Martin's Leasing Co.

National Labor Relations Board - Board Decisions

Aug 8, 1984

271 N.L.R.B. 904 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Luther E. Martin and Minnie Martin d/b/a Mar-
tin's Leasing Company and Lawrence R. Dodd.
Case 7-CA-21749
8 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 15 February 1984 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i 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 F.2d 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 of employee Dodd
was not unlawful, Member Hunter disavows the judge's implication that
the discussions by the Respondent's officials with employees about unions
and the statement by one of its coowners to them that the Company had
to grow before it could afford to pay Teamsters wages and benefits con-
stituted animus. Member Hunter further finds that the only remaining
evidence here of improper motivation is the timing of the Respondent's
conduct and that such evidence, standing alone, is insufficient to establish
a prima facie showing that Dodd's discharge violated the Act. Accord-
ingly, Member Hunter joins in the dismissal of the complaint.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Flint, Michigan, on July 13 and
14, 1983. Subsequently, briefs were filed by all parties.
The proceeding is based on a charge filed February 14,
1983, by Lawrence R. Dodd, an individual. The Region-
al Director's complaint, issued March 14, 1983, as
amended at the hearing, alleges that Respondent, Martin
Leasing Company of Flint, Michigan, violated Section
8(a)(1) and (3) of the National Labor Relations Act by
discharging Dodd because of his activities on behalf of
union affiliation.
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a certificated interstate motor common
carrier coowned by Minnie and Luther R. Martin. It
admits that during 1982 its revenues derived from inter-
state transportation exceeded $50,000 and that it is, and
has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It also is
admitted that Local 332, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Respondent is a small, minority-owned trucking com-
pany operated principally by Minnie Martin. It has been
in business since 1979, and obtained its permanent au-
thority from the Interstate Commerce Commission in
June 1983. Since June 1982, it has employed five or six
truckdrivers.
Dodd, the Charging Party, who joined the Company,
at that time, was the only white employee until driver
Ed Soules was hired in January 1983. In addition to her
ownership role, Martin also served as terminal manager,
dispatcher, and sole supervisor until early December
1982, when senior driver Altimore Harrison was made
terminal manager
During the first 6 months of his employment Dodd
was regarded as a good employee. The Company was
operating in a relaxed and informal manner and Dodd
frequently volunteered his assistance with various aspects
of the business. Martin, who testified she is a very conge-
nial person, frequently engaged in conversations with
Dodd as well as with Harrison and a friend, Al Brown,
who sometimes advised her on business matters During
the fall of 1982, Dodd and Martin spoke several times
about the possibility of having a terminal in Detroit.
Dodd, who testified that Martin had asked him how he
felt about unions when he was first hired, then suggested
that he would have no union problems there, as the
union had blackballed him. Martin responded that Dodd
could be a good manager or dispatcher if a Detroit ter-
minal was opened. Although Dodd had at one time been
a member of a union when he was employed at an auto-
motive plant, he never had been a member of the Team-
sters and he admitted that his statement about being
blackballed was a fabrication. Martin testified that Dodd
sometimes brought up the subject of unions and that she
expressed her belief that she did not oppose unions or ne-
gotiate with them.
Driver Don Wingard and Willie Bramlett confirmed
that Martin (and Harrison) had indicated that the drivers
had the right to have a union if they wanted. Bramlett
also said that Martin had discussed her feeling that the
Company had to grow before it could afford Teamsters
wages and benefits.
271 NLRB No. 141
904
MARTIN'S LEASING CO.
Prior to becoming terminal manager, Harrison, who
had been with the Company since 1979, was in charge of
vehicle maintenance. He testified he had no dispute with
Dodd prior to becoming manager, except that he had a
few problems with Dodd's not checking things on his
vehicle. At the same time Harrison was made terminal
manager, Martin issued a list of work rules. At a drivers'
meeting Dodd questioned Harrison about what would
happen if the rules were not followed and Harrison re-
plied he would deal with it when it happened. The sub-
ject of union organization also was discussed at this time
and Harrison and Martin both indicated that the drivers
were free to organize. Both Harrison and Martin denied
that they ever told employees they did not want a union
or that they told Dodd to screen employees about
unions.
After Harrison became terminal manager Dodd contin-
ued his apparent habit of checking with Martin about
day-to-day operations, rather than going by the rules or
dealing with Martin's secretaries or Harrison. In one par-
ticular incident, one evening in early January 1983,
Dodd called Harrison from Martin's office to get his
schedule for the next day and testified he was told he
would be "first up" for a Brick plant pickup. Harrison
testified he told Dodd at 6:30 (in any event, company
rules indicate 6:30). Dodd alleged he was uncertain of
the rule and spoke to Martin, asking if 7 or 7:30 a.m. was
Okay and Martin answered "fine."
Martin testified that she previously had spoken to
Dodd about what she and Harrison had perceived as a
problem in Dodd's attitude since Harrison had become
terminal manager, especially as it related to Dodd's co-
operation with Harrison. She testified that because Dodd
qenerally tried to make her an intermediary, she purpose-
ly made Dodd call Harrison for the schedule and that
after the call, Dodd said he was wanted in about 8 or 9
a.m. She questioned Dodd's answer and Dodd responded
by asking if 7 or 7:30 a.m. was okay and she replied,
"Whatever he [Harrison] told you." Dodd came in late
and another driver was given the load. Since Dodd was
put last on the rotation list, he went home and he did not
respond to attempts to call him at home.
Prior to the latter incident, Dodd was involved with a
damaged trailer and, in connection therewith, Respond-
ent determined that Dodd was not following routine in-
structions and it believed that the use of an allegedly
rougher road contributed to the damage. Dodd also had
a conflict with a major customer in Cleveland and a
shippers agent, who then refused to load shipments if
Dodd were sent to them as the driver.
Both Harrison and Martin were aware of several other
incidents reflecting on Dodd's attitude and work per-
formance. Then, during the latter part of January 1983,
an independent truck mechanic told Martin that it was
his belief that damage to a clutch he had just repaired
had been caused by improper or negligent driving. Dodd
was the driver when the breakdown occurred and, after
talking to Harrison, Martin concluded that Dodd was re-
sponsible for the damages.'
I The General Counsel presented an expert witness who was able to
demonstrate that the damage was associated with oblong holes that indi-
Dodd testified that, although "old blue," the vehicle
that broke down, was not his regular tractor, he was fa-
miliar with it and that it was hard to shift. Martin testi-
fied that Dodd was supposed to drive his own tractor
that day, but told her the power was frozen. She told
him to try again and when he reported it still would not
turn over, she told him to use "old blue." Driver Don
Wingard testified that he had driven "old blue" without
incident that same day, that Dodd did not try to start his
regular vehicle, and that Dodd told him Martin had said
to take it, because it was warm.
Martin testified that after hearing from the mechanic,
she felt like a nervous wreck whenever Dodd was sched-
uled to work and, as a result of one thing happening
after another, she decided on Tuesday or Wednesday of
the week prior to his termination to fire Dodd. Harrison
testified that he spoke with Martin everyday through the
week of February 6 about the incidents and Dodd's
overall attitude towards the Company and that, prior to
February 9, the termination decision was made. When
Dodd returned from a run on Friday, February 11, Har-
rison took him aside and told him briefly that because of
the noted incidents, it had been decided to terminate
him. Harrison and Martin acknowledged that they had
learned by Wednesday, February 9, from other drivers
that a union meeting was planned for Saturday, February
12. However, they testified that they were not aware
that Dodd was organizing the event.
After Harrison's promotion, Dodd became increasingly
dissatisfied with perceived changes in the operations of
the Company. He resisted accepting Harrison's supervi-
sory authority and it appears he consistently went behind
Harrison's back and attempted to deal directly with
Martin as he had in the past. He also began talking to
other drivers about his complaints regarding such things
as how loads were dispatched and the lack of extra pay
for nondriving work around the yard. During January,
he started suggesting that the drivers wanted to get to-
gether and start a union. Drivers Wingard and Willie
Bramlett confirmed conversations with Dodd; however,
they deny portions of statements he attributed to them.
Dodd attempted to speak to Martin about his complaints.
She referred him to Harrison, however, who told him
that if he did not want to go by the rules he would be
gone. Also, during the latter part of December, Dodd
made a run with Ed Soules, who was then a prospective
new driver. Soules testified that Dodd told him how le-
nient Martin was and also that because Dodd had unsu-
cessfully attempted to repair some gauges the Company
would not let him work on anything else. Dodd also in-
dicated some disagreements between Harrison and him-
self and the dislike for a tractor called "old blue." Dodd,
however, testified he said he told Soules not to refuse to
drive "old blue" because Martin liked it, that he had re-
ferred to the fact that some trucks had gauges that did
not work, and that he had generally praised the Compa-
cated the damage had been developing through wear or slippage over a
period of time rather than as a result of one particular event and that
therefore damage should not be attributed only to the person operating
the clutch when the final cracking occurred.
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny. He also testified that Martin had told him to check
potential new employees on their union sympathies.
Soules began working in January 1983. Several weeks
later, on a Thursday, February 10, Dodd called Soules
about having a union meeting on February 12. Three
other drivers were contacted by Dodd on Wednesday
February 9 and, as noted, they then told management
about the planned meeting. Dodd visited the Union's
office on February 10 and got some authorization cards.
He testified that that evening Bramlett told him the
Company knew about the meeting and said that Martin's
friend, Brown, had said Martin would close before a
union was let in. Bramlett was not called to testify by
the General Counsel but was called by Respondent.
Among other things Bramlett acknowledged that he told
Dodd that the Company knew of the meeting. Neither
counsel asked Bramlett about Brown's alleged statement.
Subsequently, Bramlett was the only other person to go
to the meeting with Dodd on February 12.
Respondent called Dodd on Thursday evening, Febru-
ary 10, for a run the next day and, as noted, when he
returned he was fired by Harrison.
III. DISCUSSION
In a case of this nature the General Counsel must meet
an initial burden of presenting sufficient evidence to sup-
port an inference that the employee's union activities
were the motivating factor in the Employer's decision to
terminate the employee. Here, the record shows that
Dodd, as well as other employees, engaged in some con-
versations with Respondent over the subject of union
membership and that owner Martin had said that the
Company had to grow before it could afford to pay
Teamsters wages and benefits. The record also shows
that Dodd was terminated 2 days after he had picked up
union authorization cards and had arranged for a meet-
ing of the employees. Respondent knew of the planned
meeting before it fired Dodd, and I believe the timing of
the discharge is sufficient to support an initial inference
of improper motivation.
Accordingly, 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, in the light thereof,
whether the General Counsel has carried his overall
burden.
Respondent contends that Dodd was terminated be-
cause of a decision reached by Martin after she received
information indicating Dodd was responsible for expen-
sive clutch repairs due to his apparent improper driving.
This justification was the final of four major problems
and incidents of insubordinate behavior which included
damage to a trailer after Dodd's failure to follow routing
instructions, Dodd's failure to follow rules and Harri-
son's instruction regarding scheduled pickup time, and
Dodd's conflicts with a major customer and a shippers'
agent. Although the evidence presented by the General
Counsel's expert witness shows that Dodd's driving
probably was not the main cause of the clutch failure,
Martin made an investigation of the matter and at the
time she decided that he should be terminated, she had
reasonable cause to believe that Dodd was responsible
and that he had lied to her about the condition of his
regularly assigned vehicle at the time he took the vehicle
that was subsequently damaged.
Respondent also presented evidence of other alleged
incidents and contends that Dodd actually intentionally
sabotaged certain truck gauges and the clutch on "old
blue." I find these additional justifications to be far-
fetched and unsubstantiated on the record. Although
such an attempt to offer false reasons for an employee's
termination can be considered to be indicative of pretex-
tual justification, I believe in this instance that it is more
in the nature of an unsophisticated and overzealous reac-
tion to the charge, and I do not conclude that these un-
warranted claims invalidate the other expressed reasons
for Dodd's discharge.
In addition, Respondent has presented testimony tend-
ing to refute, in part, the testimony by Dodd which
tended to indicate that Respondent held feelings of union
animus. Thus, while it appears to be true that Respond-
ent did participate in conversations with Dodd and other
employees about unions, the subject sometimes was
bought up by Dodd. Further, although it appears that
Respondent did express a concern that it could not
afford Teamsters wages and benefits while it was just
starting to grow, it otherwise indicated it was not inher-
ently opposed to having its employees organized. Ac-
cordingly, while I find that some economic motivation
existed to create a reluctance for possible Teamsters or-
ganization, it does not appear that this feeling was so
overriding that it would motivate Respondent to termi-
nate Dodd only because it learned he was planning a
union organization meeting.
Despite Harrison's denial, it appears that Dodd's termi-
nation really was the result of the series of incidents
which accumulated over the 2-month period after Harri-
son was promoted to a supervisory position. It is also ap-
parent that Dodd did not accept Harrison as his supervi-
sor and he generally tried to bypass Harrison in order to
attempt to ingratiate himself with Martin and gain his
own way. Whether or not he realized it, Dodd's testimo-
ny demonstrates that he was manipulative and deceptive
in order to place himself in a favorable light, as especial-
ly indicated by his admittedly used falsehood regarding
being blackballed by the Teamsters. It also appears that
conversations regarding mention of unions generally
were initiated by Dodd, first to curry Martin's favor and,
after Harrison's promotion, to seek support from other
drivers for his personal complaints about alleged changes
in working conditions.
In the light of Dodd's overall demeanor, I find that his
testimony and recall of events tends to put words in the
mouth of others and to twist the meaning of conversa-
tions beyond that which actually occurred. For example,
with regard to Martin's alleged instructions to check on
union affiliation of potential new drivers, I infer that
Dodd probably volunteered to ask the drivers about cer-
tain subjects and whether the driver had been in the
Teamsters and that Martin then replied with a general af-
firmative answer. I therefore do not credit Dodd's testi-
906
MARTIN'S LEASING CO.
mony that he was asked by Martin to find out about the
union affiliations of prospective drivers.
Although the testimony of Respondent's witnesses was
at times confusing as to how and when events occurred,
it appears that Respondent's operations had been con-
ducted in an informal manner, with unsophisticated per-
sonnel, and the testimony merely reflects that fact.
Driver Soules, who was more articulate than other driv-
ers who testified, was not examined by the General
Counsel and, overall, I believe that the overall descrip-
tion of events given by Respondent's witnesses is more
credible then that given by Dodd.
I have not considered and do not credit Dodd's asser-
tion that driver Bramlett told him Brown had said
Martin would close before she let in a union, inasmuch
as the statement is hearsay by a person not shown to be
an agent or supervisor of Respondent and, otherwise, no
attempt was made to corroborate Bramlett's alleged
statement when he was on the stand.
Finally, it is noted that Dodd first denied that Re-
spondent had indicated in company meetings that it
would be receptive to organization by the drivers, but he
then acknowledged that such representations had been
made in the office in the presence of other drivers, subse-
quently testified to by such drivers. In view of these ob-
servations, I cannot find that Dodd's recollection of
events is more credible than those of Respondent's wit-
nesses and, accordingly, I am not persuaded that the
General Counsel has carried his overall burden of proof.
In conclusion, I find the evidence of antiunion motiva-
tion to be unpersuasive in view of Respondent's demon-
stration that it had a valid reason for Dodd's discharge
based on his continued and serious insubordinate behav-
ior. I also find that the decision to terminate Dodd was
made prior to the time Respondent became aware of his
specific union activities and that Dodd would have been
terminated on Friday, February 11, even if he had not
planned a union organization meeting. Under these cir-
cumstances, I conclude that the overall record fails to
substantiate the allegation of the complaint that Respond-
ent violated Section 8(a)(1) and (3) of the Act and, ac-
cordingly, I must recommend dismissal of the complaint.
CONCLUSIONS OF LAW
I. Respondent Luther E. Martin and Minnie Martin
doing business as Martin's Leasing Company is an em-
ployer within the meaning of Section 2(6) and (7) of the
Act.
2. Local 332, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(l) and (3) of the
Act, as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 2
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
2 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.
907