Blue Square Ii, Inc , Energy Sales Ii, Inc , And Enerhaul Ii, Inc

National Labor Relations Board - Board Decisions

Feb 28, 1989

293 N.L.R.B. 29 (N.L.R.B. 1989)

BLUE SQUARE II
Blue Square II, Inc , Energy Sales II, Inc , and En-
erhaul II, Inc and United Mine Workers of
America Case 10-CA-22891
February 28, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 24, 1988, Administrative Law Judge
Richard J Linton issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended Order
as modified 3
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent has not filed exceptions to the judge s findings that
the Respondent violated Sec 8(a)(1) of the Act by coercively interrogat
ing and threatening employees with plant closure and threatening em
ployees with discharge and the General Counsel has not excepted to the
judge s dismissals of complaint allegations
We correct the following inadvertent errors of the judge which do not
affect his conclusions In sec III C 2 a par 5 of his decision the judge
inadvertently omitted the end of a sentence In sec III C 4 a par 8 of
his decision the judge incorrectly identifies Samons as Bicknell In sec
III C 5 a par 3 of his decision the judge incorrectly identifies the Re
spondent as Richardson In sec III C 5 b par 23 of his decision the
judge incorrectly identifies Respondent as Richardson In sec III C 5 c
par 6 of his decision the judge twice incorrectly identifies Richardson
as Meeks
The Respondent and the General Counsel stipulated and we find that
the Respondent s operations managers are supervisors within the meaning
of Sec 2(11) of the Act
2 The record supports the judge s finding that the Respondent evaluat
ed its drivers safety records by assigning a point value for moving viola
tions and accidents and that the Respondents regular practice was to re
quest motor vehicle reports (MVRs) from the State s public safety de
partment for all its drivers twice each year The record further supports
the judge s finding that the Respondent accelerated its MVR request in
order to disguise its decision to discharge Richardson in retaliation for his
testimony at the representation hearing but that the Respondent pursu
ant to its regular practice would have requested MVRs for all its drivers
at a later date and that that request would have resulted in Richardson s
lawful discharge for unsafe driving We agree with the judge s decision
to leave to the compliance stage of the proceeding determination of the
specific date when the Respondent would have made its regular MVR
request
3 We shall modify the judge s decision to add the standard Board rein
statement remedy for King s discharge We do not agree with the Re
spondent s contention that the record conclusively establishes that King
cannot be reinstated to his former position and that the Respondent has
no substantially equivalent positions We instead leave to compliance a
determination of whether King may legally resume his position with the
Respondent and if not whether a substantially equivalent position exists
See generally Dean General Contractors 285 NLRB 573 (1987)
We shall also conform the judge s recommended Order and notice
with his findings and conclusions regarding the unlawful discharges of
29
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Blue Square II, Inc, Energy Sales II,
Inc, and Enerhaul II, Inc, Sumiton, Alabama, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified
1 Insert the following as paragraph 1(b) and re-
letter the subsequent paragraph
"(b) Discharging or otherwise discriminating
against employees for supporting United Mine
Workers of America or any other union or for
giving testimony before the National Labor Rela-
tions Board "
2 Substitute the following for paragraph 2(a)
"(a) Offer Larry E King immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene
fits resulting from his discharge, in the manner set
forth in the remedy section of the judge's decision
If no such position is available, then make him
whole until such time that he obtains substantially
equivalent employment elsewhere "
3 Substitute the attached notice for that of the
administrative law judge
King and Richardson by requiring the Respondent to cease and desist
from discharging or otherwise discriminating against employees for sup
porting United Mine Workers of America or any other union or for
giving testimony before the National Labor Relations Board
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 violated 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 representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
293 NLRB No 5
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively question you about
your union support or activities
WE WILL NOT threaten you with plant closure or
discharge should you join or support United Mine
Workers of America or any other union
WE WILL NOT discharge or otherwise discnmi
nate against any of you for supporting United Mine
Workers of America or any other union or for
giving testimony before the National Labor Rela-
tions Board
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Larry E King immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and we will
make him whole for any loss of earnings and other
benefits resulting from his discharge, less any net
interim earnings, plus interest If no such position is
available, as determined at the compliance stage,
then WE WILL make him whole until such time that
he obtains substantially equivalent employment
elsewhere
WE WILL make whole Jimmy Allen Richardson
for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings,
plus interest, from the date of his discharge until
the date, to be determined at the compliance stage,
that he would have been discharged because of his
driving record
WE WILL notify Larry E King and Jimmy Allen
Richardson in writing that we have removed from
our files any reference to their discharges and that
the discharges will not be used against them in any
way
BLUE SQUARE II, INC, ENERGY
SALES II, INC, AND ENERHAUL, II,
INC
E Walter Bowman III Esq , for the General Counsel
Harry L Hopkins Esq (Lange Simpson Robinson &
Somerville) of Birmingham Alabama for the Re
spondent
Robert Webb, of Birmingham, Alabama, for the Charging
Party
DECISION
STATEMENT OF THE CASE
RICHARD J LINTON Administrative Law Judge This
is a discharge case The General Counsel alleges Re
spondent unlawfully fired two of its drivers (Larry E
King and Ricky Farris) because they supported the
United Mine Workers of America and that Respondent
unlawfully fired two other drivers (James D Samons
and Jimmy Allen Richardson) because they testified as
witnesses for the Union on 4 August 1987, at a represen
tation hearing in Case 10-RC-13532 I find merit as to
King (but order a conditional remedy) and to Richard
son (but I order a make whole remedy only as to Rich
ardson), and I dismiss the complaint as to Farris and
Samons
This case was tried before me in Birmingham, Ala
bama, on 17-18 February 1988 pursuant to the 27 No
vember 1987 complaint issued by the General Counsel of
the National Labor Relations Board through the Acting
Regional Director for Region 10 of the Board The com
plaint is based on a charge filed 29 September 1987, and
subsequently amended, by United Mine Workers of
America (UMW, Union, or Charging Party ) against Blue
Square II Inc (Blue Square or BSI), Energy Sales II,
Inc (Energy Sales or ESI), and Enerhaul II, Inc (Ener
haul) (singly or collectively, Respondent) i
In the complaint the General Counsel alleges that the
Respondent violated Section 8(a)(1) of the Act by seven
instances of interrogation, threats, and surveillance from
about mid July to about mid October, and Section 8(a)(3)
of the Act by discharging Ricky Farris on 3 August and
Larry King on 5 August and Section 8(a)(4) of the Act
by discharging James D Samons on 6 August and
Jimmy Allen Richardson on 10 August 1987
By its answer Respondent admits certain factual mat
tern, denies violating the Act and pleads certain affirms
tive defenses
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel2 and the Re
spondent, I make the following
FINDINGS OF FACT
I JURISDICTION
Each Respondent is an Alabama corporation, has an
office in Alabama and hauls coal intrastate for coal com
panies During the past 12 months each Respondent re
ceived gross revenue of at least $50 000 from such coal
hauling business from firms each of whom in turn sold
coal valued at $50,000 or more to entities outside the
State of Alabama (1 8-10) 3 Respondent admits and I
find, that each Respondent is an employer within the
meaning of Section 2(2), (6), and (7) of the Act
II LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
All dates are for 1987 unless otherwise indicated
z Counsel for the General Counsel also submitted a proposed order and
notice to employees
9 References to the two volume transcript of testimony are by volume
and page
BLUE SQUARE II 31
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
1 Corporate structure
Stipulating for the purpose of this proceeding the par
ties agree that BSI ESI , and Enerhaul constitute a single
employer ( 1 8) Jim Watkins is chairman of the three
companies , and Danny Gilliland is president ( 1 180-181)
Frank Meeks functions both as general manager of the
three firms (2 537) and also as operations manager, or
road boss , ' of Blue Square (2 363, 542) Gene Crouse is
the operations manager (road boss ) at ESI and Glenn A
Bicknell holds that position at Enerhaul (2 414) Meeks
testified that Respondent employs 15 employees all driv
ers, at each of these firms and that occasionally Re
spondent hires casuals No clericals are employed be
cause that work is contracted out Meeks testified (2 578-
579) Apparently the contractor is Truck Maintenance
Inc (TMI), for Meeks testified TMI maintains the per
sonnel records for the three firms (2 557) Although the
matter is not developed, TMI apparently is a corporate
relative of the three other firms In Case 10-RC-13532
(which I shall discuss in more detail momentarily) the 15
September Decision and Direction of Election of the Re
gional Director describes BSI ESI , and Enerhaul as
being under common ownership with the same president
and board of directors and with the daily administrative
operation of the facilities of the three firms being han
dled by TMI which also performs the maintenance on
and repair of their trucks
All agree the trucks are color coded That is, the
trucks of one company are painted in blue those of an
other red and the third gray Driver Larry King, one of
the alleged discnmmatees , testified trucks of BSI are
blue, those of ESI are red, and those of Enerhaul are
gray (1 43 68 ) However Dee Allen a former driver
who testified for the General Counsel, testified Ener
haul's trucks are red ( 1 150) King testified with more
specificity and I credit his description of the color desig
nations
As mentioned earlier Respondent hauls coal for coal
companies Respondents primary customer the source
of its main income is Drummond Coal Company (1 36
100, 102)
Meeks testified he began working for the predecessor
BSI in April 1976 Later ESI was created and Enerhaul
was the third one to be formed The current owners pur
chased the predecessors in November 1986 and that is
when the II was added after the names (2 538 -539) The
only history of collective bargaining appears to have
been at ESI
The current organizing campaign grew from conversa
tions among some of the drivers beginning about 6 July
1987 Driver Larry King testified that around that date
he and some of the drivers began discussing the idea of
having the UMW represent the drivers King obtained
cards and began collecting signatures (1 37-38) The
Union held its first organizational meeting with the em
ployees on 18 July and the second on 2 August (1 38,
49) Between those meetings the Union on 21 July filed
a petition for an election in Case 10-RC-13532 seeking
to represent all drivers employed (in a systemwide single
unit) by BSI, ESI, and Enerhaul in Walker and Jefferson
Counties, Alabama (G C Exh 9)
A hearing on the petition was conducted 4 August
(1 31) At the representation hearing two drivers testified
for the Union, Jimmy A Richardson and James D
Samons (1 179 215) Meeks testified that Respondent did
not conduct a formal countercampaign to the Union s or
ganizing drive (2 546)
The General Counsel alleges that Samons was dis
charged 6 August and Richardson on 10 August because
they so testified, and that Respondent violated Section
8(a)(4) and (1) of the Act by discharging them for that
reason In the meantime Respondent, the General Coun
sel alleges violated Section 8(a)(3) and (1) of the Act by
discharging drivers Ricky A Farris on 3 August and
Larry King on 5 August
On 15 September the Regional Director issued his De
cision and Direction of Election in Case 10-RC-13532
(G C Exh 10) Respondent requested review which the
Board denied by its Order of 14 October (R Exh 24) In
a Board supervised election the following day, 15 Octo
ber, the votes were 26 no 15 yes, with 10 challenged
ballots being insufficient to affect the results Presumably
a certification of results issued thereafter Thus the
Union lost the election
B The Allegations of Interference Restraint and
Coercion
1 Introduction
The complaint contains seven allegations of interfer
ence restraint and coercion Two concern General
Manager Frank Meeks on 15 July when it is alleged he
unlawfully interrogated an employee and threatened that
Respondent would close its facility if the employees sup
ported the Union
ESI Operations Manager Gene Crouse allegedly
threatened discharge on 24 July, interrogated employees
on 26 July and on 14 October (the Miller Steam Plant
incidents) threatened employees with reprisals bodily
harm, and, with Enerhaul Operations Manager Glenn
Bicknell, surveilled the union activity of employees
2 Collective bargaining history
Meeks testified former owner Gilmore recognized the
Union around 1976 or 1977 based on a card check
Thereafter (presumably during contract negotiations) a
strike ensued The strike was unsuccessful because ESI
was able to continue operation of its trucks with replace
ment drivers (2 541-542 604-606) The Union apparently
never obtained a collective bargaining agreement
2 Frank Meeks
Larry King was one of Respondents drivers I will
summarize his employment history in more detail when I
treat his discharge
On 15 July King arrived at the TMI facility to have a
flat repaired Meeks maintains an office at TMI in Sumi
ton Alabama (140) As an atlas reflects Sumiton is
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about 25 miles northwest of Birmingham King testified
that while he was at TMI , Meeks called him into his
office (143) Meeks asked Larry what is this that I
hear with you trying to get a union up over there at the
gray trucks9 Stalling King asked what Meeks was talk
ing about Meeks said one of the drivers of the gray
trucks (Enerhaul) had reported such information to
Meeks that morning Frank , I personally have not
talked with no union representative King responded
(1 43, 94, 95)
Among his comments Meeks stated he wanted King
and the others to know that if they went union Drum
mond would fire all the trucks, and in that event the
company would have no alternative but to change the
name of the company and to reopen under a different
name Meeks also said the company could switch from
dump trucks to flatbed trucks 4 A definite change would
be in store if the employees voted in a union Meeks said
Meeks added that at one time the drivers had brought in
a union at Energy Sales , that the then owners had threat
ened to close the plant , and that somewhere along the
way the company found a way to avoid signing a union
agreement This Meeks said , would be the same proce
dure the companies would use here if necessary (1 43-44
96-102)
As they walked out of the office King repeated he had
not personally spoken with a union representative Meeks
commented he had rehired King (in March 1987), that
King was a good employee , and Meeks really could not
believe the report about King If anyone had started it
Meeks added , it was James Samons ( 144) Meeks went
one way and King the other
As King walked back to the shop he met driver Roger
Cain who has the CB handle of Johnny Reb Well
Reb, you were right King remarked Somebody s a]
ready squealed on me just like you said they would
(144-45 ) Respondent objected to this as hearsay and on
the basis Cain is not a supervisor of Respondent I give
weight to the evidence of Kings remark to Cain, a
remark occurring only moments after King had emerged
from his conversation with Meeks as merely corrobora
tive of King s testimony about his office conversation
with Meeks
Meeks denies he had any such conversation with King
(2 545-546) King exhibited a more persuasive demeanor
than did Meeks and I credit King As the interrogation
(complaint par 8 ) occurred in the privacy of the superi
or s office , was directly probing of King s union activi
ties, and as King was not shown to have openly declared
his support for the Union before that time and, indeed
he sought to avoid disclosing his support by answering a
different question from that asked by Meeks I find the
interrogation to have violated Section 8(a)(1) of the Act,
as alleged
Similarly, I find Meeks statements about the reaction
of Drummond and of Respondent to be a threat (corn
plaint par 9) that Respondent would close its facilities if
the employees supported the Union To be sure, Meeks
4 As coal would not be hauled on flatbed trucks it is apparent the
impact of such a switch would be adverse to the drivers However the
meaning of the statement is unclear
did not suggest Respondent would go out of business
But Respondents business would be changed in a way
that , in essence the current drivers would lose their jobs
I find Respondent violated Section 8(a)(1) of the Act by
Meeks statements to King on 15 July 1987
3 Gene Crouse
a 24 July 1987-Dee Allen
Dee Allen drove for Enerhaul under the supervision
of Operations Manager Glenn Bicknell While enroute on
a trip 24 July Allen became ill and had to park by the
side of the road A following driver radioed for assist
ance Eventually Gene Crouse operations manager for
ESI, arrived with a substitute driver and carried Allen
back to the shop with him (1 149-150 2 409)
Enroute to the shop Crouse Allen testified, asked him
about the Union Allen, who does not recall how the
subject came up , responded he knew nothing about it
(1 149-150 162) No paragraph of the complaint alleges
this as an unlawful interrogation However, complaint
paragraph 11 does allege Crouse unlawfully threatened
employees with discharge (in effect , the second part of
this conversation)
To Allen s expression of ignorance , Crouse said that if
the drivers voted in the Union the man will sell these
45 trucks, that he (the man ) had already made a deal
to purchase 25 new road trucks, and the drivers who
could qualify would have to run all over the State Allen
(who recently had sold his own truck before being re
hired at Respondent ) said that would be no problem be
cause he had been doing it for 3 1/2 years When asked
on cross examination whether Crouse had said anything
about not having any more coal to haul Allen testified
Crouse stated that , if the Union went in Drummond
would fire the whole bunch, including Crouse and ev
eryone else ( 1 151, 163)
Although not referring to this specific conversation
Crouse testified Meeks had told him not to discuss the
Union with anyone, that he had complied with that in
struction and had not discussed anyone having to get an
other job because of the Union (2 376a)
Allen testified with a more persuasive demeanor than
did Crouse and I credit Allen I find the statements of
Crouse to be a threat of discharge of at least some
(nearly one half) of Respondents 45 drivers if the drivers
were to bring in the Union By that threat Respondent
violated Section 8(a)(1) of the Act In crediting Allen I
have weighed his possible bias against Respondent be
cause of his termination on 7 August Allen was one of
three terminated employees, named in the original
charge , who were deleted from an amended charge filed
at the opening of the hearing (1 5-7) Allen exhibited no
bias at the hearing over his discharge
b 26 July 1987-Ricky A Farris
Ricky A Farris had driven for Respondent for about 6
months as of his 3 August termination When terminated
Farris was driving for ESI under the supervision of
Gene Crouse (1 117) Unable to attend the Union s initial
organizational meeting, Farris met a fellow employee the
BLUE SQUARE II
following day, 19 July, and signed an authorization card
(1 119-120, GC Exh 5)
Complaint paragraph 10 alleges Crouse interrogated an
employee on 26 July Farris testified that in late July
after he signed the 19 July card Crouse approached
Farris at the ESI office as Farris was turning in certain
papers, and asked him what he knew about the union
business Farris said he knew nothing Nothing else was
said (1 120-121) Crouse generally denies this (2 377), and
denies discussing the union topic with any employees
(2 376a) He admits, however that he heard a bunch
of drivers had signed cards (2 402) I credit Farris who
testified with more persuasion on this topic than did
Crouse
In his brief, the General Counsel does not pause to ex
plain why Crouse s isolated question of Farris should be
found unlawful Citing cases, Respondent observes that
interrogation has been held not to be a per se violation
of the Act (Br at 77-78) As the General Counsel has
not shown the interrogation would reasonably tend to
interfere with the Section 7 rights of Farris or other em
ployees, I shall dismiss complaint paragraph 10
c 14 October 1987-Miller Steam Plant
(1) Facts
The complaint contains three allegations pertaining to
a series of incidents beginning at what is called the
Miller Steam Plant 5 The plant is a coal fired facility of
the Alabama Power Company, and Drummond Coal
Company, a coal mining company is one of the firms
that sells coal to the plant Respondent is one of the
firms that delivers Drummond s coal to the steam plant
(2 467-468) A sign is posted at the gate in question limit
ing entry to Coal Trucks Only (2 469)
As earlier noted James D Samons is one of the al
leged discriminatees Samons drove for Enerhaul under
Operations Manager Glenn Bicknell (1 201-202) He tes
tified at the representation hearing on 4 August on behalf
of the Union (1 213-215) Although Respondent takes the
position it never discharged Samons (Br 83) the General
Counsel contends Respondent unlawfully fired Samons
on 6 August
On 14 October the day before the election in Case 10-
RC-13532, Samons drove his personnel pickup truck to a
point outside the gate at the Miller Steam Plant He
began distributing leaflets to drivers who would stop for
them (1 241 2 335) The legend on the handbills read,
Vote Yes (2 335) Samons apparently handed the leaf
lets to Respondents drivers only
The first of the three allegations, complaint paragraph
12, alleges that on this occasion at the Miller Steam
Plant Gene Crouse threatened employees (Samons) with
reprisals' if employees joined or supported the Union
As noted, the General Counsel does not point to the evi
dence that was elicited in support of this allegation A
substantial amount of testimony relates to the series of
encounters that began that day at the Miller Steam Plant
° The General Counsel does not describe the evidence or discuss these
allegations in the Government s brief
33
ESI Operations Manager Gene Crouse testified that
Meeks radioed him to investigate a report that someone
was stopping Respondents trucks at the Miller Steam
Plant (MSP) Crouse was in his vehicle and about 15
minutes from the MSP at the time (2 377-378) As part
of his duties as road boss Crouse visits the MSP two
to four times a day (2 365) On arriving this day at the
vicinity of the entrance, Crouse observed Samons stop
ping trucks, mounting their running boards, and passing
handbills to the drivers Because he understands that the
MSP property line extends out beyond the gate and
beyond the point Samons was situated, Crouse viewed
Samons as being on the private property of the MSP
(2 379-380) Samons considered himself to be on public
property (2 335-336) The evidence does not establish
which viewpoint is correct
Samons denies stopping trucks, saying the drivers
voluntarily stopped and took the leaflets (1 241, 2 332-
334) He asserts he did not distribute any of the leaflets
after Crouse arrived (1 243) As Crouse pulled up and
parked a short distance from Samons, Crouse spoke by
radio (Samons had the same radio frequency) to a driver
Samons identified as a new driver for BSI (1243)
Samons testified Crouse, over the radio, asked the BSI
driver, Is that turkey stopping these trucks, giving those
leaflets out? Yeah, replied the BSI driver, he gave
me one but I wadded it up and throwed it out the
window Samons, whose wife was with him, had a
Vote Yes on October 15" sign on the windshield of his
vehicle (1242-244) According to Crouse, he merely
stated over the radio to some of the drivers that if
Samons stopped any more of 'my' trucks there was
going to be some trouble Shortly after that Samons
left and 2 or 3 minutes later, so did Crouse (2 381)
Before Samons left, Enerhaul Operations Manager
Glenn A Bicknell arrived in response to a report
Samons was there stopping trucks and causing a traffic
jam (2 464) Samons testified Bicknell displayed a camera
and photographed Samons' vehicle with the Vote Yes
sign (2 244) 6 According to Bicknell the photographing
occurred when the Samons departed moments after
Bicknell arrived As the Samons vehicle drove past
Bicknell and Crouse, Samons wife, Bicknell testified,
shot him a bird Bicknell attempted to photograph the
bird but learned later the film was improperly exposed
and the photographs were worthless (2 464-465 470)
Samons testified it was Crouse who initiated the flipping
of birds when he arrived at the scene (2 242) There is no
complaint allegation regarding the birds and the Gen-
eral Counsel does not seek a finding of a violation in that
regard (2 245) The bird sign is a hand and digit ges
ture not to be confused with the peace" sign the World
War II 'victory' sign , the `thumbs up sign of success
or approval or the Hook Em, Horns sign used at the
University of Texas 7 From all reports the bird' ges
ture is much older than the others and is exhibited in
many lands and cultures
6 There is no complaint allegation regarding Bicknell at the MSP
7 As to the latter which originated in 1955 see M C Berry UT
Austin Traditions and Nostalgia 18 (1975 Shoal Creek Publishers Inc)
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Asked why he was concerned about Samons action,
Bicknell testified he wanted to ascertain whether Samons
was stopping the trucks and if so he wanted Samons to
cease because Respondent must be concerned about an
interference with the flow of trucks from the MSP be
cause that is the property of Drummond s customer and
Drummond is a big customer of Respondent For that
reason it made a lot of difference whether Samons was
doing this on the property of the MSP (2 466-470)
The second (complaint par 13) and third (complaint
par 14) allegations in this series relates to events that oc
curred a few minutes after Samons and his wife left the
gate area of the MSP
Paragraph 13 alleges that on this occasion in and
about the vicinity of a shopping center parking lot in
West Jefferson, Alabama, Crouse threatened an em
ployee with bodily harm if the employee supported the
Union Paragraph 14 alleges that on this date, in and
about the vicinity of West Jefferson and Dora, Ala
bama, Crouse and Bicknell surveilled the union activi
ties of employees (Samons)
When the Samonses left the MSP gate area they drove
to Dora, a town about 20 miles (as appears from an atlas)
northwest of Birmingham On the way to Dora they
passed Meeks who, according to Samons, shot me a
bird' (1 244) Meeks version is that he simply returned
Samons bird (2 556-557) Subsequent events became
even less neighborly
According to Samons (Mrs Samons did not testify), as
he drove through Dora (northbound) toward highway
78 he observed that Crouse was behind him The testi
mony becomes disjointed at this point but apparently
Samons turned into a shopping parking lot and stopped
For a moment Crouse lost him but then found Samons
and stopped by him on the parking lot of Food World
Samons then pulled out and drove to his brother in law s
home in Dora That property abuts the highway through
Dora As Samons approached his brother in law s home
he observed that Bicknell and Crouse, both in vehicles of
Respondent, were following him Samons pulled up and
stopped in as he describes it his brother in law s yard
as it abuts the highway Crouse pulled up behind him
and Bicknell pulled up and stopped in front of Samons
(1 245-246 248 2 338-340)
Crouse testified that after some 2 or 3 minutes he de
parted the MSP for TMI The route back went through
Dora Although he was not intentionally following
Samons, Crouse testified, he did run up behind Samons
inside Dora Samons pulled off the road and turned
around heading back (in the direction of the MSP)
Crouse also turned around He testified there is no shop
ping center parking lot at the spot Crouse concedes it
can be said he then began following Samons because he
wanted to be sure Samons did not return (to the MSP)
and stop any more of Respondents trucks (2 382-383)
Crouse pulled up and stopped behind Samons The
wheels on the driver s side were standing on the high
way According to Crouse he did so because Samons
motioned for him to do so (2 383 409) Samons denies he
so motioned (2 339) Both agree Samons dismounted and
walked to the back of his vehicle, and both agree Crouse
opened his door but did not fully dismount putting only
one foot on the pavement or ground (1 246-247, 2 340,
384, 410) Samons asked Crouse what he was doing fol
lowing him (1 246 2 410) According to Samons Crouse
said he was going to stick like glue to Samons (1 246,
249) Crouse asserts Samons walked to the back of his
own vehicle hollering he was going to whip Crouse s
ass (2 384 409) Samons says it was Crouse who
threatened to stomp Samons ass (1 246, 249, 2 340)
At or about this point Samons wife dismounted and ran
to a nearby shop where she apparently telephoned for
the Dora police (1 247, 250, 3 341) Samons admits that
Crouse included with his words a reference about
Samons stopping the trucks (1 246, 251-252)
Bicknell testified that he first entered the encounter
when he topped a hill and observed Samons pull off the
road into the private yard Bicknell asserts he overheard
Samons threaten to whip Crouse Bicknell told Crouse
Gene, come on Don t get down on his level He s
trying to hang you with something like this Samons
then, according to Bicknell, turned to Bicknell and said,
Get out of the truck and 111 whip your ass right here in
the road Bicknell ignored that invitation and urged
Crouse to leave After some hesitation, Crouse remount
ed and both Crouse and Bicknell departed (2 471-472)
Crouse s description of Bicknell s appearance is consist
ent with that given by Bicknell, although he places Bick
nell as driving up from the opposite direction (2 384-385,
410-411) Samons tells us that Bicknell had turned his
vehicle around and then drove up to the scene where he
urged Crouse to leave Not as I know of is Samons
answer to the question of whether he threatened to whip
Bicknell (1 247 2 340-341)
Crouse had parked his pickup about 10 feet behind
Samons (2 410) As Crouse pulled out to leave he appar
ently drove close to Samons Samons claims he thought
Crouse was going to hit him and he shook his Vote
Yes sign at Crouse (1 248 2 341) Crouse admits he
pulled out fast and that he was angry, but he denies
trying to hit Samons (2 385) Samons testified he filed an
"harassment" charge with the city court of Dora against
both Crouse and Bicknell (2 342) and Crouse concedes
he was arrested 2 weeks later on a city warrant issued on
Samons charge (2 385) The outcome of the local cnmi
nal charge is not described in the record
(2) Conclusions
I shall dismiss these three allegations As to paragraph
12 (threat of reprisals at the MSP), the General Coun
sel failed to show that Samons was on public property
Respondent initially was concerned that Samons was dis
rupting the flow of traffic leaving the MSP Respondent
was concerned that its relations with its customer
Drummond, could suffer if Samons was disturbing the
traffic flow there The actual time of Crouse on the
scene was rather short before Samons left Crouse's state
ment about trouble if Samons was stopping the trucks
is rather ambiguous It could be interpreted as an intent
to pursue legal action to obtain an injunction, it could be
interpreted as a reference to Drummond becoming upset,
or, of course it could be interpreted as a threat of some
physical violence Under all the circumstances, I find the
BLUE SQUARE II
evidence fails to establish that Crouse threatened repass
als for protected conduct and I shall dismiss complaint
paragraph 12
As for paragraph 13 the General Counsel does not
pause to specify which conduct (even if Crouse were
fully credited) the Government contends amounts to a
threat of bodily harm Was it the whip ass threat? Was
it the driving too close to Samons9 And where is the ref
erence to union activities? Finally paragraph 13 refers to
West Jefferson, but the only confrontation described in
the record occurred in Dora, Alabama The General
Counsel failed to move at the close of the hearing to
conform the pleadings to the evidence
Under all the circumstances, it appears that any threat
of violence by Crouse is more attributable to the emo
tions arising from the scene of confrontation rather than
to any implied reference by Crouse to Samons protected
activities The confrontation would not have occurred
had Crouse not followed Samons However, even if I
were to find that Crouse intended to follow Samons
from the time Samons left the MSP, and not just when
Samons turned back in the direction of the MSP, it is
clear Crouse s concern was to prevent Samons from
causing bad relations with Drummond by being the
cause of trucks stopping as they left the gate at the MSP
The General Counsel does not articulate the Govern
ment s theory respecting this allegation I shall dismiss
paragraph 13
Similarly even if I were to credit Samons it appears
any conduct of Crouse and Bicknell was directed at pre
serving Respondents customer relations with Drum
mond rather than surveilhng the union activities of
Samons Samons concedes Crouse expressed at the scene
in Dora a concern about Samons stopping the trucks at
the MSP gate I shall dismiss paragraph 14
C The Allegations of Discrimination
I Introduction
As I mentioned earlier, there are four alleged discri
manatees here Respondent allegedly violated Section
8(a)(3) and (1) of the Act by discharging Ricky A Farris
on 3 August and Larry King on 5 August, and Section
8(a)(4) and (1) by discharging James D Samons on 6
August and Jimmy A Richardson on 10 August
2 Ricky A Farris
a Facts
Ricky A Farris had been employed at ESI for about 6
months before ESI Operations Manager Gene Crouse
discharged him on 3 August 1987 for tampering with his
trucks fuel pump (1 117, 124, 2 371 , 373) There is no
question that some drivers in the past have broken a
safety seal and modified the fuel pumps increasing the
rpm of the engines, in order to increase the vehicle s
speed ( 1 126 136 2 367) Drivers are paid by the number
and types of loads they haul, not by the hour (1 58)
Thus, more speed possibly means more money
However , the extra speed is a safety hazard and it de
stroys engines (2 367 Crouse) For these reasons Re
spondent views such tampering as a dischargeable of
35
fense (2 376, 405) Farris knows this and that previously
at least one other employee whose CB handle is
Little Man, had been fired for tampering (1 132-133
136) Meeks identifies Little Man as Felix Hadlev an
ESI driver he terminated at some earlier time for tam
pering with his truck s fuel pump Meeks rehired Hadley
about a month later as a new employee when Hadley
apologized and reapplied (2 553-555 575 600)
As part of his duties Crouse inspects the fuel pumps of
the trucks every 30 days or so (2 390) Some 4 to 6
weeks before 3 August Crouse had made such an inspec
tion and found the fuel pump on Farris truck to be in
proper order (2 366, 391, 403) About 30 July Crouse
heard drivers Farris and Callaway talking on their CB
radios Trying unsuccessfully to keep up with Farris,
Callaway complained he had been trying to get the shop
to `fix his truck but the shop would not do it Farris
replied that he worked on his own truck, and he was
bragging that his truck was faster than anyone s Crouse
decided to check Farris fuel pump (2 368, 390-391, 407-
408) The General Counsel did not offer any rebuttal evi
dence
That evening after Farris parked his company truck,
Crouse lifted the hood and discovered the seal had been
broken on the fuel pump Crouse had the service manag
er verify this and called Crouse at home later that
evening The pump was removed for further checking
and replaced with another, sealed pump (2 368-370 394-
397) As soon as Farris started the vehicle the following
morning, Friday, 31 July he noticed a substantial differ
ence in its performance Checking under the hood he
found a replacement fuel pump (1 122) He began cursing
that someone had messed with his truck and it was not
running right (1 138-139 2 370-371 400) Crouse said he
knew it that a new pump had been installed to replace
the old one that the old one had been tampered with,
and he was having the old one inspected Crouse told
Farris to go home and return Monday morning, 3
August (1 138, 2 371 397-400)
According to Farris he went directly to Meeks and
asked what was happening and why was Crouse sending
him home (1 123) Meeks said the fuel pump had been
tampered with that was amongst other things Asked
what he meant by other things Meeks replied Well just
amongst other things Meeks told Farris to report back
to Crouse on Monday (1 123 141) Meeks does not ex
pressly deny having a conversation with Farris at his
BSI office on Friday 31 July, but he does deny ever tell
ing Farris he was terminated for tampering with his
truck among other reasons (2 555) It was not until
Farris was terminated Meeks testified that Farris tele
phoned him at home that night or the next and asked
him to intervene and help get his job restored Meeks
said he would check it out The following night Farris
called again and Meeks reported what Crouse had told
him (earlier that day apparently) Meeks said he would
not intervene, that Crouse ran that company (2 553, 600)
If he interfered with the supervisors Meeks testified at
the hearing, he would not need them (2 609)
On Monday morning 3 August Crouse told Farris he
had to let him go for tampering with the fuel pump
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Farns denied it and said he could not understand Crouse
replied he had been given his orders for Farris to go
on and let this blow over 6 to 8 weeks and he would put
Farris back to work, and put him in the same truck
When Farris observed that he had missed no work and
carried extra loads, Crouse acknowledged that Farns
was one of his best drivers and that for the last 2 months
his truck had been the top dollar truck But, Crouse
added my hands are tied, that the decision had come
from upstairs (1 124-126 139, 141-142 )
Crouse (2 386) and Meeks (2 555) concede that Farns
was a good driver Crouse denies most of Farns version
However, he concedes he acknowledged that Crouse
was a good driver (2 376a), and he admits they had a dis
cussion and he cannot recall all that was said (2 372)
Finding that lapse of memory all too convenient, I credit
Farns version of their conversation that morning
b Discussion
I do not credit Farris when he says he did not tamper
with the fuel pump I find that he did, and that Crouse
discovered it in the circumstances he described But that
does not resolve the question of whether Respondent
fired Farris because of his union activities
The union activities of Farris were slight He signed a
union card off premises on 19 July (G C Exh 5) Crouse
questioned him in late July on what he knew about this
union business ' Farris replied he knew nothing, and
nothing else was said to him about a union Crouse
admits he heard that a bunch of the drivers had signed
cards (2 402) Meeks told Farris on 31 July he was re
lieved of duty over the tampering amongst other
things On Monday 3 August Crouse told Farris the
termination decision had come from upstairs, that his
hands were tied, and that he had been given his
orders but for Farns to let this blow over and he
would call him back to work in 6 to 8 weeks because
Farris was one of his best drivers
I do not credit Crouse that he did not consult with
anyone over the termination of Farns (2 405-406), nor
do I credit Meeks that he had no involvement (2 552)
From the statements made by Meeks on 31 July
("amongst other things") and Crouse on 3 August cou
pled with Crouse s admission he had heard of card sign
ing by the drivers and his interrogation of Farns only a
day or so before Crouse inspected Farns vehicle, I infer
Respondent suspected Farris as being one of the card
signers and that this suspicion was a moving reason for
the discharge Thus, the General Counsel has established
a prima facie case
The next question is whether Respondent demonstrat
ed it would have fired Farns in any event I find Re
spondent did Respondent followed its past practice of
terminating drivers who tamper with fuel pumps One
such dnver is Felix Hadley ( Little Man ) Meeks subse
quently rehired Hadley Farns has not been rehired even
though Meeks concedes Farns is a good driver and
Meeks has no reason not to rehire him if he came in and
convinced Meeks he would not tamper again (2 555) As
Meeks credibly explains the difference in the two cases
is that Hadley reapplied, admitted his error and prom
ised it would not happen again whereas Farns has done to call him (1 142)
none of that 8 Indeed as Meeks testified on cross exams
nation by the General Counsel (2 602-603)
BY MR BOWMAN (Resuming)
Q Now, one difference between Little Man and
Farris was that Felix Hadley admitted his error and
was contrite and said it wouldn t happen again
A Yes sir
Q He admitted having tampered with his pump
A Yes
Q Mr Farris, on the other hand, indignantly in
silted to the end that he had done nothing wrong
Am I correct?
A Yes
I shall dismiss the complaint as to Ricky A Farns
3 Larry E King
a Facts
Larry King has worked for Respondent twice His
first employment began 4 March 1986 and ended on 31
December 1986 when he left to start his own business
(1 34, R Exh 13) When King left, General Manager
Frank Meeks (who also directly manages BSI) told King
to let him know anytime he wanted his job back (1 35)
Meeks denies the assertion of this open invitation (2 544),
but I credit King over Meeks King testified with a more
persuasive demeanor than did Meeks
When King s business plans fell through he returned to
Respondent filled out a new employment application (R
Exh 13), and Meeks rehired him on 13 March (1 35,
104) A satisfied Meeks said Larry I in really glad to
have you back (1 36-37) Meeks testified he rehired
King as a substitute driver on a part time basis (2 544)
Enerhaul road boss Glenn A Bicknell described
records of Respondent reflecting that King worked as a
casual for Respondent floating among all three com
parties (he did not work at all in some of the weeks) be
tween 13 March and 26 May when he became a regular
driver for Enerhaul and Bicknell (2 419 422 488) At
that time Bicknell testified King s 90 day probationary
period began to run (2 422)
A substantial amount of evidence was adduced over
whether King became a regular employee, subject to a
probationary period of 90 days, when hired on 13
March or on 26 May The parties recognize that a pro
bationary employee enjoys the Act s protection (2 494-
495), but Respondent contends the probationary status
has a bearing on the stated cause of King s termination
(Br 105) Stated differently Respondents position is
that from the standpoint of motivation and credibility,
the question of probation is relevant because its managers
viewed King as such and therefore in effect accorded
him less due process than an employee who has complet
ed his period of probation
King is aware that Meeks hires drivers as casuals and
assigns them to each company as he sees fit (1 83) Bick
nell s first day for Respondent was 26 May (he was hired
8 Farns concedes he has not reapplied and has been waiting for Crouse
BLUE SQUARE II 37
as Enerhaul s manager), the same day King was convert
ed to permanent status (2 417 488) Crouse Bicknell tes
tified hired King full time that day (2 488) According
to Bicknell , a driver converted to permanent status is
told at that time Bicknell admits he did not tell King
and asserts that Crouse would have told King although
he concedes that Crouse did not inform him (Bicknell)
he had so told King Crouse merely told Bicknell he had
put Larry King on full time (2 423-424, 490-491) Nei
ther Crouse nor King addressed the matter of whether
Crouse hired King full time as of 26 May
There seem to be two outward manifestations of per
manent status One is that the driver from that time for
ward works only for the one company and therefore re
ceives his paycheck from that company only (2 494) As
a casual a driver can receive three paychecks in 1
week-one from each of the three companies if he drove
for all three that week (2 493) The other sign of perma
nent status seems to be assignment to one truck Begin
ning 26 May King drove truck 3104 until his termination
on 5 August (2 419) King concedes he drove the same
truck for the last 30 to 60 days of his employment (1 66,
80, 83), and that during his last 30 to 45 days he received
checks only from Enerhaul (1 84-85) I find Respondent
classified King as a casual driver until 26 May when it
converted him to regular or permanent, status, and that
at the time of such conversion the 90 day probationary
period began to run
When he was 12, King's natural right eye had to be
removed and replaced with an artificial eye (1 59) Of
course he cannot see from his right eye (1 109) On
his March 1987 employment application King wrote
none in answer to a question whether he had any
physical limitation with his eyesight and checked No"
on a series of health history questions concerning wheth
er he had defective sight (R Exh 13) King has been
driving for 20 years and he passed eye examinations for
other employers by telling the company doctor he could
see good (1 110) According to King, Meeks learned in
August 1986 about his artificial eye when King and sev
eral drivers were in Meeks office and the topic of con
versation turned to King s eye As Meeks watched, King
took a ballpoint pen and teasingly bumped his right eye
to show that it was artificial Alleged discriminatee
Jimmy Richardson was present (1 63-64 78) Richardson
corroborates King s testimony (1 189) Meeks denies the
incident and asserts he is unaware King has an artificial
eye (2 552, 599) Acknowledging that his pretrial affida
vit makes no reference to his artificial right eye King ex
plains it does not because there was no reason for him to
do so since his eyesight was not one of the reasons given
for his discharge (1 74, 116) Crediting King and Rich
ardson, I find the eye tapping incident occurred in the
presence of Meeks and that Meeks observed it
Department of Transportation (DOT) rules require
distance vision of at least 20/40 (natural or corrected) in
each eye, the same for binocular acuity in both eyes,
and a field of vision of at least 70 degrees in each eye
49 CFR §§ 391 41(b)(10) (R Exh 2) The regulation ap
parently means that a driver must have both natural
eyes King is aware he cannot pass a DOT required
physical examination (1 60, 62) As already mentioned, he
had driven for many years under DOT regulated driving
and has passed DOT medical examinations by telling the
company retained doctors he could see good (1 110)
He can of course, through his left eye
In April Respondent retained Examination Manage
ment Service (EMS) of Birmingham to administer physi
cal examinations required for issuance of DOT certifica
tion cards to the drivers The three companies went on
separate weeks EMS administered the physical examina
tions to Enerhaul drivers at Gene s Restaurant in Sumi
ton The restaurant , Meeks explained , serves as a meeting
place in Sumiton which , as an atlas reflects and Meeks
indicated, is about 25 miles northwest of Birmingham
(2 580-582) King took his physical there on 18 April re
ceived a passing score (R Exhs 3, 25), and was issued
his certification card (G C Exh 3) so stating (1 59, 61,
63, 69, 107) A sharp dispute exists pertaining to the ex
animation
Respondent apparently informed the drivers of the
physical exam about a week beforehand (1 60, 75) Ac
cording to King, he approached Meeks, reminded him
that he had only one (natural) eye, and asked what kind
of physical it would be Meeks said all a driver had to do
would be to have his heart checked and pee in a cup "
King said, Well, Frank, you know I ve only got one
eye, and under [the] federal Department of Transports
tion Act I won't be able to pass that physical " Meeks
replied, Well, don t worry about that 111 take care of
that end of it Just come by and urinate in the cup and
111 take care of the rest of it Well, that s great that
you would do this ' King responded (1 60-61, 108-109)
Meeks denies having a conversation with King about the
physical before he took it (2 583)
Despite Meeks assurance he would take care of' the
vision portion, King took the full physical because he de
cided it would be misleading-indeed, a lie-to do other
wise because this was a physical examination for certifi
cation under Federal DOT rules (1 61 107-109) 9 That
according to King, is what he told Meeks, presumably
close to the day, or the day of the examination (1 109)
Asked on cross examination whether he thought it was
misleading for him to drive with only one eye while car
rying the DOT certification in his pocket, King replied
no because he had been driving under DOT for 20 years
(1 110)
When King came to the vision test portion of the
physical , a woman examiner was present to administer it
King did not know her name as of the hearing (1 61 63)
EMS representative Ronnie Stewart testified the examin
er is a laboratory technician who recently underwent
surgery and was then hospitalized and unable to testify
(2 528-529) Although Stewart named the technician, I
shall refer to her as examiner Jane Doe inasmuch as nei
ther party, apparently, interviewed her during the pre
complaint investigation of the charge, the parties did not
jointly interview her after the hearing as was discussed
at the close of the hearing (2 627-633), and she therefore
has not had an opportunity to speak in her own behalf
9 King explains that he does not tell lies (1 95)
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When King arrived at examiner Doe s vision testing
station , he sat at a table facing a wall and , apparently an
eye chart Examiner Doe was seated to his left as was
Meeks (1 61) When examiner Doe asked King to take
the card and hold it over his right eye and begin reading
a certain line on the eye chart, King said that was unnec
essary because he is blind in his right eye (1 61, 112)
Doe repeated King s statement in a question, as if to con
firm what she had heard, and he said, Yes, ma am To
tell you the truth about it, I cant pass this physical
should it be a federal Department of Transportation
physical " She looked at Meeks, who said nothing
turned and asked King again if he was blind in his right
eye He said yes Doe said Well, the best I can give
you is a 20/40 vision in that eye King then read the
chart to the bottom line with his left eye (1 62, 112) The
physical examination form indeed reflects as follows (R
Exhs 3, 25)
VISION For distance Right 20/40 Left 20/20 [X]
Without corrective lenses Evidence of disease or
injury Right Clear Left Clear Horizontal field of
vision Right Normal Left Normal
Meeks testified that, although he was in and out of the
vision exams a few times, he did not participate in King s
exam and did not ask examiner Doe to pass King Meeks
asserts he spent most of his time near the drug screening
Meeks testified he did not know King could not pass the
eye exam (2 583-584)
As we shall see , Respondent did not discharge King
because he has only one natural eye Thus, the issue
really bears on credibility and remedy Whom to credit?
Generally, I do not believe Meeks and Bicknell and, gen
erally , I do credit King I am given pause as to this
point, however, because King s testimony has a tinge of
surreal quality His trumpeted professions of scrupulous
ness and his pious and superabundant insistence on recta
tude at the risk of occupational suicide , sound an alarm
bell as to his credibility in this area The Queen s re
sponse to Hamlet comes to mind (III, u, 237)
The lady doth protest too much methinks
Yet, the undisputed physical fact is that examiner Doe
recorded King s right eye distant vision as being 20/40-
exactly as King testified She did not stop there, but
wrote "clear" in the blank space for answering whether
there was evidence of disease or injury If that were not
enough there is a third test-field of vision For that, ex
aminer Doe wrote that King's right eye field of vision
(horizontal) is normal How can examiner Doe have so
written unless, as King describes it was by arrangement
with Respondent through Meeks? Even if King had
memorized the eye chart, so that when he read" it with
his left eye covered he was able to recall from memory
as the vision for his right eye, why did he stop at 20/40
rather than reading to the 20/20 line? How does it
happen he would have, or could have, stopped at pre
cisely 20/40? And even if that question can be answered
how does one explain examiner Doe s answers for the
other two vision tests? Coincidence? How do I resolve
these questions? In all its 116 page brief, helpful as the
brief otherwise is Respondent neglects to suggest an
swers to these important questions It is no answer to say
I should discredit King and credit Meeks for that does
not address the undisputed physical facts-the recordings
made by examiner Doe
The recordings of examiner Doe add strong support
and plausibility to King s version I credit King's version
King was one of the drivers who at jobsites around 6
July, began discussing having the UMW represent them
He signed his card (G C Exh 4) at the first union meet
mg on 18 July at the civic center in Jasper, Alabama
About 20 drivers attended King spoke to the group in
favor of the Union, and he thereafter persuaded two
drivers after work to sign cards (1 37-39) King testified
that at the second meeting on 2 August, attended by
some 20-22 drivers King suggested to Robert Webb, an
International organizer for the Union, that the Union
have some employees testify at the upcoming representa
tion hearing , and he was instrumental in obtaining the
agreement of alleged discnmmatees Richardson and
Samons , both of whom were off work on medical leave,
to appear and testify at the hearing for the Union (1 49-
51) There is no direct evidence, however, that any of
Respondent's managers observed King so participating
As I described earlier, before the first union meeting
on 18 July, Meeks called King into his office and asked
him about a report that King was trying to instigate a
union Crediting King s version, I have found Meeks
proceeded to threaten discharge for the drivers in the
event of unionization
A day or two later, about 17 July, King had to leave
his truck in Jasper for some repairs to the air condition
er Enerhaul road boss Bicknell came to pick up King
On the way back to TMI King asked if Bicknell had
talked with Meeks concerning the conversation he and
Meeks had earlier held about "this union stuff that's
going around' Bicknell said yes and he felt as Meeks
that King would not have had anything to do with it be
cause King s work habits were very sufficient and Bick
nell just could not believe King would do anything like
that (145-49, 95) Admitting to such a trip, Bicknell
denies ary mention of a conversation with Meeks or
about a union , and he denies he was aware King was in
terested in a union (1 430-431)
Respondent objected to King s testimony about the
Bicknell conversation on the basis there is no complaint
allegation concerning it The General Counsel stated that
the evidence was offered merely to show knowledge"
and that the General Counsel was not seeking to amend
the complaint Respondent then objected to a lack of due
process in that the lack of notice prevented Respondent
from preparing for a critical part of the case Respondent
did not ask for a continuance I overruled Respondent s
objection (1 46-48)
In its brief Respondent argues the Bicknell conversa
tion did not occur and was King s attempt to construct a
case against Respondent in that the conversation, admit
tedly started by King seems neatly contrived to stretch
Meeks suspected knowledge to Bicknell Moreover If
it occurred however the content of the conversation es
tablishes that Bicknell agreed with Meeks that King s
BLUE SQUARE II 39
work habits ' were so outstanding that he would not be
interested in a union (Br 101)
Finding King to be a more impressive witness than
Bicknell , I credit King and find the 17 July pickup con
versation occurred as he describes
Bicknell testified that the morning of 4 August he
heard King talking to another , unidentified , driver about
passing the (recent) physical exam King bragged, Well,
I slipped through and I've got only one eye " That is the
first Bicknell had heard that King had only one eye, and
he denies Meeks or anyone told him of it earlier (2 425,
431, 498) King recalls no such CB conversation and
denies that it occurred ( 1 88-89 , 109) I credit King in his
denial
According to Bicknell , King 's work performance was
unsatisfactory It was marked by expressions of dissatis
faction by King with the manner in which Bicknell dis
patched loads and the places Bicknell sent him King
would call him and complain These incidents occurred
continually " Moreover , King frequently was tardy in
reporting , and he missed some loads King's earnings
were about average (2 425-426, 432-434, 496)
Bicknell testified that King tested his authority in yet
other ways , not enumerated in the record (2 496) Except
for agreeing that he and others , including Bicknell him
self, complained about having to work too many hours,
King denies the allegations of Bicknell ( 1 105) Bicknell
does not claim he ever voiced dissatisfaction to King,
and King affirmatively states that Bicknell never did
(1 106)
Bicknell concedes he never made a notation to King s
file on any of these supposed shortcomings (2 496) Even
though King was a probationary employee during such
period , I observe that Bicknell described his own prac
tice of memorializing , by file memos, when he tells em
ployees they are converted to regular drivers (2 491)
Bicknell testified with an unsatisfactory demeanor as to
this , and I do not believe him I find that both Bicknell
and Meeks considered King a desirable and capable em
ployee about whom they had no complaints
King was scheduled to report for work at 5 a m on 5
August He was late, not arriving until 5 45 a in Bick
nell testified Bicknell testified that tardiness triggered his
decision to terminate King because of all his work defi
ciencies (2 500-501, 503) When King arrived at the TMI
yard Bicknell went out and told King he was letting him
go for poor work performance At some point in this
conversation Bicknell told King he wanted an excuse for
the lateness 'and, you know, that s why I was dismissing
him ' (2 426-427) They argued over whether Bicknell
was to furnish the reason in writing Bicknell eventually
did so , it would seem while they were standing in the
yard (2 427) Apparently at that point King went inside
the TMI office and made a telephone call Bicknell went
inside some moments later and overheard King asking
the person in the telephone conversation What can I
do about this? Bicknell turned and walked outside
(2 428-429) Then King came out into the yard and ac
cording to the sequence described by Bicknell asked
(again) for a termination slip, So , I wrote him a terms
nation slip " (2 429)
Apparently at this point Bicknell told King that ac
cording to DOT rules King could not drive with one
eye Both my eyes are fine, ' King responded (2 429-
430, 499) King denies there was any reference to his eye
in the conversation (1 88)
Bicknell testified King 's blindness in his right eye was
not a factor in his decision to terminate King and had
nothing to do with King s discharge (2 500) Respondent
contends, however, that such condition bars King from
both reinstatement and backpay even if merit is found
(Br 110)
King 's version is different King testified that on 4
August , the day of the representation hearing in Case
10-RC-13532, he worked 19 hours-until midnight He
did not reach his bed until after 2 a in Awakening a bit
late he could see he would miss his 5 a in reporting time
and he telephoned Bicknell who told him to take your
time because King would be going to Gadsden and that
meant he would be able to carry only two loads (1 52-
53)
King arrived at work about 5 20 am, parked his per
sonal vehicle , and started toward his Enerhaul truck At
that point Bicknell came from the office and told King
he had to let him go King asked why Bicknell said it
was because King s work was unsatisfactory in his 90
day probationary period (1 54, 90) 'Naw, let's face the
fact , King replied its because of my union activity,
nght9 Bicknell said he did not know what King was
talking about and he asked King , What union are you
talking about? King said , ' Well, in reference to the
hearing that was held yesterday ( 1 54, 89-91 ) Bicknell
denies there was a reference to union in his conversation
with King that morning , and he denies awareness at the
time that King had even participated in any union activi
ties (2 430) Bicknell concedes , however , that he had
heard there was some union activity among some of the
drivers (2 501)
King asked if Bicknell was saying his work was no
good, and asked how Bicknell could say he was still in
his 90 day probationary period Bicknell replied that he
had nothing else to say King asked for the reasons in
writing and Bicknell agreed to that They then walked
into the foreman's office at TMI King asked permission
to use the telephone As King called and spoke to Gary
Pickett, a representative of the Union , Bicknell wrote out
the termination slip (1 54 91) King does not describe the
contents of his conversation with Pickett , but he asserts
Bicknell heard all of it (1 93) King denies that the Union
ever told him to say (if ever fired) that he had been ter
minated because of his union activities Moreover
common sense would tell me the reason why I was
being terminated was because of the union , and I figured
the union would want to know about it ' (1 93-94)
When King completed his telephone conversation with
Pickett (Pickett did not testify), Bicknell handed him the
termination slip which reads (1 55, 87, 91, G C Exh 2)
8-5-87
Larry King is being terminated on bases of 90 day
probations period His work is unsatisfactory & [he
is] being terminated
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
/s/ Manager Glenn Bicknell
Enerhaul II Inc
I credit King over Bicknell concerning the morning of 5
August
As King was removing his personal items from his En
erhaul truck Frank Meeks walked by and said (1 56, 92)
You 11 never learn, will you? King said yes he had
learned to get it in writing As King was about to leave
he told Meeks this is nothing personal against Meeks
(1 57) Meeks denies that anything more was said than
the second part about this having nothing to do with
Meeks because all the drivers liked him (2 548) I credit
King rather than Meeks
b Discussion
(1) Conclusions
Admitting he had heard there was some union activity
among some of the drivers (2 501), Bicknell denies know
ing that King was interested in the Union (2 431) He as
serts he did not consult with Meeks before terminating
King, and that Meeks did not know Bicknell was going
to terminate King (2 431, 502-503) As of the hearing
Meeks claimed ignorance of the facts about King s terms
nation (2 600)
Not believing either Meeks or Bicknell I find they did
consult before Bicknell terminated King Respondent
argues that Meeks You 11 never learn even if credited,
could well reflect merely that Meeks had found out
about King's lateness after his discharge and so remarked
(Br 102) That interpretation is thin because the time ele
ment seems rather short to permit it, and I have not
credited Bicknell s testimony about King s supposed
shortcomings including tardiness But in any event the
interpretation I place on it is that given by King (1 92) I
think it was dust a slang way of saying you know if you
hadn t done this you d still have your job King s this
I find refers to Respondents belief that King was an in
stigator of the union activity
I do not overlook King s statement that in the early
morning telephone conversation with Bicknell on 5
August Bicknell told King he did not have to rush be
cause King would be going to Gadsden If Meeks and
Bicknell conferred when did they? If on 4 August, or
the morning of 5 August before King telephoned Bick
nell, and if the result of a conference between Meeks and
Bicknell was to convey, from or through Meeks, the di
rective that King was to be dismissed (because he was so
ungrateful as to instigate a union campaign) then why
would Bicknell say anything to King about a trip to
Gadsden? The General Counsel does not address this
question in the Government s posthearing brief
The Gadsden reference tends to support Bicknell s
version of a spur of the moment firing of King But I
have credited King s version of events not Bicknell s It
is idle to speculate why Bicknell made the Gadsden ref
erence knowing as I have found he was going to fire
King when he arrived at the TMI yard As a riddle it
remains unresolved but its unresolved status does not
compel a reversal of my other findings
Finding, as I do, that a motivating reason for King s
discharge was Respondents belief he was instrumental in
instigating the union campaign the next question is
whether Respondent demonstrated it would have fired
King in any event The answer to that is no because I
have discredited Bicknell and his testimony about King s
poor work performance I therefore find, as alleged, that
Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Larry E King on 5 August 1987
(2) Remedy
When it is found an employer has unlawfully dis
charged an employee, the standard remedy is reinstate
ment plus backpay with interest Larry E King is a
truckdriver by occupation Through misfortune King
lost his natural right eye when he was 12 He wears an
artificial right eye through which, of course he cannot
see Frank Meeks testified without contradiction that
Alabama has adopted the Federal Department of Trans
portation (DOT) regulations (2 548-550) Those rules re
quire a truckdriver to have at least 20/40 distant vision
in each eye 20/40 binocular vision, and a field of vision
of at least 70 degrees in each eye all with or without
corrective lenses 49 CFR §§ 391 41(b)(10) (R Exh 2 )
Presumably the regulation means that a driver must have
two natural eyes
At the hearing the General Counsel stated that the
Government does not seek an order requiring Respond
ent to violate Alabama s safety regulations (1 22), and
argued there is evidence (to be adduced presumably)
suggesting Respondent has positions other than driver
positions (1 26) The General Counsel fails to point to
such evidence in the Governments brief and seems to
hedge by contending that King is owed a substantially
equivalent job10 of whatever type may be available if
he is in fact barred from driving Respondents vehicles
by state or federal law (Br at 16) This seems to sug
Best that this specific issue be deferred to the compliance
stage-a suggestion Respondent opposes on the basis the
matter has been fully litigated here (Br 112, 115)
Further on in the Governments brief the General
Counsel states, One cannot assume that King s employ
ment would have been short lived or even that an ex
ception a waiver, or non enforcement of regulations
would not have occurred (Br 17 )
The General Counsel offered no evidence and makes
no request for official notice that Alabama regulations or
policy in fact contain grandfather provisions make ex
ceptions, or allow waivers for drivers meeting certain
conditions Moreover, if Alabama s regulations provided
for a waiver, it is possible that any time deadline for ap
plication has expired Presumably the evidence here
would have disclosed any application by King for a
waiver
The General Counsel also contends Respondent as the
wrongdoer should be liable for backpay until such time
10 As earlier mentioned Meeks testified that each of the three compa
mes employs drivers only-not even mechanics (2 579) Thus Respond
ent could not train King to be a mechanic at either BSI ESI or Ener
haul TMI employs mechanics but TMI is not named here as part of Re
spondent
BLUE SQUARE II 41
as Respondent provides substantially equivalent employ
ment or King obtains that himself The General Coun
sel s proposed order incorporates this position The Gen
era] Counsel contends King s situation may be compared
favorably to cases in which the Board has not tolled the
backpay of a discriminatee who is disabled during inter
im employment , on the theory he would not have been
subjected to the interim risk but for Respondents dis
crimination (Br 17) Respondent contends backpay
would be improper because King cannot be reinstated
Adopting essentially the General Counsels proposed
order as to King, I shall defer to the compliance stage of
determining whether Respondent has an available posi
tion King can fill which is substantially equivalent to his
driver s position In the absence of such an available po
sition , I shall order that Respondent make King whole
until he is able to secure substantially equivalent employ
ment elsewhere
4 James D Samons
a Introduction
James D Samons began driving a truck for Enerhaul
in mid November 1986 (1 201) The General Counsel al
leges Respondent fired Samons on 6 August 1987 From
the beginning , and until August 1987 Samons drove a
1981 Kenworth 18 wheeler dump truck , No 3114 In
keeping with the Respondents custom of allowing driv
ers regularly assigned specific trucks, Samons had sever
al personal items installed such as a CB radio , a stereo
with speakers , and other personal items ( 1 202-203)
Samons was active for the Union He signed a union
card on Saturday 18 July at the first organizational
meeting ( 1205-206) On Sunday , 2 August , around 3
p in , he attended the second union meeting ( 1 206-207,
2 294) and on Tuesday , 4 August , testified on behalf of
the Union at the representation hearing in Case 10-RC-
13532 ( 1 213-215 ) Samons was on sick leave at the time
of the representation hearing and had been since being
admitted to a hospital with chest pains on Monday 20
July He was released from the hospital on Friday, 24
July but readmitted on Sunday 26 July until released
again on Thursday 30 July ( 1 207-212)
The General Counsel contends Samons visited Ener
haul on Friday 24 July after his release from the hospi
tal where he spoke with Bicknell and Meeks Bicknell
told him he would have to take a physical examination at
the Thuss Clinic before he could return to work because
Samons reportedly was suffering from unstable angina
Bicknell and Meeks said they would call the clinic on
Monday and have Samons scheduled for a Tuesday (28
July) appointment and that they would notify him on
that Monday Samons said he would be glad to take the
physical ( 1 209-211 , 2 315-317)
Bicknell testified he did not see Samons between
Friday 17 July and Wednesday 5 August, when
Samons with no advance notice reported to work about
6 am (2 441 , 483) Reporting time is 5 am It was on 5
August Bicknell testified that the unstable angina and
Thuss Clinic conversation occurred Beginning principal
ly with this topic and continuing throughout , the evi
dence is sharply disputed
The thrust of the General Counsels case is that when
Samons sought to return to work on 5 August and
thereafter , the only truck Respondent had available for
Samons was a 1984 Mack which was in unsafe and un
roadworthy condition and that , by classifying Samons as
medically disqualified to drive on one hand and on the
other by restricting him to the unsafe truck Respondent
effectively discharged Samons on 6 August
General Manager Meeks testified Samons has not been
fired (2 587) Respondent so states in the first affirmative
defense in its answer to the complaint and asserts
Samons is free to return to work on condition he be ex
amined at the Thuss clinic within a reasonable time
after his return to work (Br 99 115 )
Earlier , in discussing the case of Larry E King, I
quoted from the DOT regulations pertaining to the re
quirements for good vision That group of regulations
has another health provision relating to heart conditions
The regulations provide that a person shall not drive a
motor vehicle unless he is physically qualified to do so
49 CFR §§ 391 41(a) And a person is physically quali
fled to drive if he i 1
(4) Has no current clinical diagnosis of myocardial
infarction , angina pectoris, coronary insufficiency
thrombosis or any other cardiovascular disease of a
variety known to be accompanied by syncope,
dyspnea , collapse or congestive cardiac failure
Bicknell testified that starting before July he had expe
rienced supervisory difficulties with Samons in that
Samons had problems with attendance and punctuality,
and in stopping work early rather than hauling his share
of the loads, and in refusing to haul certain loads (2 435)
To rebut any inference that Respondent began recording
file memos concerning Samons as part of a plan to retali
ate against him after his testimony at the 4 August repre
sentation hearing Bicknell identified a memo he wrote to
Meeks on 23 June concerning a problem getting Bicknell
to take a load (2 508 R Exh 22)
For his part , Samons testified he complained about
unsafe working conditions , specifically , having to work
in excess of 10 hours a day-as many as 19 to 20 hours a
day He initiated these complaints in November 1986
shortly after he began driving for Respondent (2 267-
268 329) Eventually he filed a complaint with the De
partment of Labor 's Occupational Safety and Health Ad
ministration (OSHA) (2 267-268)
By motion dated 25 March 1988 Respondent seeks to
introduce in evidence OSHA s 19 February 1988 findings
and dismissal of Samons charge (by Karen L Mann
acting Regional Administrator Department of Labor
OSHA) The General Counsel opposes on the basis the
findings of fact prejudice the General Counsel who now
has no opportunity to rebut The General Counsel does
not oppose the basic filing data , including the disposition
most of which already is in evidence (Br 18) Overruling
the General Counsels objection I grant Respondent s
motion and receive the documents in evidence but on
the limited basis of showing the basic filing facts, the
11 49 CFR § 391 41(b)(4) R Exh 2 (Emphasis added )
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nature of the allegations, and the disposition I mark the
documents as follows and place them in the folder for
Respondent s exhibits motion to admit secretary s find
ings (R Exh 46) OSHA s 22 February 1988 letter (from
Supervisory Investigator Fredric W Deeley) transmit
ting the Secretary s (OSHA s) findings (R Exh 47)
and the Secretary s (OSHA s) findings of 19 February
1988 (R Exh 48)
In her findings Mann reports that Samons filed his
charge on 30 June 1987 complaining that Respondent
had discriminated against him in violation of Section 405
of the Surface Transportation Act of 1982 (STkA)
Without describing the nature of the discrimination,
Mann finds "there is not reasonable cause to believe"
that Respondent has violated Section 405(a) of STAA
Samons also alleged (apparently by an amendment) he
was terminated about 1 September for refusing to drive
in violation of DOT regulations Beginning with the date
of 9 February Mann describes certain events, some of
which are litigated in the disputed evidence here Mann
concludes Respondent did not violate the statute respect
ing the allegations of a termination on 1 September In
his 22 February 1988 transmittal letter Deeley observes
that objections to the findings may be filed within 30
days No further information has been forwarded to me
concerning the OSHA matter
References appear in the record to a claim for unem
ployment compensation which Samons filed on Thurs
day 9 August (1 232, 2 279 283-284, R Exh 5) The ini
teal ruling was favorable for Samons and he apparently
collected a few unemployment checks (2 259, 285)
Samons was informed in mid October that Respondent
had appealed and that a hearing would be held (2 260
G C Exh 12) After a hearing on 28 October, Appeals
Referee B E Brazeal reversing the initial favorable de
cision, ruled that Samons was disqualified effective 30
August 1987 because he was not discharged but left his
employment voluntarily when he quit reporting to work
(1 259, R Exh 7) Alabama s Board of Appeals for the
Department of Industrial Relations affirmed, and
Samons through Attorney A Lee Tucker filed an
appeal on 30 November with the local circuit court
(2 280-283 R Exh 6)
As noted at the beginning of this decision, the Union
filed its charge in this case (Case 10-CA-22891) on 29
September listing seven named discriminatees, including
the four now pending 12 That charge, however is essen
tially identical to one the Union filed on 10 August in
Case 10-CA-22746 (R Exh 1) By letter dated 1 Octo
ber the Regional Director for NLRB Region 10 ap
proved the Union s request to withdraw the 10 August
charge (1 11-15)
Citing no authority, Respondent contends that the
withdrawn charge bars the charge in the instant case
(par 1 of answer, 1 11-15) Respondent fails to articulate
a basis for its contention, other than saying a withdrawal
wipes out the charge Respondent apparently contends
12 On the first day of the hearing the Union filed an amended charge
deleting all names except the four now pending and at the beginning of
the hearing the General Counsel moved to amend the complaint to re
Elect that fact I granted the General Counsels motion (1 5-7)
it is a denial of due process when such a withdrawal is
done for the sake of someone s convenience and then the
charge is refiled with a new and current docket number
Respondent does not explain how such action worked to
its disadvantage here I note there is no limitations prob
lem I find Respondents contention to have no merit
Most of the issues pertaining to Samons case are dis
puted Consequently resolving credibility is critical
b The evidence
Our sequence of events begins with Friday, 17 July
1987 In the evenings Bicknell testified, he posts the next
day s work assignments, the lineup (2 436) That
Friday Samons picked up his paycheck from Bicknell
around 2 to 3 p in 13 Bicknell informed Samons he was
scheduled to work the next day Samons resisted, saying
I don t have to work on Saturday Bicknell stated that
they had coal to haul Samons told Bicknell to get an
extra (casual) driver Bicknell said he had none and that
he was marking Samons down as scheduled to work
The conversation ended with Samons saying he would
think about it (2 435-437)
Around 7 p in, Bicknell testified, Samons called him at
home saying he could not work because he was ex
hausted that he had gone to a doctor, that the doctor
told him not to work, and that Samons had a doctor s
excuse 14 Samons did not bring Bicknell a doctor s
excuse nor say when Respondent could expect him
back at work (2 437-438) As we shall see later, Bicknell
testified he did not see or hear from Samons again until
Samons unexpectedly reported for work, an hour after
the regular 5 a in starting time on Wednesday 5 August
(2 438, 441-442 483)
According to Samons, after he left work the
evening of 17 July he telephoned Dr A E Thomas
and reported he was, and had been that week experienc
ing chest pains Dr Thomas told Samons not to work
that Saturday or, just to lay around," and to come see
him that Monday, 20 July 15 With these instructions
Samons then called the Enerhaul office but Bicknell was
not there Samons around 6 30 to 7 p in telephoned
Bicknell at home, reported that he had chest pains and
repeated the doctor s instructions Bicknell said if
Samons did not work that Saturday or Monday he
would have a permanent driver on Samons truck
Samons replied he was sick and intended to follow his
doctor s orders (1 204 2 292-293 348)
Samons concedes on cross examination that sometime
during the day on 17 July he received a message from
1 3 In a memo (R Exh 15 ) he prepared that day or the next morning
and addressed to Meeks Bicknell places the conversation about 4 p in
(2 439-440 496)
14 In view of all the evidence in the record about medical slips from
doctors I find that the witnesses mean an actual document when they
refer to a doctor s excuse
15 Notwithstanding the asserted fact Samons was reporting chest pains
Dr Thomas did not direct Samons to meet him then or go to the hospital
immediately (2 294) In these days when physicians particularly are
faced with the specter of malpractice lawsuits at every turn it seems
strange that Dr Thomas would not react with more immediate concern
on a report of chest pains His reaction seems more in keeping with a
report of exhaustion and fatigue
BLUE SQUARE II
Bicknell that he was needed to work (the next day) and
to get in touch with Bicknell (2 288) 16 A long series of
questions then begins in which Samons typical answer is
that he does not remember (2 289-291) Thus
Q And did you then meet him [Bicknell] around
four o clock at his pickup for instructions as to
where to go?
A I don t remember that
Q Did you tell him on that occasion that you
were not going to work on Saturday?
A I don t remember, sir
Q Did Mr Bicknell tell you that you were
needed?
A I don t remember
Q Did you refuse to work?
A I don t remember
Q Did you tell Mr Bicknell that you were not
going to work because you had things to do?
A I don t remember I just
Q Did you speak with Mr Bicknell after that oc
casion that day?
A I spoke with-I tried to call Mr Bicknell, yes
Q Did you argue with him?
A What do you mean argue?
Q Were you there at Mr Bicknell s office wait
ing on him to give you your check?
A I don't remember
Q Is Friday the day you pick up your check?
A Yes, sir
Q Do you ordinanly go pick it up?
A Yes, sir
Q Did you have an argument with him on that
date about your check or about coming to work on
Saturday?
A I don't remember
Q Is that when he told you that if you did not
come to work on Saturday he would consider you
as having quit9
A I don't remember him saying nothing like that
I don't remember
A All I remember saying to Mr Bicknell
when I called his office and reported to him what
my doctor had said He told me if I didn t work
Saturday or Monday that he d have a permanent
driver on my truck
Q I guess what I in trying to convey, Mr
Samons, [is that] it appears that Mr Bicknell is
going to say that earlier in the day before you d
even called the doctor you were saying that you
were not going to work Saturdays
A I don t remember sir
Q You don t remember that if it happened?
A Yes sir If he tells you that, you know
JUDGE LINTON Are you saying that you just
don t remember but that it s possible that occurred?
18 Samons asserts he did try (unsuccessfully apparently) to reach Bick
nell around 3 or 4 p in (2 292)
43
THE WITNESS Yes sir It could be possible it oc
curred I mean I was very tired because I had
worked about 50 hours in 3 days-or more
As I summarized in the introduction Samons was ad
mitted to Walker Regional Medical Center for chest
pains on Monday, 20 July He was released on Friday,
24 July, readmitted Sunday, 26 July, and again released
on Thursday, 30 July (1 207, 209, 211-212, 2 315-316)
Bicknell testified that on Tuesday, 21 July, he received a
call from a nurse (more likely an insurance clerk) at
Walker Regional Hospital who asked if Samons had in
surance coverage Before telling the clerk to call TMI
for that information, Bicknell asked the nature of
Samons problem The woman caller reported unstable
angina Bicknell wrote a note to the file ( To Whom it
May Concern") memorializing the call (2 440-441, 497,
R Exh 16)
At some point thereafter Respondent received an in
surance claim form for the services of Dr M D Rob
erts, a radiologist, on 20 and 21 July According to the
form one of two diagnoses was angina pectons (R
Exh 18) As Bicknell testified the form reflects that Dr
Roberts signed it on 28 July (2 450) If mailed that day
or the next, Respondent presumably would have re
ceived it by Friday, 31 July
According to Samons, the evening of Friday, 24 July
(the day of his initial release from the hospital), he went
to TMI where he tendered a medical slip to Bicknell
saying he was under the physicians care for medical rea
sons Samons testified he had no copy because he gave
what he had to Respondent Initially stating the slip was
from Dr A E Thomas (a general practitioner, appar
ently), he changed that to Dr Richard Kim, a cardiolo
gist (1 207-209, 2 295)
Samons testimony is a bit confusing as to whether
Meeks was present when Samons gave the slip to Bick
nell Initially he suggested Meeks was present A
moment later it appears he spoke to Bicknell in the yard
and to Meeks in the office, yet he also talked to them
"together and separately (1 209-210) Although this is a
minor discrepancy I need not resolve this imprecise and
almost careless manner which marks so much of Samons'
testimony illustrates one of the many reasons I find his
testimony so unreliable
On cross examination Samons identified a slip (R Exh
8) from Richard Kim M D (Internal Medicine & Cardi
ology) as the original which he gave Bicknell on 24 July
(2 295) Bearing what appears to be the date of 7/24,
and reflecting a signature of someone (presumably Dr
Kim), and referencing Samons, the text appears to read
(R Exh 8) 17 This gentleman is under my care due to
chest pains "
Tendering of Dr Kim s slip was followed, either im
mediately or a few moments later, by both Meeks and
Bicknell ( they") telling Samons he would have to take a
physical Telling Samons about the call from the woman
at the hospital, Bicknell said Samons had unstable angina
and would therefore have to take a physical Samons
17 I only guess at the first word and it may be that the This is really
some marks indicating the time of day
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said he would be glad to do so Bicknell said the exams
nation would be at the Thuss Clinic in Birmingham that
he would call the clinic on Monday (27 July) to resched
ule the examination for Tuesday, and that he would call
Samons on Monday and give him the appointment time
(1209-211, 2 308 315-317)
Samons testified Respondent had removed his personal
CB radio, the speakers, and all my accessories from his
Enerhaul truck They were in a box which Respondent
tendered him Samons testified he considered the remov
al unusual, for Respondent had never before done that
(1 211) He fails to say whether he means as to himself or
other drivers In an answer reflective of how Samons
contradicts himself, Samons then testified (1 211)
Q Was there some explanation?
A No, sir They didn t really give me an expla
nation He [Bicknell, apparently] said it was the
reason on account of he didn t want them stole But
that never bothered them before
As we shall see in a moment Bicknell testified he re
moved Samons personal items to keep them from being
stolen (2 452) For comparison, driver Dee Allen, who
had been terminated while in the hospital about 8 days,
was told on 7 August to come back that afternoon when
his former truck was brought in at the end of the day
and remove his personal items Although he gives few
details, Allen testified he still has not received all his per
sonal items, a pair of $14 gloves a hammer two screw
drivers, and a wrench (1 153, 156) The implication is
that some of his personal items were possibly stolen
while he was in the hospital and that Bicknell promised
that Allen would get the items
Recall from earlier that Samons attended the second
union meeting at or about 3 p in on Sunday, 2 August
and testified for the Union at the representation hearing
of Tuesday 4 August Samons testified that the hearing
concluded that day about 11 a in (2 266)
According to Samons, after the hearing concluded he
went to TMI carrying two back to work slips stating he
could return to work on 5 August One slip was from
Dr Thomas and the other was from Dr Kim Accord
ing to Samons, he gave both slips to Bicknell Samons
identified a copy of a slip dated 4 August (G C Exh 8)
and bearing the apparent signature of Dr A E Thomas
as a copy of the original he gave to Bicknell that day
(1 216-217 2 266 317) Samons does not recall what time
he went to Dr Thomas that day, but he knows it was
not immediately after the representation hearing (2 266-
267) The Dr Thomas slip asserts that Samons has been
under the physicians care from 18 July and is able to
return to work on 5 August Under the space for re
marks is written (2 269, G C Exh 8), Patient is to work
only ten hours per day'
Explaining how such a peculiar limitation came about,
Samons testified it came from exhaustion and fatigue
the company put on me by working me over the DOT
regulations, which is 10 hours a day The nurse wrote
the remarks and Dr Thomas signed the slip The nurse
knew to inscribe those words because Samons had been
talking with them about it (2 343-344) Earlier
Samons had testified on cross examination I am t for
sure whether the nurse filled it out that I didn t tell
the nurse to put nothing on there, and that he had seen
the doctor sign the slip (2 268-269)
Bicknell denies seeing Samons on 4 August and denies
that Samons came in that day with a doctors slip
(2 483) He testified as I have mentioned that he did not
see or hear from Samons between their telephone con
versation the evening of 17 July until Samons unexpect
edly showed up for work at 6 a in , an hour after the
regular starting time on 5 August (2 441-442, 483) I will
summarize 5 August in a moment
Turning now to Dr Kim's slip, I note that Samons tes
tified he did not have it (or a copy) because he had given
it to Bicknell on 4 August but that the slip said he was
able to return to work (1 216-217) There are two slips
by Dr Kim in evidence The first is the one dated 24
July which states Samons is under my care due to chest
pain (R Exh 8) According to Samons , he gave that
slip to Bicknell the afternoon or evening of 24 July Of
course, the slip itself speaks of under my care, not
may return to work Ostensibly therefore, the 24 July
slip is not the one Samons supposedly tendered to Bick
nell on 4 August
The second slip from Dr Kim does state Samons is
able to resume his regular job activity (G C Exh 13)
That slip, however, is dated 10 August I discuss it later
Samons testified Bicknell told him to report for duty at
5 a in the next day (5 August) but that his truck might
be in the shop and he might have to wait When Samons
reported on 5 August he found that his truck had the
front end removed for repairs Bicknell offered him a
maroon colored 1984 Mack It was not one of the regu
lar trucks of Respondents three firms and Samons had
never driven it before On inspecting the vehicle, Samons
observed it needed extensive repairs Samons told Bick
nell he could not drive the 1984 Mack in the condition it
was in Bicknell told Samons to pull it into the (TMI)
shop for the necessary repairs Samons waited 6 hours
while the truck was being repaired It was not repaired
to Samons satisfaction The record is not clear , but it ap
pears Samons unsatisfied objection was that certain trail
er tires (apparently the front ones) as well as the front
tires the steering tires (on the tractor, evidently) were
slick and should be replaced but Bicknell refused When
Samons refused to drive on the basis that slick tires
could cause a wreck, Bicknell told Samons the truck was
all that was available and Samons could either drive it or
go home and Bicknell would call him when he had
something else for Samons to drive Samons left having
waited for the repairs from about 6 am to about 11 45
am (1218-225 2 299-301 329)
Bicknell testified that Samons unexpectedly reported
for work at 6 am on Wednesday 5 August Samons
came in and presented me with a back to work slip
However He didn t give me the slip that I remember
He showed me the slip (2 442 )
Consistent with Samons Bicknell testified Samons
regular truck was in the shop for front end repairs, that
Bicknell told Samons he could drive an extra truck (the
1984 Mack) which was available, that Samons inspected
BLUE SQUARE II 45
it and protested it was unsafe to drive, that Bicknell had
repairs made on the truck while Samons waited and that
when those repairs were done Samons said he could not
drive the truck because it was not air conditioned (2 442-
444) A repair order is in evidence (R Exh 20) It re
flecta that two mechanics that morning made several re
pairs The mechanics relined the front axle trailer brakes,
replaced certain bushings replaced both brake drums re
placed the right front trailer wheel hub, and repaired the
backup horn Although the tires are not mentioned,
Bicknell testified he and Samons together pointed at the
items to be repaired, which we fixed, and he saw noth
ing else wrong with the truck (2 444, 475-482)
Later that day Bicknell wrote, in hand a three page
file memo, To Whom it May Concern, summarizing
his conversation with Samons that morning (2 446-447
R Exh 17) After writing that the repairs were made
trying to satisfy Samons Bicknell wrote
He then refused to drive the truck because it
didn t have an air conditioner I informed him that I
didn t have [to] furnish him an A C The truck was
not equipped with an A C
He then told me [he] had to have an A C be
cause of the heart condition angina and he was
under medication I then told James that was all I
had [for him] to drive
Bicknell's testimonial description is to the same effect
There is no evidence that any of Respondents trucks are
air conditioned
Bicknell testified he confronted Samons with the
ieport from the nurse that Samons had unstable
angina Samons confirmed he had the condition but said
the doctor had given him a back to work slip (2 444) As
I have summarized, Samons essentially confirms this por
tion of Bicknell s description, except that Samons places
the conversation on Friday, 24 July and it is not clear
he concedes he admitted to Bicknell (on whatever date)
that he had unstable angina
Bicknell testified he then went into the office, obtained
the booklet of DOT regulations brought it outside and
showed Samons the section about a physical restriction
against driving with the condition of angina pectoris
Saying he did not think Samons could drive with that
condition, Bicknell asked Samons if, at Respondents ex
pense , he would go to the Thuss Clinic for a physical ex
amination Samons said he would think about it (2 444-
446)
At some point, Bicknell concedes, he told Samons the
(1984 Mack) truck was all he had for Samons to drive
Samons said , I'm confused You know, I don t know
what you re trying to do to me Bicknell assured
Samons he was not trying to do anything to Samons,
that he was just trying to get him to drive a truck But
Samons refused to drive it as unsafe (2 446) Bicknell's
file memo concludes the episode with Bicknell s request
for Samons to go to the Thuss Clinic for a physical, at
company expense, and with Samons saying he would let
Bicknell know (R Exh 17) Bicknell testified he heard
nothing from Samons regarding Thuss Clinic, and that
he, Bicknell contacted the clinic about arrangements and
was told to send Samons at Respondents convenience
(2 447-448) Checking Samons personnel file Bicknell
found a medical report for the services of A E Thomas
M D, a radiologist at Walker Regional Hospital for the
period of 20 to 24 July The medical diagnosis includes
angina pectoris (2 450-451 R Exh 18)
During cross examination, Samons conceded he did
mention the air conditioner and that there was discussion
about it However, he claims he does not recall the re
marks (2 301-302) Samons then testified as follows
(2 302-303)
Q Let me ask you to recall this as best you can
Did you tell Mr Bicknell you had to have an air
conditioner')
A Not to my knowledge I don t remember that
Q Did you tell him you had to have an air con
ditioner because of your condition?
A I might have told him on account of the dust
conditions at the steam plant down there I might
have said that
Q Let me ask you if you told him you had to
have an air conditioner because of a heart condi
tion, angina?
A No sir
Q That s gust absolutely wrong?
A I did not say that, I don t believe, sir
Q Examine your recollection now, Mr Samons,
and see if that angina was mentioned in that term
by you during that conversation
A I don t remember
After some testimony that Samons probably was on
medication, and a reference again to 5 August the testi
mony resumes (2 304)
Q I guess I want to make sure that you state yes
or no Did you tell Mr Bicknell that due to your
heart condition, angina, for which you were taking
medication you had to have an air conditioner
before you could drive?
A I don t remember saying that, sir
After further testimony that Bicknell said that the
truck (the 1984 Mack) was all he had for Samons to
drive, that the DOT regulation book was discussed
(Samons claims he raised it as a topic), and a reference
by Samons that he not the mechanic, is the driver, the
testimony resumes (2 305)
Q I m reading again from Mr Bicknell's state
ment that was supplied to the Labor Board back
during the investigation about the DOT regulations
involving angina pectoris He will testify, I pre
sume that he and you discussed angina pectons
after you brought it up, saying you had it and had
to have an air conditioner before you could drive
And I m asking you if you remember anything
about that?
A I don t remember nothing like that
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q Are you aware-
A If I did, I don t remember it
neither laying off Samons nor firing him (1227-230
2314)
The foregoing makes it appear Bicknell gave Samons
no choice However, at one point in his cross examma
tion about the 17 July conversation with Bicknell,
Samons injected a reference to 6 August Asked whether
Bicknell , on 17 July , had told him that if he refused to
work Bicknell wanted the keys to Enerhaul 's truck and
for Samons to clean out his personal property , Samons
answered , On August 6th, he did Yes, sir " (2 290 )
Notwithstanding his earlier testimony that all his per
sonal items had been removed from his Enerhaul truck
and given to him on Friday , 24 July, Samons thereafter
testified Respondent had failed to remove his CB antenna
and stereo Therefore , at 3 30 p in on 7 August Samons
called Bicknell about these remaining items Bicknell said
for Samons to meet him there at 7 p m to remove them
(1 229)
When Samons arrived at 7 p in on 7 August he spot
ted Dee Allen Samons testified he asked Allen to ac
company him and Bicknell to Samons truck where Bick
nell had another driver remove Samons remaining prop
erty (1 229 ) According to Samons , on this occasion he
asked Bicknell about going to take a physical He re
fused Samons then asked Bicknell if there was any work
Samons could do and Bicknell said no To Samons' ques
tion of whether Bicknell was going to return him to
work , Bicknell said no Samons asked Bicknell where he
got his information that Samons had unstable angina and,
as he had stated on 6 August , Bicknell said it came from
a woman at Walker Regional Medical Center , and that
Samons insurance would go dead in 30 days (1 230)
As I mentioned earlier Dee Allen was present on 7
August to remove his personal items because he had
been terminated while in the hospital (1 149, 152, 2 502)
Contradicting Samons ' assertion that Samons asked Allen
to accompany him and Bicknell to Samons truck Allen
simply says he was at his truck when Samons came over
to his Enerhaul truck , for whatever purpose, and that he,
Allen, was standing there when Samons and Bicknell had
their conversation ( 1 157) Called as a witness by the
General Counsel, Allen testified he heard Bicknell tell
Samons he would have to take a physical before Samons
could return to work According to Allen Samons then
asked where Bicknell wanted Samons to take the physi
cal, but Bicknell did not respond Samons asked when
Respondent was going to return him to work and Bick
nell said he had no work available Samons asked if he
was terminated , and Bicknell said no but Samons insur
ance coverage would go dead in 30 days Allen testa
feed that termination of insurance coverage would mean,
to a driver, that he was fired because a driver 's insurance
is not terminated in 30 days if he is off work for 30 days
with a broken leg (1 153 -154, 158-160)
As I have noted Bicknell testified he recalls a conver
sation with Samons , in the presence of Dee Allen, when
Samons returned to claim his personal belongings, but
Bicknell does not recall the date Bicknell testified that
when Samons picked up his items Bicknell asked him
when he was going to be able to return to work Samons
responded he did not know and added either he was
After a further question or so , with a request to repeat
a question , Samons testified that on 5 August he did not
have angina pectoris that the tests proved he did not,
that he was cleared to return to work , and that on this
occasion (5 August) he and Bicknell did not discuss
angina pectoris and whether Samons could (lawfully)
drive When counsel declined to define angina pectons,
Samons asserted , I don t know what you re talking
about then I can 't answer a question if I don t know'
Asked if he did not know anything about angina pecto
ris, Samons testified , I don t know anything about no
angina pectoris, no, sir , and that he should not have to
answer without a clear definition of the term (2 306-307)
Samons also testified that on 5 August nothing was
said about a physical examination or the Thuss Clinic At
least , Not to my recollection (2 308) Asked whether
he ever called the company about going to the Thuss
Clinic for the physical , Samons said no because Respond
ent said they would call him about it and Respondent
never did Moreover , Samons asserts , he spoke with
Bicknell around 3 to 3 30 p in on 13 and 14 August and
on neither occasion did Bicknell mention the subject of
going to the Thuss Clinic, and Respondent has never
scheduled an appointment for him there (2 308-309)
Samons explanation that he possibly mentioned the air
conditioner in relation to dust conditions is just that-a
possibility Even if said however, I find it was merely an
add on to the principal reason he gave , that being his
angina Dorland s Pocket Medical Dictionary advises that
angina ' a spasmodic choking , or suffocating pain, is a
term "used almost exclusively to denote angina pecto
ns As a standard dictionary reveals, angina pectons is
severe paroxysmal pain in the chest associated with an
insufficient supply of blood to the heart More specifical
ly as Dorland 's explains it is the insufficient supply of
oxygen (carried by the blood) to the heart muscle
According to Samons, the evening of 5 August he re
turned with his wife to Respondents premises Samons
offers no explanation for this visit He testified that on
this visit Bicknell asked him for the keys to his regular
truck (No 3114) Samons did not have the keys with
him Bicknell told Samons to come back at 5 30 the next
morning and to bring the keys with him Asked (on
direct examination) if Bicknell gave a reason, Samons
testified ( 1 226-227) He didn t say I assumed to work "
Samons arrived the next morning 6 August Bicknell,
Samons testified, came and asked for the keys When
Samons gave him the keys , Bicknell said, The owners
and myself feel you are medically unqualified to drive
this truck on account of your unstable angina Samons
protested , saying he had no angina He offered to take a
physical examination to prove it , and he stated he had al
ready submitted a doctor s slip stating he was able to
return to work Bicknell repeated his statement that he
and the owners did not feel that Samons was medically
qualified to drive and Samons repeated his request that
Respondent send him to Respondent 's doctor-a request
Bicknell "refused Samons asked for a slip stating what
Bicknell had said , but Bicknell declined , saying he was
BLUE SQUARE II 47
under medication or under a doctor s care (2 452)
Whether in this same conversation, in the one on 5
August, or a different one, is unclear , but Bicknell tests
feed he recalls telling Samons he would have to take a
physical examination before Respondent could tell
whether Samons could return to work (2 452-452a)
It seems that the first portion of Bicknell s testimony,
Bicknell s recollection of a conversation with Samons in
the presence of Dee Allen, is possibly a reflection of a
merger of two events in Bicknell s memory Asking
Samons when he would be able to return to work sounds
more like something Bicknell would have asked on 24
July-except Bicknell testified he did not see Samons
after 17 July until 5 August Asking about a physical ex
amination is something he possibly asked about in the
presence of Dee Allen on 7 August Recall that Bicknell
does not specifically describe a 7 August visit by
Samons, and, indeed, asserts that the next time he saw or
heard from Samons after 5 August was some 10 to 14
days later (2 448) Memories are faulty, of course, and
Bicknell does not claim to have a perfect memory Al
though the matter is not free from doubt, it appears that
these limited recollections of Bicknell pertain to the 7
August visit Samons made to Respondent's premises, and
I so find
Respondent argues that Allen s version contradicts
Samons (Br 92) The General Counsel does not address
the matter Allen s version may not be a flat contradic
tion of Samons, but it surely appears inconsistent Essen
tially, however, they both, in effect, contradict Respond
ent s version that beginning on 5 August Bicknell asked
Samons to take a medical examination Samons ' version
of 7 August (3 days after Samons testimony at the repre
sentation hearing) has Bicknell refusing Samons' offer to
take a physical examination To that same offer (actually,
Samons' response to Bicknell of where did Bicknell want
Samons to take the physical), Allen's version has Bick
nell standing mute Of course, Allen's version is incon
sistent with the General Counsels apparent theory that
Respondent, changing its attitude after Samons testified
as a union witness on 4 August, affirmatively refused any
offers by Samons after the representation hearing to take
a physical examination That is, Allen s version reflects
that Bicknell, on the surface, wanted Samons to take a
physical When Samons responded affirmatively, effec
tively calling Respondents bluff Bicknell went mute
Does it make sense that Bicknell would make such a
bluff Does it make sense that if he would do so, that he
had no prepared answer to give in case Samons accept
ed'9 Resolutions of these questions will be reserved for
later A principal question will be whether Respondent
reversed its position after Samons testified on 4 August
or whether Samons, seeking to establish a case , fraudu
lently testified that Bicknell changed directions after 4
August
Before reaching the next conversations, recall from my
introduction that on 9 August Samons filed a claim for
unemployment compensation The following day he filed
the predecessor charge to the one the Union later filed in
this case Two medical slips are dated 10 August
One of the 10 August medical slips is from Dr Kim
(G C Exh 13), and the other is from Dr Thomas (G C
Exh 14) Referencing Samons medical diagnosis, Dr
Kim s statement reads , The patient was found to have
normal coronary arteries w/normal left ventricular func
tion He is able to resume his regular job activity R/O
unstable angina
Samons testified he visited Dr Kim's office on 10
August Dr Kim explained that "R/O" means rule
out " (2 264, 270 )
Recall that Dr Thomas' 4 August slip (G C Exh 8)
states that Samons has been under his care since 18 July
and is able to return to work on 5 August, except
Samons is to work only 10 hours per day The slip of 10
August repeats the data about under care from 18 July to
4 August and may return to work on 5 August (these are
fill in the blank type data) Then, in the handwriting of
Dr Thomas, in the space for remarks appears (2 273-
274, 346) 18 Pt is able to work full time & can return to
his original job
Samons testified he obtained these two 10 August slips
for the unemployment office and that he took them
there He does not know whether that office made
copies but they did not keep the originals (2 260, 271-
171, 345) Samons concedes he never took them to Re
spondent (2 271) He did not take them to Respondent
because there was no sense in" that in view of the (as
serted) fact he had already given Respondent workslips
and had not been able to return to work (2 276) In
Samons' view there just was no reason to do so
(2 360) Respondent contends anyone interested in show
ing good faith would have done so, particularly since
one of the slips ruled out the unstable angina and the
other removed the 10 hour restriction (Br 35 95)
Samons gave three affidavits (dated 13 August, 2 Sep
tember, and 23 October) to the Board (1 252) He con
firms that in one of his affidavits he stated Respondent
had no proof he had unstable angina (2 287) Presumably
that was in the 13 August affidavit (as Respondent sug
gests , Br 29, 33), for that topic, logically would have
been one of the first items covered Pointing to Samons
acknowledgement that he so told the Regional Office
during the investigation of the charge, and contending
that the originals of both slips were attached to Samons
affidavit Respondent argues that Samons obtained the
two 10 August slips to prove to the Board he had no un
stable angina and that Respondent had no proof to the
contrary (Br 33-35) 19
If Samons version of events were correct-that Re
spondent s attitude changed after his 4 August testimony
and that Respondent thereafter not only asserted he was
medically disqualified, but refused to let him return to
work after receiving a return to work slip from him on 4
August and refused to schedule him an appointment at
the Thuss Clinic-then it is possible a reasonable person
18 R Exh 4 is the original and G C Exh 14 is a -opy (2 272-275
345)
19 The evidence is unclear on whether more than one original medical
slip was attached to Samons affidavit Although Respondent asked
Samons about this on cross examination the only certain fact is that the
original of Dr Kim s 10 August slip (R Exh 4 G C Exh 14) was so
attached A reference there to one of the medical slips appears to be to
Dr Thomas 4 August slip G C Exh 8 (2 271-275) as Respondent ac
knowledges elsewhere (Br 24)
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would give up on taking any more medical slips to Re
spondent Perhaps he did take the two 10 August slips
and show them to the unemployment office The 4 No
vember two page decision of Appeals Referee Brazeal
makes no express reference to them, although it does
state Samons was eventually released as being able to
return to work (R Exh 7) The record here does not
reflect whether that is based on copies made of the slips,
on testimony at the unemployment hearing, both, or
none of the above
Samons certainly had an incentive to obtain the two 10
August slips for furnishing to NLRB Region 10 That in
centive would be to support his claim that Respondent
asserting he had unstable angina, was refusing to let him
return to work Although Region 10 could not put
Samons back to work at Respondent the slips might
tend to support the Union s charge However, the fact
Samons did not take the two slips to Respondent is just
as consistent with Respondents position that all along it
was telling Samons he would have to obtain medical
clearance from the Thuss Clinic It would be a futile ges
lure to carry these slips to Bicknell when Samons knew
(under Bicknell's version) that Respondent wanted a slip
from the Thuss Clinic
Because there is no single clear logical reason Samons
declined to take the two 10 August slips to Respondent,
I will have to resolve that issue, if need be on the basis
of credibility It seems clear, however, that Samons rea
sons for obtaining the slips include tendering them to
NLRB Region 10 and also, perhaps, to the unemploy
ment office, and I so find
Bicknell testified he next (after 5 August) heard from
Samons some 10 to 14 days later when Samons tele
phoned twice (2 448-449) Samons recalls the next con
tact after 7 August as coming on 13 August when he
telephoned Bicknell at 3 30 p in and asked Bicknell
about his workers compensation coverage for his (recent
hospitalization) Bicknell told him he would have to
check into the matter and for Samons to call him back
the next day The next day at 3 p in Samons called Bic,k
nell who said Respondent opposed Samons claim for
workers compensation Samons testified he nevertheless
filed a workers compensation insurance claim and that
such insurance paid for the 2 weeks he was hospitalized
(1 231-232) Samons adds that Bicknell said nothing to
him in either of these two conversations about going to
the Thuss Clinic for a physical examination (2 308)
Samons does not claim he raised the subject, either
Bicknell testified that on the occasion of these calls
Samons asked if he was terminated Bicknell told Samons
he was not terminated but that he needed to go to Re
spondent s physician for a physical examination to obtain
medical clearance to drive Samons said he was filing for
both workers compensation and unemployment compen
sation, and he asked Bicknell to help him obtain either
the former or to discharge him so he could draw the
latter Bicknell said Samons was not discharged and he
did not know of anything Samons should be filing a
workers compensation claim over (2 448-449)
In one of those rare instances when Bicknell and
Samons agree on a fact they concur they next saw each
other the morning of Monday, 31 August There is sharp
disagreement however, on how it happened that Samons
reported that day for work Samons testified Bicknell
called him that morning at 4 35 and told him to report to
work that morning at 5 30 am or 6 am (1 232-233,
2 318) Samons testified Bicknell's call surprised him
(2 349) Bicknell testified Samons unexpectedly showed
up that morning around 5 30 to 6 (2 453-454, 473, 484)
When Samons arrived Bicknell testified, he showed
Bicknell a medical slip from, as Bicknell recalls, a Dr
Russell Samons did not leave the slip with Bicknell On
looking at the slip, Bicknell told Samons he still would
have to go to the Thuss Clinic because Bicknell wanted
Respondents doctor to examine Samons and give him a
medical clearance to return to work In the meantime,
Bicknell said, Samons could continue to drive, but he
still would have to go to the Thuss Clinic Samons said
he would try to go later (2 454, 486) Samons denies
having or showing a doctor s slip to Bicknell on that oc
casion and denies Bicknell told him he would have to
take a physical examination (2 318)
Because Bicknell was not expecting Samons, Bicknell
testified, a driver had already departed with Samons
regular vehicle Bicknell testified he had assigned the
driver Ronald Avery to the truck full time at some
point after 5 August (2 453-454, 461) The only vehicle
left was the extra truck (2 484-485), the 1984 Mack
Bicknell (2 486) and Samons (1 233) agree that the
only truck left in the yard was the same 1984 Mack
truck Samons had earlier refused to drive on the basis it
was unsafe On this 31 August Samons proceeded to
drive the truck During the course of the day he report
ed a breakdown caused by a ruptured fuel line Respond
ent had it repaired and Samons finished the day (1 233-
234 2 320, 455, 486)
When Samons parked the truck the evening of 31
August he wrote up a repair order That is, he requested
a list of repairs to be done to the Mack (1 235, 2 320
455) Samons testified he spoke with H B the shop
foreman in describing the needed repairs On this occa
sion, Samons testified he told H B that the Mack had a
steering problem which caused darting on the road
Other repairs Samons requested were the correction of a
vibration oil spraying on the break drums, and replace
ment of the clutch because, Samons asserted it was de
fective Samons testified that the shop foreman included
on the repair order all the items except the steering As
to the steering H B informed Samons that the owners
Meeks, and Bicknell were all aware of the steering and
that there was nothing that could be done about the
steering (2 235-236, 2 322 324) Samons concedes the
Mack has a different steering mechanism from some of
the other trucks and that it steers differently from the
Kenworth he drove (2 323) 20 As Bicknell explains, some
drivers like Macks and some prefer Kenworths (2 479)
20 On the latter point Samons answered that it did steer differently
that it darted I construe Samons testimony to be that Macks and Ken
worths have a different feel with the steering and that in addition this
1984 Mack needed a repair to the steering because the truck darted I
do not think Samons contends he as a driver cannot handle a Mack
truck if it is in good condition
BLUE SQUARE II 49
Bicknell and Samons agree that Bicknell told Samons
to report for work the next day (1 236 2 319, 324, 485)
When Samons arrived for work on 1 September he
found the 1984 Mack truck right where he had left it
Ordinarily repairs are made overnight On this occasion,
however no repairs had been made Samons acknowl
edges that sometimes the mechanics were too busy to
make all the repairs facing them overnight and would be
unable to reach or complete them until the following day
(2 354) Samons questioned the mechanic who said he
could not do anything until talking with Bicknell (1 236-
237, 2 322-325)
Bicknell (2 456) and Samons (1 237) agree that the me
chanic telephoned Bicknell and spoke with him Bicknell
was at a location about 10 miles away Bicknell testified
the mechanic reported that Samons would not drive the
truck, that Samons said it was unsafe and wanted to talk
with Bicknell Bicknell asked the mechanic if everything
had been done for the truck that was supposed to be
done and the mechanic said it had Speaking again with
Samons, Bicknell told Samons he needed to carry his
load assignments No, I in not going to drive the truck
Its not safe, Samons replied Well, are you refusing
the load) Bicknell asked Samons answered he was not
but he was not driving the truck because it was not safe
Bicknell said he would be there in a few minutes (2 456-
457) (Samons version is about the same although he as
serts Bicknell said that if Samons did not drive then
Samons was refusing a load and he would consider
Samons as quitting To this Samons said he was not re
fusing or quitting and simply wanted the truck fixed )
A few minutes later at the TMI office Samons Bick
nell, and Meeks had their final confrontation Before
summarizing that episode, however I should discuss the
mechanic Quite likely the mechanic who spoke to
both Samons and Bicknell on this occasion was the shop
foreman, H B In any event neither H B nor any of
TMI s mechanics testified Neither Respondent nor the
General Counsel introduced either the repair order
which, there seems to be no dispute H B prepared the
evening of 31 August If Respondent made any of the -e
quested repairs it offered no objective evidence of such
fact Although Bicknell s version includes the statement
that the shop foreman (the mechanic) said everything
(the repairs, presumably) had been done that was sup
posed to be done, that statement is not substantive evi
dence because it would be hearsay for that purpose It is
merely part of the description of the chain of events
But even if I were to consider the shop foreman s
report for the truth of the matter asserted it remains am
biguous Taken with Samons testimony that the truck
had not been moved and no repairs made, H B s state
ment possibly could mean that an inspection had re
vealed there were no defects to be repaired The prob
lem with that possibility is that such an inspection pre
sumably would require that the truck be taken to an
inside work area There is no evidence that was done
and that the truck was reparked in the very spot it had
been left the evening before It is unfortunate the parties
did not see fit to adduce more evidence in order to clari
fy this point
The scene at the TMI office begins mostly as a repeti
tion of the telephone exchange Bicknell concedes
Samons said he was not quitting and that their exchange
went back and forth (2 458) Samons admits Bicknell
said he would just have to get another driver for the
truck, and that Samons said he was going to wait there
until Respondent either fixed the truck or brought in a
new driver (2 325-326) Bicknell then asked Samons to
leave (2 326) Subsequently Samons reversing field,
denies that and asserts he told Bicknell he would wait
for the truck to be fixed but Bicknell asked him to leave
Thinking Bicknell was trying to get Samons to quit,
Samons did not want to leave At that point Samons as
serts he was told to get his damn ass off the property
(2 358-359)
Samons last answer (which I do not credit) contracts
the sequence by injecting a quote (get his damn ass off
the property) which he earlier attributes to Meeks
(1 239-240, 2 327)
What happened I find is that when Samons told Bick
neli he was not going to leave Bicknell telephoned
Meeks and reported he had a driver who would neither
load nor leave (2 458, 585) Meeks came over and asked
Samons what the problem was Samons said the truck
was not safe and he was not going to drive it Meeks
said the truck was all he had for Samons to drive and if
Samons could not take it Respondent had nothing else
for him to drive Samons kept raving and Meeks said
Samons should leave the property, and Samons left
(2 586, Meeks)
Bicknell recalls that Samons asked Meeks if he was
terminated and Meeks said he was not terminated Meeks
also told Samons, Bicknell testified, that Respondent
would let Samons know if they had anything else for
him Bicknell testified they have not since called Samons
because Respondent had nothing for him (2 460, 487)
Samons testified Meeks took the truck keys and tickets
from Samons gave them to one of the (casual) drivers
waiting for a job engaged in an exchange with Samons
similar to that which Samons and Bicknell earlier had
made then told Samons to get his damn ass off the
property and not come back there again Samons left
(1 239 2 283-327) On his final reference to this Samons
adds that he asked if he was terminated and Meeks said,
You take it any which way you want to (2 327)
The following day or evening Meeks testified Samons
telephoned him and asked if he had been terminated
Under strict instructions from Respondents lawyer that
Samons was not to be terminated, Meeks advised Samons
he was not terminated He told Samons No, you re not
terminated Keep in touch we 11 get something for you
You re not terminated Meeks testified Respondent s po
sition before OSHA the unemployment compensation
case, and before the NLRB consistently has been that
Samons was not, and is not, terminated The 2 Septem
ber telephone conversation was Meeks last (job) contact
with Samons Samons has not returned to work (2 586-
587)
Samons does not describe a telephone conversation
with Meeks after he left the TMI premises on 1 Septem
ber, and he did not testify in rebuttal On cross examina
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion about the TMI conversation on 1 September he
denied he was told to stay in touch with the company (2
327-328)
The next time the participants met or spoke in the
presence of one another was at the unemployment com
pensation hearing on 28 October
c Discussion
Samons testified as follows on cross examination (2 297-
298)
Q Now, this is Mr Bicknell who just came in
the courtroom? Is that correct?
A I presume so Yes, sir
Q Is that Mr Bicknell?
A Yes, sir It looks like him
(1) Credibility resolved
Elsewhere I generally have credited the General
Counsels witnesses over those of the Respondent I am
unable to credit James D Samons, and I find him to be a
generally unreliable witness In several respects he tests
feed in a manner that undermined my ability to have any
confidence in what he was saying He also appeared to
employ a selective memory, recalling data he considered
favorable to his cause, but unable to recall that which
might be unfavorable Finally, and of importance, his de
meanor was unsatisfactory
I hasten to add that Respondents witnesses exhibited
some of the same deficiencies throughout the hearing,
and elsewhere I have found my impression such that I
do not believe them in the respects described
Indeed, my impression of Bicknell and Meeks is over
all, unfavorable But as unfavorable as that impression is,
my assessment of Samons as a witness is more negative
To illustrate his manner of testifying I cite a few exam
ples First, at times he was coy Recall the Miller Steam
Plant incident and the confrontation in Dora Alabama
On the first day of the hearing, and in his testimony on
direct examination , Samons testified that Gene Crouse
shot me birds' (1 242) at the MSP and that Meeks also
shot me a bird a few minutes later as he and Samons
passed on the highway (1 244) But when asked the next
day on cross examination, about such a bird Samons
initially replied Naw and then, What is that? Shoot
ing birds? Asked if he did not know what the term
meant Samons in effect allowed that he did (2 337)
At times Samons was evasive For example it took
several questions on cross examination including some
by me for Samons simply to say he had authorized At
torney A Lee Tucker to file an appeal, on Samons
behalf in Samons unemployment compensation case
(2 280-282)
Respondent describes Samons testimonial demonstra
tion as that of an advocate rather than a witness (Br 84)
As an example of Samons approach toward his duty as a
witness, Respondent cites (Br 84-85) a question on
cross examination respecting Bicknell This is an example
of Samons qualifying his testimony to the point of fool
ishness Recall that Glenn Bicknell joined Enerhaul as
road boss on 26 May 1987 (2 414 417) and that Samons
was there when he arrived (2 435) As road boss or op
erations manager , Bicknell supervised Samons On nearly
a daily basis, therefore, from late May to about 17 July
Samons would see Bicknell They also spoke with or saw
each other on a few dates after that the last occasion
being Samons unemployment hearing on 28 October (R
Exh 7) Despite obviously knowing Bicknell on sight
and qualifying his testimony to the point of foolishness,
At other times Samons was either evasive or simply
confused Some honest confusion can be exhibited by
any witness Any confusion by Samons struck me how
ever as in reality the product of an intent to avoid coop
erating as a witness Thus (2 267-268)
Q Well, are you the same Samons that filed a
complaint with OSHA9
A No sir I didn t file it with OSHA
Q Well, the Department of Labor, Mr Gill?
A Yes, sir I filed one with No, sir I didn t file
one with Mr Gill
Q Who did you file it with Mr Samons?
A OSHA
Disbelieving Samons as I do, I find that, generally, the
events as to Samons are as described by Respondent s
witnesses Respondents testimonial evidence regarding
Samons was introduced principally through Enerhaul
Operations Manager Glenn A Bicknell and to a very
limited extent General Manager Frank Meeks It is not
that I find them so credible, it is that I find Samons so
unreliable
(2) Conclusions
I shall not undertake to resolve every conflict Indeed
that may not be possible, particularly as I do not neces
sarily accept Bicknell s testimony in its entirety Nor is it
critical that I assemble a unified theory of what really
took place Of course, a logical explanation of events can
assist in resolving credibility What generally happened I
find is this
On Friday 17 July 1987, Samons resisted a work as
signment for the following day because he wanted to
attend the first union meeting Although that meeting
was not until 3 p in on 18 July (2 294) working that Sat
urday could have caused him to miss the meeting
Samons apparently had been working long hours and
was tired To obtain an acceptable excuse for avoiding
working that Saturday, Samons devised the plan of call
ing Dr Thomas He called Dr Thomas and reported he
was exhausted from working long hours Dr Thomas
told him not to work on Saturday and to come see him
on Monday Samons reported this to Bicknell
Concerned that Respondent might classify him as a
quit, and thereby terminate him Samons decided to
change his medical problem from exhaustion to chest
pains This resulted in his hospitalization Whether
Samons planned on hospitalization or whether his
scheme got out of his control I need not decide Samons
was admitted on the diagnosis of angina pectoris Of
course an X ray will not disclose pain and all the tests
Samons had in this hospitalization were negative as to a
BLUE SQUARE II 51
heart problem Samons was released (the second time)
from the hospital on 30 July Even before Samons testi
feed on 4 August at the representation hearing Respond
ent had received a report (the 21 July call from the hos
pital insurance clerk, followed later by the insurance
form) that Samons had unstable angina A 24 July
medical slip from Dr Richard Kim referred to chest
pain (R Exh 8)
I find that Bicknell initially told Samons he would
have to obtain medical clearance from the Thuss Clinic
before he could return to work, that Samons said he
would think about it and let Bicknell know, and that
Samons never told Bicknell he was ready to go to the
Thuss Clinic Perhaps this conversation first occurred, as
Samons asserts , on 24 July Perhaps, as Bicknell testified,
it occurred 5 August Perhaps it occurred on both dates
I need not decide The issue I resolve is, as just de
scribed, that Bicknell made the Thuss Clinic clearance a
condition for Samons return to employment and Samons
has never accepted
When Samons unexpectedly reported for work on 31
August Bicknell relaxed the condition That date was
after the representation hearing and the Union s prede
cessor charge in this case was under investigation by
NLRB Region 10 Bicknell relaxed the Thuss Clinic con
dition to allow Samons to return to work subject to his
obtaining that clearance The controversy developed
over driving the 1984 Mack truck and Samons has not
returned to work after 1 September
The General Counsel argues that Respondent deliber
ately kept giving the 1984 Mack truck to Samons, after
Samons testified on 4 August, on the assumption Samons
would find it unacceptable (Br 12) The truck apparently
was driven on other days by other drivers Respondent
made several repairs on the truck but could not satisfy
Samons Respondent contends Samons acted at all times
in a manner to build a case against Respondent before
one or more agencies (Br 86-87 95)
Respondents position is that Samons has never been
terminated and may return to work subject to obtaining
medical clearance from Respondent's physician within a
reasonable time after he returns to duty (Br 99) I find
that to be the situation
Finding insufficient evidence that Respondent has dis
cnminated against James D Samons because he testified
on 4 August 1987 at the representation hearing in Case
10-RC-13532 I shall dismiss the complaint as to him
5 Jimmy A Richardson
a Introduction
Jimmy A Richardson s case revolves around timing
Relying substantially on timing the General Counsel
contends Respondent discharged Richardson because he
testified (in the presence of General Manager Meeks) as
a witness for the Union at the representation hearing on
4 August Respondent also relies on timing to assist in
showing its decision to discharge Richardson over an 8
June vehicle accident was not unlawfully motivated Be
cause timing alone will not carry the General Counsel s
burden of establishing a prima facie violation (as Re
spondent points out Br 82) the General Counsel also
relies heavily on a conversation between Richardson and
Meeks about 11 June that Meeks considered Richardson
a good driver and was not going to discharge him (items
Meeks denies) and on the fact Richardson worked 14
July (Richardson had been on workers compensation
leave since his 8 June accident) and was not discharged
The only significant event argues the General Court
sel between Richardson s 1 day of work on 14 July (he
was off again until 10 August) and his 10 August dis
charge was his 4 August testimony (Br 7) Not so, says
the Respondent The significant intervening event was
Respondent's receipt from the Alabama Department of
Public Safety of a motor vehicle ieport (MVR)21 show
ing that Richardson's safety record had exceeded the ad
verse points Respondent allows (Br 80-81)
I conclude that Respondent, aware that Richardson s
driving record was poor sent for MVRs on all employ
ees the afternoon of 4 August, following Richardson s
testimony When the MVRs (dated 6 August) arrived,
Richardson had its ostensibly lawful basis for discharging
Richardson Because the same MVR net caught others
they too were fired The evidence, however shows that
Respondent would have terminated Richardson at some
future point because of his poor driving record Accord
ingly, I shall order that determination of that future date
be deferred to the compliance stage, and that he be made
whole based on the backpay period as determined at the
compliance stage
b The evidence
Formerly employed at BSI for an unspecified 3 or 4
months, Richardson was rehired by Meeks on 5 June
1986 Richardson drove a truck hauling coal Meeks fired
Richardson on 10 August 1987 (1 166)
At least since May 1987, as Richardson describes, Re
spondent evaluated the safety record of its drivers by fol
lowing a point system devised by Respondents liability
insurance company (1 171) Richardson testified that in
May Meeks explained the system to him and several
other drivers in the office Meeks said a driver would be
charged 20 points for a speeding ticket Richardson
does not know or could not recall what points are
charged for an accident, but when the total reached 50
the driver was to be terminated (1 171) The MVR con
tains information reported to Alabama for the last 5
years (2 558 R Exh 34)
As Meeks explains in conjunction with the MVR Re
spondent uses an evaluation form labeled Driver Eval
uation Profile (R Exh 35) Points are charged against
youthful drivers on the DEP, with drivers over 25 not
assessed any points for age For five listed major convic
tions, such as driving under the influence, license sus
pension and hit and run,' 50 points are charged For
speeding, 10 points are assigned if the excess speed is
under 10 miles per hour and 20 points if over 10 mph
For accidents in which drivers are not charged 10 points
are added Oddly the rating or grading sheet (as Meeks
describes it) does not specify the points to be applied
21 Although denoted an MVR by the witnesses the form itself is enti
tied Driver License Abstract (R Exh 34)
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when an accident is chargeable to the driver Meeks tes
tified it is 20 points (2 598) A notation appearing at the
bottom of the DEP, or rating form has been sliced in
the copying process but it apparently reads
Guideline
If points total 50 or above the employee is not to be
allowed to drive any company vehicle
At the May meeting in the BSI office Richardson,
aware that his March 1987 speeding conviction would
raise his points to 60, exclaimed to Meeks, Well you
might as well fire me right now Richardson added,
however that he thought the Company should pay for
it, (presumably the ticket and possibly, not count it)
because he was trying to make the delivery on time
According to Richardson, Meeks said only for Richard
son to slow down (1 172) Meeks does not address this
conversation
Meeks testified that Respondents evaluation system
works this way Twice a year Respondent sends to the
state capital in Montgomery for MVRs on all drivers
(Meeks does not specify the months of the year in which
Respondent does this) In addition to its regular semian
nual requests Respondent also sends for MVRs when
drivers have an accident or something, and on new
drivers (2 558) On the other hand Meeks testified Re
spondent waits until it is ready to send for five or six at
once rather than for one at a time (2 571)
The DEP form states that a current MVR is to be
used and that the employer is to consider the driver s
record for the last 3 years The form, as I have quoted,
states that an employee is not to drive if he accumulates
50 points or more As Respondents three firms employ
only drivers not to be able to drive would mean in the
absence of contrary evidence no income Respondent of
fered copies of records reflecting a past practice of dis
charging drivers for accidents or exceeding the allowed
points (2 573-578)
Notwithstanding the statement on the DEP about not
driving after 50 points, Meeks testified that such is only a
guideline (as it , apparently, states) and that at 50 points a
driver is interviewed A driver with a positive attitude is
placed on probation and allowed to continue driving
But any violation thereafter means discharge (2 572 597)
On 28 March apparently a short time after Respond
ent had received an MVR on Richardson, Meeks called
Richardson in for an interview which concluded with
Meeks placing Richardson on probation (2 559, 572) Ac
cording to the file memo Meeks had prepared 22 Meeks
told Richardson that if he had any more moving viola
tions I will have to let you go Richardson s "attitude
was very bad saying he did not give a goddamn "
Meeks said he was placing Richardson on probation
Richardson left uttering vulgarities (R Exh 32)
On 8 June Richardson apparently driving rather fast,
topped a hill south of Jasper, Alabama, and saw that he
had two choices He could plough into a line of backed
up traffic or he could head for the ditch Choosing the
22 Because Meeks has difficulty in writing his wife frequently serves
as his amanuensis (2 569)
latter Richardson fractured a rib, sustained cervical and
lumbar strains and with the exception of 14 July was
off work until 10 August (1 168-169 184 193 196)
Meeks investigated the accident Determining that Rich
ardson had a quarter mile of space when he topped the
hill Meeks found that the accident was chargeable to
Richardson He testified that Respondents trailer was
damaged in the approximate amount of $1400 Respond
ent had to unload the coal from the trailer (2 563-567,
592) The accident as we shall see was reported to the
State and was added to Richardson s MVR
According to Richardson on 11 June he had a conver
sation with Meeks at his BSI office He advised Meeks
the doctor had ordered him not to work for the present
(1 170) Medical forms so indicate and that aspect is not
an issue (R Exhs 36, 37) Before proceeding further
some background is necessary
Meeks identified a letter dated 3 June, which Re
spondent had received complaining of dangerous dis
courteous and hazardous driving by the driver of one of
Respondents vehicles (1 559) The letter is from Ser
geant G R Smith, post commander of the Birmingham
post of the Alabama Department of Safety Respondent
determined that Richardson was the driver The letter
reads (R Exh 30)
Dear Sir
On June 2, 1987 a lady called me by telephone at
this office to complain about dangerous, uncour
teous and hazardous driving by an individual driv
ing a tractor trailer bearing license number 64TR-
575, which is registered to your company This inci
dent occurred on June 2nd at approximately 12 15
p in on U S 78 This driver got behind her and de
spite her efforts stayed behind or alongside her ve
hicle for several miles The driver made gestures
toward her which she found to be offensive
As you are aware I am sure that the highways
of our state are no place for this type dangerous be
havior The cost to your company in the event of
an accident where someone is injured or killed
could be tremendous in financial terms alone with
out the amount of human pain and suffering
I am asking your support to curb these actions
before tragedy occurs Our troopers are alert for
these drivers but we are unable to be everywhere at
all times and so we ask your assistance I will cer
tainly be and I am sure this lady will also be appre
ciative of anything you can do
With regards,
/s/ G R Smith
G R Smith
Sergeant
Post Commander
Birmingham Post
Telephone 322-4691
In this 11 June conversation Richardson testified
Meeks showed him a letter referencing a complaint by a
woman that he had been harassing her on the CB radio
Switching from that topic Meeks said he was not going
BLUE SQUARE II 53
to fire Richardson over his tickets, but you need to
slow down Meeks asked Richardson to let him know
when the doctor released him for work (1170-171)
And
Q Did he pay you any compliments9
A Well, he said I was a good driver and I did
what he said most of the times , is the way he put it
That was very well true , I guess
Meeks denies they discussed Richardson s driving ca
pabilities , or his continued employment with Respondent
(2 564-565) Aside from Richardson 's testimony that
Meeks said Richardson followed orders most of the
time , the General Counsel adduced no evidence that
Richardson was a good driver Thus there is no evi
dence showing where , in relation to the other drivers,
Richardson ranked in productivity , such as in number of
loads hauled , earnings , or by whatever measures Re
spondent has for productivity Clearly Richardson was
not a safe driver for Respondent , and he does not dispute
his MVR ( 1 197) Respondent writes (Br 80 fn 49)
With a wrecked truck , a load of coal on the ground,
and a driver placed on disciplinary probation for speed
mg, this testimony is incredible
There is no dispute Richardson worked most of 14
July Questions do exist as to exactly how this came
about and concerning the effect of that work Richard
son testified his doctor released him to return to work A
release is in evidence from Charles S Capra, M D
(2 560 , R Exh 33) Apparently signed by Dr Capra on
Monday, 13 July (the date given for the end of treat
ment), it states Richardson may return to work on 14
July-a Tuesday Although Richardson s testimony is
somewhat fuzzy about the details it appears he went to
the BSI office that Monday , 13 July, after obtaining the
doctors release He checked the assignment board on
that visit (1 172-173) Although Richardson did not so
testify , he apparently left Dr Capra 's release form at the
BSI office on that 13 July In producing the form at the
hearing Meeks testified it came from Richardson s per
sonnel file (2 560)
Early the next morning Tuesday 14 July Richardson
went to BSI took his regular truck, and drove off on the
trips assigned At 2 30 p in he left work because his inju
ries to his rib and back began hurting That evening he
called his doctor who told Richardson to come for an
office visit It was not until the following Monday 20
July, that Richardson visited the doctor At that time
Dr Capra took him off work for another 2 weeks
(1 173-175, 181, R Exh 38) The 2 weeks specified by
Richardson would be until 3 August
As Meeks explains , he generally arrives after the driv
ers have left for their trips The assignments are posted
by truck number , not by driver's name Meeks testified it
is not unusual for a regular driver to return, take his
regular truck that morning and drop off his back to
work slip when he returns that afternoon Meeks states
no one assigned Richardson the trips he started with the
morning of 14 July It was later that morning before
Meeks learned it was Richardson who had taken the
truck While Richardson had been out on workers com
pensation leave the truck had been driven by an extra
driver (2 567-568, 594-596) Meeks does not say when he
first saw Richardson s back to work slip (R Exh 33)
from Dr Capra Richardson does not contend he spoke
with Meeks on either 13 July or the early morning of 14
July
When Richardson visited his physician's office on
Monday, 10 July, he apparently obtained a medical slip
from Dr Capra giving the date of treatment, a diagnosis
of cervical strain, and an instruction to return in 2
weeks (R Exh 38) Richardson does not describe what
he did with the medical slip, but Meeks testified he
found it one night about 20 July stuck in the locked
door of his office (2 607-608)
Meeks testified that had he seen Richardson the after
noon of 14 July he would have discharged him, but not
for anything that happened that day (2 596) Meeks does
not explain this statement, but he apparently means he
would have fired Richardson over his accident In a
report Meeks and his wife prepared concerning both the
8 June accident (first page) and Richardson s 10 August
discharge (se,-ond page), Meeks states (R Exh 31)
Our policy is when [there is a] one vehicle acci
dent involving our driver we dismiss him
He was on workmans comp for awhile He
came back and worked one day which, normally
we let them work one day for insurance reasons
before we disqualify them He got away that
evening before I could see him Meantime, I sent
for a MVR His report consists of three speeding
tickets and charged with an accident in 2 years
Which under our grading system gave him 80
points
Meeks also testified it is Respondents policy not to
terminate an employee while he is on workers compensa
tion leave, but to wait until he has returned to work for
1 day before doing so (2 608-609) Meeks was rather
confused concerning the date of preparation of the fore
going memo At first he said the part about the accident
was written within 2 to 4 days afterwards and the
second portion on 10 August and then he testified it was
written all at one sitting (2 570-611) It is obvious, and I
find that the entire memo was written no sooner than 10
August
Meeks never specified the date he sent for the MVRs
We know that several, including Richardson s are dated
6 August If Respondent requested them by letter predat
ing the 4 August representation hearing it did not offer
into evidence a copy of that letter
Richardson s MVR dated 6 August includes the fol
lowing data over the past 12 months (R Exh 34)
Conviction
Date
Offense Description Offense Date
6 8 87 Accident
3 6 87 Speeding 70/55 1 29 87
1 17 86 Speeding 68/55 9 25 86
8 28 86 Speeding 69/45 6 16 86
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The convictions are from two district courts and the
Dora Municipal Court. Regarding the latter, Richardson
testified he was trying to beat a deadline to get coal de-
livered for Richardson (1:167-168, 172). That speeding
conviction made Richardson's third. When Meeks de-
scribed the system to Richardson and the others in May,
Meeks showed each driver his "record." Richardson had
40 points charged against him (1:172). It is unclear
whether the "record" was the MVR or the insurance
company's evaluation form with the points filled in by
Respondent. If the MVR, then it perhaps had been
issued 2 or 3 months earlier, or the State had not yet re-
ceived the information on Richardson's March speeding
conviction. By saying the March speeding ticket came
"between" MVRs (2:598), Meek indicates that any MVR
shown in May was not a current one.
On receiving Richardson's MVR, Meeks prepared a
DEP form for Richardson. It totaled. 80 points (2:560,
571, 598; R. Exh. 35).
Richardson's renewed term off work apparently was
extended from 3 to 10 August, for he (1:182-183, 195)
and Meeks (2:568-569, 599) agree that around 4:30 to 5
that morning Richardson came in to work, handing
Meeks a back-to-work slip. The slip is not in evidence.
Meeks pulled out the 6 August MVR for Richardson and
asked him about it. There are some minor differences as
to what was said, but there is no dispute Meeks, in effect,
fired Richardson on the spot. As Richardson states it,
Meeks said the MVR disqualified Richardson from driv-
ing. "Well, I appreciate it, Mr. Meeks," Richardson re-
sponded. Richardson then turned and departed (1:183,
195, 197).
Meeks testified he fired Richardson because of his
driving record, the accident, and the speeding "tickets"
(2:592, 599).
c. Discussion
Richardson's description of the 11 June conversation
with Meeks, although possible, is unpersuasive. In the
face of all that was wrong with Richardson's driving,
both in terms of his excessive speed, his recent accident,
and a letter from the state police reporting rude and dan-
gerous behavior on the highway, it seems highly unlikely
Meeks would praise Richardson as a good driver or elect
on that occasion to promise him continued employment.
Particularly is this so in the absence of any evidence that
Richardson was one of Respondent's top drivers in pro-
ductivity, willingness to haul undesirable loads, or at-
tendance. Any mention Meeks made about a medical re-
lease was nothing more, I find, than a reference to a rou-
tine procedure and had no bearing on what decision
Meeks would make when Richardson returned to work
from his workers compensation leave. I hasten to add,
however, that I make such findings not because Meeks
was convincing, but because the General Counsel's evi-
dence was both insufficient and unlikely.
As for Meeks and 14 July, I do not believe his testimo-
ny that he would have fired Richardson had he seen him
that afternoon. First, that statement is inconsistent with
his other testimony on cross-examination. That is, when
asked on cross-examination why he did not proceed to
terminate Richardson after the accident, knowing that
the chargeable accident would place Richardson over
the 50 points, Meeks said he gives everyone a fair break
by awaiting a current MVR (2:598). I realize Meeks also
tells of Respondent's policy not to discharge employees
until they return from their workers compensation leave.
But that policy was not his answer to the question asked.
Second, the demeanor of Meeks was unfavorable and,
in general , I do not believe him. Observing Meeks close-
ly, I was reminded of the description by Frederick
Douglass of the countenance of Vice President Andrew
Johnson at the second inauguration of President Lincoln.
Lincoln, the one of "manly humility," and friendly to
Douglass, touched Johnson and pointed out Douglass.
"The first expression which came to his [Johnson's] face,
and which I think was the true index of his heart, was
one of bitter contempt and aversion." Explaining in his
autobiography the basis of this reading of facial emotion,
Douglass states:23 "There are moments in the lives of
most men when the doors of their souls are open, and,
unconsciously to themselves, their true characters may
be read by the observant eye."
Meeks testified that, although he knew even before the
8 June accident that Richardson had accumulated 60
points (from the three speeding convictions), "We didn't
have an MVR showing that." Meeks followed this by
saying that "when the accident happened" Respondent
secured another MVR that showed the third speeding
conviction (2:598). Respondent makes no contention it
obtained a new MVR in June, and I find Meeks was re-
ferring to the MVR dated 6 August.
Meeks denies he decided the day of Richardson's 4
August testimony at the representation hearing to -fire
him (2:597). As I observed Meeks I could see from his
demeanor that he testified falsely. Meeks watched Rich-
ardson testify on 4 August (2:599). It was on that occa-
sion , I find, that Meeks and Respondent decided Rich-
ardson must be fired. Well aware that a new MVR
would doom Richardson, Meeks seized on that as the
convenient pretext to use for discharging Richardson.
Because an MVR on Meeks alone would be self-indict-
ing, Respondent simply, I find, requested MVRs for all
its drivers, thereby accelerating the occasion when it
normally would have done so. Two days later, on 6
August, the Alabama Department of Public Safety issued
the new MVRs. At least, two others besides Meeks were
caught in this MVR net, and they too were fired.24
Based on these findings, I further find that a moving
reason Respondent discharged Jimmy A. Richardson was
because he testified on behalf of the Union at the repre-
sentation hearing of 4 August 1987, in Case 10-RC-
13532. The next question is whether Respondent demon-
strated that it would have fired Richardson in any event
for other reasons. The answer is no-at least not when it
did. That would have been done later. Accordingly, I
find Respondent violated Section 8(a)(4) and (1) of the
Act by discharging Jimmy A. Richardson on 10 August
28 F. Douglass, Life and Times of Frederick Douglass (1962 by Mac-
millan , reprinted from the revised edition of 1892) at 364.
24 Raymond E. Akers (R. Exh. 43) and David A. Wright (R. Exh. 28)
(2:557-558, 577).
BLUE SQUARE II
1987 The task now is to consider the appropriate reme-
dial order
Given Richardson s driving record, it was only a
matter of time until Respondent requested a current
MVR The 80 points Richardson had accumulated would
have caused Respondent, in accordance with its practice,
to dismiss Richardson The question is, when would Re
spondent, in the normal course of events, have requested
current MVRs? The record does not disclose either a
precise date or an approximate date
Meeks March 28 file memo placing Richardson on
probation suggests that Respondent had recently re
ceived an updated MVR on Richardson Because that
MVR did not pick up the 6 March speeding conviction,
it is possible the MVR was dated no later than early
March That would suggest a request date of about 1
March If so, and if Richardson s MVR was one of those
Respondent assertedly requests twice a year on all it
drivers, then the next general request would have been
about 1 September But I am speculating, for the evi
dence simply does not disclose the approximate date
What is the nature of the order to take in these cir
cumstances7 No reinstatement was ordered in Keeshin
Charter Service, 250 NLRB 780 (1980), because it was
clear the driver was uninsurable Backpay was tolled as
of the date the respondent learned of the driver's unin
surability, and a make whole order only was entered
Contrasted with Keeshin is Laredo Packing Co, 241
NLRB 184 (1979) in which reinstatement was ordered
because Respondent did not demonstrate it had no re
course but to terminate its drivers
In our case it is clear Respondent eventually would
have terminated Richardson The question is when
would it have done so? As the question and answer seem
to fall into the Keeshin category I shall issue a make
whole order only There is evidence in the record that
Richardson suffered a relapse soon after 10 August
based on his injuries from the 8 June accident and was
still receiving medical treatment in October (2 561 R
Exh 39) That and similar matters may be addressed in
the compliance stage
CONCLUSIONS OF LAW
1 Respondents, Blue Square II, Energy Sales II Inc,
and Enerhaul II Inc, are each an employer within the
meaning of Section 2(2), (6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondent violated Section 8(a)(1) of the Act by
coercively interrogating and threatening employees with
plant closure about 15 July 1987, and threatening em
ployees with discharge about 24 July 1987
4 Respondent did not violate Section 8(a)(1) of the
Act for conduct alleged in complaint paragraphs 10, 12,
13 and 14
5 Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Larry E King on 5 August 1987
6 Respondent did not violate Section 8(a)(3) and (1)
of the Act by discharging Ricky Farris on 3 August
1987
55
7 Respondent violated Section 8(a)(4) and ( 1) of the
Act by discharging Jimmy Allen Richardson on 10
August 1987
8 Respondent did not violate Section 8 (a)(4) and (1)
of the Act by allegedly discharging James D Samons on
6 August 1987
9 The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de
signed to effectuate the policies of the Act
Respondent must
(1) Offer Larry E King immediate and full reinstate
ment to a position at any of Respondent's facilities which
position is substantially equivalent to his former position,
if it is determined at the compliance stage that such a po
sition is available, without prejudice to his seniority or
any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other bene
fits suffered as a result of the discrimination against him
If no such position is available, then make him whole
until such time that he obtains a substantially equivalent
position elsewhere
(2) Make whole Jimmy A Richardson for any loss of
earnings and other benefits suffered as a result of the dis
cnmination against him Richardson must be made whole
from the date of his 10 August 1987 discharge until the
date to be determined at the compliance stage, that he
would have been discharged because of his driving
record
(3) Backpay shall be calculated in the manner estab
lished in F W Woolworth Co, 90 NLRB 289 (1950),
with interest, computed as described in New Horizons for
the Retarded, 283 NLRB 1173 (1987) 25
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed26
ORDER
The Respondent, Blue Square II Inc Energy Sales II,
Inc, and Enerhaul II, Inc Sumiton Alabama, its offs
cers agents successors and assigns shall
1 Cease and desist from
(a) Coercively interrogating its employees concerning
their union sympathies and those of other employees, and
threatening its employees with plant closure and dis
charge if its employees join or support the United Mine
Workers of America
25 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977)
26 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, re
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Larry E King immediate and full reinstate
ment to a position at any of Respondents facilities which
is substantially equivalent to his former position if it is
determined at the compliance stage that such a position
is available , without prejudice to his seniority or any
other rights or privileges previously enjoyed and make
him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him If
no such position is available , then make him whole until
such time that he obtains substantially equivalent em
ployment elsewhere , in the manner set forth in the
remedy section of this decision
(b) Make whole Jimmy A Richardson for any loss of
earnings and other benefits suffered as a result of the dis
crimination against him from the date of his 10 August
1987 discharge until the date , to be determined at the
compliance stage , that he would have been discharged
because of his driving record
(c) Remove from its files any reference to the unlawful
discharges and notify Larry E King and Jimmy Allen
Richardson in wasting that this has been done and that
the discharges will not be used against them in any way
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay
roll records social security payment records, timecards,
personnel records and reports , and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its offices in Walker and Jefferson counties,
Alabama , copies of the attached notice marked Appen
dix 27 Copies of the notice, on forms provided by the
Regional Director for Region 10 after being signed by
Respondents authorized representative , shall be posted
by Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered , defaced, or cov
ered by any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found
27 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 Nation
al 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