Conley Trucking

National Labor Relations Board - Board Decisions

Jan 31, 2007

349 N.L.R.B. 308 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 30
308
Delmas Conley d/b/a Conley Trucking and General
Truck Drivers and Helpers Union Local #92, In-
ternational Brotherhood of Teamsters. Cases 9–
CA–42437 and 9–CA–42562
January 31, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On September 26, 2006, Administrative Law Judge
David I. Goldman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs,1 and has decided to
affirm the judge’s rulings, findings, and conclusions2 and
to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Conley
Trucking, Portsmouth, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(f).
“(f) 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. Substitute the following for paragraph 2(c).
“(c) Within 14 days from the date of this Order, re-
move from its files, including Timothy Gilbert’s person-

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and positions of the parties.
2 We find it unnecessary to address the judge’s conclusion that the
Respondent violated Sec. 8(a)(1) of the Act by threatening employees
that bargaining with the Union would start from zero. The Respon-
dent’s exceptions to this conclusion do not meet the minimum require-
ments of Sec. 102.46(b) of the Board’s Rules and Regulations. The
Respondent merely cites to the judge’s decision and fails to allege with
any degree of particularity, either in its exceptions or its brief in support
thereof, the error it contends the judge committed, or on what grounds
it believes the judge’s decision as to this violation should be over-
turned. In these circumstances, we find in accordance with Sec.
102.46(b)(2) that the Respondent’s exception on this point may be
disregarded. See, e.g., Thriftway Supermarket, 294 NLRB 173 fn. 2
(1989). We therefore adopt the judge’s findings and conclusions on
this violation, pro forma, without addressing their merits.
There are no exceptions to the judge’s dismissal of allegations that
the Respondent violated Sec. 8(a)(1) by threatening to sell its trucks
and to reduce its employees’ pay, and by threatening job loss and plant
closure in late October and early November 2005.
3 We will modify the judge’s recommended Order to correct two mi-
nor, inadvertent mistakes.
nel file, any reference to his discharge, and within three
days thereafter notify Timothy Gilbert in writing that this
has been done and that the suspension and discharge will
not be used against him in any way.”
Jonathan D. Duffey, Esq., for the General Counsel.
R. Alan Lemons, Esq., of Portsmouth, Ohio, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
DAVID I. GOLDMAN, Administrative Law Judge. The Board’s
General Counsel issued a consolidated complaint in this matter
on February 23, 2006, against Delmas Conley d/b/a Conley
Trucking (the Respondent). The consolidated complaint was
based on charges filed November 4, 2005, by the General
Truck Drivers and Helpers Union Local #92, International
Brotherhood of Teamsters (the Teamsters or the Union) in Case
9-CA-42437, amended December 7, 2005, and charges filed on
January 11, 2006, in Case 9–CA–42562. An amendment to the
consolidated complaint was dated April 11, 2006. Respondent
filed an answer to the consolidated complaint and an answer to
the amendment denying that it violated the Act in any manner.
This matter was tried before me in New Boston, Ohio, on
April 26 and 27, 2006. The record was held open until May 26,
2006, so that the parties could review additional records. Coun-
sel for the General Counsel and counsel for Respondent filed
briefs in support of their positions on June 30, 2006. On the
entire record, including my observation of the demeanor of the
witnesses and other indicia of credibility, and after considering
the briefs filed by the parties, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent, a sole proprietorship, is engaged in the hauling
of various materials from its facility in Portsmouth, Ohio,
where it annually performs services valued in excess of
$50,000 for customers outside the State of Ohio. Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent also admits and I also find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. Background
Delmas Conley owns Conley Trucking and employs ap-
proximately 45 to 50 employees, including 35 truckdrivers who
haul and deliver gravel, sand, salt, and stone in dump trucks for
customers within an approximately 100-mile radius of Ports-

1 General Counsel’s unopposed posttrial motion to withdraw com-
plaint pars. 5(e), (f), and (g) is hereby granted. In addition, General
Counsel’s motion to correct errors in the transcript is unopposed and
hereby granted. I add that the record transcript and exhibits bear erro-
neous captions and erroneously indicate in the heading that the case is
before the United States Department of Labor. On my own motion the
transcript is amended to reflect the correct caption and heading set forth
above.
CONLEY TRUCKING 309
mouth, Ohio. Delmas’ sons, R.J. and Rodney Conley, are ac-
tively involved in running the operation. A son-in-law, Rodney
Holden, works in the office and writes payroll checks, takes
orders from customers, and performs other personnel and ad-
ministrative tasks. Delmas, RJ, Rodney Conley, and Rodney
Holden are admitted agents of Respondent.
The Teamsters conducted some leafleting of the Conley fa-
cility in June or July 2005,2 and ultimately filed a representation
petition on October 31. Conley Trucking opposed unionization
and distributed leaflets and a mailing to employees explaining
bargaining and permanent replacement prerogatives of employ-
ers and asking employees not to support the Teamsters. (R.
Exhs. 7–9.) A representation election was never conducted. In
November, the Teamsters announced to supporters at a meeting
that they were abandoning the petition due to a lack of support
among employees.
On Friday, October 28, Respondent fired truckdriver Timo-
thy Gilbert. Gilbert had attended a union meeting—his first—
on the previous Sunday, October 23. On Thursday, October 27,
Gilbert had told a supervisor, and later left a phone message
indicating, that he would not be at work the next morning be-
cause he needed to care for his ill wife. Friday afternoon when
he and his daughter came by the office to pick up his paycheck
he found a termination notice in the pay envelope.
The General Counsel alleges that as part of the campaign
against the Union, and after the fact at an annual employee
meeting held December 23, Delmas and R.J. Conley made a
number of unlawful threats and statements violative of Section
8(a)(1) of the Act. General Counsel also alleges that Gilbert
was unlawfully discharged in retaliation for his union activity
and to discourage such activity among the employees, in viola-
tion of Section 8(a) (1) and (3).
In support of its case, General Counsel called Delmas and
R.J. Conley as witnesses pursuant to Federal Rule of Evidence
(FRE) 611(c). They denied most of the allegations but made a
few admissions as discussed below. General Counsel also
called Tim Gilbert, but his testimony was limited: he went to a
union meeting on a Sunday and was discharged without warn-
ing the following Friday. He knows he was discharged after he
went to a union meeting but he could not personally further add
to General Counsel’s theory of the case.
The main witness for General Counsel—or at least the indi-
vidual anticipated to be the main witness—was Jeremy Thomp-
son, a truckdriver who works for Conley Trucking. Thompson
had supplied counsel for the General Counsel with two sworn
pretrial affidavits (GC Exhs. 17, 18) that provided ample sup-
port for the issuance of the complaint in this case. However, at
trial, Thompson recanted his affidavits. Because Thompson’s
testimony and the appropriate evidentiary use of his affidavits
have important implications for this case, at the outset I con-
sider his testimony and the evidentiary significance of his affi-
davits.
B. The Testimony and Affidavits of Jeremy Thompson
As mentioned, prior to the trial in this case, Thompson gave
two sworn affidavits to the Board’s Regional Office that laid

2 All dates are in 2005 unless otherwise indicated.
out in detail, with exculpatory statements alongside incriminat-
ing testimony, an account of Respondent’s statements and ac-
tions regarding the possibility of the facility’s unionization.
However, at trial, Thompson denied every material factual
assertion in his affidavits that could possibly harm Respon-
dent’s legal position or cast Respondent in a bad light. These
denials were not convincing. Over the course of his testimony,
Thompson rejected the claims in his affidavit by declaring re-
peatedly, and often inconsistently, regarding the same incident
that he could not remember the incident described in his affida-
vit, that the incident did not happen, that the incident happened
but the statements attributed to Respondent’s agents in the affi-
davit were made by the Union or by truckdrivers whose names
he could not recall. He testified that he did not tell the Board
agent taking his affidavits the statements in his affidavits; he
testified that he could not remember making the statements, and
he testified that he did make the statements but he lied and
made the statements because he was angry at the Union’s fail-
ure to organize the employees. He also testified that he may or
may not have made the statements, but he couldn’t remember
because he was intoxicated and/or under the influence of pre-
scription narcotics at the time he gave the affidavits, and he
claimed that he exaggerated in his affidavits because of the
narcotics and alcohol. Thompson testified that he could not
remember how many affidavits he had provided to the Board.
He first denied meeting with the Conley’s about the upcoming
trial but then admitted that he met with R.J. Conley prior to the
trial. He also met with the R.J. and Delmas Conley and Re-
spondent’s counsel and discussed the contents of the affidavits
he provided to the Board, an event confirmed by the Conleys
and by Respondent’s counsel. At this meeting, Respondent’s
counsel took his own statement from Thompson, with R.J.
Conley present, on April 24, 2 days before the trial.3 Although
he admitted to signing, initialing in various places and reading
“parts” of his affidavits, according to Thompson, when his wife
read the statements to him, he understood for the first time what
was in the statements. He did not say when she read them to
him but they enabled him to have a clear recollection of their
contents when he met with the Conley’s and their counsel two
days before the trial during he which he disclosed to them the
contents of the affidavits. A few days later, at trial, his recall of
the contents of the affidavits became very unreliable and uncer-
tain.
As to testimony on events that did not involve statements
probative of Respondent’s involvement in antiunion activities
Thompson’s memory was reasonable, but when asked about
anything that could possibly implicate Respondent, his memory
left him and he answered with a litany of vague and often in-
consistent claims that he didn’t say it, couldn’t remember, said
it but had lied, etc. His demeanor brightened only when Re-
spondent’s counsel examined him, at which time his recall
improved dramatically, and he crisply and firmly denied (with-

3 That document was offered for identification, described, and used
to refresh Thompson’s memory (Tr. 253–254, 263), and copies distrib-
uted to the parties, but once Thompson testified that he could not read
Respondent chose not to introduce it into evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD310
out resorting to claims of loss of memory) every allegation that
Respondent’s counsel led him through. (See Tr. 255–257.)
Except when questioned by Respondent counsel, Thompson
gave his testimony in a robotic, mechanistic monotone,
hunched over the witness table, answering questions without
motion, looking neither right nor left, staring ahead. He refused
to even glance at his affidavit and declared that he was illiterate
and could not read the affidavits. What stood out in my mind
was the lack of effort to even pretend that that he believed his
own testimony. The impression created was that Thompson
came to the trial with an ugly job to do, and he did it, but he did
it coldly, without conviction or feeling, and without an effort to
pretend that he was doing anything other than getting through
an ordeal that for reasons unknown he had decided he had to
undertake. It was a sad spectacle. One cannot help but wonder
about the pressures that could prompt such a display. His tes-
timony is not credited.4
Convinced, as I am, that Thompson’s testimony at the hear-
ing was thoroughly untruthful, I must consider whether, as
urged by General Counsel, to rely on his pretrial affidavits as
substantive evidence. At the hearing, Thompson’s affidavits
were placed in evidence (GC Exhs. 17 and 18) for purposes of
impeachment without objection from Respondent. However,
Respondent objected to the use of the affidavits as substantive
evidence and I reserved ruling and asked the parties to brief the
issue.
A review of Board precedent demonstrates that there is, in
fact, no doubt that I have authority to accept the affidavits as
substantive evidence and to credit their assertions over testi-
mony presented at the hearing. Santa Maria El Mirador, 340
NLRB 715, 721 (2003); Bay Refrigeration Corp., 322 NLRB
1045, 1049–1053 (1997); Planned Building Services, 318
NLRB 1049, 1057 (1995); Be-Lo Stores, 318 NLRB 1 (1995),
enfd. in relevant part 126 F.3d 268 (4th Cir. 1997); Fun Con-
nection & Juice Time, 302 NLRB 740, 748 (1991); Alvin J.
Bart & Co., 236 NLRB 242 (1978), enf. denied on other
grounds 598 F.2d 1267 (2d Cir. 1979); Snaider Syrup Corp.,
220 NLRB 238 fn. 1 (1975); and Starlite Mfg. Co., 172 NLRB
68, 72 (1968).5
Generally, the Board has held that hearsay evidence is ad-
missible if “rationally probative in force and if corroborated by
something more than the slightest amount of other evidence.”
Dauman Pallet, Inc., 314 NLRB 185, 186 (1994), quoting RJR
Communications, Inc., 248 NLRB 920, 921 (1980). In Alvin J.
Bart & Co., supra, the Board specifically considered in some
depth and rejected the proposition that substantive admission of
pretrial affidavits must be denied on grounds of hearsay. In
Alvin J. Bart & Co., the Board pointed out that “we would be
reluctant to adopt a rule [as urged by the respondent and the
dissenting Board member] which mechanically excludes evi-

4 I note that Thompson’s demeanor and testimony were such that I
am sure that even in the absence of his prior inconsistent statements his
testimony would not be credited.
5 See also Salem Leasing Corp., 271 NLRB 86, 88–90 (1984). Al-
though the Board in Salem Leasing adopted the judge’s conclusions
without relying (as the judge had) on the credited statement in the wit-
ness’s pretrial affidavit, Judge Bernard Ries’ thoughtful discussion of
the issue is instructive.
dence, regardless of its intrinsic reliability, because it is techni-
cally hearsay. Administrative agencies ordinarily do not invoke
a technical rule of exclusion but admit hearsay evidence and
give it such weight as its inherent qualities justifies.” 236
NLRB at 242. In this regard the Board cited to Section 10(b) of
the Act, which provides that Board proceedings are to hew to
the Federal Rules of Evidence (FRE) “so far as practicable.”
The Board reviewed this equivocal language in light of Senator
Taft’s supplementary analysis of the 1947 legislation that added
Section 10(b) to the Wagner Act. Senator Taft explained that
“the phrase ‘so far as practicable’ in Section 10(b) ‘gives to the
trial examiner considerable discretion as to how closely he will
apply the rules of evidence’ . . . and, accordingly, it has been
generally recognized that the Board is not bound to follow the
strict rules of evidence applicable in the Federal Courts.” Alvin
J. Bart & Co., supra, quoting, 93 Cong. Rec. 7002 (1947); re-
printed in the Legislative History of the National Labor Rela-
tions Act II at 1560 (1947) (Board’s emphasis). The Board in
Alvin J. Bart & Co., went on to suggest that sworn pretrial affi-
davits may fall within the exception to the hearsay rule found in
FRE 801(d)(1)(A) where the witness appears in court and is
subject to cross-examination about his pretrial statement.6 In
this regard the Board noted the “modern trend” toward viewing
prior inconsistent statements as substantive evidence and not as
hearsay, and the “intermediate” view adopted in the then recent
1975 adoption of the FRE that excluded from the definition of
hearsay certain sworn prior inconsistent statements such as
depositions. As the Board in Alvin J. Bart & Co., supra at 243
explained,
If sworn statements to the Board agent are regarded as deposi-
tions, they are not hearsay under the Federal Rules. And there
is good reason to treat them as such because there is no re-
quirement under the Federal Rules that the prior statement
embodied in a deposition be subject to cross-examination
when made. If the sworn statements are not deemed to be
depositions, the distinction is indeed a fine one entitled to little
consideration in an administrative proceeding where there is
discretion to receive in evidence and rely on hearsay as sub-
stantive evidence.
In other words, according to the Board in Alvin J. Bart &
Co., even assuming that a pretrial affidavit does not, strictly
speaking, fit within FRE 801(d)(1)(A), it is close enough for a
regime that follows the FRE “so far as practical” that it should
not be rigidly excluded from consideration as substantive evi-
dence.
I would add that, while mindful that Board proceedings are
to follow the FRE “so far as practical,” in my view federal la-
bor policy concerns would render decidedly impractical adher-
ence to an evidentiary rule that precluded the administrative

6 Rule 801(d)(1)(A) provides that a prior statement of a witness is
not hearsay if,
The declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is (A) incon-
sistent with the declarant’s testimony, and was given under oath sub-
ject to the penalty of perjury at a trial, hearing, or other proceeding, or
in a deposition.
CONLEY TRUCKING 311
law judge from having discretion to substantively consider
these pretrial affidavits.
One of the chief concerns that motivated the modern trend to
allow the substantive use of some prior witness statements, as
reflected in FRE 801(d), was concern about witness intimida-
tion—i.e., witnesses who could be intimidated or were other-
wise vulnerable to pressure with the result that their prior
statements were a more reliable guide to the factfinder than
their testimony in the courtroom. According to the Congres-
sional subcommittee considering enactment of the rules of evi-
dence proposed by the Supreme Court, support for the Supreme
Court’s proposal to permit an even broader substantive use of
prior inconsistent statements than Congress ultimately adopted
in the FRE was “based largely on the need to counteract the
effect of witness intimidation.” H.R. Comm. Print at 26–27
(June 28, 1973), included in the Hearings on Proposed Rules of
Evidence before the H.R. Subcomm. on Criminal Justice of the
Comm. on the Judiciary, 93rd Cong. (1973), at 170–171, re-
printed in 1974 U.S.C.C.A.N. 7075, 7086–7087. The Notes of
the Advisory Committee reviewing the rules of evidence pro-
posed by the Supreme Court opined that the Court’s proposed
Federal Rules of Evidence Rule 801(d)(1)(A) “provides a party
with desirable protection against the ‘turncoat’ witness who
changes his story on the stand and deprives the party calling
him of evidence essential to his case” (quoting with approval
the California Law Revision Comments to Cal. Evid. Code §
1235, which permits substantive use of prior inconsistent
statements). See also Sen. Rept. 93—1277 at 16 (October 18,
1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7062 (with
amendments to FRE 801 a “realistic method is provided for
dealing with the turncoat witness who changes his story on the
stand”).
This problem of witness intimidation has long been a par-
ticular concern for the Board and has shaped Board practice
and policy. Indeed, it is precisely the concern with the potential
for “witness intimidation” and the “peculiar character of labor
litigation” in which “the witnesses are especially likely to be
inhibited by fear of the employer’s or—in some cases—the
union’s capacity for reprisal and harassment,” that undergirded
the Supreme Court’s holding in NLRB v. Robbins Tire & Rub-
ber Co., 437 U.S. 214 (1978) (internal quotations omitted). In
Robbins Tire, the Court recognized that the Board’s concern
over the potential for witness intimidation in Board litigation
made it critical to avoid pretrial discovery in Board proceedings
and the Court held that Exemption 7(A) of the Freedom of In-
formation Act (FOIA)—the exemption from disclosure of in-
vestigatory records that would “interfere with enforcement
proceedings”—barred the effort of an employer to use FOIA
obtain pretrial affidavits before a witness testifies:
The most obvious risk of “interference” with enforce-
ment proceedings in this context is that employers or, in
some cases, unions will coerce or intimidate employees
and others who have given statements, in an effort to make
them change their testimony or not testify at all. This spe-
cial danger flowing from prehearing discovery in NLRB
proceedings has been recognized by the courts for many
years.
. . . .
The danger of witness intimidation is particularly acute
with respect to current employees—whether rank and file,
supervisory, or managerial—over whom the employer, by
virtue of the employment relationship, may exercise in-
tense leverage. Not only can the employer fire the em-
ployee, but job assignments can be switched, hours can be
adjusted, wage and salary increases held up, and other
more subtle forms of influence exerted. A union can often
exercise similar authority over its members and officers.
As the lower courts have recognized, due to the “peculiar
character of labor litigation[,] the witnesses are especially
likely to be inhibited by fear of the employer’s or—in
some cases—the union’s capacity for reprisal and harass-
ment.” Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80, 83
(3d Cir. 1976). Accord: NLRB v. Hardeman Garment
Corp., 557 F.2d 559 (6th Cir. 1977). While the risk of in-
timidation (at least from employers) may be somewhat
diminished with regard to statements that are favorable to
the employer, those known to have already given favor-
able statements are then subject to pressure to give even
more favorable testimony.
Furthermore, both employees and nonemployees may
be reluctant to give statements to NLRB investigators at
all, absent assurances that unless called to testify in a hear-
ing, their statements will be exempt from disclosure until
the unfair labor practice charge has been adjudicated. Such
reluctance may flow less from a witness’ desire to main-
tain complete confidentiality—the concern of Exemption
7(D)—than from an all too familiar unwillingness to “get
too involved” unless absolutely necessary. Since the vast
majority of the Board’s unfair labor practice proceedings
are resolved short of hearing, without any need to disclose
witness statements, those currently giving statements to
Board investigators can have some assurance that in most
instances their statements will not be made public (at least
until after the investigation and any adjudication is com-
plete). The possibility that a FOIA-induced change in the
Board’s prehearing discovery rules will have a chilling ef-
fect on the Board’s sources cannot be ignored.
In short, prehearing disclosure of witnesses’ statements
would involve the kind of harm that Congress believed
would constitute an “interference” with NLRB enforce-
ment proceedings: that of giving a party litigant earlier and
greater access to the Board’s case than he would otherwise
have. As the lower courts have noted, even without intimi-
dation or harassment a suspected violator with advance
access to the Board’s case could “construct defenses
which would permit violations to go unremedied.” New
England Medical Center Hospital v. NLRB, 548 F.2d 377
(1st Cir. 1976), quoting Title Guarantee Co. v. NLRB, 534
F.2d at 491.7
The Supreme Court in Robbins Tire could not have taken
more seriously the concern that intimidated employee witnesses
might skew or undermine completely the effective administra-

7 434 U.S. at 239–241 (footnotes omitted) (court’s bracketing).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD312
tion of Federal labor policy. Accordingly, the Court endorsed
the Board’s effort to shape its trial practice and procedures to
address the problem posed by the potential for witness intimi-
dation. As pointed out in Robbins Tire, in Board litigation the
concern is real that, even in the absence of employer miscon-
duct, an employee fearing the inherent power of the employer
will take it into his own hands to color or recant his testimony,
especially when faced with the prospect of actually testifying,
which, as the Supreme Court recognized, the employee may
have reasonably considered an unlikely eventuality. Thus, the
concern with witness intimidation that prompted the modern
movement toward permitting the substantive use of some prior
inconsistent statements in Federal court is even more acute in
the arena of Board litigation. It is precisely because of the “pe-
culiar character of labor litigation” with its reliance on wit-
nesses “especially likely to be inhibited by fear” that, as a mat-
ter of effectuating Federal labor policy, administrative law
judges should have the discretion to consider sworn pretrial
affidavits as substantive evidence. For when a witness testifies
in marked contradiction to his pretrial statement, and particu-
larly where in the opinion of the administrative law judge that
testimony reeks of untruthfulness, and further, where, as here,
the employer has met with and discussed the contents of the
employee’s pretrial statements with the employee, the ability of
the judge to consider substantively the witnesses pretrial state-
ments becomes an important tool in the search for truth and an
antidote to the threat to Board enforcement proceedings posed
by witness intimidation.8
In this instance, the circumstances convince me that Thomp-
son’s sworn affidavits should be considered for the truth of the
matters asserted therein. As discussed below, I do not credit
the affidavits in their entirety. But it would be a mistake to
confuse admissibility with sufficiency of the evidence and ex-
clude the affidavits on such grounds. To admit the affidavits as
substantive evidence does not mean that they must be credited
over all (or any) other evidence. But, part of his incredible
testimony—in many ways its essence—was Thompson’s en-
tirely unconvincing account of why his affidavits were false.
None of his lamentations bore the slightest indicia of trustwor-
thiness. On the other hand, he admits he gave the affidavits,
swore to them and signed his name and even initialed signifi-
cant corrections. Each affidavit concludes just prior to signa-
ture:
I have read this statement consisting of [the applicable num-
ber of ] pages, including this page, I fully understand its con-
tents, and I declare under penalty of perjury that the foregoing

8 I note that Respondent counsel’s pretrial meeting with Thompson,
in which they discussed the contents of Thompson’s Board affidavits
(Tr. 252), was violative of the Act under Johnnie’s Poultry Co., 146
NLRB 770, 775 (1964). In that case, the Board held that “interrogation
concerning statements or affidavits given to a Board agent” is “outside
the ambit of privilege” available to employers who, with appropriate
safeguards, may interview employees to prepare for an unfair labor
practice trial. This issue was not alleged in the complaint or otherwise
advanced by General Counsel. Accordingly, I decline to find a viola-
tion, however, it is a further factor undermining the credibility of
Thompson’s testimony and the recantation of his affidavits.
statement is true and correct to the best of my knowledge and
belief.
Also of significance is the fact that the affidavits are not ten-
dentious documents and even contain assertions that paint the
Conley’s in a positive light in certain instances. In sum, though
out-of-court statements, the affidavits on their face suffer from
none of the affirmative lack of credibility exhibited by Thomp-
son’s in-court statements. Based on my observation of Thomp-
son at the hearing, his demeanor convinces me of the very op-
posite of the design of his testimony: it convinces me that his
affidavits are more trustworthy than his testimony at the hear-
ing, and that his testimony at the trial, in fact, was part of an
effort to avoid the impact on Respondent that he knew would
result if he repeated the statements in his affidavits at trial and
was believed. Although Thompson attributed the insight to
Gilbert, I think Thompson also understood “that I couldn’t
change my statements or he [Gilbert] would lose.” (Tr. 264.)
Indeed, there is a very real sense in which Thompson’s com-
pletely incredible testimony and untrustworthy demeanor at the
hearing, including his testimony as to the invalidity of the affi-
davits, helps to bolster the credibility of the affidavits.9 In this
case, the Board’s policy permitting the use of pretrial affidavits
as substantive evidence in lieu of false and contrary testimony
is appropriately invoked.
C. Use of the Affidavits and Some General Observations on
Credibility
Accepting Thompson’s affidavits as substantive evidence is
not tantamount to crediting the claims in the affidavits over all
other evidence. Rather, accepting the affidavits as substantive
evidence means that the assertions in the affidavits must be
considered with and against the record evidence as a whole,
including, in many cases, the denial of the allegations by wit-
nesses aligned with Conley Trucking. This is a more difficult
task than in the traditional case where two witnesses give con-
flicting live testimony on an issue. However, it is one that I
must assume because, as discussed above, to ignore the pretrial
statements would be inconsistent with the policies of the Act
and would not serve the search for truth to which this tribunal is

9 “[T]he the demeanor of a witness’ . . . may satisfy the tribunal, not
only that the witness’ testimony is not true, but that the truth is the
opposite of his story; for the denial of one, who has a motive to deny,
may be uttered with such hesitation, discomfort, arrogance or defiance,
as to give assurance that he is fabricating, and that, if he is, there is no
alternative but to assume the truth of what he denies.” NLRB v. Walton
Mfg., 369 U.S. 404, 408 (1962) (quoting, Dyer v. MacDougall, 201
F.2d 265, 269 (2d. Cir. 1952)). Judge Learned Hand authored the opin-
ion in Dyer v. MacDougall, as he did the opinion in DiCarlo v. U.S., 6
F.2d 364, 368 (2d. Cir. 1925), cert. denied 268 U.S. 706 (1925), in
which he explained that a jury may be convinced by a witness’ testi-
mony that the testimony is false and earlier inconsistent statements true:
The possibility that the jury may accept as the truth the earlier state-
ments in preference to those made upon the stand is indeed real, but
we find no difficulty in it. If, from all that the jury see of the witness,
they conclude that what he says now is not the truth, but what he said
before, they are none the less deciding from what they see and hear of
that person and in court. There is no mythical necessity that the case
must be decided only in accordance with the truth of words uttered
under oath in court.
CONLEY TRUCKING 313
committed. At the same time, I recognize that Thompson’s
commitment to not testifying truthfully—and his testimony
really amounted to that—limited the ability to meaningfully
exam him regarding the allegations in the affidavits (or any-
thing else). In these unique circumstances this is an instance
where I conclude that the typical procedure of viewing conflict-
ing evidence and crediting one witness or another is not entirely
satisfactory. In National Telephone Directory Corp., 319
NLRB 420, 422 (1995), the Board confronted a somewhat simi-
lar problem when for policy reasons it refused to permit cross-
examination of a witness regarding certain union organizational
activities. In a holding that is instructive for the situation we
face here, the Board explained,
We recognize, however, that our ruling leaves open the re-
mote possibility that the General Counsel’s evidence could
consist primarily of testimony immune from cross-
examination. In such rare circumstances, it could be appropri-
ate—in resolving issues of credibility—to forego the tradi-
tional credibility analysis and afford less weight to the im-
mune testimony in determining whether a preponderance of
evidence supports the General Counsel’s allegations. Such an
analysis would decrease the likelihood that the immune testi-
mony would constitute the sole basis for finding that a pre-
ponderance of evidence supports the General Counsel’s alle-
gations.
Although the circumstances are somewhat different—here
the “immunity” from cross-examination is a product of the
witness’ recalcitrance not an evidentiary privilege—in this case
as in National Telephone, supra, the parties confronts a situa-
tion where General Counsel’s evidence (the witness statements)
is insulated from effective cross-examination. The fact that in
this case the disadvantage to Respondent stems from the unbe-
lievability of a witness seemingly committed to advancing Re-
spondent’s interests is ironic, but beside the point. Consistent
with the Board’s approach in National Telephone Directory I
will “afford less weight” to the pretrial affidavits “in determin-
ing whether a preponderance of the evidence supports the Gen-
eral Counsel’s allegations.” Where an allegation in the com-
plaint is supported solely by a statement in Thompson’s affida-
vit, and the record is devoid of any corroboration that supports
the likelihood of the truth of the statement, then I have deter-
mined that allegation fails due to a lack of sufficient evidence,
without regard to credibility resolutions. See National Tele-
phone Directory Corp., supra, citing Blue Flash Express, 109
NLRB 591, 592 (1954) (“When, as in this case, the Trial Exam-
iner is not persuaded by the testimony of the General Counsel’s
witnesses that threats and promises were made to them by the
Respondent, the General Counsel has failed to meet that burden
of proof”). Where there is some form of corroboration then I
will consider whether to credit or discredit the various compet-
ing testimony as is the traditional practice. Although the extra
“burden” this places on the General Counsel may not be war-
ranted in every case where pretrial statements are considered
substantively, in this case I believe that it provides an important
brake on the use of Thompson’s pretrial statements as a sole
source of support for a finding of a violation of the Act by Re-
spondent.10
Generally speaking, Thompson’s affidavits describe numer-
ous statements by R.J. and Delmas Conley that General Coun-
sel alleges to be unlawful. The affidavits paint a picture of an
employer actively (and often unlawfully) opposing the union
campaign, something the Conley’s deny. With the exception of
the allegations admitted to by Respondent (discussed below),
the general theme of R.J. and Delmas Conley in their testimony
was to deny all wrongdoing alleged. They denied knowing
about the union campaign prior to learning on October 28 from
radio broadcasts that the Teamsters were seeking to organize
the facility. They denied making most of the comments alleged
by General Counsel to be unlawful. They denied any unlawful
motive for terminating Gilbert. I found R.J and Delmas Conley
to be reasonably straightforward in their demeanor. Yet not-
withstanding this, there was vagueness to their testimony in
many instances, and some telling contradictions that lead me
not to believe all of their testimony.11
Finally, I found Gilbert generally to be a credible witness.
He did not exaggerate what he knew, he did not attempt to deny
or minimize the mishaps and misconduct that marked his tenure
at Conley Trucking. He did not exhibit bias by attempting to
impugn others. I think he testified honestly and in general, I
have credited his testimony.12

10 It is also an approach consistent with the Board’s willingness ad-
mit hearsay evidence that is otherwise corroborated and probative.
Dauman Pallet, Inc., 314 NLRB at 186.
11 R.J. Conley claimed that Conley Trucking did not “fight” the Un-
ion and that it was the employees’ choice whether they chose a union.
Indeed, Thompson’s affidavits quoted Delmas stating this (and Thomp-
son testified to this as well, it was one of the few items from the affida-
vit that Thompson recalled and affirmed). Yet, the record shows that
the Conleys did “fight” the Union. Respondent distributed antiunion
literature that was fairly pointed in explaining the Employer’s right to
permanently replace during an economic strike and other legal realities.
Of course, the literature and antiunion campaign is not alleged to be
unlawful, and, if properly conducted within the bounds of the law it is
an employer’s prerogative to “fight” unionization. But the Conley’s
worked hard at the hearing to strike a pose of indifference, or at least
nonchalance, towards the union drive that is not borne out by the re-
cord. It is also notable that while Delmas Conley testified that he
learned about the Union’s presence for the first time on October 28,
R.J. testified that he told his father about the union leaflets in the park-
ing lot in June or July. Finally, while Delmas testified that he did not
mention the Union at all when he addressed the assembled employees
on December 23, R. J. confirmed that he did, in several comments that
are alleged to be unlawful. In sum, R. J. and Delmas went to some
lengths on the witness stand to conceal and falsely deny their opposi-
tion to the Union, and the lack of candor bears on their credibility.
12 I specifically discredit, for the same reasons I discredited Thomp-
son generally, the suggestion in Thompson’s testimony that Gilbert
attempted to influence him to provide favorable testimony, something
that Thompson denied until Respondent’s counsel was able to “refresh”
his recollection with the statement that counsel took from Thompson
when Thompson met with management about this case. I also do not
credit—for the truth of the matter asserted—Delmas Conley’s testi-
mony that in the weeks before trial, Thompson told Conley that Gilbert
had offered Thompson money to “help him out” at the trial. Thomp-
son, who seemed willing to say almost anything to help Respondent,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD314
D. Discussion and Analysis
1. The independent 8(a)(1) violations
Section 7 of the Act grants employees, among other rights,
“the right to self-organization, to form, join, or assist labor
organizations.” Pursuant to Section 8(a)(1) of the Act, it is “an
unfair labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in
section 7.” In this case, the General Counsel alleges that Re-
spondent committed a number of independent violations of the
Act, as set forth in the complaint at paragraphs 5(a)–(d) and
6(a)–(f). I consider each in turn.
a. Paragraphs 5(a)–(d)
In paragraphs 5(a)–(d), the General Counsel alleges that a
variety of conduct by R.J. Conley violated the Act.
(1) Paragraph 5(a)
The General Counsel alleges that R.J. Conley unlawfully
“created the impression of surveillance of employees’ union
activity by telling employees that he heard that certain employ-
ees were trying to bring in a union.”
As discussed, above, Gilbert testified that he attended two
union meetings, one before and one after he was fired. The
first was a union meeting at a Wendy’s restaurant in Lucasville
on Sunday, October 23, that was also attended by employees
Delabar, Thunderdance, Carver, Rosenogle, and Thompson.
Thompson also testified about this union meeting. It was his
second, the first having been held some weeks earlier and at-
tended by himself, Thunderdance, Carver, and Rosenogle.
In support of this allegation of the complaint, General Coun-
sel relies on the statement in Thompson’s November 16 sworn
affidavit (GC Exh. 18), in which Thompson stated:
[T]he following Wednesday, I was at the office at Conley.
There were 3 or 4 other drivers standing around that I don’t
normally talk to. I don’t know their names. It was about 4:30
or 5:00 p.m. R.J. Conley came over. We talked about every-
day business. Conley then said “I heard something today.” I
said, “What’s that?” He said, “I heard you, Tim Gilbert, and
Steve Del[a]bar were trying to get a union in here.” I said
Del[a]bar and Gilbert had nothing to do with it. That was the
end of the conversation.
R.J. Conley denied ever having told any employees that he
heard they were trying to bring a union in.
In this instance, Thompson’s statements are buttressed by the
specific corroboration of this aspect of Thompson’s statement
provided by Teamster Organizer Rick Kepler. Kepler testified
that Jeremy Thompson had been his “key contact” in the failed
effort to organize Respondent. With regard to this allegation of
the complaint, Kepler quoted Thompson telling him specifi-
cally what R.J. had said to him. According to Kepler, Thomp-
son told him that R.J. Conley approached Thompson and identi-
fied Thompson, Delabar, and Gilbert as being involved in the
Union. As to this exchange, Kepler testified to what Thompson
told him: “[H]e said it was R.J. He goes we know—here are

did not testify to this. Whether or not Thompson told Conley this, I
find that Gilbert did not say it.
his [Thompson’s] words to me during the conversation. ‘We
know it was you Jeremy and Delabar and Gilbert who started
this thing.’”
Kepler testified that “this was before Gilbert was fired,”
something he was sure of because Thompson immediately
called Kepler when Gilbert was fired, to which Kepler re-
sponded, “[T]hey got the wrong guy,” as Gilbert was not part of
the organizing team but had merely attended a union meeting.
I credit Kepler’s testimony that Thompson contemporane-
ously told him about this incident. His account is specific, and
similar to the account of the incident in Thompson’s November
16 affidavit. Throughout his testimony, I found Kepler a very
credible witness, both in demeanor and in his tendency not to
overstate his testimony and not to hesitate to offer testimony
that aided the other side. I think his very specific corroboration
of this incident was credible.13
Kepler’s testimony adds weight to Thompson’s statement. It
demonstrates that prior to any litigation, prior to any affidavits,
this incident was reported by Thompson in a manner consistent
with his subsequent statement. I credit Thompson’s statement
on this point over R.J. Conley’s denial. As noted, above, the
Conley’s claims that they did not “fight” the union drive were
plainly false and lend an air of doubt to R.J. Conley’s pro-
nouncements at trial of total ignorance about the presence of
the Union, even after he admitted he knew that union leaflets
were distributed in the parking lot in June or July. I find that
R.J. Conley told Thompson that he heard that Gilbert, Thomp-
son and Delabar were trying to bring a union to Conley Truck-
ing.
The Board considers employer conduct that creates an im-
pression of surveillance to be a violation of Section 8(a)(1) of
the Act. Employees should not have to fear that “members of
management are peering over their shoulders, taking note of
who is involved in union activities, and in what particular
ways.” Fred’k Wallace & Son, Inc., 331 NLRB 914 (2000). In
Sam’s Club, 342 NLRB 620 (2004), the Board held that:
The test for whether an employer unlawfully creates an im-
pression of surveillance is whether under the circumstances,
the employee reasonably could conclude from the statement
in question that his protected activities are being monitored.
The Board does not require that an employer’s words to an

13 Respondent objected to all of Kepler’s testimony, but I overruled
the objections. Contrary to Respondent’s objections, his testimony was
not hearsay, as it was not offered or considered for the truth of the
matters asserted by Thompson in his conversations with Kepler. Under
the circumstances of this case, however, Kepler’s testimony plays an
important role in providing for impeachment of Thompson’s testimony
and corroboration of certain statements in his affidavits such as that
discussed in the text here. Respondent also objected to Kepler’s testi-
mony on grounds that he had not been sequestered. However, at the
commencement of the hearing I permitted him to remain in the hearing
room as Charging Party’s representative. See Greyhound Lines, Inc.,
319 NLRB 554 (1995). See also FRE 615. In assessing Kepler’s
credibility, I have, of course, considered the fact that he was present for
other witnesses’ testimony (as was R.J. Conley, the representative of
Respondent).
CONLEY TRUCKING 315
employee reveal on their face that the employer acquired its
knowledge of the employee’s activities by unlawful means.14
In Sam’s Club, supra, a supervisor was found to have created
an impression of surveillance when he told an employee that he
had heard the employee was circulating a petition about wages.
The Board held that such a statement “leads reasonably to the
conclusion that the Respondent has been monitoring [the em-
ployee’s] activities.” 342 NLRB at 620–621. In drawing this
conclusion, the Board relied on the fact that the employee had
not circulated the petition openly and the supervisor did not
reveal the manner in which he had learned the information
about the employee’s activities. In this instance, Thompson
reasonably could conclude from Conley’s statement—that
Conley had heard that Gilbert, Delabar, and Thompson “were
trying to get a union in here”—that the employees’ protected
activities were being monitored. Conley did not explain how
he had learned this information and certainly, nothing in his
statement or conduct suggested that the information was law-
fully acquired.15 To the contrary, by communicating not only
his knowledge of the existence of the union drive but also by
listing the specific employees (he believed to be) leading the
campaign, Conley added to the impression that he was keeping
tabs on the details of the employees’ protected activity.16 Of
course, it would not be (and, in fact, was not) lost on Thompson
that each employee identified by Conley had been at the union
meeting held 3 days earlier. Thus, whether or not Conley was
correct about who was spearheading the union drive, his com-
ment demonstrated enough familiarity with the employees’
actual and recent protected activities to add substantially to an
impression of monitoring. As in Sam’s Club, supra, it is sig-
nificant that at the time of Conley’s comment the union orga-
nizing campaign and Thompson’s (not to mention Gilbert’s)
role in it was not in the open. Indeed, the Conley’s deny having
any knowledge of the union campaign at this time, something I
do not believe, but a contention that is premised on the fact that
the campaign was not in the open. Thus, Conley’s detailed
comment was not based on information readily available to the
employer, adding further to the impression of monitoring. In
this regard, a distinction can be drawn here from the circum-

14 342 NLRB at 620, citing Mountaineer Steel, Inc., 326 NLRB 787
(1998).
15 Classic Sofa, Inc., 346 NLRB 219, 221 fn. 10 2006), and sur-
rounding text.
16 Donaldson Bros. Ready-Mix, Inc., 341 NLRB 958, 963 (2004)
(specifically identifying union leaders including employee to whom the
comment was addressed “gave [the employee] reasonable grounds to
believe that management knew [the employee] and others were union
organizers and that it had a source of information regarding the em-
ployees’ union activities”); Royal Manor Convalescent Hospital, 322
NLRB 354, 362 (1996) (“[t]he Board has long held that, when, in
comments to its employees, an employer specifically names other em-
ployees as having started a union movement or as being among the
union leaders, the employer unlawfully creates the impression, in the
minds of its employees, that he has been engaged in surveillance of his
employees’ union activities”), enfd. mem. 1998 U.S. App.. LEXIS
3204; Jordan Marsh Stores Corp., 317 NLRB 460, 465 (1995) (man-
ager’s statement that he knew there were 12 to 15 employees at the
Union meeting unlawfully created impression of surveillance).
stances prevailing in SKD Jonesville Division L.P., 340 NLRB
101 (2003), where a manager’s comment to an open union sup-
porter that he had “heard that the employees wanted you to
organize a union,” was held not to have created an impression
of surveillance. Unlike the instant case, the comment in SKD
was addressed to an open union supporter, did not evince
knowledge regarding the identity of campaign supporters, and
was not timed in a way that suggested knowledge of a recent
union meeting. On the other hand, Conley’s comment demon-
strated detailed knowledge of union activity never openly dis-
closed. Conley created the impression of surveillance and
therefore violated Section. 8(a)(1) of the Act.17
(2) Paragraph 5(b)
In paragraph 5(b) of the complaint, the General Counsel al-
leges that in early November, R.J. Conley told employees that
Respondent could sell its trucks if employees chose to unionize.
Conley denies ever making such a comment to employees.
Thompson’s affidavit, sworn to on November 16, describes the
incident as follows:
About one week to 1.5 weeks after Gilbert was fired, I was at
the shop. About 4 or 5 other drivers were there. Roger
Rosenogle was there. Dave Jordan, a mechanic was there.
The others I am not sure of. It was after work at 5 or 5:30
p.m. R.J. Conley told us he couldn’t talk about it but he can
legally say that he can sell his trucks if he so chooses. He said
he can’t afford to pay the big wage that the Union promising
us. He said his company didn’t generate that kind of money.
He said that if they could get a Union in there and it would
benefit the guys, they would gladly do it but they couldn’t af-
ford it. I think R.J. started talking after one of the employees
asked him about it. He said if we wanted a Union it would be
our choice and we could vote on it and he didn’t have any say
in it. We didn’t reply to this.
In this case, corroboration of Thompson’s statement is
vague. Kepler described that when he talked with Thompson
he heard that” they were talking about threatening to shut the
place down if the Union comes in; they would sell the trucks if
the Union come in . . . if they find out who started this Union or
who’s involved with the Union, they’re not going to be working
at Conley any more.” When asked whether Thompson speci-
fied who made these statements, Kepler suggested that Jeremy

17 In assessing whether Thompson reasonably could conclude from
Conley’s statement that the employees’ activities were being monitored
it is irrelevant that, according to Kepler, Thompson suspected that “it
was Delabar who got scared and went and told the bosses who was at
the meeting.” It is not surprising that Conley’s comments operated to
create suspicion among the ranks of union supporters. It is also irrele-
vant that Thompson apparently believed that the first union meeting
was, in fact, monitored by a member of the Conley family (GC Exh. 18
at 4, ll 8–16). The issue is not the subjective belief of an employee
regarding the employer’s surveillance activity, rather, an objective test
of whether the employee reasonably could conclude from the statement
in question that protected activities are being monitored. Michigan
Roads Maintenance Co., LLC, 344 NLRB 617, 617 fn. 4 (2005) (em-
ployee’s subjective belief that employer is surveilling union activity is
not a basis for concluding that employee reasonably could have drawn
that conclusion based on employer’s statement).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD316
mostly said that it was R.J. who was on, his words, a rampage
to find out what was going on, who started it, and most of the
threats.” The difficulty with this is that, regardless of whether
individual comments by R.J. Conley violated the Act as al-
leged, and should not have been made, Thompson’s account of
the incident, and indeed, both his affidavits, do not square with
a picture of R.J. Conley on “a rampage.” There is, in fact, no
claim in Thompson’s affidavit that R.J. Conley threatened to
shut down the facility if the Union came in, or threatened that
“if they find out who started this Union or who’s involved with
the Union, they’re not going to be working at Conley any
more.” In addition Kepler, who was a very credible witness,
described the threats he was hearing about from Thompson as
“[t]he basic threats I usually hear during an organizing drive”
and pointed out that he “probably, at that time, I had like six
other organizing campaigns going on.” In other words, Ke-
pler’s recollection of the details of what Thompson told him on
this score was not distinct in his memory from the complaints
of employer threats he was hearing from organizers involved in
the six other campaigns Kepler was overseeing at the time.
Absent corroboration or any other evidence supporting the
specific incident described in Thompson’s statement, I am un-
willing to credit the statement in Thompson’s affidavit. I note
that none of the other participants in this conversation named in
Thompson’s statement testified. Given the parameters on the
substantive use of Thompson’s affidavits, discussed supra, my
primary finding is that evidence in support of the allegation is
simply insufficient for me to conclude that General Counsel has
proven the allegation by a preponderance of the evidence.
However, if I were to make credibility findings on the facts
relating to this allegation I would credit R.J. Conley’s denial
that this specific statement was made. I recommend dismissal
of this allegation of the complaint.18
(3) Paragraph 5(c)
In paragraph 5(c) of the complaint, General Counsel alleges
that in early November, R.J. Conley told employees that if they
chose to unionize, Conley would change its method of pay
resulting in a pay decrease.
The evidence for this allegation is found in Thompson’s No-
vember 16 affidavit. There he stated, “I recall that R.J. said we
would make $7–8 per hour if the Union came in because they
went in the hole last year with fuel costs being high.” R.J.
Conley denies this, and testified that he never said that he
would change the pay or decrease the pay received by truck-
drivers (who are not paid on an hourly basis). There is no cor-
roboration in Kepler’s testimony (or any other evidence) in
support of this allegation. As the truckdrivers have never been
paid on an hourly basis, it is an odd threat to make.

18 The fact that I am willing to credit some of Thompson’s state-
ments, and some of Conley’s testimony, but not all, is not unusual. It is
long settled that “[i]t is no reason to refuse to accept everything a wit-
ness says, because you don’t believe all of it, nothing is more common
in all kinds of judicial decisions than to believe some and not all.”
NLRB v. Universal Camera Corp., 179 F.2d 749, 753 (2d Cir. 1950),
revd. on other grounds 340 U.S. 474 (1951); Daikichi Sushi, 335
NLRB 622, 622 (2001).
My primary finding is that evidence in support of the allega-
tion is insufficient for me to conclude that General Counsel has
proven the allegation by a preponderance of the evidence.
However, if I were to make credibility findings on the facts
relating to this allegation I would credit R.J. Conley’s denial
that he made this statement. I recommend that this allegation
of the complaint be dismissed.
(4) Paragraph 5(d)
In paragraph 5(d) of the complaint, General Counsel alleges
that on or about November 3, R.J. Conley told employees that
if they selected union representation they would be at zero and
would start at that point.
The evidence to support this allegation is found in the testi-
mony of R.J. Conley. He testified that around mid-November
he was fueling a truck when employee Ata Thunderdance
pulled in behind him. Conley did not recall which of them
initiated conversation,19 but at some point Thunderdance told
Conley he wanted to know what the union could do for him.
Conley agreed that he told Thunderdance that in negotiations
with the Union “we start from zero and have to bargain every-
thing.” Conley also said that “you have to bargain everything”
and that “Delmas Conley has the final say.” R.J. Conley admit-
ted that he made these some statements to other employees
too.20
As the Board explained in Federated Logistics & Opera-
tions, 340 NLRB 255, 255 (2003), enfd. in relevant part 400
F.2d. 920 (D.C. Cir. 2005):
It is well settled that employer statements to employees during
an organizing campaign that bargaining will start from “zero”
or from “scratch” are “dangerous phrase[s]” which carry
within them “he seed of a threat that the employer will be-
come punitively intransigent in the event the union wins the
election.” Economy Fire & Casualty Co., 264 NLRB 16, 21
(1982), quoting Coach & Equipment Sales Corp., 228 NLRB
440 (1977). Although such statements are not per se unlaw-
ful, the Board will examine them, in context, to determine
whether they “effectively threaten employees with the loss of
existing benefits and leave them with the impression that what
they may ultimately receive depends in large measure upon
what the Union can induce the employer to restore," or–
conversely—whether they indicate that any “ reduction in
wages or benefits will occur only as a result of the normal

19 Under questioning by counsel for General Counsel, Conley testi-
fied that he could not remember who initiated this conversation. Later,
under leading questioning from Respondent’s counsel, Conley sug-
gested that Thunderdance had been the one to initiate the conversation
about the Union. I do not credit the latter explanation.
20 At trial, Conley also testified that he began his conversation with
Thunderdance by saying, “[Y]ou’ll have your negotiator and we'll have
our negotiator and we'll start bargaining for a contract.” General Coun-
sel contends on brief that this portion of Conley’s statement should not
be credited, as it was not mentioned in his pretrial affidavit account of
this incident. I do think the newfound recollection is suspicious, and
represents an effort to broaden and contextualize in Respondent’s favor
the comments that followed. I do not credit it. But I note that, even if
it were part of the conversation, it would not change my findings with
regard to this allegation.
CONLEY TRUCKING 317
give and take of collective bargaining.” Plastronics, Inc., 233
NLRB 155, 156 (1977). See also Capitol EMI Music, 311
NLRB 997, 1007–1008 (1993), enfd. 23 F.3d 399 (4th Cir.
1994).
In this case, contextualizing and appended to Conley’s ad-
mitted comment that “we start from zero” is the added notice”
and we have to bargain everything.” The Board-recognized
“danger” in the bare statement that the parties start at “zero” is
thus intensified as it suggests that “everything” begins at
“zero.” It adds to the “impression that what they may ulti-
mately receive depends in large measure upon what the Union
can induce the employer to restore.” Of course, the unlawful
threat is still implicit—a claim can be made that what Conley
meant was nothing more than a promise to bargain all issues
with no preconceptions—but, as the Board explained in Feder-
ated, supra at 256 fn. 4, “[i]n our view, ‘start from zero’ means
what it says, and the Respondent’s employees could reasonably
assume as much.” If you “start from zero” and “have to bar-
gain everything” it would only be reasonable to assume that the
outcome of bargaining “depends in large measure upon what
the Union can induce the employer to restore.” Notably,
Conley’s comments contained no explanation of the give-and-
take of bargaining. To the contrary, Conley added the state-
ment that “Delmas Conley has the final say,” concept of his
authority and the process of bargaining inconsistent with the
“normal give and take of collective bargaining.” See Economy
Fire & Casualty Co., 264 NLRB 16, 21 (1982) (comment that
bargaining would “start from zero” unlawful, in part, because
comments also made that in bargaining benefits would be taken
away “except those the Company’s president decided to let
them have”). Conley’s comments did not include an explana-
tion of the overall give-and-take of bargaining. Respondent
points out (R. Br. at 11) that the “start at zero” comments were
“tempered” by the written literature distributed by Respondent,
which, in one instance (R. Exh. 9) explained that “[w]ages and
benefits may be improved or reduced in the process of bargain-
ing.” Although agreeing that “the Board must consider the
impact of particular employer statements in the context of sur-
rounding circumstances, including the employer’s other state-
ments,” in Federated, supra, the Board rejected the contention
that other lawful statements or literature that fail to repudiate
the coercive statements can “cure” the violation. The Board
recognized that,
[W]e must also consider the coercive impact, flagged by the
Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575,
617 (1969), that a particular employer statement can have
even when it is arguably mitigated by other employer state-
ments made at different times or places. An employee might
reasonably be influenced more by a coercive statement than
by a different noncoercive statement, in order to avoid any
adverse consequences.
Federated, supra at 256. In this case, the unlawful statements
were made personally by R.J. Conley to employees. He is one
of the top ranking management officials at this family owned
and operated business (testimony indicated that Delmas was
“stepping back” from active involvement in operations). The
coercive impact of these statements cannot be undone by sub-
sequent posted literature or mailings that do not mention the
coercive statements but are simply a generic form of employer
campaign literature. I find that in context Conley’s statements
about “start[ing] from zero” in bargaining violate Section
8(a)(1) of the Act as alleged in the complaint, except that the
correct date on which the violation is occurred is mid-
November.21
B. Paragraphs 6(a)–(f)
In paragraphs 6(a)–(f) of the complaint General Counsel al-
leges various threats by Delmas Conley. The threats are all
very similar, the chief difference being the time when they are
alleged to have occurred. Paragraphs 6(a), (d), (e), and (f) are
alleged to have occurred between October 25 and early No-
vember. Paragraphs 6(b) and (c) concern statements alleged to
have been made on December 23 at an annual pre-Christmas
meeting of all employees conducted by Conley.
1. Paragraphs 6(a), (d), (e), and (f)
In paragraph 6(a) of the complaint, General Counsel alleges
that on or about October 25, Delmas Conley told employees
that he could sell the trucks or the business and/or close in case
of unionization. In paragraphs 6(d), (e), and (f), General Coun-
sel alleges that in late October or early November, Conley told
an employee that he would close his business in case of unioni-
zation, that employees would lose their jobs unless they halted
their efforts to unionize, and that if employees chose to union-
ize, Respondent would decrease employees’ pay.
The evidence for these allegations is found in Thompson’s
April 13 affidavit. Thompson states:
About late October or early November 2005, I was loading
my work truck at the dock when Delmas Conley approached
me. It was about 8:30 or 9:00 a.m. No one else was present,
but Dan Conley was getting loaded in the general area.
Conley told me that he wanted to have an “off the record”
conversation about the Union. I told him that it would be off
the record. Delmas asked me if I had a tape recorder on me
and I opened my coat to show him that I did not. Delmas said
that he would fight the Union and would shut the company
down. He said that if we stopped right now, no one would
lose their jobs, but if it didn’t stop right now, we would all
lose our jobs. Delmas said that he would shut the company
down if we unionized. He said he would use scab labor.
Delmas said that Thunderdance was retarded and that he tried
to play the minority card with them, but it didn’t work. Del-

21 Respondent also defends Conley’s remarks on grounds that there
is no evidence that “these statements were delivered in anger, or were
loud or threatening in any manner” and “that [t]here was no testimony
that anyone understood them, or interpreted them, as a threat.” (R. Br.
at 7). However, in determining the coerciveness of a remark, the Board
applies an objective standard of whether the remark reasonably tends to
interfere with the free exercise of employee rights. The Board does not
consider either the motivation behind the remark or its actual effect.
Miller Electric Pump & Plumbing, 334 NLRB 824, 825 (2001); Joy
Recovery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134
F.3d 1307 (7th Cir. 1998). Thus, evidence of the subjective reaction of
employees to Conley’s remark is irrelevant. That he did not raise his
voice or speak loudly does not mitigate the coercive message, as dis-
cussed, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD318
mas said that the Union was good years ago, but was not
worth a f–k now. Delmas said that he could fire anyone he
wanted and that he owned the company and could do any-
thing he wanted anytime and that no one short of the Presi-
dent of the United States could tell him otherwise. Delmas
said that if the Union won, he would bargain us down to
minimum wage and lock us out and use scab labor. Delmas
said that the Union had hurt Conley and had set him back 10
years. I did not previously tell the Board agent about this
statement because I had assured Delmas our conversation
would be off the record.
In his testimony, Delmas Conley offered no testimony on
this specific conversation. More generally, he did deny ever
saying that he would sell his trucks. He denied ever telling
employees that they would lose their jobs unless they halted
their efforts to unionize. He denied ever telling employees that
if they choose to unionize he would decrease their pay. He
denied ever asking any employee to have an off-the-record
conversation.
On the one hand, Conley’s general denials are undercut by
the fact that—with regard to other incidents discussed below—
the denials are contradicted by R.J. Conley (see infra). This
leads me to question the credibility of Delmas Conley’s testi-
mony. However, Rick Kepler, who was in touch with Thomp-
son “the entire time” that the Union was seeking to organize
Conley Trucking did not corroborate this aspect of Thompson’s
testimony. In fact, according to Kepler (who, as discussed,
supra, I found highly credible), Thompson identified R.J.
Conley as the chief antagonist of the Union. Kepler testified
that Thompson also identified Delmas Conley as being in-
volved in making threats, but Kepler seemed to indicate that
much of what Thompson knew about Delmas’ antiunion con-
duct came from “the parking lot,” presumably things that
Thompson heard from other drivers. However, Thompson’s
statement is clear that only Thompson and Delmas were present
for the incident alleged in paragraphs 6(a), (d), (e), and (f).
Of course, the lack of corroboration by Kepler may simply
reflect the fact that Thompson honored Conley’s request that
the conversation be off the record and, in addition to not report-
ing the incident to the Board for nearly 5 months, also did not
tell Kepler.
But, given the lack of any corroboration for this incident, at a
time that Thompson was in regular communication with Ke-
pler, and given the limited weight I am willing to ascribe to
uncorroborated portions of Thompson’s statement, I find the
evidence insufficient to support a finding of a violation for
these allegations. See National Telephone Directory, supra,
citing Blue Flash Express, supra. On that basis, I recommend
dismissal of this allegation of the complaint.22 (

22 Had there been some corroboration of this testimony, through Ke-
pler’s testimony or otherwise, I would be inclined to credit Thompson’s
statement. Delmas Conley’s denials of the conduct alleged in this
incident were the products of leading questioning, and, as mentioned,
his general credibility is undercut by the fact that R.J. Conley contra-
dicted Delmas’ testimonial denials of other allegations. Thompson’s
statement is plausible as is the explanation that he initially failed to
2. Paragraphs 6(b) and (c)
The General Counsel alleges that on or about December 23
Delmas Conley invited union supporters to leave their em-
ployment with Conley Trucking (par. 6(b)) and threatened to
sell and/or close the business in the case of unionization
(par.6(c)).
These comments are alleged to have been made during an
employee meeting that Delmas Conley led for the drivers. The
meeting was held on the morning of December 23 at the truck
shop. This was at least a month after the Teamsters had met
with supporters in November and informed them that the Union
was abandoning the organizing effort. However, Conley
Trucking obviously was unaware of this for some period of
time and was still mailing literature to employees opposing
unionization as late as December 6.
Conley held these meetings once or twice a year. The winter
meeting was usually held just before Christmas and Christmas
gifts and hams were handed out. This year’s meeting, coming
as it did on the heels of the failed union drive, had a querulous
tone to it.23
R.J. Conley admitted that at the meeting Delmas Conley
stated, “[T]hat he wanted to stay non-Union and that he would
not like outside people telling him how to run his business.” In
his affidavit, Thompson recalled a similar comment, stating that
at the meeting Delmas Conley complained that “a few drivers
had tried to bring in an outside group but it didn’t work.” Ac-
cording to Thompson’s statement, Conley stated that “he built
the company and that no outside source would run it.” 24
In regard to complaint allegation paragraph 6(b), R.J. Conley
admitted that Delmas Conley stated, “[T]hat if employees want
to work for a Union trucking company that he preferred that
they go work somewhere else rather than Unionize his facility.”
Thompson’s statement quotes Delmas Conley as saying that “if
you want a company to run, go get your own.” I find that Del-
mas Conley made these statements,25 and that they violated the

inform the Board about the conversation because of the promise ex-
tracted by Delmas Conley to keep the conversation “off the record.”
23 In his affidavit, Thompson drew a picture of Delmas Conley as a
man still feeling the insult, but also vindication from the failure of the
recent union drive. The meeting provided a platform for Conley to
threaten employees over a variety of work-related issues. Seasonal
cheer was decidedly absent, and Conley closed the meeting by saying
“that Rodney Holden had our Christmas hams and that if we didn’t
want them, he would give them to his dogs.”
24 I find that Delmas Conley made these statements. Conley testified
that he could not remember whether or not he mentioned anything
about outsiders running the Company. He testified that he “could of”
and “I’m not saying that I didn’t,” but “if I said something like that it
was probably taken in the wrong context.” I credit R.J. Conley’s testi-
mony on this point over Delmas Conley’s equivocation, and find sup-
port for R.J. Conley’s admissions in Thompson’s very similar account,
which is also credited. General Counsel does not allege that Respon-
dent violated the Act with these comments.
25 For his part, Delmas Conley admitted that at the meeting he said
that if people didn’t want to work at his Company he had no problem
with that. I think that this is very much akin to the comments attributed
to him by R.J. Conley and Thompson, but I think Delmas is trying to
make the comment somewhat more palatable than what was actually
said. I credit R.J. Conley’s account and Thompson’s. I discredit Del-
CONLEY TRUCKING 319
Act. The invitation to employees “to go work somewhere else”
if they “want[ed] to work for a Union trucking company” was
clearly a response to the Section 7 activities of employees and
as such unlawfully coercive and an implicit threat of termina-
tion. Chinese Daily News, 346 NLRB 906, 920 (2006) (viola-
tion of Section 8(a)(1) to tell employee to resign if she was not
happy with her job); McDaniel Ford, Inc., 322 NLRB 956, 956
fn. 1, 962 (1997) (“It is well settled that an employer’s invita-
tion to an employee to quit in response to their exercise of pro-
tected concerted activity is coercive, because it conveys to em-
ployees that support for their union or engaging in other con-
certed activities and their continued employment are not com-
patible, and implicitly threaten discharge of the employees
involved.”).
In support of complaint allegation paragraph 6(c), General
Counsel points to Delmas Conley’s statements at the December
23 meeting, admitted to by R.J. Conley, that “if the employees
wanted more control over [the] business that they could buy
and drive their own truck rather than Unionize his facility and
added that he would sell them a truck and would, in fact, sell
them his entire business.” Delmas Conley essentially admitted
to the same. I find that Delmas Conley made these statements,
and that they are violative of the Act. This was not a business
offer. Conley was telling employees that in retaliation for their
desire to unionize he was willing to radically alter the em-
ployer-employee relationship. Reasonably, what the employees
heard is that their employer was suggesting he would end the
employer-employee relationship should they unionize. The
threat of reprisal for union activity in the comment is manifest
and violative of Section 8(a)(1).
3. The 8(a)(1) and (3) allegation
a. Facts
(1) Gilbert’s termination
Gilbert worked as a truckdriver for Conley Trucking from
July 4, 2004, to October 28, 2005. On Friday, October 28, 2
days after R.J. Conley told Thompson that he knew that
Thompson, Delabar, and Gilbert were at a union meeting, Gil-
bert was terminated.
On Thursday October 27, Gilbert’s daughter called him at
work and told him his wife had been brought to the hospital
emergency room and may have had a stroke. Gilbert finished
up his work and at about 4 p.m. went to the office and told
Rodney Holden that “he needed to tell R.J. I may not be in
tomorrow because my wife, they thought she had a stroke.”
Holden said he would tell R.J. Conley. Gilbert then left and
went to the hospital.26

mas Conley’s later testimony, in which he unequivocally denied invit-
ing union supporters to leave his employ.
26 Gilbert testified credibly, and specifically, that when he had this
discussion “Rodney Holden was coming out of the back office talking
to Mike Wyatt . . . [r]ight at the doorway coming out of the second
office, towards the front office, right there in the doorway.” Holden
denied the conversation in response to a single question posed by coun-
sel:
Q. Now I'm going to draw your attention to the day before his
termination, which would be October 27th, 2005. On that date
did Tim Gilbert tell you that he may not be in, that his wife may
Later that evening Gilbert’s wife was discharged from the
hospital with instructions to go to her family doctor in the
morning. That evening, Gilbert telephoned work and left a
message on the answering machine of Conley Trucking’s office
assistant, Tyleah Mullins, stating that he would not be in the
following morning because he had to take his wife to the doc-
tor. Gilbert had used this method in the past to call off work,
and according to Holden it was a method routinely used.
The following morning Gilbert took his wife to the family
doctor who advised that she needed to return to the emergency
room immediately. Gilbert took his wife there and she was
admitted. Between 2 and 3 p.m. Gilbert left the hospital and,
accompanied by his daughter, went to Conley Trucking to pick
up his paycheck. Gilbert waited in the car and his daughter
went to pick up his pay envelope but she did not find it in his
mailbox (each driver had a box or cubby to receive pay and
other items). Gilbert then saw Holden exit the office waiving a
pay envelope, and Holden approached the car and handed Gil-
bert the envelope. Holden asked “[H]ow the wife was doing
and I told him they thought she had a stroke. And he said, I
hope she gets better.” That was all that was said and Gilbert
and his daughter proceeded to leave and began exiting the park-
ing lot. As they were leaving Gilbert’s daughter opened the
envelope and inside they found not just his pay check but a
termination notice and “settlement statement.” Gilbert was
“shocked” as no one from Conley Trucking had warned him
that he would be discharged or spoke to him about it.27
R.J. and Delmas Conley testified that the decision to termi-
nate Gilbert was made the morning of October 28. R.J. testi-
fied that when he arrived at work a little after 8 a.m., Delmas
Conley and office assistant Mullins were already at work. Mul-
lins told R.J. that there was a message from Gilbert saying that
his wife was sick and that he would not be at work.28

have had a stroke, meaning he may not be in the following day
because his wife may have had a stroke?
A. No.
This was the only testimony offered by Holden on this subject.
When the sum of the testimony is a witness’s one-word denial it can
leave the impression that the witness cannot be trusted to answer open-
ended questions about the subject. That was the impression I had here.
Completely unaddressed by Holden’s testimony is whether he and
Gilbert talked at all on October 27, and if so what they discussed. I
credit Gilbert’s specific recollection and explanation of the conversa-
tion with Holden. See Mercedes Benz of Orlando Park, 333 NLRB
1017, 1035 (2001), enfd. 309 F.3d 452 (7th Cir. 2002) (“it is settled that
general or ‘blanket’ denials by witnesses are insufficient to refute spe-
cific and detailed testimony advanced by the opposing sides’ wit-
nesses”).
27 Holden testified that Gilbert received his pay and termination pa-
pers “as all the drivers do,” by retrieving it from his mailbox. That is
an implicit rebuttal of Gilbert’s testimony, but Holden was not asked
and did not specifically deny or rebut speaking with Gilbert, asking
about his wife, or handing Gilbert his pay envelope. I credit Gilbert’s
specific account of the incident, which was not addressed by Holden.
28 Conley testified that Mullins did not say anything to him about
Gilbert’s wife going to the hospital or having a stroke, only that Gilbert
had left a message that he would be absent because his wife was sick.
Conley did not listen to the message and testified that he had “no idea”
that Gilbert’s wife was hospitalized when he terminated Gilbert. I
doubt this. That Mullins and Holden knew about Gilbert’s wife can be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD320
When Delmas Conley came over from the truck shop, R.J.
and Delmas made the decision to terminate Gilbert. The expla-
nation at trial offered by R.J. was “we’ve had some trouble with
Tim Gilbert” and he alluded to an “extensive list of problems”
that he alleged contributed to the decision. Based on his testi-
mony as a whole, it is clear that these problems included gener-
ally his attendance and his missed loads (i.e., deliveries), and
several specific incidents involving accidents, missing a man-
datory day of work, shirking work, and a drinking incident.
Delmas Conley explained that he and R.J. talked about Gilbert
that morning and “decided we probably should let him go.”
Conley testified that there were “a lot of different reasons”:
There were several reasons. One of them was I was just
afraid of the boy. He had a lot of accidents, he didn’t pay at-
tention, I was afraid he was going to kill somebody. He
didn’t show up for work on time, he didn’t get his loads, very
undependable, and we just thought—or I thought enough was
enough.
When Rodney Holden arrived at work at 9 a.m., R.J. in-
structed him to write up the termination paper and figure out
the back wages owed to Gilbert. Under “Reason For Termina-
tion,” the termination notice for Gilbert listed only “Absentee-
ism/Tardiness.” Other options on the form listed as possible
reasons for termination (performance, job change, violation of
policies/procedures, personal, other) were not marked. Under
the employee evaluation grid listed on the termination notice
there are nine performance factors that can be marked. Gil-
bert’s termination notice only marked two, attendance and de-
pendability, and in each Gilbert was rated unsatisfactory.
Other factors such as initiative, cooperation, job knowledge, job
productivity, and work safety were not marked. (GC Exh. 15.)
All of the other termination notices entered into the record were
more thoroughly completed. (See GC Exhs. 9, 10, 12, 22.)
R.J. instructed Holden to sign R.J.’s name to the termination
notice. In all of the other termination notices entered into the
record, Rodney Holden signed them using his own name. R.J.
Conley testified that he had Holden sign his name on Gilbert’s
because “I terminated Gilbert.” According to R.J., the other

discerned, not only from Gilbert’s credited testimony but from the
attendance calendar that Respondent maintained for each employee.
The attendance calendar for Gilbert (GC Exh. 6) indicated “Wife in
Hospital” in the “Notes” section on page 2. The calendar for October
28 was marked “FM” which, according to the key on GC Exh. 6 stands
for Family Medical Leave. According to the testimony, Rodney Hol-
den usually filled out the attendance calendar daily for each employee
and he filled it out based on “call off” messages like the one left by
Gilbert. Holden and Mullins (who was characterized by Conley as a
“very thorough” employee and received the phone message from Gil-
bert) knew that Gilbert’s wife was in the hospital. It is hard to believe
they would not inform Conley of this, particularly when they learned
that Conley planned to terminate Gilbert. Terminations were exceed-
ingly rare events but drivers calling off work without adverse conse-
quence, for all manner of serious and unserious reasons, was common.
I note further that Thompson knew about Gilbert’s wife that day, sug-
gesting that the information was widely known.
termination notices involved employees who quit or “self ter-
minated,” i.e., were terminated after abandoning the job.29
(2) Gilbert’s work record; other employees
From November 1, 2004, to January 1, 2006, the employees
let go from Conley Trucking were Gilbert, Roger Rosenogle,
Jonathan Bellomy, Terry Bell, and Robert Whitley. Although
there were termination reports for each of these employees,
Rosenogle, Bell, and Bellomy actually quit or “self-terminated”
because they stopped coming to work. Rosenogle and Bellomy
were rehired. Thus, with the exception of Gilbert, the only
employee involuntarily discharged during this period was
Whitley, who was discharged November 16 for” ”wrecking
trucks.”
At the hearing, Respondent devoted significant effort to
showing, successfully I think, that Gilbert was a poor em-
ployee. Respondent complained about the following:
Absences. Gilbert had a significant number of absences.
However, others had more absences than Gilbert. Respon-
dent’s absentee policy permitted seven unpaid sick or personal
days per year. After use of those days, any days missed were to
be deducted from the paid vacation days to which an employee
was entitled after 12 months of work (R. Exh. 2). In practice,
the Conley’s could and did approve additional absences for
employees, for reasons from illness of a family member to at-
tending children’s sporting events. According to the attendance
calendar, Gilbert was off for 16 days in 2005 for a combination
of personal or sick days, family illness or family medical leave,
medical appointment, or unexcused absence. Four of these 16
were unexcused absences. (GC Exh. 6.) By contrast, Bellomy
had 36 absences (most of which were unexcused) by June 3
(see GC Exh. 7A) at which time he was considered to have self-
terminated for excessive absences, but then he was immediately
rehired and had at least 20 more absences (most unexcused) for
the rest of 2005 before he stopped coming to work and was
terminated in January 2006 for absenteeism (GC Exh. 10). Bell
was hired April 26 and 19 absences are recorded on the atten-
dance calendar for 2005. (GC Exh. 7B.) Bell was not dis-
charged but quit without notice in February 2006 (GC Exh. 12).
Employee Charles Floyd missed 31 days of work in 2005. (GC
Exh. 7D.) Joseph Stanley was rehired (previous work records
are not in the record) in August 2005. He missed 24 days of
work in 2005. (GC Exh. 7F.) James Wollard missed 19 days
in 2005. (GC Exh. 7G.) Respondent developed a letter (GC
Exh. 8) that was sent to certain employees in an effort to get
them “to do a little better” with absences. Gilbert never re-
ceived such a letter or any other discipline related to his atten-
dance.30

29 In fact, the termination notice for the one other employee termi-
nated (as opposed to “self-terminating), Robert Whitley, was signed in
Holden’s name (GC Exh. 22).
30 Based on a document created by Respondent for litigation (GC
Exh. 5), it argues that Gilbert did not show up for work on 7 days more
than the 16 (plus 1 day for discipline for the incident March 9, dis-
cussed infra) marked on the attendance calendar. It is hard to know
which is accurate, but Respondent concedes that if Gilbert’s attendance
calendar understates his days off, then the calendars kept for other
drivers understates theirs as well. This would be consistent with GC
CONLEY TRUCKING 321
Missed loads. Gilbert had an unusually high number of
missed “loads,” i.e., missed deliveries. Counsel for the General
Counsel stipulated that (revised) Respondent’s Exhibit 3 cor-
rectly lists the missed loads for employee. That document indi-
cates that Gilbert had 69 missed loads, the most of any em-
ployee, for the period November 2004 through December 2005.
This document was not relied upon (or in existence) when Gil-
bert was discharged, but was created for litigation. Gilbert was
never disciplined for missed loads at any time. R.J. Conley had
no specific recollection of ever talking to Gilbert about missed
loads but believed he did, but only “because I talk to every one
of my drivers about missed loads.” Jeremy Thompson, who did
not have as many missed loads as Gilbert, but had the second
most (R. Exh. 3; lists 66 missed loads, just 3 less than Gilbert)
was never talked to by anyone regarding missed loads.
In addition, at trial, Respondent focused on several incidents
within the year before Gilbert’s termination that Respondent
contends contributed to the decision to terminate Gilbert.
Intoxication incident. The night of March 9 Gilbert and
some other Conley Trucking employees ended up in the Conley
parking lot drinking. Gilbert fell asleep there in his car. He
was scheduled to work in the morning but Gilbert was still
intoxicated and, as he testified, “I knew I was in no shape to
drive.” Another employee, James Wollard called R.J. Conley
and told him about the incident and Conley went to the parking
lot and found Gilbert there. Gilbert told him that “he had a bad
night.” Conley told Gilbert to “go home and sleep it off.” Gil-
bert was called to the office given a warning notice signed by
Rodney Holden regarding the incident. (GC Exh. 3.) There
was no repeat of the incident, or any incidents related to alco-
hol.31
Jackknifed truck. Another incident cited by Respondent oc-
curred July 11 when Gilbert “jackknifed” a Conley truck.32
Gilbert testified that he crested a hill and when he saw a wreck
at the bottom he “panicked and slammed the brakes.” R.J.
Conley believed that Gilbert was traveling too fast. The sher-
iff’s department was on the scene (for the initial accident) and
witnessed this incident. Gilbert was not cited. Gilbert testified
that when he returned to work he told Rod Conley about it, and
Conley “went over and looked at the truck and grinned and
kind of laughed a little bit and said you bent it up pretty good.”
Rod Conley did not testify and Gilbert’s testimony on this point

Exh. 20, which Respondent created for litigation and which lists higher
numbers of absences for each employee discussed in the text than is
reflected on their attendance calendar.
31 There was a minor discrepancy in the testimony regarding the af-
termath of this incident. Gilbert testified that he called R.J. Conley,
they talked about the incident, and Conley told him to return to work
the next day. Conley testified that Gilbert was called to the office the
next morning and they discussed the matter then. Gilbert also main-
tains (in uncontradicted testimony) that although the warning notice
indicates it was signed March 10, the day after the incident, in fact
Gilbert did not come into the office and sign the warning for several
days after the incident. In any case, there is no dispute that the incident
happened and no dispute that the only discipline was Conley’s oral
warning and the written warning signed by Holden.
32 R.J. Conley described “jackknifing” as when the truck and trailer
it pulls are no longer aligned but come together side-by-side like the
closing of a pocket knife.
is uncontradicted. Gilbert testified that R.J. Conley did not talk
with him about the incident and denied that anyone complained
about the cost of repairs. In conflict with this, R.J. Conley
testified that he gave Gilbert “a talking to” about this incident,
but no written warning or other discipline. Conley testified that
it cost about $1000 repair the truck.33
Backed his truck in to a coemployee’s truck. R.J. Conley
also testified that in September 2005, Gilbert backed his truck
into a truck driven by employee Delabar and ruined the canvas
tarp on the truck. Conley did not discipline Gilbert for this
incident.34
Backed his truck into another coemployee’s truck. R.J.
Conley also testified that, in an incident for which no time pe-
riod was provided, Gilbert backed into the truck of driver Char-
lie Floyd. Gilbert did not report this incident and Conley says
he learned of it from Floyd a few days later. Conley presumed
that Gilbert did not mention it because he “probably just
thought it wasn’t a big deal.” Conley testified that he later
talked to Gilbert about the incident but did not discipline him.
Although Conley testified at trial that the accident with Floyd
contributed to his decision to terminate Gilbert, he did not men-
tion this incident in his sworn affidavit taken during the inves-
tigation of the case. Gilbert denied any knowledge of this inci-
dent. Given Respondent’s vagueness about when this incident
occurred, Gilbert’s denial, the failure to mention it in pretrial
affidavits when listing reasons for the discharge, and the lack of
substantiation of the incident, I find that it did not happen.
Missing a mandatory day of work. R.J. Conley also con-
tended that one of the reasons for Gilbert’s termination was his
alleged failure to work on Saturday, October 22, a day that
Delmas Conley declared to be a mandatory workday.35 How-
ever, I find that Gilbert did attend work that day, and that R.J.
Conley’s claim that he did not is unfounded. According to
Gilbert, in testimony not disputed by R.J. Conley, Gilbert had
asked R.J. Conley in advance for the day off so that he could
cut firewood for the coming winter. Gilbert’s testimony that
R.J. approved the day off was undisputed by Conley. However,
R.J. Conley then left for vacation in Mexico, leaving the opera-
tion in his father’s hands. After R.J. left, Delmas Conley
posted a notice declaring Saturday to be a mandatory workday
and stating that “if you missed that Saturday don’t bother com-
ing in Monday.” Although not happy it, Gilbert testified that he

33 In later testimony, Conley estimated that the cost was $2000 to
$3000 to repair the truck. However, the latter testimony is inconsistent
with his pretrial affidavit, in which he gave the $1000 figure for the
cost of the repair, and I credit the former testimony.
34 Conley claimed he gave Gilbert “a talking to” about this incident,
and claimed that repair of the tarp cost over $1000. However, Respon-
dent failed to supply any records substantiating this repair (claiming
they keep none for repairs done in house) and Gilbert denied that he
was ever talked to about the incident. I credit Gilbert’s account.
35 There was conflicting testimony of whether the mandatory Satur-
day in question was October 15 (Tr. 78) or the following week, the
22nd, which was the period R.J. Conley was away in Mexico (Tr. 279).
R.J. Conley seemed sure that the mandatory Saturday, called by Del-
mas after R.J. departed on vacation, occurred during his vacation.
Further, the absentee calendar (GC Exh. 6) lists Gilbert as off work sick
for Friday October 13, 14, 15, and 17. In view of these factors, I find
that the Saturday in question was October 22.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD322
came to work on Saturday despite his prior discussion with R.J.
Conley. Although at one point in his testimony R.J. Conley
testified that he was told by Gilbert that he was absent that day
because he had to cut firewood, his later testimony undercuts
this claim. When asked whether or not Gilbert missed the
mandatory Saturday, R.J. Conley stated that “I thought he did
but I wasn’t here.” I find that he doesn’t know whether or not
Gilbert was present that day. The attendance calendar does not
reflect an absence for Gilbert that day. Finally, no other wit-
ness, including Delmas Conley or Rodney Holden (who were
there that Saturday) addressed the issue of whether Gilbert
attended work on the mandatory Saturday.
Shirking work. Finally, in his testimony, R.J. Conley related
an incident approximately 1 week before Gilbert’s termination
in which a friend who owned a parts store told Conley that two
Conley trucks had been sitting by the side of the road for at
least 2-1/2 hours. A car accident on their route delayed traffic
and Conley assumed that rather than deliver their loads through
the traffic and return home late that evening, Gilbert and Dela-
bar decided to skip out on the loads. Conley gave them “a talk-
ing to” but no discipline when they returned.
B. Discussion
Section 8(a)(3) of the Act provides, in relevant part, that it I
“an unfair labor practice for an employer by discrimination in
regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any
labor organization.” As any conduct found to be a violation of
Section 8(a)(3) would also discourage employees’ Section 7
rights, any violation of Section 8(a)(3) is also a derivative vio-
lation of Section 8(a)(1) of the Act. Chinese Daily News, 346
NLRB 906, 934 (2006).
The General Counsel contends that Timothy Gilbert was dis-
charged in violation of Section 8(a)(1) and (3) of the Act by
Respondent because of his activity in support of the Union,
namely his attendance at a union meeting on October 23 which
Respondent learned about and for which Respondent retaliated.
Respondent denies any unlawful motive for Gilbert’s discharge.
Respondent contends that Gilbert was a poor employee, and
that with his absence from work on October 28 “[e]nough was
enough,” and Conley Trucking decided to discharge Gilbert.
The Supreme Court-approved analysis in 8(a)(1) and (3)
cases turning on employer motivation was established in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v.
Transportation Management Corp., 462 U.S. 393, 395 (1983)
(approving Wright Line analysis). In Wright Line, the Board
determined that the General Counsel carries the burden of per-
suading by a preponderance of the evidence that the employee’s
protected conduct was a motivating factor (in whole or in part)
for the employer’s adverse employment action.
Proof of such discriminatory motivation can be based on di-
rect evidence or can be inferred from circumstantial evidence
based on the record as a whole. Robert Orr/Sysco Food Ser-
vices, 343 NLRB 1183, 1185 (2004), enfd. 176 LRRM (BNA)
1217; Embassy Vacation Resorts, 340 NLRB 846, 848
(2003).36 This includes proof that the employer’s reasons for
the adverse personnel action were pretextual. Rood Trucking
Co., 342 NLRB 895, 897–898 (2004), citing Laro Maintenance
Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995). (“When the
employer presents a legitimate basis for its actions which the
factfinder concludes is pretextual . . . the factfinder may not
only properly infer that there is some other motive, but that the
motive is one that the employer desires to conceal—an unlaw-
ful motive.”) (Internal quotations omitted.)
Where the General Counsel makes an initial showing under
Wright Line, the burden shifts to the Respondent to establish
that it would have taken the same action even in the absence of
union activities. Williamette Industries, 341 NLRB 560, 563
(2004); Wright Line, supra. For the employer to meet its
Wright Line burden, it is not sufficient for the employer simply
to produce a legitimate basis for the action in question. It must
“persuade” by a preponderance of the evidence that it would
have taken the same action in the absence of protected con-
duct.37
Of significance here, however, when evaluation of the Gen-
eral Counsel’s initial case, or Respondent’s defense, includes a
finding of pretext, this “defeats any attempt by the Respondent
to show that it would have discharged the discriminate[e]s ab-
sent their union activities.” Rood Trucking Co., supra at 898;
La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002). “This
is because where the evidence establishes that the reasons given
for the Respondent’s action are pretextual––that is, either false
or not in fact relied on––the Respondent fails by definition to
show that it would have taken the same action for those rea-
sons, absent the protected conduct, and thus there is no need to
perform the second part of the Wright Line analysis.” Rood
Trucking, supra, citing, Golden State Foods Corp., 340 NLRB
382, 385 (2003).
Turning to General Counsel’s initial burden, to carry this
burden the General Counsel must show “(1) that the employee
was engaged in protected activity, (2) that the employer was
aware of the activity, and (3) that the activity was a substantial
or motivating reason for the employer’s action.” Naomi Knit-
ting Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC Hold-
ings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enfg. 314
NLRB 1169 (1994)).

36 “To support an inference of unlawful motivation, the Board looks
to such factors as inconsistencies between the proffered reasons for the
discipline and other actions of the employer, disparate treatment of
certain employees compared to other employees with similar work
records or offenses, deviations from past practice, and proximity in
time of the discipline to the union activity.” Robert Orr/Sysco Food
Services, supra.
37 NLRB v. Transportation Management, supra at 395 (rejecting em-
ployer’s claim that its burden is met by demonstration of a legitimate
basis for the discharge); Carpenter Technology Corp., 346 NLRB 766,
773 (2006). (“The issue is, thus, not simply whether the employer
‘could have’ disciplined the employee, but whether it ‘would have’
done so, regardless of his union activities.”) Weldun International, 321
NLRB 733 (1996), enfd. in relevant part 165 F.3d 28 (6th Cir. 1998).
(“The employer cannot carry this burden merely by showing that it also
had a legitimate reason for the action, but must ‘persuade’ that the
action would have taken place absent protected conduct by a prepon-
derance of the evidence.”) Internal quotation omitted.
CONLEY TRUCKING 323
In this case, there is no question that Gilbert engaged in pro-
tected activity by attending the union meeting. Second, Re-
spondent was aware of Gilbert’s protected activity. It is clear
that R.J. Conley knew because, as I have found, he unlawfully
told Thompson he knew on Wednesday October 26—3 days
after the union meeting and 2 days before Gilbert’s discharge.
Conley told Thompson, “I heard something today.” [Thomp-
son] said, “[W]hat’s that?” He said, “I heard you, Tim Gilbert,
and Steve Del[a]bar were trying to get a union in here.” More-
over, even in the absence of this direct evidence of knowledge,
the suspicious timing of Gilbert’s discharge only 2 days later is
a factor that will give rise to an inference of an employer’s
knowledge of an employee’s union activity. La Gloria Oil &
Gas Co., supra at 1123 (“the timing of the discharge in relation
to [the supervisor’s] learning of the activity supports a finding
that [the supervisor] knew of the activity and knew who had
been involved”); see also Metro Networks, Inc., 336 NLRB 63
(2001) (Board can infer knowledge from the timing of the dis-
charge); Medtech Security, Inc., 329 NLRB 926, 929–930
(1999).
There is also evidence that Gilbert’s union activity motivated
Respondent to discharge him. Most significant is that Gilbert
was terminated 5 days after attending the union meeting and
just 2 days after Conley told Thompson that he learned about
Gilbert’s protected activity. The Board has long recognized
that in discrimination cases “the timing of the [employer’s con-
duct] is strongly indicative of animus.” Electronic Data Sys-
tems, 305 NLRB 219, 220 (1991), enfd. in relevant part 985
F.2d. 801 (5th Cir. 1993); La Gloria Oil & Gas Co., supra at
1124; Yellow Transportation, Inc., 343 NLRB 43, 48 (2004);
Structural Composites Industries, 304 NLRB 729, 729 (1991).
Moreover, Respondent’s animus towards unionization is sup-
ported by Conley’s unlawful statement to Thompson, which
gave the impression that Respondent was watching the union
activity. Finally, Respondent’s animus is also demonstrated by
Delmas Conley’s subsequent unlawful threats and comments at
the employee meeting where, in an angry speech attacking
employees he declared that “he wanted to stay non-Union and
that he would not like outside people telling him how to run his
business” and essentially claimed victory, stating that “a few
drivers had tried to bring in an outside group but it didn’t
work.” In that meeting he also announced that “if employees
want to work for a Union trucking company that he preferred
that they go work somewhere else rather than Unionize his
facility.” Particularly in this context of animus, the timing of
Gilbert’s discharge is highly suspicious because it could not
help but send a message to employees in accord with that pro-
nounced by Delmas Conley on December 23: employees who
wanted to work for a union trucking company should work
elsewhere.38

38 Notably, the fact “[t]hat Respondent did not discipline all employ-
ees who attended the union organizing meeting does not alter the find-
ings made herein. A discriminatory motive, otherwise established, is
not disproved by an employer’s proof that it did not take similar actions
against all union adherents.” Master Security Services, 270 NLRB 543,
552 (1984); NLRB v. W.C. Nasors Co., 196 F.2d 272 (5th Cir. 1952),
cert. denied 344 U.S. 865. In fact, it is not surprising that an ill-
motivated employer would choose a marginal employee to discharge.
Without more, the record easily supports the finding that
General Counsel has proven that unlawful motivation was a
substantial factor in the discharge. But there is more, as Re-
spondent’s explanation for Gilbert’s discharge is suspect. The
odor of pretext cannot be washed from Respondent’s defense.
In evaluating whether Gilbert’s protected activity was a sub-
stantial or motivating reason for Conley Trucking’s discharge
of him, the anomaly of the discharge stands out. It was after
all, with the exception of employees who “self-terminated” for
ceasing to attend work at all, the first and at the time only dis-
charge of an employee for which there is any record evidence.
What motivated this anomaly? At trial, Respondent reached
back into Gilbert’s employment history and asserted that
months of absences, accidents, poor performance, and the
drinking incident all came together to render his calling off of
work to be with his ill wife on October 28 the proverbial final
straw. In other circumstances, this would not be an inconceiv-
able defense, but here it is not credible. Indeed, the litany of
Gilbert’s failures as an employee more prominently raises the
question of why his consistently poor performance, of so little
apparent consequence or concern to the employer––only the
drinking incident 7 months prior was even of the subject of a
written warning, the rest did not even warrant a remark in his
personnel file––suddenly, on October 28, when combined with
a standard practice for Gilbert and others to call in and let the
employer know that he would not be at work that day, roused
management to terminate him. The obvious explanation is that
it was retaliation for Gilbert’s attendance at a union meeting 5
days earlier, which R.J. Conley let Thompson know he knew
about 2 days earlier. Of course, Respondent denies it knew
about Gilbert’s attendance, but I do not believe that and have
found that it did. That leaves coincidence as the potential law-
ful explanation for the timing of the discharge, but I do not
believe that either, because Respondent’s proffered explanation
for the discharge is not trustworthy.
First of all, the nonchalance with which Respondent claims
to have decided on and carried out the (then) unprecedented act
of discharging an employee is not the most important factor in
my evaluation, but it is striking. Putting aside the employees
who “self-terminated” by failing return to work, the record
evidence reveals not one other employee who had been dis-
charged from employment as of October 2005. There is a no-
ticeable vagueness in the testimony of Delmas and R.J. Conley
regarding what they discussed when they abruptly decided to
discharge Gilbert the morning of October 28, ostensibly for
calling off work. There is no hint that they were angry or had
been thinking in the past of discharging Gilbert. They just fired
him for calling off work, a practice that the attendance calen-
dars of other employees show was quite common at Conley
Trucking.
Even more suspicious, while Respondent claimed at trial that
Gilbert’s poor performance in just about every conceivable
category of employee performance contributed to the decision
to discharge him, that is not the explanation that Respondent

It is not only easier to defend, but costs the employer less while allow-
ing a warning of the risks of union activity to be sent to remaining
employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD324
gave at the time of the discharge. At the time of the discharge,
as explained in the termination notice, the “reason For Termi-
nation” given on Gilbert’s termination notice listed only “Ab-
senteeism/Tardiness.” Other options on the forms, advanced at
trial by Respondent as contributing to Gilbert’s discharge (per-
formance, job change, violation of policies/procedures, per-
sonal, other) were not marked. The employee evaluation grid
listed on the termination notice only addresses two of the nine
listed performance factors, attendance and dependability, and in
each Gilbert is rated unsatisfactory. Other factors such as ini-
tiative, cooperation, job knowledge, job productivity, and work
safety were not marked. (GC Exh. 15.) No explanation for the
disparity between the reasons given for Gilbert’s discharge at
the time of his discharge and the growing list of contributing
factors that blossomed at trial was proffered. By itself, the
shifting explanations for the discharge add to the General
Counsel’s case and undermine Respondent’s defense under
well-settled Board precedent. Atlantic Limousine, 316 NLRB
822, 823 (1995).39
Had Respondent terminated Gilbert, as reflected in the ter-
mination report, simply for absenteeism, it would have had the
virtue of being consistent with Respondent’s demonstrated
apathy towards other aspects of Gilbert’s performance for
months before the discharge. But it would have had the vice (in
addition to being inconsistent with Respondent’s position at
trial) of being a particularly unconvincing explanation of Re-
spondent’s decision to take action against Gilbert. As dis-
cussed supra, numerous other employees had absenteeism re-
cords worse than Gilbert’s and yet they were not discharged.
See, supra. Absenteeism was rife among employees. Indeed,
Gilbert was not even among the employees to receive the atten-
dance warning letter developed by Respondent to encourage
employees prone to absenteeism “to do a little better.” (GC
Exh. 8.)
Attendance was not a plausible reason for Gilbert’s dis-
charge. That is why as part of the investigation and in prepara-
tion for trial in this case Respondent culled its managers’ mem-
ory for incidents and shortcomings that could offer a post hoc
and legitimate rationale for Gilbert’s discharge. In short, Re-
spondent developed a pretext. See La Gloria Oil & Gas Co.,
supra at 1124 (“in light of the fact that this prior conduct did
not even result in the giving of a disciplinary memo, we find
that these prior incidents were suddenly dredged up to mask a
discriminatory intent”). And even these incidents are suspect.
As discussed, supra, I do not accept the claim that Gilbert did
not work the mandatory Saturday. That R.J. Conley would
claim that this was a basis for Gilbert’s discharge when the
evidence showed that he actually did not know whether Gilbert
worked that day speaks volumes about the validity of Respon-

39 Notably, the notices of other employees who had “self-terminated”
were thoroughly filled out with each item in the “employee evaluation”
addressed. (See, e.g., GC Exhs. 9, 10 and 12). In addition the termina-
tion notice of the one employee terminated for cause after Gilbert,
Robert Whitley (GC Exh. 22), is far more indepthly filled out than
Gilbert’s, again, with each item on the evaluation filled out. Thus, the
brevity of comments on Gilbert’s termination form is itself an unex-
plained departure from Respondent’s practice when terminating em-
ployees.
dent’s explanation for the discharge offered at trial. I also do
not accept that Gilbert had a truck accident with an employee
named Floyd, or if he did that it had anything to do with Gil-
bert’s discharge. It is true that Gilbert missed more loads than
any other employee, but Respondent did not have documenta-
tion developed at the time of Gilbert’s discharge to know this
with any precision. I recognize that Respondent’s managers
would have a good feel for which employees miss a lot of loads
and no doubt were aware of Gilbert’s failings in that regard.
But I don’t see how they could readily distinguish Gilbert in
this regard from, for instance, Thompson, who in fact missed
only three less loads than Gilbert. As far as the record reveals,
Thompson was never disciplined or threatened with discharge
due to missed loads and neither was Gilbert.
What we are left with is that Gilbert was not a stellar em-
ployee, who, with his drinking incident, two driving mishaps,
poor (but not as bad as many others) attendance, and an abys-
mal record of missed loads worked steadily without incident
until the employer learned (and unlawful discussed with
Thompson) that Gilbert was involved with union activities.
Only then was he fired, ostensibly for absenteeism, later ex-
panded to encompass any and all other shortcomings, real or
invented, for litigation. The Act protects both stellar and poor
employees, and those in between, from unlawfully motivated
discharge. The salient truth is that Gilbert’s many failings as an
employee did not endanger his job until the employer discov-
ered Gilbert’s union activity. Then he was quickly fired on
specious grounds.
I find that Respondent’s stated reasons at the hearing for dis-
charging Gilbert are pretextual and an attempt to disguise the
fact that antiunion animus was the true motivation for the dis-
charge. This conclusion not only adds further weight to Gen-
eral Counsel’s case but pretermits the “need to perform the
second part of the Wright Line analysis.” Rood Trucking, su-
pra. Respondent’s discharge of Gilbert violated the Act as
alleged.
CONCLUSIONS OF LAW
1. Respondent Delmas Conley d/b/a Conley Trucking is an
employer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Charging Party General Truck Drivers and Helpers Union
Local #92, International Brotherhood of Teamsters is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by creating
the impression of surveillance of employees’ union activity.
4. Respondent violated Section 8(a)(1) of the Act by threat-
ening employees that bargaining with the Union would start
from zero.
5. Respondent violated Section 8(a)(1) of the Act by inviting
union supporters to leave their employment with Conley Truck-
ing.
6. Respondent violated Section 8(a)(1) of the Act by threat-
ening employees that it would end the employer-employee
relationship by selling employees the trucks and business if
they chose union representation.
7. Respondent violated Section 8(a)(1) and (3) of the Act by
discharging employee Timothy Gilbert because he engaged in
CONLEY TRUCKING 325
activities in support of union representation and to discourage
other employees from engaging in these and other protected
activities.
8. The unfair labor practices committed by Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having unlawfully discharged employee
Timothy Gilbert as of October 28, 2005, must offer Gilbert
reinstatement to the position he occupied prior to the suspen-
sion, or to an equivalent position, should the prior position not
exist, without prejudice to his seniority or any other rights or
privileges previously enjoyed. Respondent shall make Gilbert
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of his discharge to the date of a
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Respondent shall remove from its files,
including Timothy Gilbert’s personnel file, any reference to his
discharge, and shall thereafter notify Gilbert in writing that this
has been done and that the discharge will not be used against
him in any way.
Respondent shall post an appropriate informational notice, as
described in the attached Appendix. This notice shall be posted
in Respondent’s facility or wherever the notices to employees
are regularly posted for 60 days without anything covering it up
or defacing its contents. When the notice is issued to Respon-
dent, it shall sign it or otherwise notify Region 9 of the Board
what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended40
ORDER
The Respondent, Delmas Conley d/b/a Conley Trucking,
Portsmouth, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee because of that employee’s membership in or activities
on behalf of the General Truck Drivers and Helpers Union
Local #92, International Brotherhood of Teamsters, or any
other labor organization.
(b) Creating the impression of surveillance of employees’
union activity.
(c) Threatening employees that bargaining with the Union
would start from zero.
(d) Inviting union supporters to leave their employment with
Respondent.

40 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(e) Threatening employees that it would end the employer-
employee relationship by selling employees the trucks and
business if they chose union representation.
(f) In like and related manner interfering with, restraining, 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 effec-
tuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Timothy
Gilbert full reinstatement 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 previ-
ously enjoyed.
(b) Make employee Timothy Gilbert whole with interest, in
the manner set forth in the remedy section of this Decision and
Order for any loss of earnings or other benefits resulting from
his discharge.
(c) Within 14 days from the date of this Order, remove from
its files, including Timothy Gilbert’s personnel file, any refer-
ence to his discharge, and three days thereafter notify Timothy
Gilbert in writing that this has been done and that the suspen-
sion and discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Portsmouth, Ohio, copies of the attached notice marked
“Appendix.”41 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since October 26,
2005.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

41 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD326
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge or otherwise discriminate against any
of you for supporting the General Truck Drivers and Helpers
Union Local #92, International Brotherhood of Teamsters or
any other union.
WE WILL NOT create the impression that we are engaging in
surveillance of your union activities.
WE WILL NOT threaten employees that bargaining with the
Union would start from zero.
WE WILL NOT invite union supporters to leave their employ-
ment with Conley Trucking.
WE WILL NOT tell employees that if they unionize we will end
the employer-employee relationship by selling employees our
trucks and business.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of this Order, offer
Timothy Gilbert full reinstatement 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 privi-
leges previously enjoyed.
WE WILL make Timothy Gilbert whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Timo-
thy Gilbert, and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge will not
be used against him in any way.
DELMAS CONLEY D/B/A CONLEY TRUCKING