.
G. Other Evidence of Animus
Thomas testified that on August 6, after Murphy received
the Big Rock assignment, Chinn and Murphy had left the ter-
minal to go home, Summitt called Thomas to Summitt’s of-
fice. According to Thomas, Summitt then told him: that he
had not liked Murphy’s letter; that Summitt had sent Murphy
a reply, a copy of which Summitt showed Thomas; that he
had already written up Murphy twice (which, if true, is not
borne out by the documents in evidence); that he was going
to write Murphy two ‘‘more’’ times before firing him; that
he had learned about the drivers meeting on August 3 from
driver Glenn Wyatt; that he had sent Torp to spy on the
meeting; that Torp had reported to him that Murphy,
McDaniel, Stump, Carney, Underwood, Bouchey, and Collins
were at the meeting; that Thomas knew how Summitt felt
about unions; and that, ‘‘I’ll deal with Mike [Murphy] in my
own way.’’
Summitt denied this testimony, but strictly by answers to
the most blatantly leading questions imaginable (rather than
answering to a proper question calling for a narrative, then,
if possible, following with denials). Because of the strictly
leading nature of the questions utilized by counsel to adduce
the denials by Summitt, I credit Thomas over Summitt about
what was said between the men on August 6.
August 10, when Thomas was discharged by Bullock, he
went to see Summitt and asked for the reason:
I said, ‘‘What are the reasons you’re firing me?’’
[Summitt] said, ‘‘well, you know you got a big mouth.
You said something about the Union vote to the news-
paper; you shouldn’t have said that. You told the driv-
ers that they should get together and have a meeting
about problems that they were having. I don’t think you
should have told them that.’’ If you hadn’t have told
them, they might not have had the meeting. It’s caused
problems.’’ I told him, ‘‘well, I was just telling them
what—they asked my opinion, and I just gave them my
opinion, that they should have a meeting and get to-
gether and talk. I didn’t tell them to see the Union. I
told them to come see you first. And then if they
couldn’t work things out, that they could go and see
Mr. Shaw at the Union.’’ He said, ‘‘Well, I don’t think
you should have told them. You opened your big mouth
about it.’’
Thomas also testified that Summitt stated as reasons for
Thomas’ discharge two other factors not relevant here.
667BESTWAY TRUCKING
On direct examination, Summitt was asked if he met with
Thomas after Bullock had discharged Thomas; Summitt re-
sponded that he did. However, Summitt was not asked what
was said; therefore, Thomas’s just-quoted testimony stands
undenied, and I credit it. Bloomington driver Stump was in-
jured in late August, before the August 5 shutdown. In late
August, he returned. He testified that he met with Block and
Summitt in Block’s office at which time he presented a phy-
sician’s request that Stump be placed on light duty. Summitt
said Stump could have light duties such as cleaning rest
rooms and floors. Stump replied that he thought such assign-
ments were unsuitable. When asked what Summitt replied,
Stump testified:
He said, ‘‘I know your name was mentioned in the
letter. You’re the only one that’s still working here
that’s— who was mentioned in the letter.’’ I told him
that I really wasn’t there to discuss the letter, that I was
just there to let him know what my doctor said. . . .
He said that he’d done fired my buddies, is what he
said.
The complaint alleges that this response by Summitt was
a violation of Section 8(a)(1). Summitt denied the remark;
however, I found Stump credible.
Stump further testified that in early January he met with
Summitt, again in Block’s office. Stump testified:
I was asking him about the shortages on my checks,
and he said that there wasn’t a whole lot he could do
about it, that I would have to talk to worker’s com-
pensation about it. He . . . said that if me and Ed
Carney didn’t—if we kept up our Union stuff, we’d be
out on the street with our buddies. I told him that I was
not there to discuss that, that I was there just to find
out about my workmen’s compensation checks. And he
said that he just wanted to get a point across. I said,
‘‘I hear you,’’ and I left.
Carney testified that he was at a water cooler outside
Block’s office when Stump was inside the office talking to
Summitt about Stump’s disability checks. According to Car-
ney:
Yeah, I heard Ricky Stump’s voice asking about his
disability checks on—he hasn’t received some certain
ones, and I heard Mr. Summitt’s voice . . . he said that
if Ricky and Ed didn’t start—didn’t quit this Union
stuff, that we’d both be out in the street with our bud-
dies.
The complaint alleges that, by Summitt’s remark to
Stump, which Carney overheard, Respondent violated Sec-
tion 8(a)(1) of the Act.
Again, Summitt denied this testimony, but I found Stump
and Carney credible.
H. The January 10, 1992 Alleged Constructive
Discharges
1. Selections of Carney, Story, Stump, Walker, and
Pasley for reclassification
Before January 24, as well as full truckload contracts, Re-
spondent accepted less-than-truck-load, or ‘‘LTL,’’ shipping
contracts. These contracts involved freight that was picked
up (or delivered) in the Louisville-Jeffersonville area before
(or after) long hauls by other carriers. (Then the revenue was
split between Respondent and the other carriers.) Respondent
discontinued accepting LTL business on January 24. The dis-
continuance of the LTL business is not alleged as a violation
of the Act; it is part of this case because it is Respondent’s
assigned reason for changing the classifications local and
Bloomington drivers Carney, Story, Stump, Walker, and
Pasley to over-the-road drivers on January 10.
On January 10, eight of Respondent’s local and Bloom-
ington drivers received copies of the following letter that was
signed by Summitt:
The Company has made a decision to discontinue its
LTL hauling and local cartage effective January 13,
1992. As a result, it is necessary to reassign drivers.
Therefore, effective January 11, 1992, you are to report
to dispatch for a road assignment for January 13, 1992.
Five of the eight drivers who got this letter were Carney,
Story, Stump, Walker, and Pasley. The other three drivers
who got this message were Ronald Underwood, Eudell
Hackley, and James Woodson. As Summitt testified, Hackley
and Underwood were not actually assigned to over-the-road
driving; Hackley and Underwood were made Bloomington
drivers on January 13, replacing Carney and Stump.
Also on January 10, 11 of Respondent’s then-local and
Bloomington drivers got letters from Summitt stating that al-
though the local and LTL business was being discontinued
their jobs were not affected. The only Bloomington driver in
the latter group was Oster.
The local cartage operation continued through time of trial,
despite what the January 10 letters announced.
Rather than accept the over-the-road reclassification, Car-
ney, Stump, Story, Walker, and Pasley resigned, the only al-
ternative admittedly offered by Respondent. The complaint
alleges that the reclassification of those five employees con-
stituted impositions of more ‘‘onerous and rigorous terms
and conditions of employment,’’ that the reclassification
were made because of the known or suspected union or pro-
tected concerted activities or sympathies of those five em-
ployees, and that the forced resignations constituted construc-
tive discharges in violation of Section 8(a)(3).
Over-the-road assignments are more difficult than local or
Bloomington assignments because over-the-road drivers are
required to stay away from home, many times, over night;
and Respondent does not provide special pay for motel
usage, so a driver is required to sleep in his truck or pay for
his motel use out of the same per diem allowance that Re-
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent provides drivers who sleep in Respondent’s trucks
(which have accommodations for sleeping).
Summitt made the final decision on which drivers to select
for reclassification to the job of over-the-road driver.
Summitt testified that he conferred with different supervisors
on which drivers to select. Summitt, Bullock, and Block, but
no dispatchers, testified about why Respondent selected Car-
ney, Story, Stump, Walker, and Pasley.
a. Carney
Summitt testified that, in regard to the reclassification of
Bloomington driver Carney:
[Bullock] felt that Mr. Carney did not have a very
good attitude and was not willing to work with Dis-
patch as others would. . . . He described that Mr.
Carney constantly complained about trucks. If there was
not enough Bloomingtons and we asked him to do
something else, that he always attempted to refuse
work.
Summitt testified that Carney ‘‘especially’’ refused to be
cooperative during the August Bloomington shutdown.
Summitt admitted that Carney had no accident problem, and
that there were no problems with Carney other than those re-
lated to him by Bullock.
Bullock testified that he could not remember making any
recommendation on whether to reclassify Carney to the job
of over-the-road driver; Block was not asked about Carney’s
reclassification.
b. Stump
When asked why Stump was selected for transfer from
Bloomington to over-the-road assignments, Summitt replied:
Just his overall attitude was bad, sir. When he come
[sic] in, he was in a bad mood. He made rude com-
ments to the dispatch [such as], ‘‘I’m not taking this
load,’’ or, ‘‘I’m not driving that truck.’’ It was common
knowledge among everybody in dispatch.
Bullock testified that he could not remember making any rec-
ommendation on whether to reclassify Stump to the job of
over-the-road driver; Block was not asked about Stump’s re-
classification.
c. Walker
Summitt testified that Walker was reclassified from local
to over-the-road driver because Respondent knew that Walk-
er was looking for other employment anyway, and because
Walker had received two customer complaints, and because
he was not as cooperative in taking loads as Respondent
would have wanted. The two customer complaints were re-
ceived in a prior period of employment; Walker had quit for
other employment and rehired by Respondent in February
1991. The only example of Walker’s being uncooperative
that Summitt could cite was one unspecified time that Walk-
er refused a load because the load contained hazardous mate-
rials and the proper paperwork was not provided to him;
Summitt conceded that Walker was justified in his refusal on
that occasion.
Bullock testified that he could not remember making any
recommendation on whether to reclassify Walker to the job
of over-the-road driver; Block was not asked about Walker’s
reclassification.
d. Pasley
Summitt testified that Pasley was reclassified from local
delivery to over-the-road because he had been too slow in his
work and Respondent had received two customer complaints
about him. Summitt acknowledged that no supervisor had
mentioned the customer complaints to Pasley and that Pasley
continued to be assigned to do the trucking for those cus-
tomers.
Bullock testified that he could not remember making any
recommendation on whether to reclassify Pasley to the job
of over-the-road driving; Block was not asked about Pasley’s
reclassification.
e. Story
Summitt testified that Story was reclassified from city
driving to over-the-road because he had indicated in Decem-
ber to Bullock and Block that he might not get a commercial
drivers license (CDL) by April 1 as required by Federal stat-
ute. Summitt also testified that ‘‘[i]t was also our opinion
that Mr. Story was not as cooperative as others, as far as tak-
ing work assignments.’’ (Bullock’s and Block’s testimony
about Story’s expressed unwillingness to get his CDL is dis-
cussed below.) Summitt could not cite any examples of an
uncooperative attitude, other than demurring when give
Bloomington assignments, something, Summitt admitted, that
many local drivers did.
One of Respondent’s two largest local accounts was
Kurfee’s Coating Company. Summitt was asked on cross-ex-
amination, and he testified:
Q. At the time of this decision, Mr. Story was pri-
marily doing local cartage work for Kurfee,s, isn’t that
correct?
A. That’s correct.
Q. And as far as you knew, he was doing a great
job for Kurfees, isn’t that correct?
A. That is correct.
Summitt was further asked about Story’s performance prior
to his alleged December indications to Block and Bullock
that he would not get his CDL:
Q. Up to that point, in your mind, he was one of
your best employees, wasn’t he?
A. Yes. He had done a good job.
Summitt further acknowledged that he once made Story
the ‘‘employee of the month’’ when Respondent had such a
program in effect. Summitt further identified a glowing ap-
praisal of Story’s work by a customer; according to this
record, no other employee ever received such a letter.
On cross-examination, Bullock acknowledged that Story’s
performance had received complaints neither from customers
nor dispatchers. Bullock testified that the only reason that
Story was transferred to over-the-road driving was that he
had stated to Bullock in December that he would not get a
CDL.
669BESTWAY TRUCKING
20 Story further testified to an exchange with Block, in the pres-
ence of Houghton, on January 13. The effect of this testimony was
that Block had not even know of Story’s discharge at that point.
Houghton failed to corroborate Story on the point, and I credit
Block’s denial.
Block testified that twice during December he asked Story
when he was going to get his CDL. According to Block, the
first time Story replied ‘‘sometime’’; the second time: ‘‘He
basically said to me, sir, that I should probably hire a more
professional driver in his place.’’ Block testified that he re-
ported these remarks to Summitt at some point before Story
was assigned to over-the-road driving.
On cross-examination, Block acknowledged that there
were still some drivers who had not gotten their CDLs; they
had received written or verbal reprimands and they would be
suspended if they did not have their CDLs by April 1, 1992.
Block testified on March 20, 1992.
Story was hired in December 1988. He testified that he
was first interviewed by Summitt who, during that interview,
asked him what he thought of unions. Story testified that he
told Summitt he had worked for a unionized company (that
had gone out of business) and
I said I had no hard feelings for the Union ’cause
the Union done me—I had a good life with the Union
’cause I had five kids and a wife. They had asthma, and
the benefits was great. And I couldn’t down the Union
for no reason whatsoever.
Summitt did not dispute this testimony.
Story testified that he called Summitt after he got the Jan-
uary 10 letter. He asked to be retained on city runs, or
Bloomington runs. Summitt refused. Story asked Summitt
whether he could return to city driving later if he took the
over-the-road assignment then; Summitt replied that he
could, if business got better. Further according to Story,
Summitt asked him if he had told Block that he would not
get his CDL. Story told Summitt that he had not. Story testi-
fied that he told Summitt that he had told Block:
That I would take the CDL when I was waiting for
Saturday, because if I took the CDL to the off time, I
would lose money for paying for the CDL and work
too, so I was anticipating this Saturday like Indiana
had, so I wouldn’t miss any work.
Summitt did not dispute this testimony.
Story testified that in December Block asked him when he
was going to take the CDL examination and he replied that
he did not know. Story flatly denied that he ever told Block
that he would not get his CDL or that Respondent ‘‘should
get a professional driver.’’ Story denied that he told Bullock
that he would not get his CDL; Story testified that he only
told Bullock that he did not know when he would be getting
his CDL.20
Summitt was asked on direct examination what effect Sto-
ry’s alleged statements to Block and Bullock had on his deci-
sion to reclassify Story to over-the-road driving; Summitt re-
plied:
If Mr. Story was not going to have a CDL license,
and we knew it at that point, that he was going to be
a short-term employee, then we was going to put him
in an over-the-road position where it would not affect
the long-term city client [Kurfee’s Coating Company].
Story testified that he did receive his CDL on January
21, and I do not believe the testimony of Block and
Bullock that Story told them that he would never get
the CDL, although, Story’s admitted responses to Block
and Bullock reasonably would have conveyed an im-
pression that, in December, Story did not consider the
matter to be urgent.
2. Reactions to the reclassifications
Story testified that he refused the over-the-road assign-
ment, and accepted Respondent’s single alternative of res-
ignation, because all five of his children have asthma and
both he and his wife need to be at home nights because one
of them may have an attack. He did not testify that he told
this to Summitt in their final interview (although he did tes-
tify that this was his thinking during his interview with
Summitt).
Stump testified that when he got the January 10 letter, he
went to see Summitt. Stump was asked, and he testified:
Q. Okay. Tell us what you said and what he said to
you.
A. I asked Mr. Summitt what the letter was about,
and he said it was necessary to reassign drivers, that
LTL was being discontinued. I told Mr. Summitt that
did not affect me, that I was hired to run Bloomingtons.
. . . I told Mr. Summitt that I didn’t see why Rick
Oster got to stay on [as a Bloomington driver]. . . .
And Mr. Summitt replied to me that Rick Oster was
doing him a fine job.
I asked Mr. Summitt how [Oster] could be doing a
fine job when he’s had two accidents that I know of,
one of them was major, and I haven’t had any. I told
Mr. Summitt that the reason I took this job, in the first
place, was that I would be home with my wife and
kids. Mr. Summitt told me that, if I did not take the
[over-the-road] job, that we had nothing further to dis-
cuss.
Summitt was asked about his exchange with Stump and he
testified:
I said . . . that we desperately needed over-the-road
drivers; and that the Bloomington and city drivers was
all going to be affected by it. . . . And [Stump asked]
how come [Oster] had been here such a shorter time
than he has, and he was still on the run.
I told Ricky, ‘‘You know, it’s your attitude, Rick.
We’ve had you in on the—in the office. I know Ron
Block has talked to you on numerous occasions about
your attitude. It had just been like two weeks or three
weeks prior to this that your name came up about hav-
ing a problem with your attitude.’’ Mr. Stump said . . .
‘‘I don’t have a bad attitude problem. I have . . . a
good attitude.’’ And I said, ‘‘Ricky,’’ I said, ‘‘I’m not
going to argue with you.’’
Summitt did not deny that Stump alluded to Oster’s accident
record in the interview.
Carney testified that when he got the January 10 letter, he
went to see Summitt and
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Br. p. 22.
Well, I had told him that there was no way I could
run the road. I was married. I had two little kids, and
my wife would not put up with me being gone for a
week or two at a time with raising the kids like that.
I didn’t hire on as a road driver and that I don’t
know why he’s taking my Bloomington runs when the
Bloomingtons are still there. Mr. Summitt replied,
‘‘well, that’s—that’s what we have for you.’’ I told him
that I was going to file for unemployment and left.
Summitt did not dispute any of this testimony.
Pasley did not confront Summitt about his transfer; he
simply did not show up for work on January 13. Pasley was
asked on direct examination why, and he testified:
Well, I hadn’t been never drove on the road, and I
didn’t want to do it for that reason. And I didn’t want
to be away from my home at night from my family.
And I wasn’t hired in as a road driver.
Pasley denied that any dispatcher, or anyone else, ever told
him that he had been too slow in his work.
Walker also did not report for over-the-road assignments.
He was asked, and he testified:
Q. What were your reasons [for not taking the over-
the-road assignment]?
A. I have two small girls. My wife works at nights.
That’s number one. And number two is I told the, uh,
dispatchers before about talking to his own company
road drivers. He’d taken away the detention time of
loading or unloading where they were just paying the
road drivers when the truck was moving and that was
it. And number three. I didn’t trust their equipment. It
was prone to breakdowns.
Q. Did the Company know you didn’t want to go
over the road before January tenth?
A. Yeah, they knew it.
Q. How did they know that?
A. ’Cause I’d tell them all the time at the end of my
day. ‘‘I ain’t going. Don’t even think about it. I won’t
do it. That’s not my job.’’
JUDGE EVANS: Who’d you tell that to?
THE WITNESS: My dispatcher.
JUDGE EVANS: And who was that?
THE WITNESS: Fred Chinn.
Q. And did you tell him reasons why you didn’t
want to?
A. He knew. It was like I said. First of all, I’d tell
him. I’d say, ‘‘Look. Believe it or not. I have a per-
sonal life, and you people ain’t part of it. I come in.
I do my job, and I go home. Leave me alone.’’
Walker testified that he made such statements to dispatchers
when they attempted to get him to take over-the-road runs
(such as Kansas City).
3. Drivers not selected for reclassification
Although Summitt testified that he did not consider length
of service a factor in deciding which drivers to keep on local
or Bloomington runs, Bullock was asked and testified:
Q. Did Mr. Summitt ever make any statements dur-
ing those meetings about the factors upon which he was
going to make his decisions regarding re-assignments?
THE WITNESS: Yes, if I can recall. It was judged on
dedication, longevity and productivity.
Among the Bloomington drivers, Oster had the least se-
niority, or ‘‘longevity’’; Oster had also had a major accident,
neither Carney nor Stump had.
Story had more seniority than Thomas Harbin, Dennis
Collins, Steven Satterfield, George Stevens, Bruce Arnold,
and James Ross, all local drivers who were retained. Pasley
had more seniority than Harbin, Collins, and Satterfield, and
was hired on the same date as Stevens. Walker, who was
hired for the second time on February 12, 1991, had more
seniority than Harbin.
I. OTHER EVIDENCE OF ANIMUS
Stanley Houghton testified that on January 22, 2 days be-
fore his termination, he rode to lunch with Benningfield in
Benningfield’s automobile. According to Houghton:
I’m not really sure how the topic of Mike Murphy
came up, but [Benningfield] was telling me that they
might have to hire Mike Murphy back, or they’d have
to pay him severance pay. . . . Hank said he was the
one probably tried to—he would start the Union be-
fore—last February, whenever the Union was. And I
asked Hank ‘‘What would happen to Bestway if they
became a Union?’’ He said they would drop the name
Bestway Trucking and reopen as Bestway Services. I
asked Hank, ‘‘Can you do that?’’ He said, ‘‘Yes.’’
That’s all that was said.
The complaint alleges these statements by Benningfield to
be violative of Section 8(a)(1).
Benningfield denied this testimony; however, I found
Houghton credible.
III. ANALYSIS AND CONCLUSIONS
A. Alleged Violations of Section 8(a)(1)
1. Summitt’s conduct
a. July 30 statements to Murphy
The General Counsel argues that Summitt’s calling Mur-
phy into the office section of the dispatch area on July 30
‘‘was calculated to elicit information regarding the extent of
Murphy’s union activities.’’21 Murphy wanted to tell
Summitt what was going on; that is why Murphy wrote the
letter. In the circumstances, Murphy was hardly being sound-
ed out, as were the employees in the cases cited by the Gen-
eral Counsel on the point. Murphy invited the inquiry, at
least to the extent that I have found that an inquiry took
place. (After all, Murphy, in his July 27 letter to Summitt,
had told Summitt to ‘‘feel free’’ to talk to Murphy about the
topics of his letter.) Accordingly, I shall recommend dis-
missal of this interrogation allegation of the complaint.
However, as I have found, in the same meeting Summitt
told Murphy that he was not going to take the letter lightly;
671BESTWAY TRUCKING
22 When Thomas, undoubtedly, later told Murphy about what
Summitt had said on August 5, Murphy made a post hoc construc-
tion, possibly honestly, of his image of Torp’s actually being at the
restauarant on August 3.
23 By this time Benningfield and Summitt had adopted Houghton’s
observation that Carney looked like a union steward; Bullock appar-
ently had done so too.
that Murphy should not back him into a corner because
Summitt might do things he otherwise would not do; that
Murphy was headed for trouble; that Murphy had broken the
law; that Summitt’s attorney had advised him to prosecute
Murphy; that Murphy was a ‘‘union guy’’ who was trying
to start trouble at Bestway; that a lot of innocent people
would lose their jobs over the effort that Murphy was mak-
ing; that there would never be a union at Bestway; that em-
ployees who tried to organize a union would be dealt with
accordingly; and that Murphy could take what Summitt was
saying anyway he wanted to, meaning that, yes, Summitt was
threatening Murphy.
In composing and sending (even by certified mail) his July
27 letter, Murphy was seeking better terms and conditions of
employment for other employees, as well as for himself.
Therefore, the actions of Murphy, which prompted this
verbal reaction by Summitt, were statutorily protected con-
certed and union activities; and by Summitt’s fusillade of
multitudinous and multifarious threats against Murphy be-
cause of those protected activities, Respondent violated Sec-
tion 8(a)(1) of the Act, as I find and conclude.
b. August 14 statement to Carney
As I have found, on August 14, when Carney returned
from his run to Cincinnati, he discussed drop pay with
Summitt. At the conclusion of the discussion, Carney asked
Summitt if Bouchey would be reinstated. Summitt told Car-
ney that Bouchey would not, and that as long as he was the
owner there would ‘‘be no union at Bestway.’’
Such telling employees that organizational attempts a
doomed to failure are expressions of futility that violate Sec-
tion 8(a)(1), as I find and conclude that this one did.
c. Late August statement to Stump
As I have found, in late August, when Stump was asking
for (nondemeaning) light duty, Summitt replied by pointing
out that Stump had been mentioned in Murphy’s July 27 let-
ter. Summitt also noted that the other employees, Murphy
and Bouchey, had been discharged. The point could not have
been missed; Stump was asking for something, and Summitt
was replying that he should not be asking for anything. The
reason that Stump should not be asking for anything was his
involvement, if only by reference, in the protected concerted
activity of Murphy’s July 27 letter. This was a threat in vio-
lation of Section 8(a)(1), as I find and conclude.
d. January 6 statements to Stump and Carney
As I have found, on January 6, when Stump and Summitt
were in Block’s office, and Carney was outside listening,
Summitt told Stump that if he and Carney did not desist in
their continuing union activities they would be ‘‘out on the
street.’’ This was another threat in violation of Section
8(a)(1), as I find and conclude.
2. Surveillance of the August 3 meeting by Torp
I have found that Murphy’s testimony, standing alone, is
insufficient to find that Torp was at Jerry’s Restaurant on
August 3, especially in view of Torp’s credible denial that
he was there.
However, I have further found credible Thomas’ testimony
that Summitt told him that Summitt had sent Torp to the res-
taurant on that date, and that he had learned who had at-
tended the meeting. The two findings are not inconsistent:
Summitt lied to Thomas about who told him who was
present.22 Perhaps it was Wyatt; perhaps it was another em-
ployee whom Summitt wanted to protect from possible re-
criminations as an informant; I need not speculate.
The immediate issue before me is whether Summitt found
out about the meeting by conducting surveillance; specifi-
cally, whether he actually sent Torp to surveil the August 3
meeting. I have found insufficient facts to conclude that
Summitt did so; accordingly, I shall recommend dismissal of
this allegation of the complaint.
3. Chinn’s August 6 statement to Murphy
As I have found, on August 6, as he gave it to Murphy,
Chinn told Murphy that the Big Rock assignment had come
from Bullock (as Bullock acknowledges it did) and that it
would give Murphy less time to write letters to Summitt.
Chinn’s statement that the assignment would diminish
Murphy’s letter-writing time shows that Respondent’s motive
in giving the Big Rock assignment to Murphy was, at least
in part, retaliatory; the assignment was made in retaliation
for Murphy’s protected concerted activity of writing the Au-
gust 27 letter. However, assuming that the Big Rock assign-
ment had been given to Murphy for perfectly legitimate con-
siderations, Chinn’s statement would give any reasonable
employee the impression that the assignment had actually
been made in retaliation for protected concerted, or union,
activities. As such, the statement violated Section 8(a)(1), as
I find and conclude.
4. Bullock’s late August statement to Carney
As I have found, in late August, Carney complained to
Bullock that other drivers were getting the Bloomington as-
signment but he was not. Bullock replied that if Carney were
‘‘more for the Company’’ and not ‘‘other activities,’’ he
would be getting the Bloomington assignments.
The logical alternative to being ‘‘for’’ a company is being
‘‘for’’ a union. And, in this case, there is no other permis-
sible explanation for Bullock’s comment than that Bullock
knew, or at least suspected,23 Carney of union or protected
concerted activities. As such, Bullock’s statement that Car-
ney’s ‘‘other’’ activities deprived him of the desired Bloom-
ington runs was a statement that Carney’s known or sus-
pected involvement in union activities had deprived him of
the more desired runs.
And, by the comment, Respondent further violated Section
8(a)(1), as I find and conclude.
5. Benningfield’s January statement to Houghton
Of course, Benningfield’s January statement to Houghton
that Respondent would go out of business and reopen under
another name if the employees selected the Union as their
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966). 25 Perth Amboy Hospital, 279 NLRB 42 (1986).
collective-bargaining representative was a blatant violation of
Section 8(a)(1), as I find and conclude.
B. Alleged Violations of Section 8(a)(3)
The law is that the General Counsel has initial burden of
establishing a prima facie case sufficient to support an infer-
ence that union or other concerted activity that is protected
by the Act was a motivating factor in a respondent’s action
that is alleged to constitute discrimination in violation of
Section 8(a)(3) or (1). Once this is established, the burden
shifts to a respondent to come forward with evidence that the
alleged discriminatory conduct would have taken place even
in the absence of the protected activity. If a respondent goes
forward with such evidence, the General Counsel ‘‘is further
required to rebut the employer’s asserted defense by dem-
onstrating that the [alleged discrimination] would not have
taken place in the absence of the employee’s protected activi-
ties.’’ Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). The test applies regardless of whether the
case involves pretextual reasons or dual motivation. Frank
Black Mechanical Services, 271 NLRB 1302 fn. 2 (1984).
‘‘For a finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not
in fact relied on, thereby leaving intact the inference of
wrongful motive established by the General Counsel,’’ as
stated in Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982). If a pretext has been ad-
vanced, the inference of unlawful motivation is logically re-
inforced.24
To meet its burden under Wright Line, it is not enough for
an employer to show that an employee, for whom the Gen-
eral Counsel has presented a prima facie case of discrimina-
tion, engaged in misconduct for which the employee could
have been discharged or otherwise disciplined. The respond-
ent must show that it would have discharged, or otherwise
disciplined, the employee for the misconduct in question.
Hrasco Corp., 304 NLRB 729 (1991).
Therefore, the first inquiry is whether the record contains
a prima facie case of discrimination, or credible evidence
that a respondent knew or suspected that the alleged
discriminatees had engaged in union or other protected con-
certed activity, and that a respondent’s decisions to discharge
or otherwise discipline the employees were motivated, at
least in part, by animus toward that activity. Chelsea Homes,
298 NLRB 813 (1990). If such a prima facie case is held to
have been established, an inquiry will be made whether the
defense has been rebutted, either by showing that it is with-
out factual basis or by a showing that it is pretextual.
The above findings of independent violations of Section
8(a)(1) clearly demonstrate that the Respondent (here) pos-
sesses a virulent animus toward employees who would exer-
cise their rights guaranteed by Section 7 of the Act. Other
factors and admissions demonstrate this animus as well, in-
cluding those contained in the above-credited testimony by
Thomas.
Knowledge of the union sympathies is also clear. The May
and June meetings with Summitt, as well as Murphy’s July
27 letter, established actual knowledge for Murphy, Bouchey,
and Stump. In August, Houghton ascribed a union steward’s
looks (whatever a union steward looks like) to Carney;
Benningfield adopted Houghton’s ascription immediately,
and Summitt did so later. Benningfield also identified Carney
as a ‘‘troublemaker,’’ a common shibboleth that antiunion
employers use for actively prounion employees.25 As Thom-
as testified, McDaniel was identified to Murphy (by some-
one) as being at the initial organizational meeting on August
3. In the preelection and postelection reviews conducted by
Summitt, Thomas, Benningfield, and Houthton, Story,
Pasley, and Walker were identified as probable, or certain,
prounion votes if another election were to be held after the
anniversary of the February 23, 1991 Board election.
All of which is to say that the General Counsel has pre-
sented a prima facie case on all eight alleged discriminatees,
and Respondent’s defense on each must be examined.
1. Warning notice to Murphy
Benningfield gave Murphy permission to use the office
copier; he even showed Murphy how to use it. However,
Summitt appended a warning notice to his reply to Murphy’s
July 27 letter because Murphy had used the machine without
permission and because he had supposedly disturbed the of-
fice personnel, neither of which factor Respondent has
sought to prove. In the circumstances, it can only be con-
cluded that the warning notice was created, at least in part,
in retaliation for the protected concerted activity of Murphy’s
sending the (certified) letter to Summitt, and that Respondent
has not met its burden under Wright Line of coming forward
with evidence that it would have issued the warning notice
even absent Murphy’s protected concerted activity.
2. Assignment of the Big Rock run to Murphy
The Big Rock run was a grueling chore; whether there
were longer or more grueling assignments available is irrele-
vant. Respondent had 75 over-the-road drivers, but Murphy
was chosen for this run on August 6. Bullock selected Mur-
phy; when asked why, Bullock gave the long, convoluted
nonanswer that is quoted above. Conspicuous in its absence
from Bullock’s circumlocution was any statement that, spe-
cifically on August 7, there was no over-the-road driver
available for the Big Rock run, and Respondent has not at-
tempted to defend the assignment on that basis. Moreover,
Chinn told Murphy that the Big Rock assignment would af-
ford him a diminished opportunity to write further letters to
Summitt, a virtual admission that Murphy’s protected activity
of sending the July 27 letter was part, if not all, of the reason
for the assignment. Therefore, Respondent has not met its
burden of going forward with a defense under Wright Line,
and I find and conclude that Respondent violated Section
8(a)(3) and (1) of the Act by giving the Big Rock assignment
to Murphy, as alleged.
3. Discharge of Murphy
Summitt’s July 30 fulminations, as described by Murphy,
and Summitt’s August 7 imperative to Bullock to ‘‘fire all
three of the sons of bitches,’’ as described by Thomas, amply
demonstrate specific animus toward Murphy’s (and
673BESTWAY TRUCKING
26 See A & T Mfg. Co., 276 NLRB 1183 (1985), as it discusses
Wright Line and cites Klate Holt Co., 161 NLRB 1606, 1612 (1966).
27 Hrasco Corp., supra.
28 Respondent, ultimately, accepted McDaniel’s explanation of
‘‘car troble,’’ even without documentation. McDaniel’s taking care
of his car was hardly more sympathetic than Murphy’s taking care
of his father (if that’s what happened).
29 Bullock may have been as suspicious as I about Murphy’s tale
of what had happened the noght before; however, Bullock had not
heard the tale at the time he hired Murphy.
30 Driver Summers was talked to (and presumably listened to)
many times; Lupo was issued six writeups while he was on indefi-
nite probation.
Bouchey’s and McDaniel’s) activities that are protected by
the Act. Additionally, I have credited Thomas’ testimony that
on August 5 Summitt said that Respondent would write up
Murphy before discharging him. But, even discounting
Thomas’s testimony, Bullock’s August 6 writeup of Murphy
shows that Respondent was out to get Murphy on any pretext
that it could manufacture, and that documentation was part
of the process. Bullock testified that driver writeups are used
for serious offenses; however, the August 6 writeup was
issued only because Murphy ‘‘was showing his dissatisfac-
tion.’’ Murphy did not curse Bullock, other drivers did; Mur-
phy did not even argue with him. But Murphy got written
up. This was an exercise in case-building in its rawest form.
Then Murphy missed the Big Rock run. Murphy’s father
may have been ill early in the evening of August 6 (and
Murphy’s bizarre description of his father’s malady and its
etiology may even have been true). But rather than call in
to night dispatcher Robertson (as McDaniel did when he had
early evening car problems), Murphy called Thomas, as Rob-
ertson described. Murphy and Thomas did not, at that point,
concoct the excuse (Robertson’s permission) for Murphy’s
absence that was asserted at trial; if they had, Murphy would
have at least mentioned it in his (albeit brief) exchanges with
Summitt and Bullock on the morning of August 7.
The only scenario that makes sense, given my above-credi-
bility resolutions and the few indisputable facts, is: (1) as
Bullock testified, someone (a ‘‘young man’’) called in early
on August 7 and explained Murphy’s absence by stating that
Murphy’s father had been taken to the hospital; (2) Then
Murphy called in and, without asking why they were asking,
replied to Chinn and Bullock that his father had not gone to
the hospital after all. (The apparent reason that Murphy did
not ask why they asked was because Murphy knew of the
preceding young man’s call to Bullock, and Murphy further
knew that he had not told Robertson the night before that his
father was all right and that Murphy would be able to take
the Big Rock run.); (3) When Bullock heard from Murphy
that, contrary to what the ‘‘young man’’ had told him, Mur-
phy had not taken his father to the hospital, Bullock put
Murphy on hold and consulted with Summitt; (4) Summitt
told Bullock to fire Murphy; (5) Bullock got back on the
telephone and told Murphy, as undisputed, ‘‘I was told to
fire you.’’ (The reason that it is undisputed is because, at this
most critical point, Bullock again invoked his tactic of claim-
ing memory loss.)
The law is that, even if an employer seeks to discharge an
employee for violative considerations, if the employee com-
mits an offense for which the employee would have been
fired even absent his protected activities, a discharge is non-
violative if the employer discharges him for that conduct.26
Murphy provided Respondent with a reason that some em-
ployers would discharge some employees on the spot, but the
issue is whether this Respondent would have done so absent
Murphy’s protected activities.27 I conclude that it would not
have done so.
If the single missing of a delivery was the reason that
Murphy was discharged, it was a Bestway first. As Williams
testified, when drivers do not show up a few times, and miss
deliveries, ‘‘They get wrote up. . . . Then, after a certain
amount of times that they’re wrote up, they’re talked to or
let go or whatever.’’
Murphy was not talked to; he was not even written up be-
fore the discharge; he was fired outright, without a chance
to explain. Perhaps Respondent would have accepted Mur-
phy’s explanation;28 perhaps not.29 But the evidence shows
that other employees were, at least, listened to.30
Bullock testified that he did not give Murphy a chance to
explain his absence because, ‘‘I think, from the past history
and the attitude that he had shown, I could plainly see in my
mind what his attitude was.’’
That is, Murphy’s attitude would have prevented consider-
ation of any valid reason that Murphy might have had for
missing the Big Rock. The fact that Murphy may have had
no acceptable reason was inconsequential; Respondent was
not going to listen to it, anyway. Of course, by Murphy’s
‘‘attitude,’’ Bullock was not referring to anything other than
his protected concerted, and union, activities. Murphy’s ask-
ing from Nashville and Elizabethtown whether he could
claim drop pay, which is the only other conduct Respondent
appears to have noticed, ordinarily would not be considered
unusual; it is precisely the sort of thing that one would ex-
pect of a truckdriver.
Respondent went to great lengths (disingenuously, I be-
lieve) to insist that Bullock made the discharge decision, not
Summitt. But when Bullock was asked the first time why
Murphy was discharged, Bullock gave an expansive answer
which did not even mention the Big Rock run or Murphy’s
missing it. Instead, Bullock answered that the ‘‘straw that
broke the camel’s back’’ was the incident covered in the Au-
gust 6 driver writeup which, itself, was a raw exercise in
case-building, as I have found above.
Bullock did not make the decision to discharge Murphy;
Summitt did. (There is no other explanation for Bullock’s
keeping Murphy on hold for 5 minutes other than that Bul-
lock was conferring with Summitt.) Even by time of trial,
Bullock did not seem to have the story straight. (There is no
other explanation for Bullock’s citing, only, the August 6
telephone calls from Murphy the first time he was asked at
trial for the reason for Murphy’s discharge.) If Bullock had
made the decision to discharge Murphy, and, if Murphy’s
avoidance of the Big Rock run really had anything to do
with the discharge (other than to serve as a pretext), Bullock
would not have omitted it on his first try to explain the dis-
charge. And Bullock would have cited that reason, and only
that reason in that final exercise in creative documentation,
the December 7 driver writeup. Instead, Bullock there in-
dulged in amorphous considerations such as ‘‘Lack of dedi-
cation to Bestway’s interest’’ to document why Murphy was
discharged without inquiry, without warning, without suspen-
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 As Williams admitted, some of those drivers missed their runs
without so much as calling in. Even assuming any degree of urgency
to the Big Rock run, Murphy’s conduct left Respondent in no worse
postion than had the conduct of the other nonappearing drivers.
32 I do not believe Bullock’s timing of the discharge memorandum
at 7:50 a.m.; Murphy credibly testified that his call was much later
in the morning, and, as I have found, Bullock did not know about
the ‘‘might get sick’’ retort then.
33 And, at that point, Murphy’s circumstances would have been no
different from McDaniel’s, except that McDaniel called in early
enough that Robertson could get another driver to ‘‘cover’’ for him.
34 Even if a refusal of the Lexington run by Bouchey could other-
wise be divined, Bouchey suffered discrimination; R. Exh. 18 shows
that, on August 16, or 9 days later, driver Hibbs was given the op-
portunity to take an unwanted assignment or resign. (Also note what
Walker Told dispatch when they asked him to take long-distance
loads, as quoted above.)
35 The facts that (the nonunion) driver Oster got another long run
on another day, a factor upon which Respondent appears to rely, is
irrelevant.
36 The Lexington run given to Bouchey was an overnight trip;
even if he had stopped in Jeffersonville on the night of August 7,
there is no suggestion that Bouchey would have been returned to
Jeffersonville any faster than Blaho did on August 9.
sion, or, in other words, without any of the indulgences that
were shown to other employees who missed deliveries.31
Murphy was not discharged because he did not perform
the (discriminatorily assigned) Big Rock run. Again, if the
Big Rock incident was anything other than the pretext that
Summitt invoked, it would have been cited to Murphy, be-
fore Bullock put him on hold. The only logical reason that
Bullock would not have mentioned the ‘‘might get sick’’ re-
tort to Murphy as he was firing Murphy is that Bullock did
not yet know about it.32 Summitt did testify that he men-
tioned the ‘‘might get sick’’ remark to Murphy when Mur-
phy got him on the telephone later in the morning of August
7. But that call did come later in the morning, by which time
Summitt could have learned of the retort from Chinn, and,
by then, Murphy’s discharge had already been implemented.
However, I do not believe that Summitt knew about the
‘‘might get sick’’ remark until after his telephone conversa-
tion with Murphy; Summitt fabricated his account of what he
told Murphy in that conversation. Summitt testified that he
told Murphy, ‘‘We never received a phone call later that
night.’’ The information about what calls Respondent had
and had not received the previous evening could only have
come from Robertson. The apparently truthful Robertson tes-
tified that he had no contact with the terminal until he got
to work that afternoon. And, if Summitt had talked to Rob-
ertson before he formed ‘‘my opinion that he should be ter-
minated,’’ Robertson most likely would have told Summitt
that Murphy had, in fact, called in, but he spoke only to
Thomas; and, when Robertson did so, he further would have
told Summitt that Murphy had reported that he could not
take the Big Rock load.33
In this state of the record, it must be concluded that Re-
spondent has failed to come forward with evidence that it
would have discharged Murphy even absent his protected ac-
tivities. To the extent it can be said that Respondent has at-
tempted to come forward with such evidence, the General
Counsel has shown that Respondent’s asserted reason for the
discharge of Murphy was a pretext.
I therefore find and conclude that, by the discharge of
Murphy on August 7, Respondent violated Section 8(a)(3)
and (1) of the Act.
4. Discharge of McDaniel
Respondent offers no reason for discharging McDaniel;
therefore, under Wright Line, the General Counsel’s prima
facie case on McDaniel has not been met, and I therefore
find and conclude that, by the discharge of McDaniel on Au-
gust 7, Respondent violated Section 8(a)(3) and (1) of the
Act.
5. Discharge of Bouchey
Respondent contends that Bouchey was discharged be-
cause he refused the Lexington run. Rather than testify about
what Bouchey did or said that constituted a refusal to accept
the Lexington assignment, Bullock employed his tactic of
memory-failure.34 As a result, Bouchey’s testimony stands
undenied, and it must be concluded that he did not refuse the
Lexington assignment.
Therefore, Respondent has not met its burden under
Wright Line, and I find and conclude that, by the discharge
of Bouchey on August 7, Respondent violated Section
8(a)(3) and (1) of the Act.
6. Assignments to Carney and Bouchey
Both Carney and Bouchey did not want over-the-road
runs, and they had both previously told Summitt why. The
General Counsel has failed to prove that, by word or deed,
Respondent had guaranteed the Bloomington drivers that
they would never be assigned over-the-road runs. However,
it is admitted that Summitt told Bouchey, Stump, and Mur-
phy, in their June meeting, that Respondent would not assign
Bloomington drivers to longer runs during the forthcoming
Bloomington shutdown if it could be avoided. Respondent
gave Bouchey and Carney over-the-road assignments on rev-
elation that they had been at the August 3 organizational
meeting, the meeting cited as late as August 10, when
Summitt fired Thomas, as the specific object of Respondent’s
animus.
Respondent offered no explanation for the assignments to
these drivers for whom a prima facie case has been pre-
sented.35 Respondent offered generalized testimony that it
was short of over-the-road drivers at the time, but Respond-
ent offered no testimony that none of its 75 over-the-road
drivers was available when Carney and Bouchey were given
their over-the-road assignments.36 By its failure to offer such
evidence, if any such evidence existed, which I doubt, Re-
spondent has failed to meet its burden of going forward
under Wright Line.
Accordingly, I find and conclude that by making the over-
the-road assignments to Bouchey and Carney on August 7
and 12, respectively, Respondent violated Section 8(a)(3) and
(1) of the Act.
7. The January 10, 1992 reclassifications
The allegation is that Respondent reclassified Carney,
Stump, Story, Pasley, and Walker because of their known or
suspected union sympathies, and that the reclassifications
caused the constructive discharge of each. As clearly stated
675BESTWAY TRUCKING
37 As well as the specific predictions by Thomas and Houghton,
Summitt likely remembered Story’s answer in his preemployment in-
terrogation of Story.
38 The only Bloomington driver left unaffected by the January 10
purge was the crash-veteran Oster (who was also the only Bloom-
ington driver who did not attend the August 5 organizational meet-
ing).
39 Obviously, the attitude of Stump that caused his reclassification
was that reflected in Murphy’s letter, as Summitt’s first threat to
Stump discloses.
40 Assuming that Pasley was slow, he still had to be faster than
Ron Standiford who could not even drive a semitractor-trailer.
in Manufacturing Services, 295 NLRB 254 (1989), the test
for determining a constructive discharge is:
First, the burdens imposed upon the employee must
cause, and be intended to cause, a change in working
conditions so difficult or unpleasant as to force him to
resign. Second, it must be shown that those burdens
were imposed because of the employee’s activities.
[Emphasis in original.]
Respondent does not dispute that over-the-road driving is
more difficult and unpleasant than local or Bloomington
driving; the employees are required drive for extended hours
(to places like Big Rock, Virginia), and they are required to
stay away from home many nights in a row and sleep in the
trucks. Thus, the only issue is whether the burdens were im-
posed because of the employees’ union activities or sym-
pathies. I conclude that they were.
Immediately after the February 23 Board election, Summitt
told Thomas that the nine drivers who had voted for the
Union would ‘‘have their day.’’ That day came on January
10. In a recrudescence of the degree of animus that caused
the discharges of Murphy, McDaniel and Bouchey on August
7, Respondent reclassified to over-the-road driving positions
the likely ‘‘yes’’ voters who would otherwise have remained
for the second Board election that Murphy had forecasted in
his July 27 letter. Any doubt that Respondent sought termi-
nations, not just more over-the-road drivers, is destroyed by
Summitt’s telling Stump, when Stump pointed out that the
cessation of the LTL business should not affect Bloomington
drivers such as he, that Stump had a bad attitude, and it was
really for that reason that Respondent was reclassifying him.
Summitt gave his alternative reasons for reclassifying driv-
ers at trial, as well: According to Summitt, Carney was a
complainer; Stump had a bad ‘‘overall’’ attitude; Walker was
uncooperative, had received customer complaints, and was
looking for another job; Pasley was too slow; and Story had
said that he would not get his CDL. All of these reasons
were, as I find, false; but their assertion proves that
Summitt’s intent was to cause terminations, not get more
over-the-road drivers; Summitt did not want such purportedly
derelict drivers in his employ. Any other conclusion leaves
only the illogic that the supposedly derelict drivers were ac-
ceptable for over-the-road jobs, but not local or Bloomington
assignments. (It is unlikely that Summitt would share that
line of reasoning with Respondent’s over-the-road cus-
tomers.)
If Respondent had a better local driver than Story, there
is no evidence of it in the record. Story had gotten a letter
of commendation from a customer; had once been made
‘‘Employee of the Month,’’ and Summitt admitted that Story
had done a ‘‘great’’ job for one of Respondent’s two prin-
cipal customers.
Although he was apparently unenthusiastic about the proc-
ess, Story did not tell Block or Bullock that he would not
get his CDL by the deadline of April 1. But, even if Story
had said that he would not get his CDL, other drivers had
failed to get their CDL’s even at time of hearing, which was
2 weeks before the deadline. Those other drivers had gotten
verbal and written warnings from Block; Respondent sug-
gests no reason why Story would not have been given the
same chance. Even as he was being terminated, Story dis-
puted Summitt’s claim that he had stated (to Block and Bul-
lock) that he would never get his CDL; Respondent suggests
no reason why, at least then, Story was not afforded the sec-
ond chance that other procrastinating drivers received. Sto-
ry’s attitude about his CDL was not the reason that his em-
ployment was put to the sword; the sole reason, as I find and
conclude, was his forecasted ‘‘yes’’ vote in the feared 1992
NLRB election.37
Respondent’s trial tactic for answering the prima facie
cases on Stump, Carney, Walker, and Pasley was this:
Summitt would claim that he made the decisions on the rec-
ommendations of other supervisors, principally Bullock; then
Respondent would not ask the other supervisors what they
recommended, and Bullock would claim that he did not re-
member anything; this would leave everybody impervious to
cross-examination. This is not how a charged employer’s
burden under Wright Line is met, and the violations were es-
tablished when Respondent rested without more. However, I
will note that: the falsity of Respondent’s stated premise for
reclassifying the drivers is demonstrated by its nonexpla-
nation for simply giving Hackley and Underwood the
Bloomington jobs of Carney and Stump;38 and the written
statement that the local cartage business was being discon-
tinued was an outright lie. Moreover, Carney was ‘‘espe-
cially’’ (Summitt’s word) cooperative during the Bloom-
ington shutdown and, afterwards, taking several long-distance
assignments when others were sent on local drives (a fact
about which Carney complained to Bullock who, in effect,
told Carney that his union activities were the cause for the
assignments); there was no testimony from ‘‘everybody in
dispatch’’ that Stump had a bad attitude—nobody in dispatch
testified to such;39 if Pasley had really been slow, it seems
like someone would have mentioned it to him;40 and if
Walker was ‘‘uncooperative’’ because he would not haul
hazardous materials without proper paperwork, more truck-
drivers should be thusly ‘‘uncooperative.’’
Therefore, the 8(a)(3) constructive discharge allegations
have been proved.
CONCLUSIONS OF LAW
By the following acts and conduct, Respondent Bestway
Trucking, Inc. has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
(a) Respondent violated Section 8(a)(1) of the Act:
(1) By Summitt, on July 30 and January 6, threatening an
employee with discharge and unspecified reprisals because
he had engaged in union or protected concerted activities.
(2) By Summitt, on July 30 and January 6, threatening an
employee that other employees would lose their jobs because
they engaged in union or protected concerted activities.
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
42 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(3) By Summitt, on August 14 and January 6, telling an
employee that it would be futile for Respondent’s employees
to engage in union or protected concerted activities.
(4) By Summitt, in late August, telling an employee that
other employees had been discharged because of their union
or protected concerted activities.
(5) By Chinn on August 6, and by Bullock in late August,
telling employees that they had received undesirable assign-
ments because of their union or protected concerted activi-
ties.
(b) Respondent violated Section 8(a)(3) and (1) of the Act
by:
(1) Issuing a warning notice to Murphy on July 29.
(2) Imposing more onerous and rigorous terms and condi-
tions of employment on Murphy and Bouchey on August 6
and 7, respectively.
(3) Discharging Murphy, Bouchey, and McDaniel on Au-
gust 7.
(4) Imposing more onerous and rigorous terms and condi-
tions of employment on Carney on August 12 and 13.
(5) Constructively discharging Carney, Stump, Story,
Pasley, and Walker on January 10.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having discriminatorily discharged em-
ployees Douglas McDaniel, John Bouchey, Michael R. Mur-
phy, Edward Carney, Jimmie Story, Richard W. Stump, Don-
ald Walker, and Elijah Pasley, must offer them reinstatement
(except McDaniel whom Respondent has previously rein-
stated) and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended41
ORDER
The Respondent, Bestway Trucking, Inc., Jeffersonville,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge or other dis-
crimination because they have become or remained members
of General Drivers, Warehousemen and Helpers, Local
Union No. 89, a/w the International Brotherhood of Team-
sters, AFL–CIO (the Union) or because they have given as-
sistance or support to that labor organization.
(b) Threatening any employee that other employees would
lose their jobs if they engaged in union or protected con-
certed activities.
(c) Telling any employee that it would be futile for Re-
spondent’s employees to engage in union or protected con-
certed activities.
(d) Telling any employee that other employees had been
discharged because of their union or protected concerted ac-
tivities.
(e) Telling employees that they had received undesirable
assignments because of their union or protected concerted ac-
tivities.
(f) Issuing warning notices to employees because they
have become or remained members of the Union, or because
they have given assistance or support to it, or because they
are in sympathy with it.
(g) Imposing more onerous and rigorous terms and condi-
tions of employment on employees because they have be-
come or remained members of the Union, or because they
have given assistance or support to it, or because they are
in sympathy with it.
(h) Discharging employees, or constructively discharging
employees, because they have become or remained members
of the Union or because they have given assistance or sup-
port to it or because they are in sympathy with it.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Douglas McDaniel, John Bouchey, Michael R.
Murphy, Edward Carney, Jimmie Story, Richard W. Stump,
Donald Walker, and Elijah Pasley immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions of employment,
without prejudice to their seniority or any other rights or
privileges that they previously enjoyed, and make them
whole for any loss of earnings and other benefits they may
have suffered as a result of the discrimination against them,
all in the manner set forth in the remedy section of this deci-
sion.
(b) Remove from its files any reference to the unlawful
discharges of Douglas McDaniel, John Bouchey, Michael R.
Murphy, Edward Carney, Jimmie Story, Richard W. Stump,
Donald Walker, and Elijah Pasley, and notify them, in writ-
ing, that this has been done and that their discharges will not
be used against them in any way.
(c) Remove from its files any reference to the unlawful
written warning notice issued to Michael R. Murphy, and no-
tify him, in writing, that this has been done and that the
warning notice will not be used against him in any way.
(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 Jeffersonville, Indiana, copies of
the attached notice marked ‘‘Appendix.’’42 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, 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-
677BESTWAY TRUCKING
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten you with discharge or other dis-
crimination because you have become or remained a member
of General Drivers, Warehousemen and Helpers, Local
Union No. 89, a/w the International Brotherhood of Team-
sters, AFL–CIO (the Union), or because you have given as-
sistance or support to that labor organization, or because you
are in sympathy with it.
WE WILL NOT threaten you that other employees would
lose their jobs if you engaged in union or protected concerted
activities.
WE WILL NOT tell you that it would be futile for you to
engage in union or protected concerted activities.
WE WILL NOT tell you that other employees have been dis-
charged because of their union or protected concerted activi-
ties.
WE WILL NOT tell you that you have received undesirable
assignments because of your union or protected concerted ac-
tivities.
WE WILL NOT issue warning notices to you because you
have become or remained a member of the Union, or given
assistance or support to it, or are in sympathy with it.
WE WILL NOT impose more onerous and rigorous terms
and conditions of employment on you because you have be-
come or remained a member of the Union, or given assist-
ance or support to it, or are in sympathy with it.
WE WILL NOT discharge you, or constructively discharge
you (that is, force you to quit), because you have become or
remained a member of the Union, or because you have given
assistance or support to it, or because you are in sympathy
with it.
WE WILL, to the extent that we have not already done so,
offer to Douglas McDaniel, John Bouchey, Michael R. Mur-
phy, Edward Carney, Jimmie Story, Richard W. Stump, Don-
ald Walker, and Elijah Pasley immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions of employment, without
prejudice to their seniority or any other rights or privileges
that they previously enjoyed, and WE WILL make them whole
for any loss of earnings and other benefits that they may
have suffered as a result of the discrimination against them.
WE WILL remove from our files any reference to the un-
lawful discharges of Douglas McDaniel, John Bouchey, Mi-
chael R. Murphy, Edward Carney, Jimmie Story, Richard W.
Stump, Donald Walker and Elijah Pasley, and WE WILL no-
tify them, in writing, that this has been done and that their
discharges will not be used against them in any way.
WE WILL remove from our files any reference to the un-
lawful written warning notice issued to Michael R. Murphy,
and WE WILL notify him, in writing, that this has been done
and that the warning notice will not be used against him in
any way.
BESTWAY TRUCKING, INC.