Donald R. Bogard, a Contractor

National Labor Relations Board - Board Decisions

Dec 10, 1990

300 N.L.R.B. 841 (N.L.R.B. 1990)

841
300 NLRB No. 110
DONALD R. BOGARD, A CONTRACTOR
1 No exceptions were filed to the judge’s dismissal of complaint allegations
involving interrogation, threats, changed work schedules, and the suspension
and discharge of employee Leathers.
2 The Union won the election and was certified as the unit employees’ col-
lective-bargaining representative on August 11, 1989.
3 The Respondent has not excepted to the judge’s finding that the Respond-
ent promised unspecified benefits and a vacation plan if the employees re-
jected the Union and that these allegations of the complaint were ‘‘proven.’’
4 The judge also found that this conduct was insufficient to justify vacating
the settlement agreement in Case 15–CA–10490. No exceptions have been
filed to that finding.
5 See Kal-Die Casting Corp., 221 NLRB 1068 (1975); Carolina American
Textiles, 219 NLRB 457 (1975).
6 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
Donald R. Bogard, an Independent Contractor and
Russell J. Stokes Jr. Cases 15–CA–10490 and
15–CA–10684
December 10, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On March 29, 1990, Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion.
The judge found that the Respondent’s owner, Don-
ald R. Bogard, in conversations with three employees
during the week prior to a representation election,2
made implied promises of unspecified benefits and of
a vacation plan if the employees voted against union
representation. Specifically, about a week before the
election, Bogard approached employee Joel Nelson
while he was working and asked him if he was going
to participate in the election. When Nelson responded
he would not participate, Bogard stated, ‘‘I need you
to come because I need your vote. Things will get bet-
ter whenever everything is over.’’ During this same
period, Bogard asked employee Robert Dicks if Dicks
knew that the election was coming up. When Dicks re-
sponded affirmatively, Bogard said, ‘‘Stick with me,
things will get better.’’ On the day before the election,
Bogard told employee Staray Nelson that he would
like Staray and his brother Joel to vote for him.
Bogard then stated, ‘‘I know you have worked hard
and need a vacation. As soon as all this is settled, I
have a plan.’’
Although finding that the Respondent had made im-
permissible implied promises of benefits in these three
conversations,3 the judge concluded that the conduct
was insufficient to warrant the issuance of a remedial
order.4 In this regard, the judge concluded the conduct
involved ‘‘context-free promises of an ambiguous na-
ture made during Respondent’s mild, ineffectual elec-
tion campaign and were free from threatening or other
seriously coercive conduct.’’ The judge also relied on
the Union’s overwhelming victory in the election, its
success in a subsequent 3-month economic strike, and
the fact that the Union and the Respondent had entered
into a collective-bargaining relationship. Thus, the
judge concluded that the ‘‘purposes of the Act have
been achieved . . . and the interests of the employees
and the public under the Act have been satisfied.’’ Ac-
cordingly, the judge dismissed the complaint in its en-
tirety.
The General Counsel has excepted to the judge’s
finding that the Respondent’s statements described
above were insufficient to warrant a remedial order.
We find merit in the General Counsel’s exceptions.
The judge’s own findings establish that unlawful
promises were made to almost one-fifth (3 out of 16)
of the unit employees. Further, contrary to the judge’s
finding that the statements were ‘‘context-free,’’ we
note that the Respondent made each of its promises in
the context of soliciting votes against the Union. These
promises were made by the Respondent’s owner di-
rectly to employees on a one-to-one basis. Accord-
ingly, we find that this conduct violated Section
8(a)(1) and that it will effectuate the purposes of the
Act to issue our usual remedial order for the viola-
tion.5
ORDER
The National Labor Relations Board orders that
Donald R. Bogard, An Independent Contractor, Baton
Rouge, Louisiana, his officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Promising employees unspecified benefits and a
vacation plan if they vote against union representation.
(b) In any like or 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
effectuate the policies of the Act.
(a) Post at its Baton Rouge, Louisiana facility copies
of the attached notice marked ‘‘Appendix.’’6 Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED, that the settlement agree-
ment in Case 15–CA–10490 is reinstated.
IT IS FURTHER ORDERED, that the complaint is dis-
missed insofar as it alleges violations not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES
GOVERNMENT
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
I WILL NOT promise my employees unspecified ben-
efits and a vacation plan if they vote against union rep-
resentation.
I WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
DONALD R. BOGARD, AN INDEPENDENT
CONTRACTOR
Joseph B. Morton, III, Esq., for the General Counsel.
James D. Thomas II, Esq. (Wall, Thomas, Riche & Wall), for
the Respondent.
Russell J. Stokes Jr., of Baton Rouge, Louisiana, pro se.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS Administrative Law Judge. The trial of
the issues in this consolidated proceeding was held before me
in Baton Rouge, Louisiana, on July 17, 18, and 19, 1989,
pursuant to unfair labor practices filed and/or amended ac-
cording to numerical sequence on January 5, February 9,
September 15, and October 24, 1988, by Russell J. Stokes
Jr., an individual, against his employer, Donald R. Bogard,
an Independent Contractor (Respondent), and pursuant to an
order consolidating cases and vacating settlement agreement;
consolidated complaint dated October 27, 1988, alleging vio-
lations of Section 8(a)(3) and (1) of the Act.
An unfair labor practice charge was filed against Respond-
ent by Amalgamated Transit Union Local 1600, AFL–CIO
(the Union) in Case 15–CA–10829 on March 20, 1989, on
which a subsequent complaint was issued and consolidated
with this matter wherein it was alleged that Respondent vio-
lated Section 8(a)(1) and (5) of the Act by various breaches
of its bargaining obligations with the Union which, pursuant
to a Board-conducted election, had been certified on August
11, 1988, as exclusive employee bargaining unit representa-
tive.
Answers which denied the commission of unfair labor
practices were timely filed by Respondent. Thereafter, the
Union and Respondent entered into a non-Board resolution
of the 8(a)(5) allegations and, pursuant to the Union’s re-
quest, the Regional Director on July 14, 1989, issued an
order severing Case 15–CA–10829 from the proceedings and
approving withdrawal of the Union’s unfair labor practice
charge.
The complaint in Case 15–CA–10490 alleged that the Re-
spondent: (a) in August and September 1987 on numerous
occasions, interrogated employees concerning their union ac-
tivities and sentiments; (b) in early August 1987, threatened
employees by stating that he would not tolerate employees
dealing with a union; (c) in August 1987, interrogated em-
ployees concerning their and other employees’ union activi-
ties and threatened termination if employees continued to
support unions; (d) in late December 1987 or early January
1988, interrogated employees concerning union activities and
threatened to lay off any employees who supported the
Union; (e) in late January 1988, interrogated employees
about their union activities and knowledge of charges filed
in this case; (f) on January 12, 1988, informed an employee
that another employee (Stokes) had been laid off in Sep-
tember 1987 because of his support of the Union. The origi-
nal complaint further alleged that Respondent discharged
Stokes because of his union activities or other concerted pro-
tected activities. These allegations, which are found in para-
graphs 7(a–f) and paragraphs 8 and 13 of the consolidated
complaint, were resolved by an informal settlement agree-
ment approved by the Regional Director on April 27, 1988.
The General Counsel contends that Respondent subsequently
violated the terms of the settlement agreement by the conduct
alleged in Case 15–CA–10684 wherein it is alleged in para-
graphs 7(g–i) and 9–14 that Respondent Bogard, in July
1988, promised more work hours and other unspecified bene-
fits to employees if they voted against the union; on August
2, 1988, promised employees vacations if they voted against
the Union on September 12, 1988, told employees that he
would not bargain in good faith with the Union and that
union representation was futile; threatened a change of work
schedules and reduction of hours because of their union ac-
tivities and because they gave affidavits in a prior Board
case, informed employees that a fellow employee’s work
hours had been reduced and he had been discharged because
of his union support and because he had given an affidavit
in the prior Board case; on January 3, 1988, suspended em-
ployee Scott Leathers; on June 10, 1988, reduced Leathers’
work hours; on September 11, 1988, discharged Leathers;
and, finally, on September 15, 1988, changed the work
843DONALD R. BOGARD, A CONTRACTOR
schedule of employee Larry Moore. The adverse action to-
ward Leathers and Moore is alleged to have been caused by
their union and other concerted protected activities and also
because they had given to the Board affidavit testimony in
Case 15–CA–10490.
The foregoing alleged subsequent violations are argued to
warrant the Regional Director’s vacation of the prior settle-
ment agreement. The General Counsel in support thereof ap-
propriately cites Wallace Corp. v. NLRB, 323 U.S. 248
(1944); Deister Concentrator Co., 253 NLRB 358 (1980);
YMCA of Pikes Peak Region, 291 NLRB 141 (1988). The
parties recognize, however, that the threshold issue before
me is, as it was in the cited Board decisions, whether subse-
quent violations justified settlement vacations or whether, as
in the Deister case, the settlement agreement ought to be re-
instated regardless of subsequent violations. Clearly then, the
subsequent complaint must be adjudicated in the context of
all admissible background evidence prior to an adjudication
of the settlement vacation propriety. Rather than bifurcate
this proceeding as argued by Respondent, I decided that the
limited nature of circumstances of this case and the interests
of judicial economy justified the litigation of all the com-
plaint allegations in one session.
At the trial, all parties were provided opportunity to ad-
duce relevant evidence on all the issues raised by the con-
solidated complaint. Thereafter, on September 15, 1989,
posttrial briefs were received from the General Counsel and
Respondent. The General Counsel’s motion in the brief, to
withdraw complaint paragraph 7(g)(ii) re the July 1988
promise of more work hours as unsupported by record evi-
dence, is granted.
On the entire record and briefs, and my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
At all times material, Respondent, a sole proprietorship
doing business as Donald R. Bogard, an Independent Con-
tractor, with an office and place of business in Baton Rouge,
Louisiana (Respondent’s facility), has been owned by Donald
R. Bogard and has been engaged in the interstate and intra-
state transportation of passengers and freight. During the 12-
month period ending September 30, 1988, Respondent, in the
course and conduct of these business operations within the
State of Louisiana, derived gross revenues in excess of
$50,000 for the transportation of passengers and freight and
commodities in interstate commerce pursuant to arrange-
ments with and as agent for various common carriers, includ-
ing Greyhound Lines, Inc., which operates between and
among various States of the United States. By virtue of these
operations described, Respondent functions as an essential
link in the transportation of passengers and freight and com-
modities in interstate commerce. During the 12-month period
ending September 30, 1988, Respondent, in the course and
conduct of these business operations, performed services val-
ued in excess of $50,000 in States other than the State of
Louisiana.
It is admitted, and I find, that Respondent is now, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that the Amalgamated Transit
Union, AFL–CIO, Local 1600 (the Union), is now, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Background
Prior to July 1, 1987, as the commission agent for Conti-
nental Trailways, Respondent managed the Trailways Bus
station located at 717 Convention Street in Baton Rouge,
sold tickets and shipped packages and freight. In July 1987,
Greyhound Lines, Inc. acquired Trailways and retained Re-
spondent as the commission agent for the Convention Street
station. On or about August 3, 1987, Greyhound informed
Respondent that it had decided to merge Respondent’s facil-
ity with the Greyhound Main Baton Rouge terminal, which
is located at 1253 Florida Street in Baton Rouge, which was
then being operated by independent contractor Rollin Cable.
Respondent was further notified that he had been selected to
serve as the commission agent for the merged facility to be
situated at the Florida Street terminal.
Prior to the merger, Cable’s Greyhound operation had
been successfully organized by the Union through Stokes’
active solicitation of the Florida Street facility’s coworkers.
Pursuant to a Board-conducted election, the Union became
the Florida Street facility employees’ designated bargaining
agent. The merger of the two facilities by Greyhound inter-
rupted contract negotiations. Respondent refused recognition
as a successor employer, after it had acquired control of the
Florida Street facility at 12:01 a.m. August 5, 1987. Re-
spondent initiated the Florida Street operations under what he
described as chaotic conditions with his former Convention
Street terminal employees: Frank Toussaint, Robert Stanley,
Charles Guillory, Darla Bogard, Brigette Bogard, Staray Nel-
son, and Belle Hall. Respondent also immediately ‘‘on the
spot’’ hired Assistant Terminal Manager Nolan Hills; and
Larry Moore, Scott B. Leathers Jr., and Ruby Lewis, former
cable employees who happened to be on duty at the moment
of merger.
On the same day, Stokes, Larry Turner, Aubrey Raymond,
Henry Stone, and Robert Dicks, former Cable employees, re-
quested but were refused retention. On August 10, 1987, Re-
spondent hired Ed Poole, Mike Wheeler, Joel Nelson, and
Emmitt Redden. Thereafter, Stokes, Dicks, Turner, Raymond,
and Stone began picketing in front of the Florida Street ter-
minal, protesting Respondent’s refusal to hire them while hir-
ing new employees. Among those Cable employees retained
by Respondent, Moore and Leathers were platform workers
employed on the night shift. Respondent testified that he
found Florida Street in a filthy condition and therefore his
immediate need was for unskilled cleanup people. He testi-
fied that he took applications from the former Cable employ-
ees and decided to evaluate the state of the merged business
volume before hiring further terminal operational employees.
In the meantime, Stokes, a Cable employee of 13 years’ ex-
perience, and the group of former unretained Cable employ-
ees commenced picketing in protest at the Florida Street fa-
cility where their actions caught the eye of the television
news cameras.
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On August 17, 1987, Respondent hired Stokes, Turner,
Raymond, Stone, and Dicks.
As platform worker, i.e., baggage clerk, Stokes’ duties in-
cluded loading and unloading buses and also, as an express
agent, he billed and packaged freight. Within days of his hire
by Respondent, Stokes began soliciting employees and sup-
port for the Union in private conversations while the employ-
ees were working or eating lunch at the nearby Crazy Bob’s
Restaurant, or before and after work. Stokes contradicted
himself as to whether he wore observable union insignia at
this time. Stokes also signed a union card on or about Au-
gust 17, 1987.
On September 11, 1987, Stokes and Wheeler were laid off
by Respondent on the proffered explanation of a downturn
in business after the Labor Day holiday and the cessation of
the summer vacation travel season. Stokes admitted that busi-
ness did slack off to some extent.
During his layoff, Stokes immediately commenced visita-
tion of the facility to talk to the employees whenever he
could. Stokes testified that on one such visitation he ap-
peared at the terminal employee bulletin board to post some
union material when he was approached by Bogard and
asked what he was doing there. Stokes testified that he re-
plied that inasmuch as he, a laid-off employee, had 13 years’
Greyhound experience, he had just as much right to be there
as Greyhound newcomer Bogard, albeit the latter was the ter-
minal manager and his employer.
Stokes testified that he had become convinced that Re-
spondent had laid him off because of his union activities
prior to and after the merger. He filed unfair labor charges
which, after an investigation, were dismissed for insufficient
evidence. Thereafter, he consulted an attorney who advised
him as to what he needed to do and that he thereupon com-
menced to do what needed to be done. Stokes admitted that
secret taping under misrepresentations was his own idea. He
testified: ‘‘I was trying to get evidence in any kind of way.’’
Stokes testified that he then, with the assistance of a relative
and a friend, undertook a series of covertly tape-recorded
conversations of Bogard, Hills, and coworkers to obtain evi-
dence of discriminatory motivation. He testified that it was
his plan to induce Bogard and Hills to unwittingly incrimi-
nate Respondent by these deceptive stratagems.
The only result of these undercover efforts resulted in an
allegedly borderline incriminating statement by Hills, whose
status as a supervisor with admittedly extremely limited dis-
cretionary authority, if any, is disputed. Hills is a 10-year,
‘‘good enough’’ friend and confidant of Stokes, who admit-
ted that during one of his secretive tapings, told Stokes that
he did not ‘‘know the ins and outs of it, because they don’t
trust him [Hills].’’
In another covert taping by Stokes’ sister-in-law who, at
Stokes’ direction, misrepresented herself to Bogard as a pro-
spective employer, Bogard recommended Stokes to the bogus
employer as a good worker.
There is also disputed evidence as to Respondent’s con-
versations with employees concerning Stokes’ union activi-
ties which form the basis of 8(a)(1) allegations in the first
complaint.
A new charge was filed on January 5, 1988, and the first
complaint issued thereafter. A trial was scheduled for April
27 but was canceled because of the April 26 settlement,
which Stokes testified that he entered reluctantly against his
better judgment. Stokes testified that he received about
$3725 in backpay which was for less than the over $9000
that he thought was due him. Bogard testified that Stokes
was due for seasonal recall in any event. Stokes was rein-
stated on or about May l, 1988, to the day shift where he
displaced Henry McWilliams to the night shift.
In June or July 1988, the Union filed with the Regional
Director a Petition for Certification of Representation. Con-
sequently, a Board-conducted election was held on August 3
at which of 16 valid ballots, 14 voted ‘‘yes’’ and only 2
voted ‘‘no.’’ On August 11, the Union was certified as ex-
clusive collective-bargaining representative of Respondent’s
platform workers, ticket agents, pickup/delivery, sales agent,
and janitorial employees. Subsequently, in support of their
bargaining demands, unit employees engaged in a 3-month
strike, in which they were initially joined by alleged Super-
visor Hills.
Case 15–CA–10684
Leathers testified that when he was interrogated by Bogard
as to whether Stokes or platform worker Turner had talked
to him regarding the Union in September or November in
1987, he replied negatively. Leathers testified that his interest
in union representation did not arise until months later and
that Bogard was unaware of his newly acquired prounion
sympathies. Bogard claimed ignorance of any personal union
involvement by Leathers.
Leathers had given an affidavit to the Board agent during
the investigation of Case 15–CA–10490 and on April 20,
1988, was subpoenaed by the General Counsel to testify at
the trial scheduled for April 27. About 10 days before the
trial, according to Leathers’ testimony which was admitted
by Bogard, he, Moore, Poole, and employee Joey Nelson
were approached in the work area by Bogard and were asked
if they would testify on his behalf at the upcoming trial and
that he might want them all as witnesses. Leathers testified
that none of them answered with a direct ‘‘yes’’ or ‘‘no’’ an-
swer but that they collectively stated to Bogard that they
would tell the truth. Bogard did not discuss with them the
nature of their prospective testimony on his behalf but re-
turned to his office. It is undisputed that on April 26, Bogard
told the aforesaid employees that he settled the case and that
they did not have to testify. What is disputed are alleged ref-
erences by Bogard to the employees’ involvement as govern-
ment witnesses.
Leathers’ testimony as to Bogard’s April 26 comments is
inconsistent, confusing, and marked by a demeanor of uncer-
tainty. He first testified that Bogard approached him and
Stokes together at the loading platform and demanded to
know whether they had given statements to the Board in the
case and that they then were told that the case was settled
and they would not need to testify. When asked to repeat his
account, still in direct examination, he testified that Bogard
approached and announced that he knew that they had given
statements to the Board, which disclosure ‘‘surprised’’ and
‘‘shocked’’ him because it had been a closely guarded secret.
In cross-examination, his testimony was as follows:
Q. Now, you said that the day before the case was
scheduled for trial he told you that you didn’t have to
go to the [trial]?
845DONALD R. BOGARD, A CONTRACTOR
A. He told Larry Moore and I that we didn’t have
to go, even though we had statements, that we didn’t
have to go.
Q. Now, wait, he said what now?
A. He said that we didn’t have to go to court. He
had already settled up with Russell Stokes the day be-
fore the court.
The very last response accords with Bogard’s testimony.
Moore’s testimony provides yet another version. He recalled
Bogard’s first solicitation for employee testimony on his be-
half. According to him and contrary to Leathers, both he and
Poole explicitly refused and, further, both he and Poole vol-
unteered to Bogard that they had already been subpoenaed.
(Bogard denied that Moore revealed that he had been sub-
poenaed.) Further, Moore testified that the remaining em-
ployees explicitly refused on the grounds that they did not
desire any involvement in the case. Moore testified that the
day before the trial, he and Leathers asked Bogard for time
off to testify, whereupon Bogard told him, ‘‘Hey, no, you
don’t have to go to court; everything has already been set-
tled.’’ According to Moore, nothing more was said that he
could recall. Moore testified that prior to April 26, he kept
secret his prounion sympathies which he presumed had not
became known to Bogard until the result of the subsequent
August election and the arithmetic of the vote, i.e., the two
‘‘no’’ votes were outspokenly proemployer. Moreover, he
admitted that the pretrial conversation with Bogard regarding
his prospective testimony did not cause any change in
Bogard’s preexisting friendly demeanor toward him.
Leathers also testified that Bogard continued to manifest a
friendly and benign attitude toward him. As an example,
shortly after the April 26 trial conversation, Leathers incurred
a back injury which was one of three work-related physical
injuries which caused him substantial loss of worktime.
Leathers testified that Bogard treated him ‘‘real nice’’ and
was solicitous of his recovery progress. According to Leath-
ers, the friendly relationship with Bogard dissipated when
Leathers accused Bogard of submitting a false statement to
an insurer with respect to the processing of an earlier work-
related injury compensation claim on behalf of Leathers.
No other employee testified on the issue of the NLRB in-
vestigation involvement of Moore and Leathers. Because of
the inconsistency of Moore’s and Leathers’ testimonies,
Leathers’ poor demeanor, and Moore’s credibility defi-
ciencies to be discussed more fully hereafter, I must credit
Bogard’s testimony on this issue. I conclude that the evi-
dence to this point fails not only to establish animosity of
Bogard to Moore and Leathers for their involvement in
Stokes’ prior case or their own union activity but also fails
to establish his knowledge of it as of April 26, 1988.
Thereafter, Leathers and Moore allegedly suffered acts of
discriminatory treatment. Leathers received a 3-day suspen-
sion on June 3, 1988, following a failure to report for work.
It is disputed whether prior to that on or about May 30 sus-
pension, Leathers had asked for and was denied a leave of
absence or whether he asked Bogard to prepare a letter of
recommendation for him to be used in seeking employment
in Detroit, Michigan, to avoid in-law problems as testified by
Bogard. It is also disputed whether Leather’s failure to ap-
pear at the commencement of the shift in proper attire and
to remain for the full shift after his appearance in street
clothes with his wife at 10 a.m. was attributed to Leathers’
willful disobedience or to Bogard’s implied permission.
Thereafter, on his return to duty on June 10, Leathers’ hours
were reduced to 16 hours per week from 40 hours per week,
ostensibly because of Bogard’s exasperation with Leathers’
alleged failure to comply with Bogard’s instructions to cor-
rect a poor attendance record and a habit of unauthorized
early departure from work. It is disputed whether Leathers
nonwork-related injury absences were authorized and also
whether Leathers was admonished about it. Leathers testified
that he was never even counseled by Bogard about any kind
of work-related matter.
Respondent witness Frank Toussaint testified credibly as
to a running dispute with Leathers over whether each of the
other was avoiding his fair share of the work and in par-
ticular to one incident when he complained, as he had fre-
quently done before, to Bogard about Leathers’ alleged ma-
lingering. In rebuttal testimony, Leathers essentially admitted
in corroboration of Toussaint that the incident occurred, that
Bogard counseled him, and that, in consequence, he apolo-
gized to Toussaint. He thus contradicted a most vigorous de-
nial that Bogard ‘‘ever’’ counseled him.
On September 11, Leathers was discharged. It is disputed
as to what exactly he was told were the reasons. His written
notification merely stated the failure to follow instructions.
Bogard testified in a less than fluent manner as to having
reached the decision on the basis of Leathers’ cumulative
work record of poor attendance, improper attire, e.g., dress
shoes which endangered safety, and work malingering which
he described as a refusal to follow his ongoing corrective or-
ders. Leathers denied that he had frequently complained to
Bogard of his domestic in-law problems, which Bogard as-
sumed were the cause of Leathers’ manifestation of per-
ceived mental depression and lack of work enthusiasm.
Bogard testified that he had agreed to give Leathers a letter
of recommendation despite a deterioration in his work per-
formance and work-oriented attitude because he assumed that
relocation away from the domestic problems would restore
Leathers to his past good work performance.
Leathers admitted that he needed time away from his
work, ‘‘to get myself together.’’ He testified, ‘‘I was looking
for a part time job, really.’’ However, he denied the ref-
erence to any domestic in-law problem and asserted that he
was ‘‘happily married.’’ The ‘‘request for leave of absence’’
document that Leathers and his wife prepared and presented
to Bogard on May 31, which he refused to sign and dis-
claimed any prior agreement to sign, stated in part:
I am forced to do so due to extenuating circumstances
of a personal and emergency nature. I have a family
crisis [that] demands my full attention.
That crisis was never explained.
Although there is much in dispute, the evidence reveals
that Leathers did have some sort of ongoing domestic prob-
lems, that his interaction with his platform coworkers re-
sulted in disputes which involved Bogard’s intervention, that
he was work-related injury prone, that he had a workers
compensation dispute with Bogard, and he did have an ab-
senteeism record. Although Toussaint did not have a 100-
percent attendance record, he testified that his early depar-
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tures, often of an hour or less, were arranged for with 3
days’ advance notification to Bogard.
Moore’s problems began, according to him, after the elec-
tion when, he testified, Bogard’s friendly demeanor dis-
appeared and was replaced by a constant observation and
criticism of his work. Bogard admitted that he did increase
his criticism of Moore and that this was caused by a deterio-
ration in Moore’s work performance after the election.
Bogard testified, without controversion, that Moore had be-
come depressed over a personal financial problem evidenced
by Bogard’s receipt of Moore’s creditors’ telephone calls.
Moore admitted that on past occasions he found it necessary
to borrow money from Bogard.
Moore testified, without corroboration, that after the elec-
tion he was the only employee who was assigned to cut
grass, whereas before the employees rotated in that duty.
Moreover, he claimed that he was now cutting grass during
the hottest part of the day instead of the usual cool morning
hours. The number of these incidents and their duration is
left to speculation. No foundation was given for his conclu-
sion that only he cut grass after the election. Moreover, cut-
ting grass is done like other maintenance, at times dictated
by the bus arrival schedule.
Moore testified that on September 15, his work schedule
was changed from a Monday through Friday workweek, 7
a.m. to 3 p.m. shift, to a Wednesday through Sunday week
and that on September 22, his shift was changed to noon to
8:30 p.m. Moore assumed that the shift change was cal-
culated to make it difficult for him to commute to work be-
cause of the unavailability of public transportation at the late
hour. When he complained, he testified that Bogard offered
to arrange for his financing of a used automobile purchased
by Bogard’s intervention with a friend. Bogard testified, in
general conclusionary terms, that because of an unspecified
deterioration of Moore’s work and work-oriented attitude, it
was necessary to arrange his shift so that he would work
more closely with ‘‘someone.’’ He did not explain. He de-
nied antiunion or anti-NLRB involvement motivation.
Evidence of Animus and Discriminatory Motivation
The General Counsel’s case for knowledge, animus, and
unlawful motivation with respect to the adverse actions
against Leathers and Moore is founded chiefly on the testi-
mony of Moore. There is also testimony from other employ-
ees as to Bogard’s comments made during the preelection
campaign.
The General Counsel in the brief asserts that Respondent
began an ‘‘antiunion campaign’’ about 1 week before the
election. A review of the evidence reveals that Bogard’s
campaign was a rather mild effort compared to what Bogard
told Moore on prior and subsequent occasions if Moore is to
be believed. As to the week before the election, the General
Counsel relies on the following:
Robert Dicks testified that 1 week before the election,
Bogard approached him in the freight office. Bogard asked
Dicks if he knew that the election was coming up. When
Dicks responded affirmatively, Bogard said, ‘‘Stick with me,
things will get better.’’ Joel Nelson testified that in July,
Bogard approached him while he was working on a bus and
asked him if he was going to participate in the election.
When Joel replied no, Bogard said, ‘‘I need you to come be-
cause I need your vote. Things will get better whenever ev-
erything is over.’’ He could not recall if anything else was
said. Staray Nelson testified that on August 2, the day before
the election, Bogard talked to him in the express room. Ac-
cording to Nelson, Bogard stated that he would like Staray
and his brother Joel to vote for him. Bogard then stated, ‘‘I
know you have worked hard and need a vacation. As soon
as all of this is settled, I have a plan.’’
In cross-examination, Dicks and Staray Nelson agreed that
Bogard did not make any threats. Dicks admitted that Bogard
also stated to him on another occasion that he would vote
any way he wanted to but that Bogard asked him to ‘‘think
about’’ voting for Bogard. In direct examination, counsel for
General Counsel asked Staray Nelson his ‘‘impression’’ of
Bogard’s preelection comment. He answered that it was
‘‘just conversation, you know.’’ In cross-examination, he was
asked whether Bogard had made a preelection promise and
he answered, ‘‘[N]o, he never made a promise.’’ In cross-
examination, Respondent asked Staray Nelson whether
Bogard had ever talked to him about Stokes’ union involve-
ment. He answered that on one occasion: ‘‘He asked me had
Stokes talked to me at work’’ and ‘‘He asked me had Stokes
been talking to me about the Union’’ and that this occurred
on some unspecified date after his return from layoff. The
incident was not alleged in the complaint. No context for the
conversation was given nor the circumstances established,
and thus no determination as to the coercive nature of it can
be made despite the General Counsel’s allusion to it in the
brief.
Bogard admitted the ‘‘things will get better’’ comments,
but denied having made any promise with respect to vaca-
tions. Bogard testified that he meant that things would im-
prove in that the disruption of the campaign would cease but
admitted that he did not explain this to the employees.
Stokes confirmed that despite his assiduous monitoring of
Bogard’s electioneering, the most he ever heard was that
Bogard merely asked for their votes and that no threats were
made to any employee.
Moore’s Testimony
The conduct attributed to Bogard by Moore appears to be
uncharacteristic of the type of conduct indicated in the testi-
mony above and also indicated in the testimony of other wit-
nesses with respect to the presettlement 8(a)(1) violations,
i.e., interrogations related to Stokes’ union activities.
Moore’s testimony tends to depict Bogard as virulently and
vindictively antiunion and forms the essential foundation for
the 8(a)(3) and (1) violations alleged in Case 15–CA–10684,
as well as a significant element in the 8(a)(1) and (3) viola-
tions alleged in the first case.
Moore testified that in August 1987 prior to Stokes’ lay-
off, suddenly within the context of a private social con-
versation at the facility, Bogard announced that he would
‘‘not tolerate this union deal.’’ When asked to repeat the
conversation, he added an interrogation of Stokes concerning
Stokes’ union activities with a prediction of Stokes’ termi-
nation. In cross-examination, his account was further aug-
mented and enhanced with much stronger and explicit
threats. When confronted with his affidavit dated February
1988, he admitted that he testified therein that the incident
occurred not in August 1987 but a half-year later in January
1988. Moore admitted confusion as to the dates. The timing,
however, was critical, i.e., January was long after Stokes’
847DONALD R. BOGARD, A CONTRACTOR
layoff. This testimony is symptomatic of Moore’s tendency
to change, add, and embellish facts whenever asked to repeat
his testimony.
Moore’s testimony as to an alleged rooftop confrontation
with Bogard on September 12, 1988, forms the essential
premise for a finding of animus, knowledge, and unlawful
motivation with respect to the alleged violations against him-
self and his cousin Leathers. Moore was certain of the date
which was fixed in his affidavit because he specifically re-
lated it to the day after repairs were allegedly done to the
terminal rooftop drainage system. According to Moore,
Bogard summoned him up to the roof to show him the re-
pairs and then proceeded to declare that he (Moore) and
Leathers had cost him money and embarrassment; that he
would ‘‘not take this lying down’’; that he would resort to
‘‘every chance’’ to change Moore’s shift; that he would do
what he had to do; that he had ‘‘one down and two to go’’;
that he already cut Leathers’ hours; that he would engage in
regressive, unending collective bargaining, that the employ-
ees would have to strike; that Moore should consider himself
fortunate as he had a full 40-hour workweek contrasted with
Leathers’ part-time schedule; and that although Moore was a
good worker, ‘‘sometimes the good have to suffer.’’
In cross-examination, Moore again added and embellished
his recollection of the incident. As he testified, Moore
warmed up to his subject and animatedly narrated the se-
quence of alleged statements. The stark threat to a submis-
sive listener originally described now took on the flavor of
a heated context of words and will between Moore and
Bogard. In the second version, Bogard now emotionally in-
voked the invincibility of Greyhound, i.e., it would ‘‘keep on
rolling.’’ Now Moore told Bogard outright that he was ‘‘dis-
gusting’’ and that Moore would report the incident to the
Board but that Bogard smugly alluded to the lack of wit-
nesses on the rooftop.
Despite his alleged challenge to Bogard about reporting
the incident and although he considered Bogard to be ‘‘just
plain disgusting’’ and although by that date, having now
worn union insignia since May 1988, he had no reason to
restrain his show of union support as it had already been
well known to Bogard, and although Stokes had testified that
early on in his case he had urged Moore, his close friend,
to give statements to the Board, Moore testified forcefully
and with every outward display of sincerity and assuredness
in demeanor that he reported the rooftop incident to no one
except counsel for General Counsel. He insisted that he did
that only when he came to Moore during the investigation
and obtained Moore’s pretrial affidavit with the assistance of
another Board agent. Moore again insisted that although he
met with a union agent after the rooftop encounter, he still
did not reveal it to anyone else. He went even further and
denied having discussed this case at all with Stokes or Leath-
ers.
That Moore should not reveal the alleged disgusting un-
lawful behavior of Bogard to Stokes, Leathers, or the Union
is highly implausible. Stokes testified that it was only in the
beginning that Moore was reluctant to give any statements to
him to support unfair labor practice charges. By now, Moore
was undoubtedly well versed in Stokes’ dealings with the
NLRB and what evidence was desired. Stokes was his close
friend, they visited each other’s home socially. Stokes actu-
ally held union meetings at Moore’s home. Leathers was not
only Moore’s cousin but they had social relationships of 20
years’ standing.
Stokes flatly contradicts Moore and testified with assur-
ance and conviction that Moore did disclose the incident to
him on the very day that it allegedly happened. Stokes testi-
fied that Moore related to him a different version, i.e., mere-
ly that Bogard told him on the roof that ‘‘if it wasn’t for you
[Moore], Scott Leathers, there would be no Russell Stokes
and no union,’’ or ‘‘something to that effect.’’ Stokes had no
recollection of any roof repair that day nor any knowledge
of any roof drainage problems at that time. Stokes testified
that Moore must be mistaken if he testified that no conversa-
tion occurred. On this point, I credit Stokes. I find that
Moore did indeed discuss the substance of his testimony with
Stokes even before he was contacted by the Board agent.
Stokes, whom I credit, testified that he drafted the unfair
labor practice charge for Leathers at Leathers’ Home and
used information he obtained from Moore, that he filed the
charge and asked Moore to give a statement to the Board
agent.
Thus it is clear that Stokes became intimately involved
with and discussed with Leathers and Moore the presentation
of evidence to support the second complaint. Stokes is clear-
ly not a disinterested witness. He openly revealed his dis-
favor with the settlement and obviously, to him, it would be
advantageous for it to be set aside so that he might obtain
the full $9000 or more he felt was unjustly deprived of him.
Stokes admitted that on numerous occasions during his em-
ployment, Bogard infuriated employees enough to want ‘‘to
hit him’’ and that he was one of those employees, ‘‘and I’ll
tell you that right now.’’ Thus Moore had the counsel and
experience of Stokes, whom we have noted above resorted
to secretive tapings in a desperate effort to obtain evidence
against Bogard. The rooftop encounter bears a certain resem-
blance to the fruitless efforts of Stokes, i.e., to an inducement
of incriminating statements in a private, personal confronta-
tion.
The Credibility of Moore
Centering the analysis of Moore’s credibility on Moore
himself, I must conclude that he, like Stokes, is a directly
interested party. Not only is he alleged to have been ad-
versely affected by Bogard but it would also be to his friend
Stokes’ advantage to turn aside the settlement, and much
more to the advantage of his discharged cousin Leathers of
whom he testified, ‘‘If he needs me, I’m always there for
him.’’ Furthermore, during his cross-examination, although
he perfunctorily testified that he respected Bogard as a per-
son, he also, with strong overtones of bitterness in voice and
demeanor, alluded to the oppressive 3-month strike by the
employees, the protracted negotiations where the employees
voted down two contracts proposed to them by the Union for
ratification, the unnecessary death of an employee during
picketing (apparently a heart attack), and Bogard’s lack of
regard for the needs of his workers.
The first observation to be reached with respect to
Moore’s reliability as a witness is that he obviously found
it necessary to enhance his testimony by falsely testifying as
to his communication with Stokes. There is no other motiva-
tion for such conduct. Although the matter falsely testified
to is not of itself immensely dispositive, it necessarily
obliges the finder of fact to ask the question: At what point
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does the witness draw the line at false testimony, or even ex-
aggeration or embellishment in order to enhance his own
credibility? On this point alone, Moore’s credibility is im-
paired. To that factor must be added testimonial inconsist-
ency, contradiction, addition to and embellishment of fact on
repeated testimony, the likelihood of strong personal bias,
and testimony of Respondent conduct strongly out of char-
acter with the type of conduct witnessed by much more dis-
interested witnesses. Finally, the critical conversation of Sep-
tember 12 contains inherent implausibilities. Leathers had
been terminated as of September 11 and yet, on September
12, Bogard merely allegedly referred to Leathers’ receipt of
a cut in hours as punishment and further threatened Moore
with a cut in hours, not termination. Secondly, I find it inex-
plicable that Bogard would confide in Moore his most hostile
union animus and only target Moore for his most explicit un-
lawful intentions. There is no factual basis in the record to
support the plausibility of such conduct. Furthermore, it be-
came even more unlikely that Bogard would have done so
as late as September 12. By that date, Bogard had been sub-
jected to unfair labor practice charges and Board investiga-
tions. He had undergone an election campaign during which
he engaged in a comparatively mild effort to defeat the
Union and wherein he refrained from threats when such con-
duct would have been more productive, i.e., before the vote
and not after it.
In light of the abundance of serious impediments to
Moore’s veracity, including a calculating demeanor that was
devoid of the kind of spontaneity indicative of uncontrived
candor, I am not in a position to conclude with confidence
that Moore’s uncorroborated testimony is sufficiently reliable
to warrant credence. I therefore must credit Bogard’s denials.
Conclusions
Having thus discredited Moore, I find that the record does
not reveal sufficient evidence of knowledge and specific vin-
dictive animosity of the Union and/or other concerted pro-
tected activities of Leathers and Moore. Although Respond-
ent’s proffered generalized evidence of the reasons for the
adverse treatment of Leathers and Moore raises questions
and suspicions, it is not demonstrated to be so outrageous or
even unreasonable as to necessarily, on its face, warrant an
inference of unlawful motivation, particularly so where I
must credit Bogard wherever his testimony conflicts with
Moore. With respect to the circumstances of Leathers’ reduc-
tion in hours and termination, if constrained to make a credi-
bility resolution, I must find that Bogard was somewhat more
convincing and plausible than the uncorroborated Leathers,
particularly as to the circumstances from May 20 to June 10.
As noted above, a not implausible basis for nondiscrim-
inatory motivation was shown regarding Leathers.
I must conclude that the General Counsel has not shown
sufficient evidence to warrant an inference that even a partial
unlawful motivation caused the adverse treatment of Leathers
and Moore and, therefore, insufficient evidence of a prima
facie violation was raised so as to shift the burden to Re-
spondent to prove that such conduct would necessarily have
occurred regardless of union or other protected activities.
Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (lst
Cir. 1981), cert. denied 455 U.S. 989 (1982).
With respect to the proven allegations that during the
preelection period Respondent promised employees benefits,
I conclude that, yes, whatever else Bogard intended to say,
his words implied promise of unspecified benefits and a va-
cation plan if the employees rejected union representation.
However, not only do I not find such conduct insufficient to
justify vacating the settlement agreement of Case 15–CA–
10490, but I also find that it is insufficient to warrant the
issuance of a remedial Order. The conduct, for the most part,
involved context-free promises of an ambiguous nature made
during Respondent’s mild, ineffectual election campaign and
were free from threatening or other seriously coercive con-
duct. The Union thereafter proceeded to achieve an over-
whelming victory and was thereafter supported by not only
the employees in an economic strike but also for a time by
the assistant manager, Hills, and also the Respondent’s book-
keeper. As of the trial, the Union and Respondent have set-
tled into a contractual relationship. I see no useful purpose
to pursue further litigation of this matter. The purposes of the
Act have been achieved, labor-management stability has been
achieved, and the interests of the employees and the public
under the Act have been satisfied.
[Recommended Order omitted from publication.]