Moyer Trucking Service

National Labor Relations Board - Board Decisions

Apr 13, 1984

269 N.L.R.B. 958 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Larry Moyer d/b/a Moyer Trucking & Garage
Service and Gary Bickel. Case 25-CA-11243
13 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 January 1981 Administrative Law Judge
Robert A. Romano issued the attached decision.
The Respondent filed exceptions.
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 has decided
to affirmn the judge's rulings, findings, 2 and conclu-
sions only to the extent consistent with this Deci-
sion and Order.
After the judge's decision issued, the Board in
Meyers Industries, 268 NLRB 493 (1984), overruled
Alleluia Cushion and its progeny and held:3
In general, to find an employee's activity to be
"concerted," we shall require that it be en-
gaged in with or on the authority of other em-
ployees, and not solely by and on behalf of the
employee himself. [Footnote omitted.]
Thus, the Board no longer finds the activity of an
individual employee to be concerted based on a
presumption that the issue involved is of interest to
other employees.
Bickel's refusal to drive the truck was not con-
certed activity within the definition set forth in
Meyers and the Respondent's discharge of Bickel
did not violate Section 8(a)(1) of the Act. 4
I The Respondent's request that the hearing be reopened is hereby
denied. We find no showing of newly discovered or previously unavail-
able evidence or special circumstances warranting a reopening of the
record.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
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 reversing
the findings.The judge found that the Respondent discharged employee
Gary Bickel because he refused to drive a truck and to work beyond the
hours allowed by applicable law of the Federal Motor Carrier Safety
Regulations of the United States Department of Transportation. Citing
Private Carrier Personnel, 240 NLRB 126 (1979), and Alleluioa Cushion Co.,
221 NLRB 999 (1975), the judge found that Bickel, though acting alone,
was engaged in protected concerted activity because he sought to en-
force statutory provisions designed for the benefit of all employees. Thus,
the judge found the Respondent's discharge of Bickel violated Section
8(aXl) of the Act.
a Meyers Industries, above, slip op. at 12.
4 In light of this conclusion we need not pass on the Respondent's con-
tention that Bickel was discharged because he failed to resolve a tire
shortage problem and not because he refused to drive the truck.
269 NLRB No. 168
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. This
case was tried at Ft. Wayne, Indiana, on March 17, 1980.
The charge was filed by Gary G. Bickel, an Individual
(herein Charging Party Bickel) on August 22, 1979;1 and
complaint issued on October 17, against Larry Moyer, a
sole proprietor, d/b/a Moyer Trucking & Garage Serv-
ice (herein Respondent Employer Moyer). Respondent
filed an answer on November 9, denying the commission
of any unfair labor pratices, and raising certain affirma-
tive defenses essentially asserting that discharge was for
cause. The primary issues as raised by the complaint are
whether Respondent Employer discharged Bickel on
August 13, and thereafter refused to reinstate him, be-
cause Bickel exercised his right to refrain from violating
safety regulations and applicable law of the Federal
Motor Carrier Safety Regulations of the United States
Department of Transportation, and otherwise engaged in
concerted activities for the purpose of collective bargain-
ing and mutual aid and protection, in violation of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.
On the entire record 2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Employ-
er on April 21 and 23, respectively, I make the following
FINDINGS OF FACT
I. JURISDICTION
Larry Moyer, a sole proprietor d/b/a Moyer Trucking
& Garage Service (Employer herein) maintains a princi-
pal office and place of business at Fort Wayne, Indiana,
where it engages in the business of long-distance trans-
portation of general commodities and related services.
The Employer annually receives gross revenues in excess
of $50,000 for the transport of goods from Ft. Wayne,
Indiana, directly to points located outside the State of In-
diana. The complaint alleges, the Employer essentially
admits, and I find that the Employer is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that Larry Moyer as Respond-
ent's owner is a supervisor and agent of the Employer
within the meaning of Section 2(2) and (11) of the Act.
I All dates are in 1979 unless indicated to the contrary.
2 The General Counsel's unopposed motion to correct the transcript
and exhibit numbers, dated April 17, is granted and received in evidence
as G.C. Exh. 12. The record and my own notes reflect G.C. Exhs. 6(a),
(b), and (c) were not offered in evidence by the General Counsel, but
were remarked, offered, and received in evidence as R. Exhs. 7, 8, and 9,
respectively.
958
MOYER TRUCKING SERVICE
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer operates a small but growing trucking
and garage business in Fort Wayne, Indiana. Larry
Moyer is the owner of the business; and George Kandel
is employed as dispatcher. Kandel testified as Respond-
ent's witness. In the conduct of its business Respondent
employs three over-the-road drivers who haul commod-
ities in interstate commerce. The Employer additionally
operates a garage in which it regularly performs repair
services on its own equipment and that of other truckers.
Respondent also provides reload or turnaround load op-
portunities for other truckers coming into its area. Ac-
cording to Moyer, the Employer is one of the main car-
riers for B.F. Goodrich Company's (Tire Division) facili-
ty (herein Goodrich), located at Woodburn, Indiana,
some 17 miles outside Fort Wayne. Transmarine Freight
Lines, Inc. (herein Transmarine) is claims agent for the
goods which are transported by the Employer for Good-
rich. Larry Arrington is traffic manager at Goodrich.
Gary Bickel was employed by the Employer in No-
vember 1978 as an over-the-road driver. Bickel was as-
signed regularly to operate a 1973 special cab tandem
truck (equipped with sleeper berth) through the date of
his alleged discharge on August 13, 1979. Bickel, prior to
some earlier casual employment, had been previously
employed by Renters Express where he had worked for
some 14 years before being released from Renters Ex-
press in June 1977, following involvement in three acci-
dents in a 4-month period brought on apparently by a
medical condition which had caused him to black out.
While employed at Renters Express, Bickel was a
member of Teamsters Local 414; and after release, he re-
mained an inactive member on withdrawal. Bickel was
an experienced driver. He became the Employer's senior
and highest paid driver, being paid a 29-percent commis-
sion rate. (Respondent's other drivers received 25 per-
cent.)
As an over-the-road driver, driving in interstate com-
merce, Bickel was subject (as were all the Employer's
drivers) to the "Federal Motor Safety Regulations and
Noise Emission Requirements of the United States De-
partment of Transportation" (DOT Regulations). Addi-
tionally, the Employer's drivers were subject to certain
work rules established by the Employer, which insofar as
pertinent provided as follows:
8. Any driver that pulls an unsealed load, that he's
supposed to count, is responsible for any shortage,
unless the load is sealed, and marked with bills.
9. You may be loaded heavy for one state or an-
other, if you are, you'll be routed onto certain high-
ways. If you do not go that way, or if you drive
across a set of permanent scales and get caught, the
fine will be yours.
Dispatcher Kandel explained the basic difference be-
tween a sealed and unsealed load as being that in a
sealed load the shipper loads and assumes complete re-
sponsibility for the accuracy of the load count of items
shipped. A numbered seal is then put on the trailer-con-
tained load and recorded on the bill of lading. When the
shipment is subsequently delivered and unloaded, the re-
ceiver first breaks the seal, checks the number, and
whether the shipment is then found short or over, the
driver is not held responsible. However, Kandel also tes-
tified without contradiction that the majority of the time
the driver is required to either load the shipment phys-
ically, piece by piece, or assist someone in loading it, and
in doing so must make an accurate count thereof, since
on being loaded, the driver has to sign receipt(s) ac-
knowledging he has received a certain number of pieces
for delivery. Goodrich shipments were not the former
shipper's count and seal, but rather the latter driver's sig-
noff load. Moyer explained further that while Employer
purchased theft/damage insurance, it could not purchase
shortage insurance, and that the size of the business pre-
cluded Employer's absorption of driver shortages. Thus
drivers were notified by the above rule (rule 8) that they
would be held responsible in the event of any such short-
age. Contrary to the General Counsel's interpretation of
Employer's rule 9 as circumventing regulation, Moyer
testified credibly that drivers are instructed that they
have to comply with the DOT regulations which govern
its hauling of freight. (The latter regulations place
burden of compliance on both driver and employer.)
As noted, the complaint alleges (and Respondent
denies) that Employer discharged and failed to reinstate
Bickel because Bickel exercised his right to refrain from
violating safety regulations and applicable law of the
Federal Motor Carrier Safety Regulations of the U.S.
Department of Transportation (DOT regulations), and
otherwise engaged in concerted activities for the purpose
of collective bargaining and mutual aid and protection, in
violation of Section 8(a)(3) and (1). Respondent by
answer asserts, inter alia, that Bickel was lawfully dis-
charged for direct violation of Respondent's work rules,
for direct insubordination, for neglect of his duties after
repeated warnings, for making false statements and rep-
resentations in regard to his employment activities, and
because he failed to account for or attempt to correct a
certain shortage of goods that he had hauled for Re-
spondent. Respondent specifically has denied that Bickel
was discharged for exercising his right to refrain from
violating safety and/or DOT regulations, etc., and it af-
firmatively asserts that any actual regulation violation
was Bickel's own responsibility and was performed con-
trary to Respondent's established policies.3 Finally, Re-
spondent answers in denial that Bickel's discharge related
in any way to an antinunion motive or considerations.
Preliminarily it may be observed that Moyer testified
that he knew Bickel was a member of the Teamsters
Union at the time he had hired Bickel and indeed that
currently two of his drivers are also members of that
union; and he testified that the reasons for Bickel's dis-
charge at no time related to his union membership, or
union organization of any kind; that the latter was never
an issue; and that there had been no union activity or dis-
cussion of the Union before Bickel's discharge, insofar as
S Respondent also raised certain affIrmative defenses in its answer with
regard to unsafe equipment which was subject matter of charge herein,
but not a matter alleged in complaint, nor pursued at hearing.
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was aware. In a case, as we shall see, that has in-
volved a significant number of factual disputes, it is
nonetheless readily apparent that Bickel's union member-
ship was not an operative factor in his discharge. Thus
Bickel not only confirms he had advised the Employer
of his union membership on his application, but has ac-
knowledged that he was not active at all in union affairs
during the period he was working for the Employer; and
that there were never any issues between Moyer and him
concerning the Union; nor was his discharge the result of
any attempt on his part to engage in organized or labor
union activities. It is thus apparent from the above and I
readily find preliminarily on this record that Bickel's ter-
mination has been shown related in no manner to union
activity or membership on his part; and thus that Bickel's
discharge clearly was not shown accomplished with pur-
pose to discourage or encourage union membership.
The primary issue between the parties may thus be re-
fined and focused on as being essentially whether, fol-
lowing the occurrence of a certain shortage in a deliv-
ery, Bickel was discharged by his employer for failing to
reasonably thereafter carry out his employer's instruc-
tions relative to a prompt disposition of that shortage
issue, as the Employer (in substance and effect) contends;
or, as the General Counsel contends, was rather accom-
plished by the Employer because Bickel, with his permis-
sible driving and on-duty hours fully depleted, had then
refused to continue to drive Employer's truck and trailer
or work in violation of existing DOT regulations,4 the
refusal in those circumstances being contended by the
General Counsel as constituting protected concerted ac-
tivity under existing Board precedent and thus it is
shown that Bickel was unlawfully discharged for engag-
ing in such protected activity.
B. The Sequence of Events Leading to the
Termination of Gary Bickel
1. The August 7 Goodrich shipment to Discount
Tire
Reinalt Thomas Corp., d/b/a Discount Tire Co., with
offices in Ann Arbor, Michigan, operates facilities, inter
alia, in Okemas and Lansing, Michigan, Discount Tire
No. 11 and 15, respectively. Bill of lading dated August
7, 1979, reveals Goodrich shipped 632 tires to Discount
Tire via Transmarine with the Employer acting as carri-
er to deliver the tires in a two-stop drop, viz, 438 tires to
unit 15 (Lansing) and 194 tires to unit 11 (Okemas). On
August 7, driver Bickel assisted a Goodrich checker in
the loading of tires and, on completion of the loading,
Bickel signed off as having 632 tires for delivery. Bickel
then returned to Fort Wayne, parked the tractor-trailer
at the Employer's premises in the afternoon and subse-
quently went home. About 9:30 p.m. that same evening,
Bickel called the garage, contacting Moyer who was still
there working on a race car and told Moyer that he had
4 DOT regulation 395 essentially provides, inter alia, that a driver may
not exceed 10 hours of driving time or 15 hours of on-duty time in a 24-
hour consecutive period. The former limitation periods otherwise are to
follow 8 consecutive hours of off-duty time, provided that in the case of
sleeper berth equipment, the latter 8 hours may be accumulated in two
periods of at least 2 hours each.
forgotten to lock the truck. According to Bickel he at
that time asked Moyer if he would go out and put a lock
on the trailer. Though disputing certain details, at hear-
ing, Moyer confirmed receiving a call from Bickel that
evening reporting he had not put a padlock on the truck.
However, Moyer testified that when he checked, he
found that Bickel had already padlocked the truck. I
credit Bickel that he made such a call,6 and also that
when he returned the following morning his trailer was
locked.
2. The events of August 8 (Wednesday)
Bickel returned to Employer's premises about 3 a.m,
on August 8 and, on observing the trailer was locked,
Bickel left Fort Wayne traveling on to the first sched-
uled stop at Lansing, Michigan, some 130 miles distant,
then had breakfast, and arrived at Discount Tire unit 15
at approximately 8:30 a.m. to effect the first delivery of
(438) tires.6 Bickel delivered 410 tires, discovering that
he was 28 tires (1 pallet) short of the 438 he was sched-
uled to deliver at the Lansing unit 15. (The two loads
were separated by cardboard/paper.)
Bickel called Fort Wayne between 10-11 a.m. and re-
ported to dispatcher Kandel that he thought he was 28
tires short, but that he would not know for sure until he
got to the next stop, had finished unloading the remain-
ing tires, and was able to determine whether or not he
was over on that delivery. 7 Bickel proceeded to make
' Moyer also recalled that at this time the Employer had another truck
loaded with valuable cargo (beer) and that two trucks were on the prem-
ises with their trailers parked back to back as a (usual) security precau-
tion. However, Bickel testified that he had parked his truck that day on
the street in front of the garage and no other truck was backed up to it at
the time he left to go home. Neither party offered any corroborative tes-
timony for Moyer's recollection or Bickel's recollection as to where the
truck was located. The matter is thus not free from doubt whether the
parking precaution was one on this occasion subsequently made (and re-
moved). It is clear that Moyer did deny at hearing ever having earlier
denied even receiving a call from Bickel in which Bickel informed
Moyer that he had forgotten to lock his trailer, and asked Moyer to do
so for him, though such a denial by Moyer clearly appears in a prior
statement obtained from Moyer in the Regional Office's earlier investiga-
tion of this matter.
a Bickel's daily log for August 8 (R. Exh. 7), in evidence, is a separate
log for a different shipper. The August 8 log for Goodrich's load is not
in evidence, Bickel's daily logs otherwise for August 8-10 were offered
by Respondent and his daily logs for August 12-13 were offered by the
General Counsel. The record of both parties' evidence convincingly re-
veals that travel to Lansing had occurred as shown above on August 8.
The logs for August 12-13 additionally reflect that in the period 9 p.m.,
August 12, and 2 p.m., August 13, Bickel had been driving and/or on
duty for a period of 16 consecutive hours. Bickel has acknowledged that
his logs for August 8-10 are inaccurate, asserting in offered explanation
therefor that he had to turn in such logs, viz legal logs, or his employer
would not pay him; but nonetheless asserts the logs for August 12-13
seemingly illegal (and inconsistently) are accurate. The Employer corre-
spondingly questions the accuracy of the August 12-13 logs which Bickel
has acknowledged were not completed until after the material events of
August 13. In any event, in view of the above circumstances of seeming
admission of preparation of inaccurate logs (whether with employer
awareness and approval or not) for August 8-10, and in light of the obvi-
ous self-serving nature of claim that the subsequent logs for August 12-13
were accurate, I am reluctant to rely on, and specifically shall not place
significant weight on, any of these logs, absent other evidence independ-
ently convincing me as to the matters they may portray.
I Kandel's version (at hearing) confirmed Bickel that the first report of
the shortage was received from Bickel in the morning; and Kandel re-
Continued
960
MOYER TRUCKING SERVICE
the final tire delivery at Discount Tire No. 11, in
Okemas, Michigan, a distance of about 5 miles, arriving
there still between 10-11 a.m. By noon, or shortly there-
after, Bickel had fully unloaded. The delivery at Okemas
was determined to be correct. Bickel then knew he had
remained 28 tires short on the earlier Lansing delivery.
Bickel called Fort Wayne and notified Kandel that he
had fully unloaded and was short the 28 tires. According
to Bickel, at that point he asked Kandel to call Goodrich
to see if they knew anything about it; and that Kandel
had in turn at that time supplied him with the phone
number of a (co-op dealer) broker in Portland, Michigan,
that Bickel was instructed to call to receive further di-
rections for picking up his next assigned load at Mason,
Michigan. The assigned load was to be delivered by
Bickel to Woodstock, Tennessee, located near Memphis,
Tennessee. Bickel called the broker, obtained the instruc-
tions, drove on to Mason (10 miles), and loaded the
Woodstock shipment. However, Bickel had to then drive
to Portland, Michigan (an additional 20 miles), to pick up
a trip lease from the broker for the Woodstock trip.
There is considerable confusion in the record otherwise
as to what was the full substance of the above conversa-
tion Bickel had with Kandel on calling from Okemas,
vis-a-vis conversations Bickel had with Kandel and
Moyer (I find) later, which originated from Portland
about 4 p.m. 8
Kandel (again) substantiated Bickel in regard to receiv-
ing the confirming report of the tire shortage after Bick-
el's destination (Okemas) stop. On being advised they
were short the 28 tires, Kandel also recalled inquiring of
called that at that time, after going over the counting and unloading pro-
cedure that Bickel had used, and being informed by Bickel that Bickel
had counted during the unloading, and had recounted in the building, he
had then directed Bickel to go on to the next and final tire stop. Kandel
further explained that he knew Bickel had loaded the Goodrich shipment,
and Kandel thus thought it probable that the error would not be there.
There is suggestion in some of Moyer's generalized testimony that Moyer
(as well as Kandel) had spoken to Bickel at this point, but Moyer's prior
statement obtained during earlier Regional Office investigation of this
matter records that he did not learn of the shortage until Bickel's call
from Portland, Michigan, later that day at 4 p.m. On other occasion at
hearing Moyer also affirmed that he had not talked to Bickel on the oc-
casion of Bickel's first call, but that it was Kandel who had done so. Any
suggestion in Moyer's testimony as to the contrary I do not credit.
a Preliminarily, it may be appropriately observed that this is essentially
a credibility case. There can be no question but that the record reveals
there are instances of substantial inconsistency and confusion (if not con-
tradiction) readily apparent in Kandel's and Moyer's hearing testimony
(and as the same is compared with statements made earlier by each of
them during Regional investigation) concerning conversations with
Bickel, and Kandel's conversation with Goodrich's Arrington that day.
Bickel's testimony in contrast was generally far more consistent and
clear. However, Bickel in certain aspects of his own testimony, viz, in
regard to whether an explanation was offered by him that afternoon to
Fort Wayne that would account for the shortage, discussed above, is
deemed not to have been fully candid. To that extent Bickel also was
simply not fully convincing in his own version of the succeeding events
of the remainder of that day. Thus, Bickel's version initially would have
suggested there was little, if any, followup discussions that day on the
shortage beyond a bare request that he call Goodrich to see why he was
short. Bickel subsequently acknowledged that he did have discussion
with both Kandel and Moyer (at one time) and testified that pursuant to
direction he had called Goodrich immediately from the broker's office
about the shortage. After full consideration of all the conflicting evidence
offered, I am persuaded that the following is shown by the substantial
weight of the evidence deemed credible and supported herein to be the
sequence of subsequent events as they most probably occurred that day.
Bickel on that occasion whether the missing pallet of
tires had been on the back end of the trailer (or load)
where someone could have gotten it out; and that he was
informed by Bickel that this was not the case, as the
pallet of missing tires would (or should) have been locat-
ed three or four rows inside the trailer. However,
Kandel testified that Bickel also brought up at that time
that he thought that there had been a pallet of tires
pulled off to one side while Bickel and the Goodrich
checker were loading the trailer at the Goodrich dock.9
Bickel did not subsequently contest Kandel's testimony
of making inquiry as to where the missing pallet of tires
would have been placed on his trailer; and, significantly,
Bickel's general, nonrecollective responses when ques-
tioned about having mentioned to Kandel (or Moyer) his
own recollection that a pallet had been set aside during
the loading process at Goodrich (as thought by him to
be possible explanation for the missing tires) was simply
unconvincing. I thus credit Kandel that Bickel did men-
tion that observation initially to Kandel in the call origi-
nating from Okemas. Nonetheless I have great difficulty
with ready acceptance of Kandel's hearing recollection
of the remainder of that conversation and subsequent de-
velopments because of the number of clear variances be-
tween his hearing testimony thereon and his earlier state-
ment given during Regional Office investigation; and
even more so with Moyer's testimony at hearing in this
area.1 0 Nonetheless, despite certain testimonial and state-
ment variances of Kandel as to phone conversation with
Goodrich's Arrington that day, I am convinced that con-
tact with Goodrich's Arrington did occur and that the
explanation for those variances on Kandel's part lies
more in the probability that Kandel has partially misre-
collected the circumstances of two such phone contacts
that he had with Arrington (Goodrich's traffic manager)
that day about the shortage, the first being accomplished
as a result of Bickel's request made of Kandel to do so,
and the second, ,at Moyer's later direction. (Moreover as
will be noted infra, in connection with sequential conver-
sations of August 13, this is not the only instance of a
Kandel misrecollection of both order and conversational
participation between these three principals. However,
on the latter occasion when such was brought to his at-
tention he readily and candidly acknowledged his misre-
collection and affirmed his prior recorded recollection as
accurate.) In any event, I do not believe that Kandel has
simply prevaricated a Bickel-Kandel-Moyer conversation
9 In contrast, prior statement of Kandel (G.C. Exh. 11) would appear
to indicate the report of shortage, the review of counting procedures, the
report by Bickel that a pallet of tires had been set aside, and suggestion
by Bickel that they had not been put on the truck had all stemmed from
the call from Portland about 4 p.m., August 8. (On the basis of the above
credited testimony of Bickel, with essential hearing corroboration by
Kandel, I found herein otherwise.)
'0 In the main, Moyer's testimony can only be concluded on analysis
of this record to have been consistently of such a transposing, self-serv-
ing, and undefining nature (in regard to conversations) as to have gener-
ated an unreliability as to his recollection of conversational specifics, a
condition not otherwise enhanced convincingly by certain instances of
leading questions.
961
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the shortage with concurrent Kandel-Arrington
contact that afternoon about 4 p.m. on the shortage.
I I
Unwieldly though it be, I address the Kandel-Moyer
hearing testimony in the light of their prior statements.
Kandel recalled at hearing that at that point of the
(Okemas) call from Bickel, that Kandel had reported the
situation to Moyer; that Moyer got on the phone with
Bickel while Kandel called Goodrich pursuant to
Moyer's instruction. According to Kandel he contacted
traffic manager Arrington and told him of Bickel's report
of a shortage, and related to Arrington also that the
driver had said that a pallet of tires had been set to one
side on the dock during loading and possibly not loaded.
Kandel related (without objection) that Arrington had
replied to him on this occasion that he could go out
there to the dock, but pallets would be scattered all over
due to the ongoing loading of other trailers; and that the
best approach was to have Bickel come back that after-
noon or the following morning and get with the dock
foreman or shipping checker, go over the tickets (re-
ceipts) Bickel had signed for each pallet and possibly the
checker would then remember a pallet that had been put
off to one side. (Arrington did not testify.) The above re-
sponse of Arrington is compatible with an early after-
noon call. Kandel also relates that he reported this to
Moyer; and testified that he did hear Moyer, when on
the phone with Bickel, tell Bickel-"you do need to be
back here to go through it with Goodrich." It is ob-
served that Kandel, in his hearing testimony, did not
have Arrington go out to the dock, though he does have
Moyer still on the phone with Bickel.
1 2 At hearing
" To be sure, as noted, there are several instances of substantial vari-
ance in Kandel's hearing and affidavit versions of the Arrington call such
as might appear to be sufficient in other case circumstances to support his
general discredit as the General Counsel has urged. However, in that
regard, it fairly is to be also noted that Employer regularly operates three
incoming phone lines to handle the various and numerous transport serv-
ice calls it routinely receives in the daily operations of its business. These
lines, according to uncontested testimony of Kandel, are constantly in use
by the Employer's one dispatcher, not only in servicing assignments of
the Employer's three drivers (in regard to deliveries, progressive assign-
ments, and return), related business interests in regard to other shippers
and drivers coming into the area, etc. I thus bear in mind that Kandel
had received many calls, oftentimes subject related. He handled addition-
al calls on this subject in succeeding days from Bickel and Arrington.
Accordingly, I am persuaded that these issues of disputed fact are more
appropriately to be resolved in this instance by a comparative analysis of
the substance of the (variant) versions of the call to Arrington, with a
view to inherent probabilities reasonably flowing therefrom in the light
of other determined circumstances. The same has led to conclusion there
were more probably two such Kandel-Arrington calls, one early after-
noon after Bickel's (Okemas) request, and an interrrelated second call to
Goodrich, during Bickel's (return message) call from Portland, discussed
infra.
12 In contrast in Kandel's prior statement (noted as closer to the event)
in regard to the Arrington contact, Kandel does not refer at all to a
three-way conversation of these principals in relation to the Okemas call,
but does relate an account of a similar conversational development be-
tween these principals as occurring later, viz, as arising out of the later
call received from Bickel that afternoon about 4 p.m., on the occasion
when Bickel had called Fort Wayne from Portland, Michigan. However,
there Kandel has recorded that Arrington actually went to look for the
pallet while Kandel waited on the phone. Kandel also relates that Arring-
ton reported back that the pallet was not there (on the dock); and that
Arrington had then stated he would like to have the driver out there the
next morning to get with the checker to verify the tires were left on a
pallet to one side as Bickel claimed. Significantly, there he also records
Moyer confirmed that he had conversed with Bickel
while he had Kandel contact Goodrich; confirmed also
that Bickel had told Moyer he knew where the problem
was, that he had left a pallet of tires on the dock. How-
ever, at hearing Moyer also testified that when Bickel
told him on the phone that he had left the pallet on the
dock, Moyer told Bickel, "Gary, they showed that you
signed the form." Since it appears otherwise uncontested
that Arrington did not report that tickets for all the tires
were signed by Bickel until, at the earliest, in the morn-
ing of the next day,' 3 it is clear that Moyer, as well, has
either had mixed recollection, or has testified disjointedly
as to a substantive remark made to Bickel in a later con-
versation (which appears much more likely to have been
the case). In any event, I conclude and find that Moyer's
hearing testimony, to the extent he claims he immediate-
ly pressed Bickel with a direct instruction in that August
8 conversation to go out to Goodrich the very next
morning, as opposed to directing Bickel to call Arring-
ton at that time, in the light of all the evidence, is simply
not persuasive. Rather, Bickel's version, that Moyer at
all times knew and understood he planned on going on
to Woodstock, appears the more probable.
In reconciling the evidence, it has appeared first en-
tirely plausible that driver Bickel, though experiencing
and reporting the shortage, on also being advised at
Okemas of his next dispatch to an available load in that
area and with present recollection that, during the load-
ing at Goodrich, a pallet of the same number of (short)
tires (28) had been pulled to one side, would have (rea-
sonably) initially expected it to account for his indicated
delivery shortage; and that Bickel accordingly would
have likely requested dispatcher Kandel to immediately
call Goodrich to see what Kandel could find out at that
end while Bickel proceeded to handle his next loading
assignment. It is equally probable that, with mention of
such a seemingly plausible explanation being raised by
Bickel, dispatcher Kandel would in turn be disposed to
do so, particularly in view of Kandel's own indication
otherwise that he had considered that Bickel could not
make it back in time to himself check with the involved
personnel at Goodrich that afternoon anyway because of
the distance and their to be anticipated prior departure at
shift change; especially with supportive observation that
the dispatcher's view of business efficiency would appear
likely to dictate to him that Bickel needed to load the
Woodstock trip first while he was in the area as Kandel
has essentially testified. As noted, this is not to discount
entirely that a three-way conversation about the shortage
later occurred (which Bickel in turn has essentially ac-
knowledged), but rather to show base for persuasion that
that Bickel was not still on the phone, but had later called back at which
time Kandel told Bickel what Arrington had said.
is Moyer's earlier statement compatibly had recorded his own initial
awareness of the shortage as occurring at 4 p.m., and he also there had
recorded it as being after Bickel had proceeded to Portland, Michigan.
Moyer's earlier (statement) version also records that it was he who had
instructed Kandel at the time to call Arrington to find out not only if the
tires were still on the dock, but to additionally determine whether Bickel
had in fact signed tickets for all of the 632 tires. Significantly, Moyer
there records Arrington advising Kandel that the tires were not there (on
the dock) and that he would check the tickets the next day.
962
MOYER TRUCKING SERVICE
Kandel not only more probably made the first followup
call on the shortage to Arrington pursuant to Bickel's re-
quest, but with Bickel not held on the phone; at a time,
thus, when Moyer was not brought to the phone to
speak to Bickel. Kandel did not deny two conversations;
he was not asked. But Kandel has recalled an inquiry of
Arrington when Arrington did not actually check the
dock in practical recognition of difficulties of pallet iden-
tification at that time (midday) with the ongoing loading;
and recorded an inquiry when Arrington did check the
dock while Kandel waited. Such can hardly, if credited,
be viewed as defeative of the inference to be drawn. I
am wholly convinced that Kandel did not tell Bickel he
should return to Goodrich that afternoon or the follow-
ing morning in the Okemas call as Kandel and Moyer at
hearing have recalled it. Rather, I am convinced that
Bickel had not been kept on the phone for the result of
Kandel's inquiry on that occasion, but had on his part
proceeded to call Portland for pickup instructions (and
had then proceeded to Mason to effect loading). Howev-
er, a message was subsequently left at Portland by the
Employer that, upon Bickel's arrival there, Bickel was to
call Fort Wayne. Bickel asserts he did so about 4 p.m.;
and I credit that he did so.
It is thus concluded and found that the conversation
between Bickel, Kandel, and Moyer more probably did
originate following Bickel's later return call from Port-
land made about 4 p.m. that afternoon, as Bickel has es-
sentially acknowledged and the earlier statement of
Moyer reflects. 14 Thus it was when Bickel arrived at the
broker's office in Portland, Michigan, to pick up the
Woodstock trip lease, the aforesaid message was already
waiting for him to call Fort Wayne as he alternatively
believed had been the case; and that Bickel accordingly
did so, probably shortly before 4 p.m. Before passing on
to analysis of the plausible evidence as to that conversa-
tion, it is significant to bear in mind that it is uncontested
of record that Bickel had made personal plans with his
ex-wife for the following weekend; and (I find) he dis-
cussed the effect of those plans with Moyer before de-
parture for the Tennessee trip and had Moyer's prior ap-
proval on them; and it is to be observed also that by this
time (4 p.m., Wednesday, August 8), Bickel had already
accepted and was loaded for the additional assigned trip
to Woodstock (553 miles from Fort Wayne) and at Port-
land (150 miles from Fort Wayne) only to pick up the
trip lease.
Kandel's hearing version otherwise is that he believed
that either he or Moyer had asked Bickel to come back
through Fort Wayne and go out to Goodrich the next
morning and get the shortage problem taken care of with
the checker before he went on to Woodstock, Tennessee.
Bickel, however, has categorically denied he was direct-
ed by Kandel or Moyer to go out to Goodrich the next
14 It is notable in that context that the pertinent daily log of Bickel,
though acknowledged generally by Bickel as being inaccurate, does re-
flect with specificity in regard to this matter (i.e., the Portland call as
being made about 4 p.m.) that Bickel was loading at Mason between 2
and 3 p.m.; and thus it would appear the time involved in his subsequent
proceeding on to Portland (20 miles) would have placed Bickel at the
Portland broker's office close to the 4 p.m. time at which both Kandel
and Moyer had otherwise earlier recorded.
morning. Although it would appear more likely that
Kandel would have passed Arrington's suggestion on to
Bickel, I am convinced Bickel was not reasonably left
with any such direction by Moyer. Firstly, I am con-
vinced that it is more plausible that Kandel would have
initially relayed the suggestion of Arrington (to Kandel)
that Bickel do so. I find that Kandel did do so. I find
Kandel's additional testimony also credible that Bickel
was (immediately) a bit unhappy over that; that Bickel
told Kandel that he did not want to be out over the
weekend; that doing that (e.g., stopping at Goodrich in
the morning) would force him to unload in Tennessee on
Friday; that he was (rather) going to go straight on to
Woodstock, Memphis to be there Thursday and unload,
which would give him an extra day; and that conse-
quently he was not going to go back out to Goodrich
(the next morning) to talk to them. Although acknowl-
edging that he did not recall the exact words Bickel had
used, Kandel also testified at hearing that Bickel had
become belligerent at that time and told Kandel that if
they wanted to get the problem worked out (at Good-
rich) for them to go out and get the problem worked
out.1 5 On this, I again essentially credit Kandel. I find
that Bickel, suggested to Kandel that Kandel and Moyer
work out the problem with Goodrich if they wanted to
do so but in substance stated that he was loaded for
Woodstock and was going straight there. I find that it
was at that point that Kandel then notified Moyer of
what Bickel planned to do, at which point Moyer got on
the phone with Bickel. As noted, Kandel has recalled
that he overheard Moyer (at least on one such occasion)
say to Bickel "we do need to go by Goodrich." I am
convinced that in this instance Moyer probably began his
conversation by doing so. However, I am as well con-
vinced there were then additional developments with
Goodrich on the matter as a result of which Moyer did
not press direction of Bickel to go there. As noted, I do
not credit Kandel's hearing testimony that Kandel at that
point had no more to do with the conversation. I am in
that respect also convinced that Moyer's statement ver-
sion of instruction to Kandel to call Arrington, and of
Kandel report of Arrington checking the dock and deter-
mining the pallet was not there (at 4 p.m.) and that Ar-
rington would check the tickets the next day, more accu-
rately reflects, if not what Kandel was told by Arring-
ton, at least what Kandel had reported to Moyer at that
time while Moyer had Bickel on the phone.16 It follows
that Moyer at most would have been able to inform
Bickel at that time, in regard to his recollection of a
pallet being set aside, that (at least) the pallet was not
then still on the dock, but not whether Goodrich tickets
showed that Bickel had actually signed for 632 tires, a
question to be reported on the following morning. In
subsequently contacting Arrington, Bickel does not
assert he advanced to Arrington claim that the pallet was
" In prior affidavit Kandel had related that Bickel had said he was
loaded for Memphis, and going to Memphis; and that Bickel also had said
if Moyer were so worried about the tire shortage let him go to Goodrich
and check it, which specific statement Bickel has denied making.
"I Cf. Alvin J. Bart & Ca, 236 NLRB 242 (1978), enf. denied on other
grounds 598 F.2d 1267 (2d Cir. 1979).
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left on the dock, but only that he had told Arrington
(then) that he did not know what happened to the tires,
or where they went. I credit Bickel that when he did
call Arrington immediately after his discussion with
Moyer, that Arrington told Bickel simply that he would
check further on the matter and get back to Fort Wayne,
itself being wholly compatible with the still to be accom-
plished preliminary determination by Arrington as to
whether or not, Bickel had actually signed for that
number of tires (and/or what his checker might inde-
pendently recall of the situation in the light of Bickel's
report, belief, and load absence from the dock.)
Finally, not only does Bickel deny that Moyer direct-
ed him to go out to Goodrich the next day, Bickel re-
lates that he had returned to the terminal that evening,
conversed further with Moyer who urged an early start
on the Woodstock trip, in order to accommodate an an-
ticipated turn around load. Moyer has wholly denied
that conversation. However, apart from this wholly dis-
puted conversation, in the light of the questioned incon-
sistencies rendering not wholly acceptable Moyer's and
Kandel's testimony; and in the light of other circum-
stances supporting Bickel's version, viz: that it was not
even known by Moyer at that time that Bickel had actu-
ally signed tickets for all the pallets of tires; that the pro-
cedure was to send the driver back only as soon as prac-
tical, with consideration to be made of the Employer's
small but busy and growing operation and the fact that
Bickel was already loaded for a long trip, with scheduled
delivery date; the consideration that Employer has not
denied that it was supportive of Bickel's personal week-
end plans; had an anticipated trip back; and, as discussed
infra, Kandel's revealing revelation that when Bickel
called in subsequently Kandel had stated to Bickel, in in-
quiring what took Bickel so long, that he thought that
Bickel had intended to go straight on through to Woodstock,
has convinced me that Bickel did not have a specific in-
struction from Moyer to delay his delivery, but rather
his instruction was to call Goodrich, which I find he did,
immediately, from the broker's office in Portland, Michi-
gan. Neither do I credit Moyer's seemingly collateral ad-
vanced contention that he had told Bickel (in their con-
versation) to first come by the garage and he (Moyer)
would go out to Goodrich with Bickel, which also does
not appear in Moyer's earlier account of the matter.
1 7
Rather I am convinced from other evidence herein that
it is more probable, and I thus presently find that it was
not until the next day with Employer's receipt of Arring-
ton's report that Bickel had in fact signed for pallets for
all of the tires (which still appeared to be missing) that
both Arrington and Moyer had recognized they had an
actual substantial problem that they had to get resolved.
I have no doubt that Moyer would have then immediate-
ly offered himself to go out to Goodrich to try to re-
solve the problem. However, the nature of the problem
1; The latter is not reflected in Moyer's prior statement. In contrast,
Moyer elsewhere hedged that, although Bickel did not say yes, he also
did not say no; and that Moyer had expected Bickel to go there. In view
of all the above circumstances, including Bickel's convincing denials, I
am persuaded this is an instance of a loose afterthought embellishment of
position on the part of Moyer, stemming rather in base from a later
Moyer-Arrington conversation.
was such that (as Moyer otherwise relates he was told
by Arrington was the case) Bickel had to be the one to
come out to get with the checker; and stated in that (or
later) conversation that Bickel would need to do so
promptly because with passage of days (and the check-
er's continued handling of other loads), the involved
checker would simply end up not remembering Bickel
(and his load circumstances). From that point on, I am
convinced, Moyer did press for Bickel's earliest return to
the area and to Goodrich to resolve the problem.
3. The events of August 9 (Thursday)
It appears only material that Bickel left Fort Wayne
about 3 a.m., on August 9, and arrived at Woodstock,
Tennessee (553) miles, about 3:30-4 p.m. (about 12 hours
later). Bickel relates he called in to Fort Wayne close to
4 p.m. and spoke to Kandel who wanted to know what
had taken him so long, why he was not there early in the
morning like they wanted. it In passing I observe that
Kandel's testimony with regard to when he also had first
asked Bickel if he had contacted Goodrich, whether on
August 9 or 10, was both confused and hesitant. It ap-
pears Bickel would place it in this 4 p.m. call. I find that
it was during one of the calls of August 9, and more
probably the 4 p.m. call, that Bickel informed Kandel
that he had contacted Goodrich. Contrary to Moyer's
summation of that call, viz, that Bickel had reported that
they had the problem worked out, it is much more plau-
sible that Bickel reported to Kandel only what Arrington
had last told Bickel, viz, that after Arrington checked on
it further, Arrington would contact Fort Wayne (Em-
ployer).'9 Significantly, Kandel has also confirmed that
during his first conversation with Bickel he mentioned to
Bickel that he thought Bickel was going to go straight on
down, and that Bickel replied he did, but ran into some
bad weather. Thus as earlier noted, I am persuaded that
though there may have been, at best, an initial direction
by Kandel on the previous afternoon that Bickel go out
to Goodrich that morning, not only Moyer, but Kandel
as well, after their prior conversations of the day before,
I' Bickel's log shows comparable trip time of 11.5 hours, though with
starting on-duty time shown as 8:30 a.m. and arrival time as 8 p.m. De-
spite such log entries, I find on the weight of the evidence that Bickel
had called on arrival for unloading at 4 p.m., Thursday, as essentially
otherwise confirmed by Kandel. However, at hearing, Kandel recalled it
as being about I p.m. that Bickel had previously reported in from some
place in Illinois, just about 50 miles north of Memphis. At that time
Kandel inquired of Bickel if he was going to get unloaded that day; and
Bickel replied yes. (In a prior statement Kandel referred to having re-
ceived a check-in call from Bickel earlier, between 10 and II a.m., in
which Bickel wanted to know if they had the return load for him from
Memphis back to Fort Wayne.) I thus note that (in whichever earlier
conversation) Kandel told Bickel that they did not, and that as soon as he
got empty he should see what he could find on his own. At that point
Bickel knew he did not have the anticipated return trip load to Fort
Wayne.
'I However Bickel's conversation would have been after Arrington
had already contacted the Employer. Thus explanation of Moyer's
contra-recollection here may well lie in simple misunderstanding generat-
ed by Bickel making his report of contact (the night before) after Arring-
ton had already called the Employer that day. In any event I credit
Bickel in this instance, noting Moyer's earlier statement placed Arring-
ton's call at 9 a.m.
964
MOYER TRUCKING SERVICE
were well aware and understood that Bickel was going
to drive on directly to Woodstock, Tennessee.
Although at one point Kandel appears to indicate that
Bickel did not finish unloading that afternoon; he else-
where has Bickel calling back empty that day; and
Kandel otherwise recalled that he was busy that day
trying to arrange a return load for Bickel because (as
noted) the return load from Memphis had not material-
ized when the involved shipper did not make the antici-
pated shipment. I thus find that Bickel did advise he had
called Goodrich by 4 p.m., and credit also the latter, viz
that Bickel did call back again when empty, at which
time he spoke to Moyer. Before leaving the subject of
Kandel's efforts to find Bickel a return load, it is signifi-
cant to also observe that, although Kandel was aware (if
not Thursday, then Friday) of a trip load from Kansas
City then scheduled to leave Sunday (midnight) to arrive
back at Fort Wayne on Monday, he did not offer that
trip to Bickel at the time because he knew Bickel wanted
to be home for the weekend. Instead Kandel instructed
Bickel to also look around himself for a return trip, a
customary procedure.
The Employer reports receiving the call from Arring-
ton while Bickel was en route to Memphis. Although
Moyer relates that the call was received by Kandel,
there is record indication that Moyer was on an exten-
sion for the call. In any event, Moyer alone has testified
thereto. Unfortunately, Moyer's testimony in relation
thereto, when not led, is disjointed, in part clearly con-
tradictory both as to circumstances of placement and of
substance. The several versions seemingly proffered, at
best, again present suggestion of what may have been
hearing amalgamation of several conversations on suc-
ceeding days. In one such version, Moyer relates that
after Bickel had reported on the phone that he had
called Goodrich and that they had the problem taken
care of, they (Employer) got right on the phone and had
called Goodrich only to find that the problem was not in
fact taken care of, thus compounding misunderstanding.
I have earlier found that in a conversation with Ar-
rington, probably about 9 a.m., Thursday morning,
Moyer was advised that Bickel had signed a ticket for
the missing pallet of tires; and that Moyer offered to go
out to Goodrich to see where the problem was. Howev-
er, Arrington dissuaded Moyer from doing so, Moyer re-
lating (I find credibly) that Arrington told him that there
was no use in his coming out there; that (i.e., finding a
missing pallet) would be like finding a needle in a hay-
stack; and that they would have to have Bickel there be-
cause he had to get with the checker with whom he had
loaded. Thus, I view it as being highly probable that
Moyer in his first conversation with Bickel that after-
noon (4 p.m.) would take that occasion to stress to
Bickel the now determined and significant circumstance
that Goodrich had a ticket for the missing pallet of tires,
which ticket was signed by Bickel. In short, Bickel and
Moyer were chargeable for the missing tires. According
to Moyer (whom again in this instance I credit) Bickel
repeated he had left the pallet of tires on Goodrich's
dock; and said that he was not going to pay for them. I
find that Bickel also told Moyer that he would take care
of the problem when he got back. I also find probable,
and credit Moyer that thereafter, in succeeding days (and
I find particularly Friday), Goodrich (and Transmarine)
began to press Employer for a speedy resolution of the
missing tire problem. It is also likely that they held up on
payments as Moyer testified. However, I specifically oth-
erwise do not (selectively) credit, from Moyer's contra-
dictory versions, other features of Moyer's conversations
with Arrington (or Transmarine), extending beyond the
above findings (which are deemed supported by the
record and probable) that essentially in the succeeding
days the Employer did have followup conversations in
regard to what Employer was proposing to do in resolu-
tion of the above problem, including heightened interest
in Bickel's availability to Goodrich, as requested.2 0 In
that connection, Moyer testified he had another conver-
sation with Arrington in which Arrington said he
wanted the driver there the next morning. I credit
Moyer's testimony of personal observation that, from
where Bickel then was, there was no way he could be
back in time to see Arrington the next day (Friday). I am
thus persuaded that Kandel (and Bickel) made continuing
effort (with Moyer's approval) to get Bickel a direct
return load. I conclude and find, however, that when
Bickel called in on Friday, with both Kandel and Bickel
still unable to find a load, Moyer at that point raised as-
signment of the load coming from Kansas City to Fort
Wayne, even though it meant Bickel would be out over
the weekend.
4. The Kansas City load
When Bickel called in at 6:30 p.m. Friday, Moyer took
the call. Moyer testified that he had asked Bickel to
bring the Kansas City load back because it would put
Bickel in Fort Wayne on Monday instead of Bickel
trying to be reloaded from Memphis on Monday, with
no assurance he would be able to do so. (By this time
Moyer had been warned of the disadvantages of too
much delay in Bickel's getting with the checker.) With
agreement over an allowance of $100 for deadheading to
Kansas City (457 miles) from Memphis (Woodstock), I
find Bickel agreed to take that trip load, though he un-
derstood it meant he would not return for the week-
end. 21
Bickel's above assignment was to pick up a load of
stage props at the Starlight Theater in Kansas City, and
to transport them to the Folinger Theater in Fort
Wayne. Bickel arrived in Kansas City about 11 a.m. on
Saturday, August 11; and he reported his arrival there to
so Inter alia, Moyer's version that when Bickel called back empty at 4
p.m., Moyer asked Bickel why he had not stopped and taken care of the
Goodrich problem; and Bickel's asserted response as simply being that he
was not going to be stuck out on the weekend is specifically not credited.
2 1 Again there was conflict as to whether Moyer had simply directed
Bickel to take the Kansas City load which would require Bickel to be out
over the weekend, or whether Bickel voluntarily requested it. Bickel did
not testify he was prepared to deadhead back to Fort Wayne under his
changed circumstances when the anticipated Memphis return load simply
failed to materialize, and he found the S100 allowance for a deadhead to
Kansas City acceptable. I am thus wholly convinced that the Kansas City
assignment and acceptance was raised because of changed circumstances,
was mutually beneficial, and was accomplished by mutual agreement.
965
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kandel about noon. Bickel then went off duty until
Sunday night. Kandel did not work Sunday.
Bickel had been scheduled to begin loading at 10:30
p.m. 22 At 9 p.m. Bickel started back on the clock, first
inspecting his truck. About 9:30 p.m. he drove from the
truck parking lot, where he had been waiting, across
town to the Starlight Theater, allowing himself time for
arranging parking there. Bickel arrived early and deter-
mined that loading would not begin until later. Bickel
waited from 10:30 p.m. to midnight before commencing
loading. Loading took I hour and 15 minutes. According
to Bickel, whom I credit, pursuant to Moyer's instruc-
tion, Bickel called Moyer at his home to advise Moyer
that he was ready to leave. Since Bickel knew the dis-
tance, and required driving time, before leaving he also
inquired of an (unidentified) person at Kansas City as to
what would be the latest time that he could timely effect
the delivery at the Folinger Theater; and he was in-
formed 1 p.m. Bickel left Kansas City at 1:30 a.m.,
August 13. Bickel drove straight through to Fort Wayne
(585 miles). There is conflict as to when Bickel arrived
at destination.
5. The events of August 13, Monday
According to Bickel he arrived at the Folinger Thea-
ter in Franke Park, Fort Wayne, at approximately I p.m.
Bickel testified that he had then been on the clock for
about 16 hours and had driven for 12 hours. If so, he
was out of allowed work (clock) time and out of (driv-
ing) hours under DOT regulation 395. Bickel's version of
the events that followed is that, when he arrived at the
theater and obtained docking instructions, he called the
garage and reported to Kandel. Kandel wanted to know
where Bickel had been, and what took him so long to
get there. Kandel told Bickel he had to be at Goodrich
at 1 p.m. to load tires. Bickel replied he had been on the
clock for 16 hours, he was out of hours, and he was tired
and was going to bed. Kandel inquired if Bickel was
going to go load the tires. Bickel responded he was still
waiting to unload and would call Kandel back when he
was unloaded; and he hung up on Kandel. By the time
Bickel had driven around and backed up his truck to the
dock, Kandel called back. Kandel again asked Bickel if
he was going to load the tires. Bickel replied he was not,
he was going to go home and go to bed. Kandel told
Bickel to get his things out of the truck; that Moyer
would be out with an outfit and would go himself.
Bickel denies that Kandel had told him they wanted
Bickel to go out to Goodrich to straighten out the short-
age.
To begin with Kandel has testified there were three
phone conversations that he and Moyer held with Bickel
s2 I credit Bickel in this regard. In contrast Moyer asserted that he had
instructed Bickel, on Sunday, that loading was not to begin until after the
last show, at midnight. Moyer also instructed Bickel that the load had to
be delivered by noon, Monday, August 13. In the light of the distance to
be traveled (585 miles), the scheduled time of arrival, and the circum-
stance indicated of record that this was a new account and uncontrovert-
ed evidence that special attention was given to it, I am convinced that it
is more probable that Bickel would have been given the earlier time by
Moyer as the time to be in place prepared for loading, as promptly as
possible.
at Franke Park that morning. 23 However, Kandel has
exhibited clear confusion in the record in testifying
thereon; e.g., inter alia, in initially describing Moyer as
the conversant with Bickel in a third conversation
(rather than himself) and correlatively in misrecollecting
and describing what he had said therein as spoken in an
asserted second conversation by Moyer. Kandel ac-
knowledged his error after review of his prior statement.
As thus corrected and otherwise clarified in cross-exami-
nation, Kandel's version of these conversations is as fol-
lows.
Kandel recalled it as being before lunch (noon) that
Bickel had reported his arrival at Franke Park in Fort
Wayne. Kandel testified that he initially had asked Bickel
to take his truck out to Goodrich for a load of tires. (Al-
though a city-based trailer was apparently normally used,
the record otherwise reveals that Employer's yard truck
was down at the time.) At hearing Kandel related that
Bickel had replied he had just come in from Kansas City,
had been up for 12 hours; stated he was tired; but said,
"Well, he wasn't going to load the load and he wasn't
going to take the load." Kandel told Bickel he would
have another driver out there to load the trailer, but they
had to get the tire problem straightened out, it could not
go on any longer, that Bickel could (then) either bring
the truck back, or go to bed, but he had to get the tire
problem taken care of first. (Bickel denies there was any
mention of another driver on the phone.) Kandel relates
that Bickel replied that he was not going out to Good-
rich, he was not going anywhere; and that with that
Bickel hung up on Kandel. However, Kandel later con-
ceded that in prior statement (after review) that he had
only recorded that he had asked Bickel to take the truck
out to Goodrich and get the shortage problem straight-
ened out; told Bickel that he would have another driver
meet him there (in regard to tire load); stated that Bickel
could bring the driver's vehicle back to the shop; and
that Bickel had said he was tired, he had just come from
Kansas City and he was bringing the truck back to the
yard and going home. Kandel relates that, after Bickel
hung up on him, he reported the conversation to Moyer.
Kandel called Bickel back in about 5-10 minutes, and
Kandel relates that Moyer spoke to Bickel.
Moyer testified that he had made the Kansas City run
to Fort Wayne some 500-600 times, and that he knew
Bickel would be tired, but that they also had a problem
that had to be taken care of. Moyer relates that he knew
Bickel frequently would not accept Kandel's directions
but would ask to talk to Moyer. On this occasion Moyer
felt that Bickel would do as Moyer asked; and so elected
to also talk to Bickel.
Moyer's version of the second call is thus that he told
Bickel he wanted Bickel to take the truck out to Good-
rich to straighten out the tire load and told Bickel that
someone would meet him there; but Bickel said, "No."
Moyer relates he explained to Bickel how important it
2s Moyer has also referred to a conversation with Bickel when Bickel
called in from a rest area on 1-69. However, Moyer's versions of the sub-
stance of that call from Bickel (on different occasions reported u
spoken/heard by Moyer, or Kandel, or through Phillips, with Moyer
under a truck) are simply too contradictory to be credited.
966
MOYER TRUCKING SERVICE
was to get it taken care of; but that Bickel was very
upset and with cursing Bickel said he was not going to
do anything; he was going to go home and go to bed.24
Moyer also testified Bickel then hung up on him. Moyer
nonetheless asserts he was not angry over that, which
was natural for Bickel, but that he was angry because he
did not want to see Bickel pay for the problem he did
not take care of. On rebuttal Bickel has denied there
were three conversations and he has specifically denied
having the above phone conversation with Moyer at all.
Kandel relates that he heard Moyer say to Bickel on
this occasion that it was as far to bring the truck to the
yard as to go to Goodrich; ask Bickel to take the truck
to Goodrich and straighten out the problem, and say that
Bickel did not have to take the truck out there. 25 (In
fact Kandel's earlier statement makes no reference to
provision being made by Employer for Bickel to get to
Goodrich other than by Bickel driving.)
Finally, after noted testimonial correction on review of
prior statement, Kandel asserts it was he who spoke to
Bickel in the third conversation and that he told Bickel
on that occasion to remove his (dirty) clothes from the
truck; that Moyer was bringing another driver over
there who would take the truck on to Goodrich. As
noted, Kandel concedes that his prior statement does not
refer to any provision theretofore made for Bickel to get
to Goodrich other than by his driving the truck there. I
am convinced there was none.
Moyer arrived at Franke Park accompanied by driver
Phillips. Bickel's version is that Moyer asked Bickel if he
was going to go out to Goodrich and load the tires, and
Bickel again refused, stating that he was tired and out of
hours and out of time, and that he was going home to
bed. Moyer then directed Phillips to take the truck on to
Goodrich. Bickel denies that Moyer told him that he did
not have to load the tires or drive the truck. Moyer and
Bickel then started back to the terminal together in a car
driven by Moyer. Bickel also asserts that they did not
bring up the tire shortage problem until they were back
in the garage.
Moyer's version essentially is that he told Bickel that
Phillips would drive the truck over there and load the
"4 In contrast Moyer's statement reflects simply:
I said I didn't want him to load tires just to take the truck out there
and get the shortage solved. Bickel said he wasn't going anywhere
but back to the shop and then home to bed. Then he hung up on me.
Moreover, although Moyer at one point also related that in this conversa-
tion he had asked Bickel would he take care of the problem if the Em-
ployer's driver took Bickel to Goodrich and that Bickel replied he was
not going anywhere but home to bed, Moyer on cross-examination would
place these statements as occurring later in a face-to-face conversation
occurring later between Moyer and Bickel at Franke Park.
2" Kandel otherwise testified, however, that Moyer had told Bickel
that he did not have to take the load, which Kandel did not think Bickel
had been told before. Moreover, Kandel (though appearing to initially
place it in third conversation) appears to relate that Moyer also told
Bickel in that conversation that all he had to do was go to Goodrich and
get with the checker before he went home, that he wanted Bickel to do
this and, if he did not, then he would not drive another truck until the
problem was taken care of. In contrast, Kandel's prior statement records
that, after Moyer stopped and said Bickel had hung up on him, Moyer
instructed Kandel to call Bickel again and inform Bickel either to take
the truck to Goodrich or remove his clothes from the truck and he
would bring another driver over to take the truck to Goodrich. Kandel
also records that Moyer left before Kandel contacted Bickel.
tires; and that Bickel did not have to do a thing but go in
and take care of the tire problem. Moyer also asserts he
told Bickel that Bickel could ride with the other driver;
and that Moyer would pick him up or have someone else
pick him up. (As noted by the General Counsel such
offer does not appear in Moyer's prior statement.) Ac-
cording to Moyer, Bickel refused, saying he was going
home, as before, but said nothing to him about being out
of drivers' hours. Moyer then directed Phillips to take
the truck on to Goodrich.26 According to Moyer, Bickel
became madder as his truck pulled out. Moyer then said
to Bickel, "let's go back," and they both got in the car.
Bickel's version of their conversation in the car is that
there developed an argument over why he would not go
out and load the tires, with Bickel arguing he had been
out over the weekend and he wanted 2 days off. Finally,
Moyer told Bickel to get out of the car. Moyer's version
is that as they were driving, Bickel became cursingly
abusive about the tires. Moyer said he was not going to
listen to this; and while momentarily stopped about 1-2
miles from the shop Bickel had asked to be let out; and
Moyer accommodated Bickel. (However on other occa-
sions and in statement Moyer acknowledged it was he
who had said to Bickel though in the above circum-
stances that Bickel could get out and walk, and Bickel
did.)
As compared with Bickel's prior assertion that there
was no discussion about his not going out to straighten
out the shortage, upon Bickel's arrival back at the termi-
nal Bickel related (seemingly revealing strain in catching
himself) Moyer wanted to know again "why I did not-
would go to load the tires."2 7 According to Bickel,
Moyer then said Bickel would never drive another piece
of his equipment as long as Bickel lived. Bickel asked if he
was fired. Moyer replied he sure was. Bickel then asked
for his check. Moyer replied he did not have any money
coming until the shortage was straightened up. Bickel
told Moyer the ICC, DOT, and the Board would have
something to say about it.
As noted, Bickel asserts it was not until at the garage
that they had first discussed straightening the shortage.
Thus Bickel testified that Moyer then said that he was
going to have somebody go out with him, all he had to
do was straighten the tire deal up. Bickel said he was not
going to do it then because by the time he got there ev-
erybody would have gone home on shift change. (Bickel
asserts he did not complete unloading until 2 p.m.; and
(in regard to clocktime) testified that there was no way
he could have driven out and returned in an hour.)
Moyer's version is that when Bickel arrived back at the
26 The load was loaded by Phillips that day, but delivered by another
driver the next day.
" Bickel elsewhere referred to discussions about a deal for payment
for the tires. Also in contrast Moyer's affidavit provides in regard to the
prior car conversation:
I asked Bickel why he didn't want to go to take care of the tire problem.
He said he had to go home and go to bed, he might do it later in the
afternoon. He said he wasn't paying for any tires. Bickel got very
agitated and began yelling and cussing. I said I was tired of it, we
had to take care of the tires. He continued yelling about not paying
for the tires, etc. I said I didn't have to take this from him, he could
get out and walk. He said stop the car, he would. I stopped and he
got out. [Emphasis added.]
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
garage Moyer told Bickel that he would not drive an-
other piece of his equipment until he took care of the tire
problem. Bickel responded by telling Moyer he would
show Moyer, saying, "I'll give you more heartache than
you ever had in your life." Leaving momentarily, Moyer
has Bickel return and say, "I'm going to the Labor
Board and I'll stop you"; that he was going to bring up
everything he. could and put Moyer out of business; and
that Moyer then replied if Bickel was more his age, they
would be rolling on the ground. Though testifying on
other matter in rebuttal, Bickel did not deny making
such statements.
Bickel also testified that he has not been paid for his
trips, or been back to the Employer since August 13.
However he testified he did go out to Goodrich on
August 15 (Wednesday). He spoke to Arrington and the
two motor operators. He spent 2 hours there, but they
did not find the tires. They said that 28 tires was like a
drop in the bucket to them; they did not know anything
about the tires; and essentially since he had signed for
the tires he was responsible. Bickel otherwise acknowl-
edged that the company rule did require him to make ac-
curate counts of the loads he hauled; that there was a
discrepancy, not verified as the shipper's or receiver's
mistake, and it was the driver's responsibility.
Moyer acknowledges that Bickel was not paid essen-
tially for his trips of that week, but notes that the tire
shortage was $1226.50, and several trips (even more than
those relating to Bickel) were held back on him; assert-
ing further that Bickel still owed him a balance of about
$760.28 It is also Moyer's contention that he did not tell
Bickel directly that he was fired; Moyer testifying that
he has never fired anyone before. However this was the
Employer's first instance of both a substantial and unre-
solved tire shortage; and only one where the driver had
refused to go back to shipper. There had been other
shortages, including a tire shortage subsequently. The
latter (16-18) tire shortage was resolved by the involved
driver going out to Goodrich promptly. However, in the
latter instance the driver had not signed for the tires.
Analysis, Conclusions, and Findings
On Thursday morning Moyer was informed that
Bickel had signed for the (still) missing pallet of 28 tires.
Moyer recognized immediately that this meant potential-
ly that the Employer itself would be primarily liable to
Goodrich (via Transmarine as established claims agent)
for a then imprecisely known, but correctly anticipated
to be substantial amount of money (as it turned out,
$1226.50), though Bickel would then in turn be secondar-
ily liable therefor to the Employer under application of
its work rule 8. Although Employer's operation at the
time was one that was busy and growing, it also was
small and not of sufficient stature to absorb driver short-
ages generally, and specifically not one of that substantial
a nature. The only approaches open to Moyer for an
avoidance of the aforementioned potential loss would be
for Bickel to get together with the Goodrich checker
a" On August 23 Transmarine notified the Employer that its liability
was S1226.50 which would be deducted from the Employer's open trip
lease.
promptly and by going over their last load procedure
and related paper work hopefully either help to locate
the tires, or be able to explain the indicated shortage oth-
erwise to Goodrich's satisfaction; or, failing that, for the
Employer to have Bickel acknowledge his own liability
as driver, and to accept a full responsibility for the future
substantial charge. But Bickel remained adamant to
Moyer, even in the face of the reported confirmation
that he had signed for the pallet of tires, that Bickel had
left the pallet on the Goodrich dock, and that he was
consequently not going to pay for those tires. With
Bickel unloading at Woodstock, Tennessee, at time of
their discussion late that Thursday afternoon, it was also
recognized by Moyer that there simply was no way that
Bickel could reasonably be expected after the more than
12-hour trip to Woodstock, Tennessee, to make a return
trip to Fort Wayne (553 miles) in time to be able to meet
with Goodrich personnel the following Friday morning,
as it reasonably appears Arrington had last requested be
done. Moreover, what is clear from the subsequent
Kansas City assignment by the Employer is not that the
Employer was required to utilize Bickel for that trip due
to a lack of availability of other drivers, for the contrary
is shown to be the case on this record, viz, that Employ-
er already had truck and driver (Phillips) standing by for
that assignment. Thus what has discernibly emerged
from all the above circumstances of the Kansas City as-
signment is that, when neither Kandel or Bickel were
able to arrange a return load from Memphis, Tennessee,
Moyer had acted to bring Bickel back to Fort Wayne as
quickly as he could in keeping with his own business op-
portunity. It is thus simply implausible in the above-de-
termined background that the Employer in directing
Bickel to go to Goodrich for a load on his return to Fort
Wayne on Monday would not have at that time pressed
Bickel during its conversations with a direction to get
with Goodrich and get the tire shortage straightened out
as Kandel and Moyer in substance have testified, rather
than as Bickel recalled, only doing so in Bickel's last
conversation with Moyer in the garage. Bickel's testimo-
ny thereon was independently not convincing. I do not
credit Bickel in that aspect of his testimony. I rather find
that Bickel was told inter alia to go there and get the tire
shortage straightened out with Goodrich.
On the other hand Bickel has testified, I find, other-
wise generally credibly as to the circumstances of his
return to Fort Wayne. Thus Bickel was no doubt disap-
pointed over the nonmaterialization of the anticipated
Memphis return trip, and with Kandel's and his own in-
ability to replace it on Friday, the loss of his planned
weekend. In those circumstances, his agreement to an ac-
ceptance of the Kansas City load nonetheless served his
own purpose of a desired return to Fort Wayne as soon
as practically possible. 29 Bickle has also otherwise testi-
29 Not only did Bickel not testify as to any intention to deadhead back
for the weekend, that such was not his actual intention is itself reasonably
to be inferred from his conduct in remaining in the Memphis, Tennessee
area, searching unsuccessfully for a return load through Friday evening,
before seeking or acquiescing in an acceptance of the alternative available
Kansas City trip load, a load which notably at that time would return
him to Fort Wayne earlier than an alternative Monday load would, even
were the latter certain to materialize at the time, which it was not.
968
MOYER TRUCKING SERVICE
fled with both supportive and plausible detail that in
making the Kansas City trip he had been more than 15
hours on the clock and has unquestionably established
that he had driven more hours (12) in that period than
the (10) driving hours the regulations allowed, all by
time of his arrival at Franke Park. Employer's evidentia-
ry offerings in attempted reduction of such clock period
simply wholly have failed of persuasion for any such re-
duction (even absent any consideration of a further rea-
sonable clocktime allowance for a directed-additional
driving out to Goodrich, problem inquiry and return);3 0
and notably was not even attempted as to driving time,
itself. Finally Kandel's and Moyer's variant recollections,
particularly in relationship to the latter consideration,
viz, that Employer's position eventually was that Bickel
was not being required to drive the truck to Goodrich
after all (or to drive back) was strained, inconsistent, and
nonconvincing. I do not credit their testimony in that
aspect. Thus, although I have credited Kandel and
Moyer that Bickel on this occasion was directed to
straighten out the problem with Goodrich, essentially
doing so on basis of strong probability from attendant
circumstances that was the Employer's intention, I credit
Bickel as well, that he was directed to drive out to
Goodrich for a load and he refused to go to Goodrich,
or anywhere but back to the yard, in substance and
effect asserting reason being that he was tired from the
Kansas City trip, was out of hours, and was going home
and going to bed. I further conclude, in any event, that
the Employer was chargeable on the facts of this record
with an awareness, and indeed was actually aware that
Bickel, in making the Kansas City trip, was tired, and
had depleted driving hours allowed by applicable DOT
regulation. I further conclude and find that Bickel was
discharged for refusing to immediately take the truck to
Goodrich for the load, as well as the shortage. I base
such conclusion on the following factors: I find that
Bickel was told in substance and effect to either take the
truck to Goodrich, or remove his clothes from the truck
(he regularly drove); that he thereafter refused to take
the truck to Goodrich, and did remove his clothes; that
an argument continued between Moyer and Bickel over
his refusal to drive to Goodrich and immediately take
care of the problem, with Bickel also then expressing un-
willingness to pay for all the shortage by himself. In that
context I find Bickel's testimony that he was told that he
would never drive for the Employer again as the more
likely, particularly in view of the Employer's announce-
ment that all his trip checks were to be withheld towards
payment of the shortage loss. The case appears to thus
come down to point of law, viz was Bickel's refusal, to
continue to drive (or work) further at that time, a pro-
tected concerted activity as the General Counsel con-
tends, such that his discharge therefor was unlawful. The
critical consideration need not be belabored. I am con-
vinced that such element of refusal to drive to Goodrich
that afternoon in inextricably enmeshed in the causation
s0 Such would appear to be additional on-duty time whether to be
considered on-duty time in transportation, or nontransportation work.
See G.C. Exh. 9, Federal Motor Carrier Safety Regulation Interpreta-
tions (Chap. VI, part 395, Hours of Service of Drivers, par. 7, sec. 2.c.
and e).
of his subsequent termination. With that determination it
follows, in view of existing Board precedent, that the
General Counsel's position must prevail in the matter.
Thus the fact that Bickel here acted alone is not dis-
positive of the issue of concerted activity where consent
and concert of action emanates from an assertion of stat-
utory rights designed (inter alia) to enhance employees'
safe working condition, Alleluia Cushion Co., 221 NLRB
999 (1975). There the Board noted, "[W]here an employ-
ee speaks up and seeks to enforce statutory provisions re-
lating to occupational safety designed for the benefit of
all employees, in the absence of any evidence that fellow
employees disavow such representation, we will find an
implied consent thereto and deem such activity to be
concerted." It would seem hardly questionable that all
the Employer's drivers have such an interest in those
very same DOT regulations which inter alia are clearly
designed for their occupational safety in the transport of
goods in heavy equipment on the highways of this coun-
try. The General Counsel correctly observes that under
established Board precedent the Act's protection has
been held to extend to an employee's (driver's) refusal to
carry out a specific order of instruction which, if in fact
carried out, would be in violation of such a statutory
law, absent malicious motivation on the part of the em-
ployee which I find is not shown applicable herein. Pri-
vate Carrier Personnel, 240 NLRB 126 (1979). See also B
& P Motor Express, 230 NLRB 653, 654 (1977). I thus
conclude and find that the General Counsel has made
out a prima facie case that the Employer by terminating
its driver Gary Bickel on August 13 because he refused
to drive and work beyond hours allowed by applicable
law of the Federal Motor Carrier Safety Regulations of
the United States Department of Transportation has ter-
minated its driver Bickel for engaging in protected con-
certed activity in violation of Section 8(a)(1) of the
Act.31 As Respondent has not shown that the same ter-
mination action would have taken place even in the ab-
sence of protected conduct, I find the Employer has by
such action violated Section 8(a)(1) of the Act. Wright
Line, 251 NLRB 1083 (1980). As noted, contrary to the
General Counsel's urgings, I conclude and find in the
light of all the above evidence that the General Counsel
has not established a prima facie case of violation of Sec-
tion 8(a)(3) of the Act in the termination of driver Gary
Bickel. I shall recommend that that complaint allegation
be dismissed.
Si Cases cited by the Employer not involving such statutory consider-
ations are deemed inapposite. It would appear that Respondent's other ar-
guments that ICC and DOT are more appropriately responsible for en-
forcing compliance with their regulations is an argument which has al-
ready been considered and heretofore found to be not dispositive of pro-
tected concerted activity issues. In any event, I am governed by existing
Board precedent in the matter, Fred Jones Mfg. Co., 239 NLRB 54 (1978).
Respondent's other urgings with respect to alleged deficiencies in Bick-
el's past conduct as contributing to Bickel's discharge without merit, and
if anything depict vacillations supportive of other reason, viz that found
herein. As in Alleluia Cushion, supra, the instant case did not involve con-
sideration of a collective-bargaining agreement. Id. at 999 fn. 2. With
regard to the Board's accommodation to statutory scheme involving an-
other aspect of the national labor policy, see also Self Cycle d Marine
Distributor Co., 237 NLRB 75 (1978).
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Larry Moyer d/b/a Moyer Trucking & Garage
Service is an employer engaged in commerce within the
meaning of Section 2(6) of the Act.
2. By discharging driver Gary Bickel on August 13 be-
cause he refused to drive and work beyond hour allowed
by applicable law of the Federal Motor Carrier Safety
Regulations of the United States Department of Trans-
portation, the Employer has terminated its driver Gary
Bickel for engaging in protected concerted activity in
violation of Section 8(a)(1) of the Act.
3. Respondent has not otherwise violated the Act as
alleged in the complaint.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
It having been found that the Respondent has wrong-
fully discharged its employee Gary Bickel for exercising
his Section 7 protected rights, in violation of Section
8(a)(1) of the Act, it will be recommended that Respond-
ent offer Gary Bickel immediate and full reinstatement
and make him whole for any loss of pay or other em-
ployment benefits he may have suffered as a result of the
unlawful discharge. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977). s2
[Recommended Order omitted from publication.]
s2 See generally Isis Plumbing Ca, 138 NLRB 716 (1962).
970