Freight Movers, Inc. And/Or Freight Movers, Inc , Debtor-In Possession, And Interstate Driver Services, Inc

National Labor Relations Board - Board Decisions

Jan 19, 1989

292 N.L.R.B. 633 (N.L.R.B. 1989)

FREIGHT MOVERS 633
Freight Movers , Inc and/or Freight Movers, Inc,
Debtor-In Possession , and Interstate Driver
Services , Inc and Kenneth E Burke Cases 6-
CA-20201 and 6-CA-20594
January 19, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On August 12, 1988, Administrative Law Judge
Stephen J Gross issued the attached decision The
General Counsel filed exceptions and a supporting
brief The Respondent filed an answering brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
' The General Counsel has excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
tive law judge s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products 91 NLRB 544 (1950) enfd 188 F2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re
versing the findings
2 In concluding that the Respondent s discharge (or suspension) of em
ployee Kenneth Burke did not violate Sec 8(a)(1) of the Act the judge
found and we agree that the Respondent established that it acted as it
did because of its belief that Burke refused to swap truck 217 for truck
214 on July 15 1987 at the Jacksonville terminal Accordingly we find
it unnecessary to pass on whether telephone calls that Burke made to the
Respondent s president and the manager of the Jacksonville terminal con
cerning the restoration of toll money to the Respondent s drivers consti
tute protected concerted activity Regardless of whether Burke s actions
in making the calls were protected the Respondent established that it
would have discharged Burke even in the absence of his protected con
certed activities See Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d
899 (1st Cir 1981) cert denied 455 US 989 (1982) approved in NLRB
v Transportation Management Corp 462 U S 393 (1983)
Julie R Stern Esq and Donald Burns Esq for the Gen
eral Counsel
Gary Owen Wang and Clayton S Morrow (Blankenship &
Associates), of Greenwood Indiana , for the Respond
ents
DECISION
I INTRODUCTION
STEPHEN J GROSS Administrative Law Judge Re
spondent Freight Movers Inc (FMI) is a trucking com
pany FMI admits that it is an employer engaged in com
merce Its employees are not unionized 1
FMI began operating in 1982 FMI s sole customer has
always been the United States Postal Service One of
FMI s first contracts with the Postal Service covered
daily service between Jacksonville and Pittsburgh (in
both directions) FMI chose to operate the service with
drivers based in the Jacksonville area-the service oper
ated from Jacksonville to Pittsburgh and back to Jack
sonville About a year later the Postal Service asked
FMI to provide additional service between the two
cities FMI decided to operate that additional service
with Pittsburgh based dnvers (this addition service oper
ated on a Pittsburgh Jacksonville Pittsburgh basis)
Kenneth Burke the Charging Party was one of FMI s
Pittsburgh based dnvers In July 1987 FMI either sus
pended Burke (FMI s version) or fired Burke (the Gener
al Counsels version) In any case, FMI put Burke back
to work about 10 days later Then, in December, FMI
began operating all of its service between Pittsburgh and
Jacksonville with drivers based in the Jacksonville area
FMI offered to continue to employ all the Pittsburgh
drivers on the runs they had been driving That offer,
however, was contingent on the drivers moving to the
Jacksonville area Neither Burke nor any of the other
Pittsburgh drivers accepted that offer
The General Counsel contends that FMI violated the
National Labor Relations Act (the Act) on three occa
sions
The first was when FMI fired (or suspended) Burke
FMI did that alleges the General Counsel, because
Burke had engaged in concerted, protected activity
The second was when Burke returned to work The
General Counsel claims that FMI harassed Burke follow
ing his reinstatement again because of Burke s con
certed protected activity
The third was in December 1987 when FMI shifted
its operations so that all of FMI s Pittsburgh Jacksonville
services operated out of Jacksonville According to the
General Counsel FMI did that because Burke filed
charges and gave testimony under the Act, thereby vio
lating Section 8(a)(4) 2
11 FMI S DISCIPLINARY ACTION AGAINST BURKE IN
JULY 1987
A Did Burke Engage in Concerted Protected Activity
FMI s trucks travel over a toll road on one stretch of
the trip between Pittsburgh and Jacksonville The trucks
i Interstate Driver Services (IDS) is also a Respondent IDS is in the
business of leasing truckdrivers to companies in the trucking industry in
cluding FMI IDS and FMI admit that ( 1) IDS leases employees to FMI
(2) IDS is an employer engaged in commerce and (3 ) IDS and FMI are
joint employers
2 Burke filed a charge (in Case 6-CA-20201) on July 22 1987 then
amended it on September 14 The complaint in Case 6-CA-20201 issued
on October 2 Burke filed his charge in Case 6-CA-20594 on December
29 The complaint in Case 6-CA-20594 and an order consolidating cases
issued on February 4 1988 1 heard the case in Pittsburgh on April 19
and 20 1988 During the course of the hearing I granted a motion by the
General Counsel to name FMI debtor in possession as a Respondent
Counsel for the General Counsel and for FMI filed briefs on June 10
1988
292 NLRB No 66
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are charged $5 ($10 for the round trip). FMI had always
allowed the drivers to take cash advances to cover the
tolls. But in May 1987 FMI changed that policy. From
that time on FMI required the drivers to pay for the tolls
with their own funds and then to seek reimbursement
from FMI. That change upset a number of FMI's driv-
ers-Burke in particular. Various drivers, including
Burke, complained to Gerald Barnhart, FMI's dispatcher
in Pittsburgh. But then Burke went further. In June and
early July he telephoned both the president of FMI, Jack
Davis, and Jack Davis' nephew, Tony Davis (who man-
ages FMI's Jacksonville operation), to express his irrita-
tion with the change. (FMI admits that both Jack and
Tony Davis are agents of FMI for purposes of the Act.)
Burke had told his coworkers that he would be calling
Jack and Tony Davis; those coworkers felt that, in doing
so, Burke "was speaking for, pretty much, all the driv-
ers";3 many of the Pittsburgh-based drivers considered
Burke to be a leader of their group; and FMI' s manage-
ment knew that the Pittsburgh drivers considered Burke
to be a leader.
On the other hand none of the drivers asked Burke to
make the calls, they did not authorize him to speak on
their behalf, there is no indication that the other drivers
themselves refrained from complaining about the
changed policy because they knew that Burke was rais-
ing the matters with management , and when Burke
spoke about the toll money issue to FMI's management
he did not indicate that he was speaking on behalf of
anyone else.4
I must conclude, therefore, that when Burke spoke to
FMI's management about the Company's changed policy
regarding toll money, he was not engaged in protected
activity. See Meyers Industries, 281 NLRB 882 (1986)
(Meyers II), and 268 NLRB 493 (1984) Meyers I; see
Mannington Mills, 272 NLRB 176 (1984).
That does not end the matter, however, because in
early July Burke and another driver together engaged in
a different form of protest against FMI's changed toll-
money policy. FMI's Pittsburgh-Jacksonville-Pittsburgh
trips require two drivers. (One sleeps while the other
drives.) Burke was scheduled to make the trip with co-
driver Donald McElhaney. Burke proposed that they
refuse to make the trip unless FMI provided the $10 in
toll money, in advance. McElhaney agreed. Burke and
McElhaney then stated their position to Barnhart (the
Pittsburgh-based dispatcher; FMI admits that Barnhart is
an agent of FMI for purposes of the Act). Barnhart re-
sponded by giving $10 to the two drivers, and Burke and
McElhaney did drive the run.
Barnhart subsequently told Tony Davis about the epi-
sode. s
a Testimony of the General Counsel witness McElhaney, a Pittsburgh-
based FMI driver.
" Burke testified that during the course of his conversations with FMI's
management he did say that he was speaking on behalf of other drivers.
But the management personnel with whom Burke spoke testified that
Burke spoke only about his own disagreement with the change, and I
cannot find that the General Counsel carried the burden of persuasion on
this issue.
6It appears that Burke and McElhaney thereafter drove the Pitts-
burgh-Jacksonville run without demanding toll money in advance. The
record does not tell us the reasons for their willingness to do so.
Burke's and McElhaney's refusal to make an assigned
run without receiving expense money in advance consti-
tuted, of course, concerted protected activity. It was
joint action engaged in for the purpose of mutual aid or
protection as Barnhart, an admitted agent of FMI, knew.
See, e.g., Meyers I and II, supra; Go-Lightly Footwear, 251
NLRB 42 (1980).
B. FMI Disciplines Burke
Barnhart doubles as a mechanic, handling flat tires and
other minor maintenance problems encountered by
FMI's trucks in the Pittsburgh area. But in the Main
FMI's only maintenance and repair facility is FMI's
garage in Jacksonville. FMI tries to have its mechanics
run through a comprehensive maintenance checklist on
each truck, once a month, at the garage. But due to the
schedules imposed by the Postal Service contract, a
truck used to make the Pittsburgh-Jacksonville-Pitts-
burgh round trip cannot be kept in Jacksonville long
enough for the mechanics to complete the checklist
items. For that reason FMI sometimes requires the Pitts-
burgh-based drivers to switch trucks in Jacksonville-the
drivers leave in Jacksonville the truck they drove from
Pittsburgh and drive north in another.
On July 15 Burke and McElhaney began a trip to
Jacksonville in truck 217. truck 217 was overdue for
maintenance. Sidney Saunders is the foreman at FMI's
Jacksonville garage. Trucks on the Pittsburgh-Jackson-
ville-Pittsburgh run arrive in Jacksonville around 11 p.m.
and leave about 1 a.m. The only person scheduled to be
on duty in the garage during those hours of July 15-16
was mechanic Allen Harrell. Saunders accordingly told
Harrell to tell Burke to switch to truck 214 for the run
north. (Saunders did not testify why he told the mechan-
ic to speak to Burke rather than, or along with, McEl-
haney. But, as touched on earlier, FMI's management
knew that Burke was a leader of the Pittsburgh drivers.
Moreover, as between Burke and McElhaney, it is clear
that Burke made the decisions.)
Both Burke and McElhaney testified that no one told
them to swap trucks during the course of their July 15-
16 run. According to Burke, in fact, he did not speak to
anyone in FMI's Jacksonville facility that night because
it was locked, with no one on duty, when he and McEl-
haney pulled up to it. Harrell did not testify, and I have
no reason to doubt either Burke's or McElhaney's testi-
mony in this regard.
Things looked very different, however, from Saunders'
view point. When he arrived at FMI's facility on the
morning of July 16, he saw that truck 214, which should
have been en route north, was parked in the yard of
FMI's Jacksonville facility; truck 217, which should have
been in the yard, was not. Because Saunders believed
that Harrell had told Burke to switch to truck 214, Saun-
ders concluded that Burke had refused to make the
swap. Saunders accordingly reported to Tony Davis
"that Kenny [Burke] was told to swap the trucks out so
we could service [217] and he wouldn't do it."s
6 Testimony of FMI witness Saunders.
FREIGHT MOVERS 635
Tony Davis had long been irritated by what he consid
ered a bad attitude on Burke s part The above dis
cussed complaints and actions by Burke regarding toll
money undoubtedly figured in that irritation But Burke s
complaints and actions regarding FMI s trucks were
Davis main focus
FMI s trucks, although not unsafe are less than top
notch Some of the trucks perhaps most, are defective in
ways that make them uncomfortable to ride in and more
difficult to drive than they should be (That may be a
function of FMI s precarious financial position At the
time of the hearing FMI was in the midst of a chapter 11
reorganization) Burke did not hesitate to tell FMI s man
agement what he thought of FMI s trucks and what he
considered to be FMI s below par maintenance and
repair work on the trucks Moreover, when a truck
Burke was driving broke down on the road, Davis be
lieved, Burke often failed to help out as much as he
should have which, in turn, sometimes delayed the arriv
al of the truck at the Postal Service facility That was a
particular problem because such delays threatened the
continuation of the Postal Service contracts on which
FMI s very existence depended
Saunders report that Burke refused to swap trucks in
furiated Tony Davis, coming as it did on top of Davis'
preexisting irritation with Burke
When Saunders spoke to Davis Burke and McElhaney
were still on their way north as Davis knew So Davis
telephoned Barnhart, telling Barnhart that Burke had
been insubordinate and that Barnhart should have
Burke call Davis `before he [Burke] went out on the
next run 7 But Davis did not tell Barnhart why he
thought that Burke had been insubordinate
When Burke arrived home about 10 30 p in on July 16
he got a message to call Barnhart Burke did so Barn
hart started the conversation by saving that he did not
like telling Burke this but that Burke was not to take his
next run and that he was to call Tony Davis immediate
ly When Burke asked why, Barnhart said it was because
Burke had been insubordinate Burke asked what Barn
hart was talking about Barnhart, who did not know any
thing about Burke's alleged refusal to swap trucks spec
ulated out loud It was `probably ' said Barnhart, about
the toll money a Burke heard that as fact, not specula
tion At that point in the conversation either (1) Barnhart
said that it sounded as though FMI was going to fire
Burke or (2) Burke said that and Barnhart responded in a
way that led Burke to believe that FMI was indeed
going to fire him (In either case Barnhart s words were
a product of further speculation on his part-in this case
speculation about what happens to employees whom
management considers to be insubordinate )
Burke then called Tony Davis Burke entered the con
versation under the belief that it was going to be about
his being fired for insubordination regarding toll money
7 The second quotation in the paragraph is from the testimony of FMI
witness Barnhart Neither Davis nor Barnhart testified that Davis said
anything to Barnhart about Burke being insubordinate But the testimony
of Burke Barnhart and Davis taken together convinces me that Davis
did use the word insubordinate in his telephone conversation with
Barnhart
8 Testimony of FMI witness Barnhart
Moreover Burke knew nothing about having interfered
with FMI s truck maintenance plans by failing to switch
from truck 217 bavis on the other hand, began the con
versation under the assumptions that (1) Burke had delib
erately failed to swap trucks in Jacksonville (2) Burke
had to know that that was why Davis wanted to speak
to him, and (3) Barnhart s conversation with Burke had
been limited to telling Burke to call Davis
As one might expect, the call did not go well
Davis started the conversation Davis said that we
need to get some things straightened out, and that
Burke would not be allowed back in an FMI truck until
Burke had a conference call conversation with Jack and
Tony Davis Burke responded are you firing me for in
subordination? Davis ducked answering that question
After the call had gone on in that vein for a while, with
Davis insisting that Burke call Jack Davis and Burke
asking about being fired, Burke told (Tony) Davis that
he was not going to call Jack Davis any time soon be
cause he was going to be too busy filing unemployment
claims and unfair labor paractice charges That raised
Davis hackles and the conversation ended moments
later 9
The next communication between FMI and Burke was
a letter dated July 20 that Tony Davis sent to Burke It
read
Since we did not hear from you on Friday July 17,
1987 after our phone conversation on Thursaday
night, I in giving you 5 days to respond to that con
versation to either Jack or I If no response is heard
in 5 days we have assume [sic] you have quit your
position with Freight Movers, Inc
Burke wrote back on July 24 stating In response to
[FMI s] letter I would like to inform you that I did
not give up nor did I quit my position with Freight
Movers About the same time Burke called Jack Davis
to say the same thing Davis told Burke to report back to
work Burke did so and resumed driving for FMI on
July 28 (Burke claims that he tried unsuccessfully to
reach Jack Davis by telephone on July 18 But had
Burke really been interested in reaching Davis, he could
have )10
9 Burke applied for unemployment compensation for the days he
missed work Pennsylvania s employment compensation agency rejected
his claim on the ground that FMI did not suspend or discharge him and
that dunng Burke s call with Tony Davis Davis told Burke that he was
not being fired (R Exh I ) My finding that Tony Davis did not respond
to Burke s question about whether Burke was fired thus conflicts with
the findings of that agency
1s There is a real possibility that the telephone conversation between
Davis and Burke would have gone much better had Barnhart not mistak
enly ascribed FMI s demand that Burke speak to Tony Davis to the toll
money Thus absent Barnhart s toll money comment Burke might have
lost much less working time And when Barnhart referred to the toll
money he may have been referring to Burke s protected activity of con
certedly refusing to drive unless he received a cash advance to cover toll
expenses But the parties have not litigated the question of whether that
set of possibilities might constitute a violation of the Act by FMI Simi
larly the parties have not litigated that question of whether Barnhart s
statement to Burke regarding the toll money itself constitutes a viola
tion of Sec 8(a)(l)
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. FMI's Discipline of Burke-Conclusion
What triggered FMI's action against Burke was the
belief on the part of FMI 's management that Burke had
refused an order to swap trucks in Jacksonville . Had that
been the only basis of FMI 's action , it is clear that FMI
would not have violated the Act, even though FMI's
management erred in believing that Burke had refused to
swap trucks.
But Tony Davis probably would not have pulled
Burke from his driving duties, even temporarily, had
Davis not already been angry w ith Burke because of
Burke's acts and complaints that, to Davis, represented a
bad attitude on Bruke's part. And the event in which
Burke and McElhaney refused to drive without getting
toll money in advance-an action protected by the
Act-undoubtedly was part of the mix that , in Davis'
mind , spelled out "bad attitude."
The question , however, is whether Davis would have
reacted the same even absent that one protected action
by Burke. My conclusion is that Davis would have. That
is, FMI would have responded the same way to Burke
on July 16 even had Burke and McElhaney never de-
manded a cash advance for toll money. For one thing,
Davis' irritation with Burke was the product of numer-
ous communications and actions by Burke over a consid-
erable period of time. There is no reason to believe that
Davis' behavior would have differed absent any one of
the various actions or communications by Burke that,
collectively , led Davis to adopt the view that Burke had
a bad attitude . More importantly , Davis seemed to me to
be mainly concerned about Burke's complaints and ac-
tions having to do with truck breakdowns and disrepair.
There is no reason to believe that Davis considered
Burke's behavior regarding the rolls money issue to be
anything more than a minor nuisance.
III. DID FMJ HARASS BURKE WHEN HE RETURNED TO
WORK
The General Counsel claims that FMI harassed Burke
after he returned to work on July 28. According to the
complaint FMI did that by assigning Burke to unsafe
trucks and by failing to make necessary repairs in timely
fashion to the trucks that FMI told Burke to drive.
At the hearing and on brief the General Counsel limit-
ed her contentions in this respect to the trucks that FMI
gave Burke to drive. Prior to the events of July 16
through 28, Burke had almost always driven truck 217.
After those events FMI never assigned truck 217 to
Burke. And Burke claims that the trucks that FMI did
assign to him were much less desirable than truck 217.
About the time that Burke returned to work (on July
28) Barnhart did tell one of Burke's fellow drivers that
FMI's management "would probably just make it so hard
for Ken that he'd quit."1' But that was just more specu-
lation on Barnhart's part. The record fails to show that,
when FMI changed the trucks it assigned to Burke, it
did so for other than routine operational considerations.
Beyond that, even were I to start with an assumption
that FMI changed Burke's truck assignments maliciously,
I I Testimony of General Counsel witness, McKinley.
the record would still fail to show that the basis of
FMI's malice was Burke's protected activity.
IV. DID FMI VIOLATE THE ACT WHEN IT SHIFTED
THE ORIGIN OF ITS PITTSBURGH -JACKSONVILLE
SERVICE TO JACKSONVILLE
As noted at the beginning of this decision, when FMI
first contracted with the Postal Service to provide serv-
ice between Pittsburgh and Jacksonville (in both direc-
tions), it operated the service from Jacksonville to Pitts-
burgh and back to Jacksonsville. The Postal Service de-
nominated the run from Pittsburgh to Jacksonville
"route 801," and called the Jacksonville-Pittsburgh run
"route 802." Routes 801/892 were operated daily.
The Postal Service subsequently awarded FMI a con-
tract to provide an additional four roundtrip runs per
week between Pittsburgh and Jacksonville. The Postal
Service called these runs routes 803 and 804. As also
noted earlier in this decision, when FMI was awarded
the contract for routes 803 and 804, FMI' s management
decided to operate the routes with Pittsburgh-based driv-
ers.
FMI had two main reasons for doing so. The first was
that the Postal Service's schedule for routes 803/804 was
such that drivers serving that route had to take their
days off in Pittsburgh. Thus drivers employed on routes
803/804 would have more time at home if they were
based in Pittsburgh than if they were based in Jackson-
ville.
The second reason that FMI opted for Pittsburgh-
based drivers for routes 803/804 was that the Postal
Service frequently called on FMI to provide extra runs
(in addition to the runs on routes 801, 802, 803, and 804)
between Pittsburgh and Jacksonville. Most of those extra
runs were for the carriage of mail southbound, from
Pittsburgh to Jacksonville. Having a contingent of Pitts-
burgh-based drivers made it easier for FMI to handle the
extra runs promptly.
In December 1987, however, FMI revamped the route
803/804 operation so that those routes too used Jackson-
ville-based drivers. Thereafter FMI's Pittsburgh-based
drivers handled only a scattered few extra runs.12
Burke filed the charge that began this proceeding in
July 1987 and filed an amended charge in September.
The General Counsel claims that it was those events, to-
gether with Burke's other protected activity, that caused
FMI to switch from Pittsburgh-based drivers to Jackson-
ville-based drivers on routes 803/804.
There is one piece of evidence that directly supports
this contention. According to the testimony of Pitts-
burgh-based driver Dan McKinley, in the course of a
telephone conversation with Tony Davis, shortly after
FMI announced the switch, McKinley asked Davis "if
12 Because of the Christmas mail rush, December was always a peak
traffic period for FMI. FMI traditionally dealt with the Postal Service's
additional demand for service during December by having its Jackson-
ville drivers handle service on routes 803 and 804 (as well as 801 and
802), and having the Pittsburgh drivers handle the many extra runs re-
quested during that period by the Postal Service. FMI followed this plan
of action in 1987 but then did not switch back to Pittsburgh based drivers
serving routes 803/804.
FREIGHT MOVERS
Ken [Burke] was the reason that we were losing our
job Davis answered one bad apple s going to ruin it
for all of us
There is in addition, other evidence that can be read
as supporting an inference that FMI had no appropriate
reason for making the switch
For one thing, the Postal Service had made no
changes in routes 803/804 since their award to FMI
Thus the schedules for 803 and 804 still resulted in lay
overs in Pittsburgh, not in Jacksonville, so that Jackson
ville based drivers on routes 803 and 804 would be away
from home much more than Pittsburgh based drivers
would be
For another, FMI witness Jack Davis was not always
convincing in his discussion of why FMI switched to
Jacksonville based drivers Davis spoke of FMI s need
for better maintenance for its trucks which in turn
meant that FMI s trucks had to spend more time in the
Jacksonville garage There is no doubt at all the FMI s
trucks needed improved maintenance But when the
General Counsel asked why FMI could not have han
dled that by having Pittsburgh drivers switch trucks in
Jacksonville, Davis could give no credible answer
For all that, my conclusion is that when FMI decided
to operate routes 803 and 804 with Jacksonville based
drivers, it did so for reasons that had nothing to do with
Burke
I start with what I consider the inherent improbability
of the General Counsels contention Given my under
standing of the way employers generally conduct buss
ness it is unlikely that FMI would significantly revamp a
substantial part of its business because months earlier
one employee had demanded that FMI furnish toll
money in advance and then had filed an unfair labor
practice charge covering about 2 weeks' pay (Of course
if FMI s management was rabid on the subject of em
ployees expressing their rights the probabilities would
change But there is no evidence that that was the case
at FMI )
Second FMI s center of gravity is in Jacksonville
FMI has an office in Jacksonville and keeps many of its
637
records there, Tony Davis works in Jacksonville and
FMI s only maintenance facility is in Jacksonville 13
Third, Davis was able to point to some cost savings
that accrued from the switch Specifically Pittsburgh
based drivers covered 50 or 60 miles more per Pitts
burgh Jacksonville roundtnp than did Jacksonville based
drivers (The reason trucks used by Jacksonville based
drivers are kept at FMI s facility which is close to the
Jacksonville bulk mail facility But the trucks used by the
Pittsburgh based drivers were kept either at Barnhart's
facility or at the drivers homes, all of which were 25 or
30 miles from the Pittsburgh bulk mail facility) That
meant a saving for FMI of about $8 per roundtrip in fuel
costs While that is not a lot of money, as discussed earli
er FMI was in tough financial straits
Last the fact of the matter is that since the switch
FMI s trucks have been receiving their maintenance
checks more frequently than they did when FMI operat
ed routes 803 and 804 out of Pittsburgh That suggests
that Jack Davis was not able to explain why he thought
that the shift from Pittsburgh to Jacksonville would
enable FMI to maintain its trucks better, that was a func
tion of inarticulateness, not of dissembling
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edi4
ORDER
The complaint is dismissed
is The recordkeeping functions of FMI s Jacksonville office led to
some confusion at the hearing Among the records that FMI kept in
Jacksonville were notations of misbehavior on the part of its Pittsburgh
based drivers FMI also has a Philadelphia office where it keeps some in
formation on its drivers FMI brought its Philadelphia stored records to
the hearing along with the file on Burke that FMI maintained in Jackson
ville After reviewing those files counsel for the General Counsel con
tended that they showed that Burke had been singled out for discipline
But I credit FMI witness Tony Davis who said that the absence of disci
plinary entries in the files of other drivers was due to the fact that FMI
does not keep in its Philadephia files any records of misbehavior on the
part of its Pittsburgh drivers
14 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses