J.B. Hunt Transport, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 2001

335 N.L.R.B. 55 (N.L.R.B. 2001)

J.B. HUNT TRANSPORT, INC. 55
J.B. Hunt Transport, Inc. and Teamsters Local Union
No. 17 a/w International Brotherhood of Team-
sters, AFL–CIO. Case 4–CA–29035
August 23, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On March 21, 2001, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief and the Re-
spondent filed a reply 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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and or-
ders that the Respondent, J.B. Hunt Transport, Inc.,
Philadelphia, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.

Patricia Garber and Kimberly Nerenberg, Esqs., for the Gen-
eral Counsel.
Robert M. Stone, Esq., of Los Angeles, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Philadelphia, Pennsylvania, on De-
cember 7 and 8, 2000. Subsequently, briefs were filed by the
General Counsel and the Respondent. The proceeding is based
on a charge filed March 9, 2000,1 by Teamsters Local Union
No. 17, a/w International Brotherhood of Teamsters, AFL–CIO.
The Regional Director’s complaint dated June 29, 2000, alleges
that Respondent J.B. Hunt Transport, Inc., of Lowell, Arkansas,
violated Section 8(a)(1) and (3) of the National Labor Relations
Act by discharging employee Gregory Griffin because of his
union or other protected concerted activities.

1 On May 23, 2001, the Board issued a Decision and Order (334
NLRB 92) in this proceeding, before the Respondent had the full op-
portunity to file a reply brief, as provided under Sec. 102.46(h) of the
Board’s Rules. Consequently, by Order dated June 22, 2001, the Board
vacated the May 23 decision for all purposes, including precedential
effect as premature. The Respondent subsequently filed a reply brief,
which reiterates the contentions contained in the Respondent’s excep-
tions and supporting brief and does not contain any arguments not
previously considered and rejected by the Board.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.

On a review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged as a nationwide motor common and
contract carrier of general commodities and it operates a termi-
nal in Philadelphia. It annually performs interstate transporta-
tion services valued in excess of $50,000 and it admits that at
all times material is and has been an employer engaged in op-
erations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent’s Philadelphia facility is engaged in provid-
ing contract carrier transportation services exclusively for
Home Depot. Gregory Griffin was hired as a tractor-trailer
driver on July 1, 1997, by Charles Pinkett, then a project man-
ager trainee. Pinkett subsequently became project manager and
was responsible for the day-to-day operations of the Home
Depot account. Griffin became a senior driver collecting sev-
eral awards in the course of his employment as well as a
monthly safety and attendance bonus, which he received each
month of his employment. Griffin had an excellent work re-
cord and Pinkett considered him 1 of the top 3 of some 55 driv-
ers. Prior to his discharge, Griffin had a record of just two
accidents, both determined to be nonpreventable (or not Grif-
fin’s fault).
The Respondent is a nonunion employer and it actively pro-
motes this position to its management personnel. For example,
at a conference for managers in Respondent’s northeast region
held in November 1998, Managers Chris DiPasquale and Brad
Hicks received literature entitled “Union Awareness” which
lists 13 reasons why a company would not want a union. The
information also alerts managers to the steps of an organizing
campaign and describes a process by which management learns
of an incipient campaign. Its internal literature also states, “We
are strongly opposed to unions” and a document called “What
the Union Could Mean to You as a Supervisor” warns supervi-
sors that: “Your job as a supervisor in a union company will be
much more difficult, demanding, time-consuming and frustrat-
ing,” as [your] authority . . . rights, and privileges [are] sharply
undercut” and you are faced with “employees trying to get
away with anything because they feel the union can protect
them.”
1 All following dates will be in 1999 unless otherwise indicated.
335 NLRB No. 14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56
Home Depot contracts for unloading and loading functions at
the Philadelphia facility with USF Logistics. This company’s
employees began a union organizing campaign in the spring of
1999. The Respondent’s managers contemporaneously began
conducting “roundtable” meetings with its drivers, and solicited
drivers to share their concern and emphasized that Respondent
had an open door policy. Among the managers participating in
these meetings were Brad Hicks, Albert Rivera, and Mark
Tressler and during one meeting, Hicks specifically told the
assembled drivers that Home Depot did not want a union at the
facility.
The roundtable meetings continued over a period of several
months and, as they came to an end, several employees, with
Griffin as spokesman, proposed to management that an em-
ployee committee be formed to speak as the representative for
all drivers. Management (Hicks in particular) embraced the
idea, and a series of committee meetings with Hicks were held
between August 1999 and the end of the year. In these meet-
ings the drivers’ committee focused primarily on issues related
to compensation and Griffin presented a written proposal sug-
gesting various wage enhancements. The proposal generated
no response until early January 2000, when Tressler issued a
memo granting a modest increase in holiday pay.
Griffin and other committee members felt rebuffed in their
effort to obtain better pay and decided to contact the Union and
in early February, they met with union representatives and got
blank authorization cards. Griffin distributed authorization
cards in the yard area where drivers parked their trucks both
before and after his work shift. Between February 11 and 17,
he collected 13 signed cards. Drivers sometimes gathered
around him in groups of three to five, an unusual occurrence in
the yard. On one occasion, Griffin observed Manager Hicks
standing on the dock looking toward him and a group of other
employees.
On Friday, February 18, Teamsters Local Union 17 filed a
petition for an election with the Board, seeking to represent the
Respondent’s drivers. On February 22, the Board served the
petition and a notice of hearing on Respondent (specifically
Account Manager Tressler) by first class mail. The next day
the Respondent’s attorney faxed a letter to the Board submitting
his notice of appearance and requesting that the hearing be
rescheduled. The Respondent also assigned northeast Regional
Operations Manager Chris DiPasquale to Philadelphia to assess
the union situation. DiPasquale appeared at the facility on Feb-
ruary 24 and thereafter the Respondent conducted a vigorous
antiunion campaign. This included campaign literature in the
form of a letter by Tressler and Hicks which warned that the
Teamsters “thrive on fear and intimidation,” and highlighting
the violence associated with the Overnite strike as “textbook
Teamsters.”
Meanwhile, on February 14, Griffin had driven his tractor to
the Philadelphia House of Corrections, a prison facility, to visit
his brother. As he attempted to leave the parking lot he found
his vehicles path blocked by a car. At the suggestion of a secu-
rity guard, Griffin attempted to drive forward, off the paved
parking lot and into a grassy area, however his tires began to
spin in the soft grass and he found himself unable to move. He
viewed his predicament as a “road service” situation under his
driver’s manual and he phoned Respondent’s fleet support de-
partment, which dispatches local contractors to assist with
emergencies. Fleet Support contacted Triangle Truck Service,
which sent a wrecker and Griffin’s vehicle was towed back
onto the pavement.
On February 24, the day after Tressler received the election
petition and the same day that Regional Manager DiPasquale
began his assignment to Philadelphia, the Respondent became
aware of “minor damage” to Griffin’s truck when it was
brought to a garage for its regular preventative maintenance
service. The Respondent’s repair order noted a broken light
assembly (which Maintenance Manager Bill Goff said he could
not detect was broken at first glance), as well as a mud flap that
was “bent down,” or “kind of twisted a little bit.”
At that time Goff was the Philadelphia facilities’ interim
maintenance manager and as he was checking the repair order
his computer showed the February 14 tow order for Griffin’s
vehicle. He was unaware of what might have occurred so he
called the towing company. He also questioned other managers
and told Hicks and DiPasquale about it. DiPasquale questioned
Goff about the circumstances surrounding the tow order and
concluded right then that if Griffin had gotten his truck so stuck
in the mud that he needed a tow, then he “must have damaged
the property.” At that point, the Respondent did not alert Grif-
fin to their concern nor did they have any documentary evi-
dence from the tow truck driver. The next morning DiPasquale
and Hicks went to the House of Corrections after receiving
directions from the tow truck driver over the phone.
On February 25, DiPasquale made a written record titled
“EVENTS LEADING TO DISCIPLINARY ACTION
AGAINST GREG GRIFFIN.” By DiPasquale’s account,
“[w]hen the truck began sinking in the ground the damage to
the mud flap bracket and brake light assembly occurred.” He
further stated that “[t]he driver had taken his truck from work,
without authorization, and was using it on personal business at
the time of the incident.” DiPasquale admitted that at the time
he made these notations, he had no personal knowledge that the
damage occurred when the truck became stuck in the mud, nor
had he spoken to either Griffin or the tow truck driver about the
incident. In his written record, DiPasquale also notes that he
and Hicks “made a visual inspection of the area where the
driver became stuck, and saw extensive damage to the land-
scape.” According to the notes, they “started to take photos of
the damage, but were told by a prison guard that we would need
to get permission from the warden to continue. They then met
with the warden and deputy warden and received permission to
photograph the area. The notes say that the warden asked that
we stay in touch with them, and that they would complete an
investigation, and file an internal report.” Although it was not
included in this report, Warden Thomas Shields testified that
Hicks offered on the spot to pay for the damage.
Warden Shields also testified that he never requested Re-
spondent to reimburse the prison for the damage. Hicks, how-
ever, reported the exact opposite to the safety department,
which recorded that “BRAD STTS THE WARDEN ASKED IF
WE COULD TAKE CARE OF THE DMGS.” The same asser-
tion appears in Respondent’s position statement to the Board,
which claimed that “[t]he Department of Corrections has re-
J.B. HUNT TRANSPORT, INC. 57
quested that Hunt reimburse it for the costs of relandscaping the
damaged area.”
After returning from the prison, DiPasquale and Hicks spoke
with Respondent’s corporate safety department. They did not
immediately classify the occurrence as an accident or collision,
however, 2 hours later DiPasquale recorded that “we decided to
speak with the driver, in regards to this unreported accident, on
Monday morning,” The notes also have one entry for, February
27, in which DiPasquale states that “the event has been classi-
fied as a preventable collision.” The document notes that
Tressler would conduct an accident review with Griffin on
February 28. In notes recorded the next day, February 28, Di-
Pasquale stated that Hicks would contact the prison to deter-
mine whether Griffin had visited there on February 14.
Respondent’s investigation finally reached Griffin when he
was told to report to a “safety meeting with Tressler on Febru-
ary 28. At that meeting, Managers Tressler and Ken Resta told
him that they were conducting a fact-finding disciplinary meet-
ing because they had received statements that his tractor was
stuck in the mud on February 14, and he had failed to report it
as an accident. Griffin replied that he did not view it as an
accident, because he had been simply stuck in mud. They
showed him photos of the grounds and Griffin told them that he
could not say whether the photos depicted ruts he had made
because there were already tracks in the ground when he got
there. Griffin also asserted that he told them that Tressler had
given him permission to take the truck, however Tressler’s
report memorializing the meeting, did not include this assertion
or the statement Griffin’s that there had been other tire tracks in
the grass before he drove into it.
After the meeting, Respondent asked Quinn, the driver of the
tow truck, to submit a statement concerning the tow as well as a
map indicating the location where the tow took place. Quinn
faxed a copy of a statement to Brad Hicks on February 29,
along with a drawing. In his statement, Quinn noted that he
was “dispatched to Philadelphia Prison by J.B. Hunt Road Ser-
vice in Lowell, Arkansas. Upon arrival I found tractor, bobtail,
stuck in mud and grass off northwest corner of employee park-
ing. I winched unit out of mud to lot and sent unit on way.”
At the hearing Quinn testified it was dark and that although
there were marks in the ground2 from Griffin’s vehicle, he did
not check to see how deep they were or what damage was done
but that it was not deeply entrenched with mud near the tail
lights and there was no apparent damage to the tail lights, a
condition he would have noticed when he removed the winch
cable and inspected the truck for damage the tow itself might
have caused.
On March 1, Tressler spoke to Griffin on the phone and told
him that he was terminated. Griffin asked why and Operations
Manager Rivera got on the phone and stated that it was because
he had failed to report an accident and to follow procedures.
Although he did not tell Griffin anything further, Rivera testi-

2 The Respondent’s photos show shallow depressions of soil where the
grass has been displaced or worn off by the (spinning) tires. A so called
“bobtail” tractor (the front portion of the tractor-trailer unit), is more
inclined to spin its drive wheels under slick conditions as the normal
weight of an attached trailer is not there to help provide traction.
fied that he terminated Griffin based on what Tressler had told
him, failure to report an accident based on “damage to prison
property, to our vehicle, the mud flap, and the rear tail light
assembly.” Rivera also said that he made the final decision to
terminate Griffin after hearing a presentation by Tressler, but
without speaking to Griffin. Rivera further testified that: “part
of the review process is to review [Griffin’s] record. So his
collision record, length of employment, I was aware of. His
performance record I was aware of. He was a good employee.”
Rivera also said that with respect to Respondent’s accident
reporting policy, an employee would not necessarily be consid-
ered responsible for failing to report damage he didn’t know
about, depending on the circumstances.
Griffin applied for unemployment compensation after his
termination. The Respondent routinely hires a private contrac-
tor, Employer’s Unity, to handle such claims. Employer’s
Unity, as Respondent’s agent, submitted documentation in op-
position on Respondent’s letterhead. The statement said that
Griffin was discharged because he “fail[ed] to report an acci-
dent.” “The claimant took a company vehicle to visit someone
in prison. The claimant got the vehicle stuck in some major
mud and had to be pulled out by roadside assistance. The truck
was pulled out by the front and all the lights in back were bro-
ken but not reported by the claimant as required.” After Griffin
was denied compensation, he applied for review of his claim,
the Respondent did not appear before the referee and Griffin
was awarded unemployment compensation.
The Respondent’s position statement that was submitted to
the Board also asserts that the offense of failing to report an
accident in subject to “automatic discharge on the first occur-
rence with no review regardless of the length of service.” It
cites Respondent’s June 1999 reminder to employees that “per-
sonal use of a Company vehicle is strictly prohibited and is
‘ground for termination.’” Describing Griffin’s situation, the
statement comments that “[w]hen the truck began sinking into
the ground, the damage to the mud flap and brake light oc-
curred.” According to the statement, “when confronted about
the circumstances, Mr. Griffin admitted that he had bobtailed
the truck to that location for personal business, without authori-
zation.” Finally, the statement asserts that “the Department of
Corrections has requested that Hunt reimburse it for the costs of
re-landscaping the damaged area.”
Later on April 27, the Respondent contacted Warden Shields
and asked that he submit a statement about the event. Shields
declined because he concluding that he was being “used” by
Respondent inasmuch as the Respondent had not followed up
on its offer to compensate the department of corrections. No
actual repair work to the grass area was ever performed by
anyone.
III. DISCUSSION
This proceeding arose following driver Griffin’s collection
of union authorization cards between February 11 and 17 and
the Union’s filing of an election petition on February 18. The
Respondent learned of the petition by February 23. The next
day the Respondent assigned a regional operations manager to
the Philadelphia terminal and he almost immediately began an
inquiry into a vehicle towing report which involved Griffin’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
assigned tractor. On March 1 Griffin was terminated over the
phone by Operations Manager Rivera, assertedly because he
failed to report an accident and follow procedures. Additional
reasons for his termination were offered at the hearing and in
response to Griffin’s unemployment compensation claim (as-
serted damage to his vehicle and a failure to report it), and in
response to the Board’s complaint (damage to the vehicle, un-
authorized personal use of a company vehicle, and a policy of
“automatic discharge” for failure to report on accident).
In proceedings involving discharge or disciplinary action
against an employee, applicable law requires that the General
Counsel meet an initial burden of presenting sufficient evidence
to support an inference that the employee’s union or other pro-
tected concerted activities were a motivating factor in the em-
ployer’s decision to discipline him. Here, the record shows that
Griffin was known to management as a spokesperson at em-
ployee management roundtable meetings, at driver committee
meetings with management (with discussions of proposals in-
cluding enhancements in pay and benefits), and he was ob-
served by Manager Hicks as he collected union authorization
signatures from a group of employees shortly before the union
petition was filed. I infer that these circumstances led the Re-
spondent to believe that Griffin was a proponent of the union
organizational effort, especially inasmuch as the Respondent’s
management training literature teaches that persons such as
Griffin are prone to spearhead union campaigns among em-
ployees. Moreover, the timing of the Respondent’s investiga-
tion into Griffin’s towing incident on Thursday February 24
immediately after the Union’s petition was learned of, yet 10
days after February 14, when Griffin notified the Respondent’s
fleet support department that his vehicle needed road service,
and his sudden discharge less than a week latter on Wednesday
March 1, all support a strong inference that the action was dis-
criminatorily motivated. Again, this inference is supported by
the Respondent’s own literature and attitude about unions and
its action in immediately assigning Regional Operations Man-
ager DiPasquale to go to Philadelphia to deal with the union
organizational attempt (where its sole client was described by
manager Hicks as a company that did not want a union at its
service facility), see Howard’s Sheet Metal, Inc., 333 NLRB
No. 49, slip op. at 4 (2001), and Town & Country Electric v.
NLRB, 106 F.3d 816 (8th Cir. 1997), where the court states that
an administrative law judge properly may use an employer’s
attitudes about union’s as one factor in evaluating the record
and drawing inferences regarding the employer’s motivation.
Under these circumstances, and in view of what appears to
be the Respondent’s partisan actions in attempting to build a
one-sided case against Griffin while, at the same time, inter-
viewing him only briefly, I find that the General Counsel has
met his initial burden by presenting a showing sufficient to
support an inference that the employee’s participation in union
or other protected concerted activities was a motivating factor
in Respondent’s subsequent decision to terminate him. Accord-
ingly, the testimony will be discussed and the record evaluated
in keeping with the criteria set forth in Wright Line, 251 NLRB
1083 (1980), see NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), to consider Respondent’s defense and
whether the General Counsel has carried his overall burden. As
pointed out by the Supreme Court, in Transportation Manage-
ment Corp., supra:

An employer cannot simply present a legitimate reason
for its action but must persuade by a preponderance of the
evidence that the same action would have taken place even
in the absence of the union and protected concerted activ-
ity.

Although the record shows that Griffin was a highly rated,
long-term employee, the Respondent claims that even if anti-
union animus was present, Griffin would have been terminated
anyway because it believed that Griffin had engaged in “seri-
ous” misconduct. It bases this conclusion on its contentions (1)
that Griffin failed to report the accident in which he was in-
volved to the Respondent’s corporate safety office, his dis-
patcher, or any other company official, (2) that as a result of the
accident, he had damaged the prison’s property caused damage
to the tail light assembly and a mud flap on his vehicle and
failed to report either the incident itself or any of this damage,
(3) that the Respondent strictly enforced its policy regarding the
automatic termination of drivers for failing to report involve-
ment in an accident, and (4) that Griffin’s discharged was in
accordance with this policy. The Respondent’s managers also
made the argument that Griffin was using his vehicle on a per-
sonal errand without permission when the incident occurred
and it pursues this matter on brief, also arguing that the com-
pany strictly enforces its no personal use policy.
Much of the Respondent’s argument ignores the fact that
Manager Tressler informed Griffin of his termination on March
1 without giving any reason and that when Manager Rivera got
on the phone after Griffin perused the matter and told him only
that it was because he had failed to report an accident and to
follow procedures. Rivera claims that he made the termination
decision and admits that he did so without speaking to Griffin
about the incident. The only opportunity the Respondent had to
obtain any modifying factual information about the matter was
on February 28 when it disingenuously told Griffin to report to
a safety meeting with Tressler and then informed him that it
was to be a fact-finding disciplinary meeting because he had
failed to report his getting stuck in the mud as an accident. At
this point Griffin explained that he had not viewed the incident
as on accident and he also explained that he received Tressler’s
permission to use the vehicle.
In connection with the latter point Griffin credibly testified
that he often had been given permission in the past to take his
vehicle for personal use, an assertion supported by the testi-
mony of his former supervisor, Charles Pinkett. Moreover, the
record shows that even after the Respondent distributed a
memo in June 1999 advising drivers they were not to drive their
trucks for personal use under any circumstances, such use con-
tinued with a manager’s permission. Tressler himself admitted
that under some circumstances he continued to grant permis-
sion for personal use of trucks after the memo’s circulation.
Tressler did not rebut Griffin’s testimony that Tressler specifi-
cally told him, in December 1999, that personal use of trucks
was permitted so long as the driver had authorization. Griffin
credibly testified that after the end of his workday on February
14 (around 12:30 p.m.) he went to the front office and said to
J.B. HUNT TRANSPORT, INC. 59
Tressler, “I gotta make a run up on Slate Road. Would it be
okay to take my tractor?” Tressler, who was on the phone,
looked at Griffin and raised his hand, palm forward. He did not
waive the hand sideways or say anything or make any gesture
to indicate a negative response. Griffin assumed he had per-
mission, said, I’ll see you’re latter [sic] on and saw Tressler
turn his attention back to the phone.
Tressler filled out an “Accident Review” form after the
meeting with Griffin on February 28 in which he noted that
Griffin stated he was given permission to take the bobtail truck
to visit family member, followed by the initials MT (apparently
Mark Tressler), but there is no notation that he disputed Grif-
fin’s assertion. In a series of leading questions on direct ex-
amination by Respondent’s counsel Tressler denied authorizing
Griffin to take his truck “to visit a relative in prison” or “home”
or “after work” of “discuss” any aspect of such an event. On
cross-examination he testified that he couldn’t remember any
“conversation” with Griffin on February 14 and then said,
“[T]o be honest with you I cannot remember if I saw him or not
on that day.”
Under these circumstances, I find that Tressler’s answer at
the hearing, a flat “no” to whether he gave Griffin permission
to take his truck “after work” as well as his answers under other
more descriptive scenarios is unpersuasive in view of his “hon-
est” statement that by couldn’t remember any interaction with
Griffin on February 14.. And, in view of his failure to contra-
dict Griffin on this point at the meeting with Griffin on Febru-
ary 28 or in this report on accident review form, I credit Grif-
fin’s specific recall of the occasion and I find that Tressler,
without inquiry about the specific reason for Griffin’s request,
gave nonverbal approval to Griffin. Tressler clearly did not say
or do anything to indicate denial of the request, nor did he ask
Griffin to wait until he got off the phone. Moreover, the Re-
spondent initially did not assert personal use of a vehicle with-
out permission as the reason for Griffin’s termination and it did
not investigate his truthful assertion that he had received appar-
ent permission. I find that this additional, but unsubstantiated
reason as well as the other shifting reasons described below,
indicate that the Respondent reacted to the filing of a union
election petition by seizing upon an apparent minor incident
involving a known employee spokesperson and elevated the
occurrence into a dischargable offense in order to send a mes-
sage to employees that even well respected drivers were not
secure in their employment if they were proponents of union
organization.
Tressler, who participated in the preparation of the charges
against Griffin and who recommended his termination, admit-
ted that he was aware of the union campaign and that he par-
ticipated in management’s antiunion campaign. The Respon-
dent clearly was aware of union activity and was aware that
Griffin was a frequent spokesperson for other employees at
roundtable will meetings management. At the time it learned of
Griffin’s towing incident the Respondent had little in the way
of a reasonable apprehension to believe that it had any problem
with Griffin, yet it immediately embarked on an aggressive
attempt to link a minor incident that Griffin openly had re-
ported to Respondent’s fleet support department with some-
thing that could be classified as a dischargeable offense.
Regional Manager DiPasquale said he personally began to
investigate the incident because he thought there might be dam-
age to the prison property. The Respondent’s investigation of
the incident, however, proceeded not as a inquiry into whether
the Respondent had incurred, any liability (a procedure nor-
mally handled by its insurance people) but into an apparent
attempt to manufacture or develop some form of property dam-
age (to the prison’s grass field), which it transparently exagger-
ated into “extensive damage to the landscape.” The Respon-
dent also immediately accepted responsibility and offered on
the spot to pay for damages and it falsely made a report that
asserted the prison had requested reimbursement for damages.
In this connection, I note that warden Shields’ testimony dis-
played a highly trustworthy and believable demeanor and I find
that his testimony accurately described the truth of what actu-
ally occurred.
I also find that the site photos (as independently described by
the tow truckdriver), show numerous mud ruts that were not
attributable to the towing of Griffin’s tractor. The tow truck
driver’s testimony and the photos also show Griffin’s ruts were
not deep enough to likely to have led to damage to his flaps or
tail lights. While the ground was such that mud could have
been sprayed on the vehicle, the grass area did not appear to
contain gravel that likely could have caused damage. The Re-
spondent, however, took its regular preventive maintenance
report of minor damage, an admittedly “hard to detect” broken
light assembly and a mud flap that was bent or twisted “a little
bit,” combined this information into its exaggerated site dam-
age scenario and concluded that Griffin also had caused dam-
age to his vehicle. It then extrapolated this conclusion into the
category of an “accident,” setting the stage for it to reach the
apparently desired final conclusion that Griffin had engaged in
a dischargeable policy offense by failing to report his involve-
ment in an accident.
The record indicates that the Respondent had no apparent
cost concerns as it quickly volunteered responsibility for all
damage at the prison and it made no attempt to seek reim-
bursement from Griffin for this asserted damage or for the tow-
ing cost ($250), associated with his getting stuck assertedly
while using his vehicle for personal business.
Although I accept that the Respondent maintains a strict pol-
icy with respect to its rules regarding “accidents” and the re-
porting of accidents, these incidents have generally related to
damage to vehicles. Here, the Respondent went out of its way
to manufacture and exaggerate a possible scenario of events
that would place Griffin in the worst possible light, an approach
inconsistent with unbiased motivation. Beyond the fact that
Griffin did get stuck and require a tow, the other elements of
the accusations against him were based on speculation, were in
some instances blatantly untrue (most specifically the assertion
that the department of corrections had requested reimbursement
for “relandscaping the damaged area”), and were investigated
in an abnormal manner in an effect to reach preordained con-
clusion. While the Respondent usually send an insurance
claims adjuster “to protect (it) from liability,” in this instance it
aggressively and voluntarily sought liability. DiPasquale as-
serts that because of the towing location (not a business loca-
tion), he presumed that there was an unauthorized use of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60
vehicle and because he was “stuck so bad that he required a tow
truck,” he “knew that there was damage to the property where
he got stuck at DiPasquale notes then describe the location as
“off the corner of employee parking.” Again, is response to a
leading question, DiPasquale agreed “no probably not” when he
was asked if he would investigate or send an adjuster if some-
one was stuck in the mud but not on someone’s property, as
suggested by counsel “on the shoulder of the road.”
The record shows that the Respondent’s 1997 driver’s man-
ual, page 10, refer to automatic termination for failure to report
an “accident” while the same section of the more currant
driver’s manual for 1999, refers not to “accident” b to a “colli-
sion.” The Respondent definition of a collision is said to be:

Any time the vehicle comes in contact with any other vehicle,
object, person, animal, or property causing damage or injury,
however minor. Any time there is damage to a J.B. Hunt ve-
hicle such as bent wind deflector, mud flap tom off, broken
mirror, and the like, regardless of how that damages occurred.

On cross-examination of Respondent’s witness DiPasquale,
the General Counsel introduced the Respondent’s 1998 opera-
tions meeting manual and points to a provision that states:

If a driver is subject to automatic termination, the Project
Manager should determine whether or not they feel the driver
should be retained. If the PM feels the driver should be re-
tained, they must place in writing their reasons for making
that determination and forward to the DCS Review Board.

Manager DiPasquale first agrees with the General Counsel
that there are offenses that are deemed automatic termination
offenses but which nevertheless may not necessary lead to the
driver’s termination. On redirect, and in response to Respon-
dent counsel’s leading question, DiPasquale first said that the
document dealt with accidents in general but he then agreed
with counsel’s statement that it did not apply to an automatic
termination for failure to report an accident.
The clause in the Respondent’s manual that referred to pos-
sible retention of drivers subject to automatic termination spe-
cifically allows a project manager to recommend retention to
higher management (including the regional operations man-
ager) by giving written reasons why he “feels” the driver
should be retained. This clearly indicates some aspect of dis-
cretion. At the time of the termination the action was taken by
Operation Manager Rivera who, in effect, approved of Account
Manager Tressler’s recommendation based on Regional Opera-
tions Manager DiPasquale’s asserted investigation. Rivera did
not bother to speak with Griffin, however, he reviewed Grif-
fin’s record and was aware “he was a good employee.” Rivera
also said that with respect to Respondent’s accident reporting
policy, an employee would not necessarily be considered re-
sponsible for failing to report damage he didn’t know about,
depending on the circumstances.
Here, I find that management had implied discretion to retain
employees subject to automatic termination, that such discre-
tion was not limited to accident points, and that this policy did
not preclude retention for failure to report an accident, as sug-
gested by counsel and DiPasquale. In this connection it is
noted that when witness DiPasquale gave an ambiguous or
potentially unfavorable answer (that the document dealt with
accidents in general), to counsel’s question, Respondent’s
counsel then provided a more direct and favorable answer as to,
“whether the policy applied to failure to report an accident,”
and the witness then agreed with counsel that it did not. This
was counsel’s testimony, not the witness’ and it is not entitled
to any significant weight that would tend to support the Re-
spondent in its burden to persuasively show that it would have
followed this some overall course of action which resulted in
Griffin’s termination even in the absence of Griffin and other
employees’ insipid union campaign. Moreover, there is no
persuasive explanation given regarding the Respondent’s
change from referring to “accidents” to referring to “collisions”
in its more recent drivers’ manual.
Although the Respondent asserts that the incidents are not
comparable, the record shows that in August 2000, Respon-
dent’s driver Peck got stuck in a ditch when the ground was
covered in leaves and he couldn’t see it was soft while attempt-
ing a U-turn. A wrecker was called but the driver did not report
the occurrence to the safety department until he was told to do
so the next day. No investigation was made of possible damage
to the ground and he was not changed with failure to report an
accident.
In the instant case Griffin did not attempt to hide anything
and did in fact report the incident to the Respondent’s fleet
support department as he regarded the matter as a road service
situation, not an accident or a collision. In contrast to the Peck
situation, no one from management then or thereafter advised
him to report it to the safety department. Instead, as soon as
Regional Operations Manager DiPasquale learned that some-
thing had happened to Griffin’s tractor, he personally embarked
on an overzealous attempt to link an apparent minor incident
with conduct that could be included within the list of Respon-
dent’s disciplinary offenses. A main and controlling difference
from the Peck situation is the fact that the Respondent had just
received the Union’s election petition, DiPasquale had just been
dispatch to Philadelphia to assess the union situation, and the
driver involved, Griffin, was an advocate of greater employee
benefit and was the driver’s principal spokesperson at em-
ployee management meetings.
Here, the Respondent made no real attempt to get any ex-
planatory information from Griffin and DiPasquale reached his
own predetermined finding of what it wanted the facts to
shown. In a classic case of “command influence” Tessler and
Rivera adopted DiPasquale asserted findings and summarily
terminated Griffin over the phone, without volunteering any
reason. Manager Rivera then said it was for failing to report an
accident and to follow procedures but thereafter, in defense of
its actions it expanded on its shifting list of accusations of mis-
behavior and I find that that its overall reasons, as discussed
above, must be found to be pretextual and lacking in persua-
siveness.
Under the circumstances, I find that although the Respondent
has shown the existence of possible legitimate reasons for its
termination of Griffin, when viewed in the light of its overall
conduct and the demonstrated union animosity these reasons
are not persuasive and I conclude that the Respondent would
not have pursued a one-sided investigation and so strictly and
J.B. HUNT TRANSPORT, INC. 61
arbitrarily interpreted its policies in the absence of Griffin’s and
the other employees protected and union organizational activ-
ity. I find that the Respondent otherwise has not shown that it
would have acted in this extreme manner and discharge a top
employee even in the absence of his recent union and protected
concerted activity and, accordingly, I find that the General
Counsel has met his overall burden and shown that Griffin’s
termination violated Section 8(a)(1) and (3) of the Act, as al-
leged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Gregory Griffin on March 1, 2000, be-
cause of his union or other protected activity, Respondent has
violated Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices, it is recommended that the Respondent be or-
dered to cease and desist therefrom and to take the affirmative
action described below which is designed to effectuate the poli-
cies of the Act.
With respect to necessary affirmative action, it is recom-
mended that Respondent be ordered to reinstate Gregory Grif-
fin to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed, and
make him whole for any loss of earnings he may have suffered
because of the discrimination practiced against him by payment
to him a sum of money equal to that which he normally would
have earned from the date of the discrimination to the date of
reinstatement, in accordance with the method set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987),3 and that Respondent expunge from its files any refer-
ence to the discharge and notify him in writing that this has
been done and that evidence of this unlawful discipline will not
be used as basis for future personnel action against him.
Otherwise, it is not considered necessary that a broad order
be issued.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, J.B. Hunt Transport, Inc., of Lowell, Ar-
kansas, its officers, agents, successors, and assigns, shall

3 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amended
to 26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the effec-
tive date of the amendment) shall be computed as in Florida Steel
Corp., 231 NLRB 651 (1977).
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee because of his engaging in union or other concerted
activity protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guaran-
teed 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 Greg-
ory Griffin 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 and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in theremedy section of this deci-
sion.
(b) Within 14 days from the date of this Order, remove from
its files any reference to Gregory Griffin’s unlawful discharge
and within 3 days thereafter notify him in writing that this has
been done and that the evidence of unlawful discharge will not
be used against him in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(d) Within 14 days after service by the Region, post at its
Philadelphia, Pennsylvania facilities copies of the attached
notice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being
signed by the Respondent’s authorized representative, shall be
posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees and job applicants cus-
tomarily are 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
tendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in the proceeding, the
Respondent shall duplicate and mail, at its expense, a copy of
the notice to all current employees and former employees em-
ployed by Respondent at its Philadelphia facility at any time
since March 1, 2000.
(e) 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 the
Respondent has taken to comply.

5 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 BOARD 62
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights:

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge or otherwise discriminate against
any employee for engaging in union or other concerted activity
protected by Section 7 of the Act.
WE 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.
WE WILL, within 14 days of this Order, offer Gregory Grif-
fin immediate and 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 and make him whole for the losses
incurred as a result of the discrimination against him, with in-
terest.
WE WILL, within 14 days of this Order, remove from our
files any reference to the discharge of Gregory Griffin and no-
tify him in writing that this has been done and that evidence of
the unlawful discharge, will not be used as basis for future per-
sonnel actions against him.

J.B. HUNT TRANSPORT, INC.