Old Dominion Freight Line, Inc.

National Labor Relations Board - Board Decisions

May 15, 2000

331 N.L.R.B. 111 (N.L.R.B. 2000)

OLD DOMINION FREIGHT LINE 111
Old Dominion Freight Line, Inc. and Highway and Lo-
cal Motor Freight Drivers, Dockmen and Helpers,
Local Union No. 707, International Brotherhood of
Teamsters, AFL–CIO and Ruben Fuentes. Cases
29–CA–20002 and 29–CA–20944
May 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On September 23, 1998, Administrative Law Judge
Jerry M. Hermele issued the attached decision. The
General Counsel filed exceptions, a supporting brief, and
a letter in answer to the Respondent’s cross-exceptions.
The Respondent filed cross-exceptions and a supporting
and answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions only
to the extent consistent with this Decision and Order.
1. In Case 29–CA–20002, the Union charged that the
Respondent unlawfully discharged three union support-
ers, threatened employees with physical harm and plant
closure, and falsely accused employees of bullying other
employees into signing authorization cards. The parties
settled the allegations, and the Regional Director ap-
proved the settlement on September 11, 1996.
On April 25, 1997, Ruben Fuentes filed a new unfair
labor practice charge in Case 29–CA–20944. The Gen-
eral Counsel issued a consolidated complaint that va-
cated the settlement agreement in Case 29–CA–20002
and consolidated the unfair labor practice allegations of
the two cases.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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 he was faced with “stark differences” between the
testimony of Charging Party Fuentes, on the one hand, and the testi-
mony of certain of the Respondent’s witnesses, on the other. The judge
found “all to be credible witnesses.” Therefore, he dismissed several
complaint allegations on the ground that the General Counsel had not
carried his burden of proof. The Board has held that it is not improper
for a judge to resolve disputed issues on this basis. Blue Flash Express,
109 NLRB 591, 591–592 (1954).
The judge, however, did not expressly address the conflict in the tes-
timony pertaining to the complaint allegation that Terminal Manager
Horvath unlawfully threatened Fuentes with discharge. (Fuentes testi-
fied, and Horvath denied, that such threats were made in January, Feb-
ruary, and April 1997.) With respect to another disputed incident
(whether antiunion statements were made during Fuentes’ job inter-
view), however, the judge explicitly found Horvath’s denial to be
“credible” and “again not possible to square with Fuentes’ testimony.”
See par. 31 of the judge’s decision. Therefore, we infer that the judge
intended to credit Horvath’s denial with respect to the threat-of-
discharge allegations as well. Since the judge also generally found
Fuentes to be a credible witness, we consequently dismiss the threat-of-
discharge allegations on the ground that the General Counsel failed to
sustain his burden of proof. Blue Flash, supra.
The judge found that the Respondent violated the Act
by promising Fuentes a pay raise in August 1996 and
granting him a pay raise on September 12, 1996. The
judge dismissed all other allegations of the consolidated
complaint.
In its cross-exceptions, the Respondent contends that
the judge erred in rejecting its 10(b) defense to the
Fuentes’ pay allegations. For the reasons set forth be-
low, we find merit in the Respondent’s contention.
Citing Redd-I, Inc., 290 NLRB 1115 (1988), the judge
found that the pay raise allegations of the complaint are
“closely related” to the other allegations of Fuentes’ un-
fair labor practice charge. The judge, however, over-
looked Redd-I’s additional requirement that the com-
plaint allegations must be based on conduct occurring
less than 6 months before the filing of the charge. That
there are two parts to the Redd-I test was made clear by
the Board when it quoted with approval from NLRB v.
Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952), as
follows:

If a charge was filed and served within six months after
the violations alleged in the charge, the complaint (or
amended complaint), although filed after the six
months, may allege violations not alleged in the charge
if (a) they are closely related to the violations named in
the charge, and (b) occurred within six months before
the filing of the charge. [290 NLRB at 1116.]

As the Board explained in Columbia Portland Cement Co.,
303 NLRB 880, 884 (1991), enfd. 979 F. 2d 460 (6th Cir.
1992):

The General Counsel is permitted to add complaint al-
legations outside the 6-month 10(b) period if they are
closely related to the allegations of a timely filed
charge, and are based on conduct that occurred within 6
months of the filing of that charge. Redd-I, Inc., 290
NLRB 1115 (1988). [Emphasis added.]

Here the complaint allegations of Case 29–CA–20944
stem from the initial charge Fuentes filed on April 25,
1997, which the Region served on the Respondent by
depositing it in the mail on April 30, 1997. Thus, only
those complaint allegations involving conduct occurring
after October 30, 1996, are timely within the limitations
of Section 10(b) of the Act, and those allegations that
involve conduct occurring prior thereto are time-barred
by Section 10(b). Because the promise and grant of a
pay raise to Fuentes found unlawful by the judge oc-
curred in August and September 1996, outside the 10(b)
period, those allegations cannot be found to be unfair
labor practices includable in the April 25, 1997 charge,
and must be dismissed.
331 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112
2. The judge found, and we agree, that the Respondent
did not commit any other unfair labor practices after the
settlement agreement in Case 29–CA–20944 was ap-
proved. Therefore, in accordance with established Board
policy, we shall dismiss the consolidated complaint in its
entirety and reinstate the settlement agreement. Carlsen
Porsche Audi, 266 NLRB 141, 153 (1983).
ORDER
The consolidated complaint is dismissed.
IT IS FURTHER ORDERED that the settlement
agreement in Case 29–CA–20002 is reinstated.

Sharon Chau, Esq., Brooklyn, New York, for the General
Counsel.
W. T. Cranfill, Jr. and John O. Pollard, Esqs. (McGuire,
Woods, Battle & Boothe LLP), Charlotte, North Carolina,
for the Respondent.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. This
case involves an unsuccessful effort by the Teamsters to organ-
ize the employees at a freight terminal in Bay Shore, New
York, owned by Old Dominion Freight Line, Inc. (Old Domin-
ion). Soon after union cards were distributed in May 1996, Old
Dominion terminated three employees and unfair labor practice
charges were filed. Following the General Counsel’s issuance
of a complaint on August 5, 1996, a settlement agreement was
reached in September 1996 whereby the three employees
waived reinstatement in return for Old Dominion’s payment to
them for any loss of earnings. Then, in December 1996, the
Union lost the election and, in April 1997, Ruben Fuentes, an-
other prounion employee, was discharged. So, on September
30, 1997, the General Counsel issued another complaint and
revoked the settlement agreement.
The Respondent, Old Dominion, argued in its October 9,
1997 answer that the General Counsel improperly set aside the
settlement agreement and that the matters in the original com-
plaint should not be litigated. But in a trial held on March 16–
17, 1998, in Brooklyn, New York, everything was litigated,
contingent on a ruling whether the settlement was properly set
aside. In that connection, the General Counsel called four wit-
nesses, including two of the three employees discharged in May
1996, plus Ruben Fuentes. The Respondent then called seven
witnesses. Finally, both parties filed briefs on May 14, 1998.
II. FINDINGS OF FACT
Old Dominion is a nonunion1 freight transportation company
based in High Point, North Carolina. It has 84 terminals
throughout the United States, including one at Bay Shore, New
York, which handles over $50,000 per year in interstate freight
(G.C. Ex. 1(o); Tr. 407). At Bay Shore, trailers pull in after 11
p.m., and dock workers unload them and reload the contents on
trucks for local delivery by drivers, who start their shifts at 8
a.m. The drivers then make their delivery runs and also pick up
new freight, which is then brought back to the terminal for
loading on trailers, which then depart for various interstate
destinations (Tr. 49–51, 251).

1 One of Respondent’s terminals, in Masschusettes, became union-
ized but later the Union was decertified (Tr. 366, 377).
William Horvath is the manager of the Bay Shore terminal
(Tr. 250). He hired Ruben Fuentes as a truckdriver on February
29, 1996. According to Fuentes, Horvath said in the job inter-
view that “[i]f you get involved in any Union matter, you are
going to be immediately fired.” (Tr. 18–19.) Horvath denied
telling Fuentes that union activity was a ground for termination
and likewise denied asking Fuentes what his position on unions
was (Tr. 254–255).
Thomas Van Schaick, Jr., another driver, contacted Team-
sters Local 707 in late April 1996 about the possibility of orga-
nizing the drivers and dock workers at the Bay Shore terminal
(Tr. 159–161). Van Schaick received cards from the Union to
be signed by the employees. To that end, he scheduled a meet-
ing at a nearby bar on May 7, 1996, at which six employees,
including himself, Fuentes, Dominick Liantonio, and Raymond
Every signed cards expressing support for the Union (Tr. 22–
23, 165, 178, 192). Van Schaick also talked to dockman Pat-
rick Wescott that day about signing a card. According to Van
Schaick, he told Wescott that if Wescott wanted to sign it was
purely voluntary (Tr. 168, 183–184). According to Jeffrey Van
Schaick (Tommy’s brother), Tommy told Wescott that it was
optional to sign the card and Wescott signed enthusiastically,
saying that he needed better benefits because of a newborn in
his family (Tr. 211–212). According to Liantonio, Wescott
enthusiastically said that “we are going to screw the company”
(Tr. 195).
Wescott, however, had a decidedly different version of events.
According to Wescott, Tommy approached him 1 day at work and
asked him to come to a trailer to look at something. Driver Every
accompanied Van Schaick and Wescott inside the trailer, while
Liantonio waited outside. After Van Schaick asked Wescott about
signing a union card, Wescott hesitated, saying that he had a fam-
ily and was worried about losing his job if he signed. Van Scha-
ick then became agitated and came closer to him in the trailer,
saying that everyone else was signing except one other driver,
Ricardo.2 But Wescott still declined to sign. All three men then
left the trailer and Van Schaick and Liantonio went over to Ri-
cardo’s truck. Wescott saw Van Schaick arguing with Ricardo
and pointing a finger at Ricardo, although he could not hear the
conversation. Wescott then worked his regular nighttime shift.
The next day, Van Schaick again asked him, this time in the
breakroom, if he would sign, and Wescott again said he was unde-
cided. Van Schaick again became agitated. Wescott then relented
and signed a card, believing he would be physically hurt if he did
not. Specifically, Wescott testified that he was afraid because he
saw Van Schaick point a finger at Ricardo and because he had to
wait for his ride home in the early morning darkness after his shift.
After signing, Wescott felt ashamed. So, during his shift he told
Supervisor Parker, at 1 a.m., that three drivers—Thomas Van
Schaick, Liantonio, and Every—were pressuring other employees
into signing union cards. Wescott left work early that Friday
morning without completing his shift (Tr. 324–336).
At 7:30 a.m. on Friday, May 10, Van Schaick arrived to
work. Horvath told Van Schaick to come to his office because
someone was on the telephone wanting to talk to him. Van
Schaick picked up the telephone and heard an unidentified
voice threaten him because he was distributing union cards.
After he hung up the telephone, Van Schaick told Horvath what
the voice said. Horvath then asked if Van Schaick knew any-
2 Ricardo’s last name appears to be L’Lantin according to R. Ex. 20,
although the General Counsel says it’s Lilantin.
OLD DOMINION FREIGHT LINE 113
thing about union cards and Van Schaick said no (Tr. 168–
172).
Horvath learned later that morning about Wescott’s early de-
parture. After several unsuccessful attempts to call Wescott at
home, Horvath finally reached Wescott and convinced him to
meet at a 7-Eleven. Wescott told him that Van Schaick, Lian-
tonio, and Every “got a little intimidating” regarding his sign-
ing of the union card (Tr. 284–285, 289). Horvath then told
Wescott to write it down (Tr. 290), and Wescott did, stating:

I told Parker Bescause I felt intimated. I work with these
people. I was afraid for my safety standing on the corner at 4
AM that’s why I signed the card.

(R. Exh. 14.) According to Fuentes, Wescott said that Horvath
offered him a full-time job and better benefits if he wrote the
statement (Tr. 25–28). But Fuentes failed to mention this in his
pretrial affidavit (Tr. 108).
Upon returning to his office, Horvath talked with his superi-
ors, Mark Madden, Old Dominion’s northern regional manager,
and Joel McCarty, the company general counsel. Horvath rec-
ommended that Van Schaick, Liantonio, and Every be fired.
Madden and McCarty concurred. McCarty felt that the safety
of the other employees was risked by the three drivers. How-
ever, Horvath never questioned the three drivers about the alle-
gations, to get their sides of the story, before firing them (Tr.
292–294, 319, 394).
Van Schaick was recalled to the terminal after noon, where
Horvath fired him for intimidating employees into signing un-
ion cards (Tr. 173–175). Horvath also fired Liantonio that
same day, for the same reason. Liantonio told Horvath that he
never intimidated any employee into signing (Tr. 193–194).
And on Monday, May 13, Every was also terminated (R. Ex.
20; Tr. 294). Wescott arrived for his shift on Monday evening,
unaware that the three drivers had been fired. Tom Demato
gave Wescott a dirty look and said “they’re at your house.” At
this point, Wescott left work and never returned, despite
Horvath’s 15 requests. Moreover, he moved his family to At-
lanta, Georgia, where he obtained another job with Old Domin-
ion (Tr. 339–342, 349).
On May 13, 1996, the Union filed a petition with the Na-
tional Labor Relations Board, seeking to represent the drivers
and dockmen at the Bay Shore terminal. And on May 14, the
Union filed a charge with the Board regarding the termination
of the three employees. On May 15, management held a meet-
ing with the remaining employees. According to Fuentes, two
of the Respondent’s vice presidents from North Carolina spoke.
Ernest Brently said that the Union was not good for Old Do-
minion and, at the one Massachusetts terminal that voted for a
union, “they wasn’t going to get any contract . . . . And most of
the people that were there at the beginning, they are not there
any longer because . . . they made it difficult for them.” Fuentes
added that John Yowell then spoke, saying that unionized
freight companies are losing money and if the employees at the
Bay Shore terminal unionized, Old Dominion “will have to shut
the door down” because there would not be enough business.
Fuentes then voiced his prounion sentiments in the meeting and
Brently told him afterwards that “if you don’t like it, you know
what you . . . have to do” (Tr. 28–32). Jeffrey Van Schaick
testified that Brently said that the terminal would likely close if
the Union won the election because Old Dominion would lose
money. But Van Schaick also testified that Brently said that
most union terminals “were [operating] in the black.” (Tr.
214–17) Brently and Yowell, however, both flatly denied say-
ing that the terminal would close if the Union won (Tr. 375,
383). At some point after May 1996, Horvath asked Fuentes
“how do you feel about it?” Fuentes told Horvath that he
would vote against the Union (Tr. 33). Horvath denied asking
Fuentes how he felt about the Union (Tr. 255).
During the election campaign, management held biweekly
meetings with the employees (Tr. 47). At one such meeting in
August 1996, Fuentes again testified that certain threats were
made. Specifically, Brently repeated that Old Dominion would
close the terminal if necessary. Yowell added that Old Domin-
ion was “going under . . . because of the Unions.” Also accord-
ing to Fuentes, Supervisor Mark Madden promised him a $1.38
per hour pay raise and “a couple of weeks vacation” if the Un-
ion lost the election because Fuentes was an influential em-
ployee who could sway votes against the Union. Then, Fuentes
told Madden that he would vote against the Union. However,
Fuentes did not think that Madden believed him. Finally, refer-
ring to Van Schaick, Liantonio and Every, Madden said “those
troublemakers, they are not going to come back again.” And
Madden also said that he needed a “son of a bitch” to manage
the Bay Shore terminal properly (Tr. 34–42). Madden, how-
ever, testified that an employee merely asked him during a
meeting if “those troublemakers” would be coming back. But
Madden did not refer to the three discharged employees as
troublemakers. Madden also denied making any antiunion
threats or promising Fuentes a raise if Fuentes became anti-
union. Further, Madden explained that Fuentes asked him about
a pay raise first, and he said that Horvath’s approval would be
required. Horvath later agreed to Fuentes’ request, but Madden
said to wait until the NLRB case was settled. Madden also
testified that he never discussed the subject of vacation with
Fuentes (Tr. 358–363). Fuentes denied ever asking for a pay
raise or vacation in his first year of work (Tr. 115, 119). But
Horvath claimed that Fuentes had been asking for a pay raise
since May 1996. Horvath always told him that, in accordance
with Old Dominion policy, employees needed to wait 1 year for
a raise (Tr. 257–258, 300).
On September 11, 1996, a settlement was reached between
the Regional Director and Old Dominion, whereby the Com-
pany would post a notice and pay the three discharged employ-
ees backpay, in return for the dismissal of the August 5, 1996
complaint, and a waiver of reinstatement3 (Tr. 187–189, 205–
06; GC Ex. 1(o), (q)). On September 12, 1996, Fuentes re-
ceived an hourly pay raise from $13.60 to $14.98 (R. Ex. 8). In
this connection, Horvath felt that Fuentes was a good worker
who deserved an early raise. Although Horvath had never done
this for an employee before, company rules allow it (R. Ex. 4;
Tr. 301). According to Fuentes, he also received a paid 1-week
vacation a few weeks later. Again, the normal Old Dominion
policy is to give employees paid vacation only after 1 year on
the job (Tr. 43, 122, 386). However, Horvath denied that
Fuentes ever received a vacation, and likewise denied ever
discussing the subject of vacation with Fuentes (Tr. 259–260).
Moreover, Old Dominion’s personnel records reveal that the
only vacation pay received by Fuentes was in April 1997, after
his 1-year anniversary at Old Dominion (R. Ex. 19; Tr. 386–
387).

3 Every, Van Schaick, and Liantonio were to receive $13,005,
$11,734.43, and $3,807.50, respectively.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114
Election day was December 5, 1996 (Tr. 46). Fuentes was
an election observer for the Union. According to Fuentes,
Madden told him on election day that Fuentes “made an ass out
of him” by supporting the Union after receiving the pay raise
and vacation pay (Tr. 51–53). Madden denied saying this (Tr.
363). The Union lost the vote (Tr. 53). No objections to the
election were filed by the Union (G.C. Ex. 1(q); Tr. 377).
The day after the election, Fuentes testified that Madden said
that the terminal “was going to be run differently.” Specifi-
cally, infractions would now be noticed, such as tardiness (Tr.
47). Madden denied saying this. Indeed, according to Madden,
attendance is a matter within Horvath’s domain (Tr. 363). Also
according to Fuentes, Horvath told him that management was
going “to get more work out of you” (Tr. 57). In late January
1997, Horvath changed Fuentes’ starting time from 8 to 7 a.m.
because of an increase in workload (Tr. 58, 261). According to
Fuentes, Horvath said that Brently had asked why Fuentes was
still working there (Tr. 59). Fuentes added that Horvath said
that Fuentes had to leave before any second vote on the Union
(Tr. 75, 85). Horvath denied ever saying this to Fuentes (Tr.
284).
Horvath was happy with Fuentes’ job performance as of
January 1997 (Tr. 260). Indeed, management had always told
him that he was doing well (Tr. 58). On January 15, 1997,
Fuentes arrived at work at 8:09 a.m., instead of 8 a.m., because
of traffic. For the first time, he received a written warning
(G.C. Ex. 2; Tr. 60). But on prior occasions of tardiness, he
was only 3 minutes late (Tr. 61). Another employee with whom
Fuentes was driving to work that day was also similarly disci-
plined (R. Ex. 9; Tr. 64–65, 125). On February 27, 1997,
Fuentes received another written discipline for failing to get a
customer to sign a delivery receipt (R. Ex. 10; G.C. Ex. 3).
This was a significant error, rarely made by drivers (Tr. 266–
267). Also in February 1997, Fuentes received the wrong
amount of money on a shipment from a customer (R. Exs. 11–
12). Fuentes claimed that he immediately called the terminal
office upon noticing the error and was told by Maryse Laszlo
“don’t worry about it.” (Tr. 70–71) But Laszlo, a clerk, testi-
fied that Fuentes never told her about the error, and that she
learned of it only subsequently (Tr. 367–368). The error con-
cerned approximately $100 but it nevertheless caused addi-
tional work for Old Dominion to correct it (Tr. 270, 371, 381).
So, Fuentes received another written warning on February 27
(G.C. Ex. 4). On March 31, 1997, Fuentes failed to get a com-
plete description of the contents of one shipment he picked up.
Fuentes conceded his error, but claimed that he did not know
about the proper procedure for this until after March 1997 (Tr.
76–78, 135). So, Fuentes received another written discipline
(G.C. Ex. 5). On April 2, 1997, Fuentes delivered a package of
17 cartons that was one carton short (R. Ex. 1; Tr. 79, 145). So,
Fuentes received another written warning for failing to note on
the delivery report that the cartons were shrink-wrapped (G.C.
Ex. 6). But Fuentes disagreed with the write up, claiming that
he did not want to lie on the delivery report by writing thereon
that the cartons were shrink-wrapped. Instead, Fuentes said the
cartons were merely taped together. But he did not note on the
delivery report that the cartons were taped either (Tr. 140–142).
Fuentes confronted Horvath several times in early 1997
complaining that Horvath was trying to get rid of him for com-
mon, minor infractions (Tr. 147, 283). On April 15, 1997,
Fuentes received a check from a customer that was improperly
made out to Old Dominion, rather than the shipper. So,
Horvath wrote up another warning, but tore it up in order to
give Fuentes a chance to correct the matter (R. Ex. 13; Tr. 148–
149). Finally, on April 18, 1997, Fuentes was fired for improp-
erly soliciting business for another freight company; a claim he
denied (Tr. 124, 150).
Fuentes filed a charge with the Board on April 25, 1997, al-
leging that he was unlawfully disciplined and terminated. The
General Counsel issued his order revoking the settlement
agreement and setting the entire case for trial on September 30,
1997, without any allegation, however, regarding Fuentes’
discharge. Old Dominion’s answer, filed on October 9, 1997,
denied the 8(a)(1) and (a)(3) allegations, and contended that the
General Counsel was estopped from relitigating the discharges
of Van Schaick, Liantonio, and Every.
III. ANALYSIS
The General Counsel’s case is more significant for what is
not alleged and not sought by way of remedial relief. Specifi-
cally, no violation of the Act has been alleged regarding
Fuentes’ April 1997 discharge. Also, no rerun of the 1996
election has been sought. Instead, this case involves various
8(a)(1) allegations regarding the Respondent’s conduct follow-
ing the May 1996 discharges, and 8(a)(3) allegations regarding
Fuentes’ employment in late 1996 and early 1997. Further,
because of this alleged misconduct following the settlement
agreement, the General Counsel seeks to litigate at last the
original matter in this case concerning the May 1996 discharges
of Van Schaick, Liantonio, and Every.
A. Evidentiary Matters
At the trial, the Presiding Judge reserved ruling on General
Counsel Exhibits 7, 8, and 9, and Respondent Exhibit 20. Gen-
eral Counsel Exhibits 7–9 concern the affidavit of Ray Every.
The General Counsel claimed that it was unable to find Every,
who apparently moved out of state, and thus offered his affida-
vit in lieu of live testimony. The Respondent naturally objected
because it would be precluded from cross-examining Every. In
support of its request to have the affidavit received, the General
Counsel cited newly minted Federal Rule of Evidence 807.4
Every’s affidavit will be rejected because it has virtually no
evidentiary value. Other than innocuous background informa-
tion and cumulative discussion about the May 1996 termina-
tion, Every writes therein about a 1994 antiunion remark made
by a supervisor who was apparently not even employed at the
Bay Shore terminal in 1996. And that remark has nothing to do
with Local 707’s 1996 organizing campaign. Moreover, in
view of the resolution of the issue pertaining to Every, which
lets the settlement stand, his affidavit is irrelevant.
Turning to the Respondent’s Exhibit 20, it is a compilation
of the number of written warnings issued to employees at Bay
Shore from 1994 to 1997. This exhibit also provides some
neutral, useful information about the employees. The General
Counsel objected, however, to the portion regarding disciplines.
But the Presiding Judge has not used Exhibit 20 to make any
findings about written disciplines. So, Exhibit 20 will be re-
ceived only for the limited purpose of establishing employees’
identities, dates of hire, full or part-time status, and dates of
termination.
Lastly, the General Counsel wrote a letter on June 2, 1998,
replying to the Respondent’s May 14 brief. Then, the Respon-

4 Rule 807 is actually only renumbered Rule 803(24) and Rule
804(b)(5). They all read the same.
OLD DOMINION FREIGHT LINE 115
dent followed with its own June 12, 1998 letter responding to
the General Counsel’s brief. The Board’s Rules, however, do
not provide for the filing of reply briefs, or letters disguised as
such. Moreover, neither party requested permission to file such
a letter. Therefore, upon the Presiding Judge’s own motion,
both of these filings will be stricken.
B. Post-May 1996 Discharge Allegations
The Respondent’s alleged misconduct after the discharges of
the three drivers in May 1996 falls into three categories: (a)
threats to employees in 1996 to close the Bay Shore terminal if
the Union won, and threats to impose more onerous working
conditions; (b) a grant of a pay raise and vacation to Fuentes in
1996 to encourage him to abandon his support of the Union;
and (c) various written disciplines of Fuentes in 1997 to retali-
ate for his support of the Union.
Addressing the alleged threats by management first, Fuentes
testified that on May 15, 1996, or just days after the three dis-
charges, Old Dominion Vice President Brently came up from
North Carolina and made implicit threats against the Union.
Fuentes added that another North Carolina Vice President, John
Yowell, told the employees that the Bay Shore terminal could
not survive economically if the Union came in. Fuentes also
testified that Brently and Yowell repeated these threats in Au-
gust 1996. Further, Fuentes clamed that Madden, a vice presi-
dent based in the New York area, referred to the three departed
employees as “troublemakers” and threatened to get a “son of a
bitch” to manage the terminal properly. Finally, Fuentes testi-
fied that Madden said in December 1996, just after the election,
that things would be done different now, such as tightening up
on tardiness and other infractions. Brently, Yowell, and Mad-
den all denied Fuentes’ allegations.
Notwithstanding the stark differences in the above-discussed
testimonies, the Presiding Judge found Fuentes, Yowell,
Brently, and Madden all to be credible witnesses. Having said
that, it is concluded that the General Counsel has not proven, by
a preponderance of the evidence, its allegations that the Re-
spondent’s supervisors threatened the employees from May 15,
1996 onward. First, three credible witnesses have denied
Fuentes’ allegations. For example, Madden adequately ex-
plained that the use of the loaded term “troublemakers” in an
employee meeting originated with an employee. Also, Brently,
who was in charge of the Respondent’s election campaign,
credibly testified that, as a 38-year veteran of union campaigns,
he knows that threats to close down a company are illegal and
“I wouldn’t do that” (Tr. 373–375). Second, Jeffrey Van Scha-
ick’s testimony about Brently’s remarks during the May 15,
1996 meeting is not of much help to the General Counsel. Ac-
cording to Van Schaick, Brently said that the Bay Shore termi-
nal could not survive economically if the Union won the elec-
tion. But Van Schaick also illogically maintained that Brently
said in the same speech that most union terminals were operat-
ing “in the black.” Clearly, Brently could not have made both
statements. Thus, Van Schaick’s version of Brently’s first al-
leged statement is entitled to little weight. Therefore, the Gen-
eral Counsel has not proved the alleged threats by a preponder-
ance of the evidence.5

5 The rejected affidavit of Every (G.C. Ex. 7) is also of little help to
the General Counsel’s allegations. Specifically, Every only stated that
a supervisor named Worthington said in 1994 that the terminal would
close if a union came in. But this statement had nothing to do with
Local 707’s 1996 organizing campaign.
Turning to the alleged promise of a pay raise and vacation to
Fuentes in August 1996, and granting thereof in September
1996, Fuentes claimed that Madden approached him during the
union campaign with this “bribe” to turn against the Union.
Madden insisted that it was Fuentes who initially asked him
about a raise. Likewise, Horvath maintained that Fuentes had
been asking him for a pay raise since May 1996, or just 3
months after being hired. In any event, the evidence clearly
shows that Old Dominion gave Fuentes a $1.38 per hour raise
on September 12, 1996. As for a paid vacation, which was
likewise available to Old Dominion employees only after 1 year
on the job, the evidence is fuzzier. While Fuentes testified that
Madden made an unsolicited offer of “a couple of weeks vaca-
tion,” both Madden and Horvath flatly denied ever talking with
Fuentes about a vacation. And the Respondent’s personnel
records reveal no paid vacation was given to Fuentes until April
1997, which was well after the December 1996 election. But
Fuentes testified that he received a paid 1-week vacation some-
time in August or September 1996.
The evidence is too murky about the vacation. But regard-
less of who broached the subject first, it’s clear that Horvath
and Madden both approved an extraordinary pay raise to
Fuentes, a leading union activist, in the midst of the election
campaign. Although Horvath claimed that he did so in order to
reward a good employee, it is far more significant that Horvath
admitted that he had never before given an employee a raise
prior to the 1-year anniversary date. Also, there is no specific
evidence to support Old Dominion’s contention, at page 29 of
its brief, that such raises “are commonly given to workers dur-
ing their first year of employment,” at either Bay Shore or at
any of the Respondent’s 83 other terminals. Under the circum-
stances then, it is concluded that the Respondent’s grant of an
economic benefit was intended to discourage Fuentes’ union
activity. As such, it violated Section 8(a)(1) and (3). NLRB v.
Exchange Parts Co., 375 U.S. 405 (1964); B & K Builders, 325
NLRB 693 (1998).
Finally, the Respondent’s 10(b) defense to this issue is re-
jected. In this regard, the September 1996 pay raise occurred
seven months before Fuentes’ April 1997 charge of unlawful
written warnings and discharge. But the pay raise matter in-
volves the same legal theory—Section 8(a)(1) and (3) of the
Act—as the timely allegations discussed in paragraphs 30–32,
infra. Also, the pay raise allegation arises from the same se-
quence of events in 1996–1997—i.e., the Respondent’s re-
sponse to the Union’s organizing campaign. Finally, the Re-
spondent raised similar defenses to the pay raise and discipline
allegations: denying Fuentes’ version of events. Thus, the pay
raise allegation, first raised in the General Counsel’s com-
plaint, is “closely related” to the other timely allegations con-
tained in Fuentes’ charge, and therefore is not time-barred by
Section 10(b) of the Act. Nickles Bakery of Indiana, 296
NLRB 927 (1989); Redd-I, Inc., 290 NLRB 1115 (1988).
The final post-settlement allegation involves the series of
six written warnings issued by Horvath against Fuentes, from
January to April 1997. According to the General Counsel, all
of these warnings were in retaliation for Fuentes’ prounion
leadership during the unsuccessful election campaign. But the
Respondent maintained that all of the job warnings were justi-
fied.
To prove its 8(a)(1) and (3) allegation, the General Counsel
must establish, by a preponderance of the evidence, that
Fuentes’ union activity was a motivating factor in the Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116
dent’s decision to discipline him. If so established, the burden
then shifts to the Respondent to show, also by a preponderance
of the evidence, that these actions were based on lawful reasons
unrelated to the employee’s prounion status and/or protected
activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982); ap-
proved in Transportation Management Corp., 462 U.S. 393
(1983). Applying the facts of the instant case, the Presiding
Judge concludes that the General Counsel has proven that union
animus was a factor motivating the Respondent’s written warn-
ings. While it is again not possible to square Fuentes’ testi-
mony that Horvath made antiunion remarks during Fuentes’ job
interview with Horvath’s credible denial thereof, it is clear that
the Respondent violated Section 8(a)(1) and (3) by granting an
illegal pay raise to Fuentes in September 1996. And the intent
of the pay raise was to soften and/or change Fuentes’ prounion
stance. Further, the timing of these warnings is significant:
Fuentes’ unblemished job record became blemished soon after
the Union lost the election in December 1996. Lastly, the Re-
spondent decided to terminate the three prounion drivers in
May 1996 without giving any of them a chance to rebut Wes-
cott’s accusations. Thus, the General Counsel has satisfied his
Wright Line burden.
But upon a thorough review of the evidence, it is also con-
cluded that the Respondent has adequately justified all of the
six job warnings issued against Fuentes. First, it is undisputed
that Fuentes was 9 minutes late for work on January 15, 1997,
that he had never been so late before, and that another driver
who was also 9 minutes late was similarly disciplined. Second,
Fuentes failed to get a delivery receipt signed by a customer on
February 12; an error that the evidence shows to have been
significant and rarely committed by drivers. Third, it is undis-
puted that Fuentes also collected the wrong amount of money
from a customer on February 12, and that management’s cor-
rection thereof required extra work. Fourth, Fuentes admitted
that he failed to get the complete description of one package he
picked up on March 31. The fifth written warning involved an
April 2, 1997 delivery of 17 cartons that was one carton short.
Fuentes maintained that the cartons were not shrink-wrapped,
but management claimed that they were and that Fuentes
should have written “shrink-wrapped” on the delivery report to
absolve Old Dominion from responsibility. Regardless of
whether the cartons were actually shrink-wrapped, Fuentes
admitted that he also failed to write on the delivery report that
they were taped together. Sixth and finally, it is clear that
Fuentes received an incorrectly written check from a customer
on April 15, 1997, and that Horvath initially tore up the written
discipline to give Fuentes a chance to correct the error. In con-
clusion, the Respondent has adequately rebutted the General
Counsel’s showing by establishing that the written disciplines
did not violate Section 8(a)(1) and (3).
C. The Settlement Agreement
To summarize things thus far, the Respondent violated Sec-
tion 8(a)(l) and (3) by attempting to dampen Fuentes’ union
activity with a pay raise during the election campaign. The
General Counsel contends that this single violation warrants the
setting aside of the September 1996 settlement agreement and a
decision on the original allegations regarding the discharges of
Van Schaick, Liantonio, and Every. Specifically, the settle-
ment agreement language, contained in the notice posted by the
Respondent to its employees at the Bay Shore terminal, stated
that:

WE WILL NOT in any other manner interfere with, restrain
or coerce employees in the exercise of rights guaranteed them
by Section 7 of the Act.

The notice, however, said nothing about the Respondent re-
fraining from granting pay increases or other benefits to em-
ployees. But the notice did state that Old Dominion would not
discharge or discriminate against employees for supporting the
Union, not threaten employees with physical harm or plant
closure, and not falsely accuse employees of intimidating other
employees into signing union cards. Also, the Respondent
affirmatively promised to repay the three discharged drivers for
lost wages and to expunge the discharges from the files.
The language requiring a Respondent to cease and desist
from “in any other manner” restraining or coercing employees
in the exercise of their Section 7 rights is warranted “only when
a respondent is shown to have a proclivity to violate the Act or
has engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for the employees’ fundamen-
tal statutory rights.” Usually, however, the narrower language
“in any like or related manner” is the proper phrasing for the
“catch all” section of the cease and desist order. Hickmott
Foods, 242 NLRB 1357 (1979). Without reaching the question
of whether the settlement went too far in using the former “in
any other manner language,” which was meant to cover viola-
tions not alleged in the original complaint, the Presiding Judge
concludes that Old Dominion’s single violation does not war-
rant setting aside the settlement. First, as noted above, this
violation ran afoul of no specific part of the settlement agree-
ment; only the catch-all “in any other manner” section. Sec-
ond, the Respondent complied with its affirmative obligations
under the agreement, and the evidence fails to show any other
violation of the agreement. Third, it is arguable that the pay
raise violation predated the September 11, 1996 agreement. In
this regard, Horvath approved the pay raise but Madden said
that it should not be effective until the NLRB case was settled.
And it wasn’t until September 12, 1996. Fourth, it is concluded
that the violation was both isolated and insubstantial. There is
no evidence that the Respondent sought to confer any other
benefit on any other employee. And, after all, the pay raise of
$1.38 per hour was a benefit, not an adverse action against
Fuentes. Under these circumstances, the Presiding Judge con-
cludes that the Respondent did not violate the September 1996
settlement and that, accordingly, it should not be set aside.
Compare Oster Specialty Products, 315 NLRB 67, 73–75
(1994). Thus, the allegations regarding the discharges of the
three drivers contained in the General Counsel’s first complaint
of August 5, 1996 need not be decided.6
IV. CONCLUSIONS OF LAW
1. The Respondent, Old Dominion Freight Line, Inc., is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Highway and Local Motor Freight Drivers,
Dockmen and Helpers, Local Union No. 707, International
Brotherhood of Teamsters, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.

6 All of the allegations concerning events after the May 10 and 13,
1996 discharges, including those before September 11, 1996, have been
decided.
OLD DOMINION FREIGHT LINE 117
3. The General Counsel has failed to prove his allegations at
paragraphs 2, 3, 14, 15(a) and (b), 16, 17, 18(b), 19, 20, 21, 22,
27, and 28 of the complaint.
4. Because the General Counsel improperly vacated the Sep-
tember 11, 1996 settlement agreement, the allegations at para-
graphs 11, 12, 13, 23, 24, and 25 are dismissed and the settle-
ment stands.
5. Pursuant to paragraphs 15(c), 18(a), 26, 29, and 30 of the
complaint, the Respondent violated Section 8(a)(1) and (3) of
the Act by promising, and granting, an early pay raise to Ruben
Fuentes.
6. The unfair labor practice of the Respondent, described in
paragraph 5, above, affects commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]