Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 372 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372
Overnite Transportation Company and Teamsters
Local 667, affiliated with the International
Brotherhood of Teamsters and Tommy George
and Mark Cole and Tollie Graves and Marcus
Cole and Anthony Q. Pope. Cases 26–CA–
17397, 26–CA–17520, 26–CA–17568, 26–CA–
17655, 26–CA–17722, 26–CA–17723, 26–CA–
17727, 26–CA–17761-1, 26–CA–17857, 26–CA–
17881, 26–CA–17884, 26–CA–17916, 26–CA–
17995, 26–CA–18004, 26–CA–18031, 26–CA–
18040, 26–CA–18053, 26–CA–18068, 26–CA–
18069, 26–CA–18071, 26–CA–18099, 26–CA–
18104, 26–CA–18109, 26–CA–18165, 26–CA–
18388, 26–CA–18438, 26–CA–18460, and 26–
CA–18348
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On November 13, 1998, Administrative Law Judge
Pargen Robertson issued the attached decision. The Re-
spondent and the General Counsel filed exceptions, sup-
porting briefs, and answering briefs, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions, as
modified.2
We agree with the judge’s findings, for the reasons set
forth in his decision, that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging employees
Tollie Graves and Marcus Cole, and by reducing Horace
Quinn’s hours the day after the election, but that it did
not violate the Act by discharging Quinn.3 However, we
reverse the judge’s findings that the Respondent’s im-
plementation of more stringent loading dock policies was
lawful. We also reverse his finding that the General
Counsel failed to meet his initial burden of establishing
that the discharges of Sidney Wyrick, Steve and Anna
Spillers, and Mark Cole were unlawfully motivated, and
we remand these allegations for further consideration.

1 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
2 We will modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, 325 NLRB 17 (1997), and our recent decision in
Ferguson Electric Co., 335 NLRB 142 (2001).
3 In the absence of exceptions, we adopt the judge’s finding that the
Respondent violated Sec. 8(a)(1) of the Act by threatening employees
with reduced hours if they voted in favor of union representation.
No party excepted to the judge’s finding that the Respondent vio-
lated Sec. 8(a)(3) and (1) of the Act by discriminatorily discharging city
driver Robert Crawford. On June 30, 1999, the Board administratively
granted counsel for the General Counsel’s unopposed Motion to Sever
Cases 26–CA–18031, 26–CA–18053, and 26–CA–18071 to the extent
that they relate to Crawford’s discharge.
Background
The Union first attempted to organize the employees at
the Respondent’s Memphis City and Hub facilities in
1995, but was not successful. It conducted another orga-
nizing campaign the following year, and on September 16,
1996, an election was held among the city drivers, road
drivers, dock workers, jockeys/hostlers, building mainte-
nance employees, and shop employees at the facilities.
The results were 219 for and 201 against the Union, with
determinative challenged ballots. Both parties filed objec-
tions. The issues in the representation case were subse-
quently resolved, and the Union was certified as the exclu-
sive collective-bargaining representative of the above-
described employees on October 9, 1997.
More Stringent Dock Policy
In June 1996, during the second organizing campaign,
Michael Eastman was transferred to Memphis to become
the facility’s assistant terminal manager. Seven months
after the election, on April 15, 1997, Eastman announced to
dock employees that they must count their freight and “do
what they’re supposed to do” or “we’re going to run your
ass off.” He also told employees that no more than three
misloads or shortages would be tolerated.4 There is no dis-
pute that the Respondent did not confer with the Union be-
fore making this April announcement to employees.
The judge found that at the time that the Respondent
announced its new standards, it had no obligation to no-
tify or bargain with the Union because the Union had not
yet been certified as the employees’ collective-
bargaining representative. The General Counsel has ex-
cepted to the judge’s failure to find that the Respondent’s
unilateral implementation of the stringent dock rules vio-
lated Section 8(a)(5).

4 A misload is when freight unloaded from one trailer is inadver-
tently reloaded onto the wrong out-bound trailer. Sam Powell, a 19-
year employee, and Paul Allen Holder, a 17-year employee, testified
that misloads are a frequent occurrence and that they happen daily. The
parties stipulated that misloads, shortages, low productivity, and fail-
ures to document hazardous material were dock errors that gave rise to
discipline.
335 NLRB No. 33
OVERNITE TRANSPORTATION CO. 373
It is well-settled that absent compelling circumstances,
an employer that chooses unilaterally to change its em-
ployees’ terms and conditions of employment between
the time of an election and the time of certification does
so at its own peril, if the union is ultimately certified.
Mike O’Connor Chevrolet, 209 NLRB 701 (1974), re-
versed and remanded on other grounds, 512 F.2d 684,
(8th Cir. 1975). See also NLRB v. 1199, National Union
of Hospital & Health Care Employees, 824 F.2d 318 (4th
Cir. 1987); Fugazy Continental Corp. v. NLRB, 725 F.2d
1416, 1421 (D.C. Cir. 1984); and Celotex Corp., 259
NLRB 1186, 1993 (1982). The purpose of the rule is to
prevent employers from postponing their bargaining ob-
ligation through dilatory tactics and spurious objections,
and from gaining unfair advantage prior to the com-
mencement of bargaining. Thus, if the election objec-
tions prove to be fruitless and the union is certified as the
employees’ collective-bargaining representative, an em-
ployer that has unilaterally changed terms and conditions
of employment will be found to have violated the Act.
Here, the alleged unilateral change in the dock policy
occurred in April 1997, between the September 1996
representation election and the October 9, 1997 certifica-
tion. The Respondent contends, however, that no new
dock policy was implemented in April 1997, and sug-
gests that it merely reiterated an existing policy, i.e., the
progressive discipline policy that Eastman implemented
in 1996. Consequently, it argues, the General Counsel is
precluded by Section 10(b) of the Act from litigating this
matter as an unfair labor practice.5 The Respondent also
argues that the employees had been similarly “lectured”
in the past.
The parties do not dispute that in June 1996, Eastman
announced the institution of a progressive discipline pol-
icy. The legality of the progressive discipline policy was
not in issue, and contrary to the Respondent’s assertions,
the judge made no findings about it apart from noting its
institution. Eastman testified variously about the 1996
discipline policy, first stating that it was based on a five-
step progression (oral counseling, written counseling,
written warning, final written warning with suspension,
and termination), and then suggesting that it was a four-
step process, (written counseling, written warning, final
written warning with suspension, and termination).
Eastman’s April 1997 statement that no more than
three misloads or shortages would be tolerated was at
least one and arguably two fewer mistakes than would
have been tolerated under the June 1996 discipline pol-
icy. Thus, the dock policy was changed to allow fewer

5 Sec. 10(b) precludes issuance of a complaint based on conduct that
occurred more than 6 months prior to the filing of an unfair labor prac-
tice charge.
mistakes before termination. As a different policy, it
could not be implemented unilaterally under Mike
O’Connor Chevrolet and its progeny.
Moreover, employee Frederick Clark testified that the
employees on the midnight shift who attended an April
1997 meeting where the more stringent dock policy was
announced all had to sign “a little sheet that they passed
around . . . stating [the employees] were aware of the
shortage and damage” policy. While employees may
previously have been advised to reduce the number of
mistakes on the dock, the Respondent presented no evi-
dence that it had required employees to sign their ac-
knowledgment at similar “lectures” or that the lecturing
amounted to imposition of an enforceable policy. The
fact that such an acknowledgment was required of the
employees further supports our finding that Eastman’s
April 1997 announcement represented a substantive
change in the existing policy and practice. Cf. Albert-
son’s, Inc., 319 NLRB 93, 103 (1995) (issuance of a
memorandum was itself an indication of a change in past
practice).
Finally, the record contains disciplinary records of
dock employees demonstrating that the Respondent did
not enforce the 1996 progressive disciplinary policy in a
consistent manner. Claims Supervisor Dale Watson,
who issued a significant number of the counselings and
warnings that dock employees received, admitted that he
did not follow the progressive disciplinary policy. Thus,
even if, as the Respondent asserts, it was merely enforc-
ing the 1996 discipline policy, Eastman’s remarks repre-
sented a change in the enforcement of the policy. See,
Caterpillar, Inc., 321 NLRB 1178, 1182 (1996), vacated
pursuant to a settlement dated March 19, 19986 (depar-
ture from prior practice of lax enforcement), and Hyatt
Regency Memphis, 296 NLRB 259, 263 (1989), enfd.
939 F.2d 361 (6th Cir. 1991) (change from lax, sporadic
enforcement to more stringent enforcement).7
For these reasons, we conclude that the Respondent
instituted a more stringent dock policy in violation of
Section 8(a)(5) and (1).
The Discharges of Spillers, the Wyricks, and Cole
Road drivers Steve Spillers and Sidney Wyrick and
Dispatcher Mark Cole were discharged in June 1997.
6 See 332 NLRB 1116 (2000).
7 In its answering brief, the Respondent states that in mid-1997
Eastman conducted a review of discipline under the progressive disci-
pline policy, but contends that the review did not result in “increased
enforcement.” However, the Respondent unsuccessfully defended the
8(a)(3) discharges of dock employees Marcus Cole on July 15, and
Tollie Graves on November 3, 1997, by contending, among other
things, that it merely had enforced the progressive discipline policy.
Thus, increased enforcement did result from Eastman’s review.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
Spillers and Wyrick were terminated ostensibly for falsi-
fying their log books by omitting a run to Nashville on
May 21 that put them in excess of the maximum con-
secutive working hours allowed by Department of
Transportation (DOT) regulations. Cole was discharged
for dispatching them on that run.8 Anna Wyrick, Sidney
Wyrick’s wife, was terminated along with her husband.
She had been employed by the Respondent since 1994
with the understanding that she would only be required
to drive as a team with her husband.
At the close of the General Counsel’s case, by order
dated June 26, 1998, the judge granted the Respondent’s
motion to dismiss the 8(a)(3) allegations relating to the
discharges of these individuals. The judge did so on the
ground that the General Counsel had failed to establish
any nexus between the Respondent’s antiunion animus
and the discharges.9
Contrary to the judge, we find that the General Coun-
sel presented sufficient evidence to establish such a
nexus. We shall therefore remand this part of the case to
the judge for further proceedings.10
The record reveals that 6 weeks after the September
representation election, the Respondent laid off approxi-
mately 37 to 40 drivers. Allegations that the layoffs vio-
lated Section 8(a)(3) and (5) were consolidated with the
instant cases, but were settled at the commencement of
the unfair labor practice hearing. Among the drivers laid
off was Johnnie Mangum, an outspoken advocate of the
Union since the 1995 organizing effort, who was on the
in-plant organizing committee, wore union hats and
badges, passed out leaflets at the gate, and talked to peo-

8 Pursuant to the relevant DOT regulations, drivers may not exceed
10 hours driving time, must have 8 hours rest, and must record both
driving and rest times in their logs. Drivers must also log stops lasting
more than 15 minutes, e.g., tire checks, road repairs, and similar mat-
ters.
9 JD(ATL)–07–98. The judge did not make explicit credibility reso-
lutions in reaching his determination, but rather relied on undisputed
facts and evidence considered “in a light most favorable to the General
Counsel.” Both the judge’s recitation of facts, and ours, is based on the
testimony of Spillers, Sidney Wyrick, Cole, Mangum, and driver Paul
Holder.
10 Despite dismissing the allegations at the close of the General
Counsel’s case, the judge later found, in essence, that the Respondent
had rebutted the General Counsel’s case under the standards set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). Thus, the judge found that,
even if the discharges were motivated in part to undermine the Union,
the record established that the Wyricks, Spillers and Cole would have
been discharged regardless of that motivation.
We give no weight to these additional findings. Given the dismissal
of the allegations prior to the close of the hearing, the parties did not
have the opportunity to fully litigate the Respondent’s defenses. Nor
did the parties address them in their posthearing briefs. We therefore
direct the judge to reconsider these issues on remand, after the parties
have had a full opportunity to litigate and brief them.
ple about supporting the Union. Mangum was recalled to
work on May 1, 1997.
Three weeks later, on May 21, Mangum was at the
Memphis facility when Spillers and Sidney Wyrick, driv-
ing as a team, returned from Fontana, California, a 30-
hour trip. Spillers and Wyrick were informed that their
next load, for a trip from Memphis to Houston, was de-
layed several hours.11 The two asked Linehaul Supervi-
sor Richard Pair whether he had another run they could
make in the interim. A short time later when Cole en-
tered Pair’s office saying he needed someone to pick up
two loads in Nashville, Pair told Cole to use Spillers and
Wyrick. Cole pointed out that the two had just come in
from California and asked whether he should dispatch
them as single drivers or as a team to Nashville. Pair
told Cole to send them out singly, and selected a second
truck for Spillers to use. When Spillers pointed out that
he and Wyrick could not legally log the trip, Pair told
them, “you don’t never log this anyway.” Cole ques-
tioned Pair again about the drivers’ hours before dis-
patching Spillers and Wyrick, but Pair told him not to
worry about it. Spillers and Wyrick then drove sepa-
rately to Nashville where they picked up freight and
brought it back to Memphis before heading to Houston
as a team. In their log books, instead of recording the
Nashville run, they indicated they were resting, a viola-
tion of DOT regulations and the Respondent’s rules.
Mangum saw Spillers and Wyrick in Nashville, where
he stopped for repairs en route to Lexington, Kentucky.
Knowing that they had just completed a California to
Memphis run, and surmising that they were being dis-
patched in violation of hours, he recorded their truck
numbers. When Mangum returned to Memphis, he re-
ported the matter to Terminal Manager Danny Warner
and Pair, who denied dispatching drivers who did not
have hours available. Over the course of the next week,
Mangum collected information relating to Spillers’ and
Wyrick’s Nashville run.
On May 29, Eastman and Regional Dispatch Manager
Paul Stenback conducted a meeting which drivers at-
tended. At the meeting, Mangum asked why the Re-
spondent was “aiding and abetting” the dispatch of driv-
ers in violation of DOT regulations when other drivers
were still on layoff.12 Eastman denied that illegal runs
were dispatched from the terminal. At the close of the
meeting, Mangum showed him copies of dispatch docu-
ments that proved the Spillers and Wyrick had made an
out-of-hours run to Nashville.
11 Spillers and Wyrick’s normal route was a roundtrip from Memphis
to Fontana, California, followed by a roundtrip run to Houston.
12 At the time Mangum was recalled, at least 10 other drivers re-
mained on layoff.
OVERNITE TRANSPORTATION CO. 375
After further investigation by the Respondent’s man-
agers, Eastman terminated Spillers, Wyrick, and Cole.
Respondent took no action against Pair, however.13
As the judge correctly stated, the General Counsel’s
theory of the alleged violation was not that the Respon-
dent harbored animus toward Spillers, Wyrick and Cole,
but rather toward Mangum and the employees’ union
representation effort as a whole. Specifically, the Gen-
eral Counsel’s theory was that the Respondent dis-
charged these employees in order to undermine the Un-
ion, by creating the appearance that leading union activist
Mangum had cost the employees their jobs.
In addressing the Respondent’s motion to dismiss the
allegations, the judge acknowledged his obligation to
consider the evidence in the light most favorable to the
General Counsel. Accordingly, the judge took into ac-
count that Mangum was a high profile union supporter,
that Mangum’s complaint at the May 29 drivers meeting
had prompted the Respondent’s investigation of the
Nashville runs, and that there was ‘‘ample evidence of
Respondent’s anti-Union animus . . . [which] ran directly
to Johnnie Mangum.’’ He also considered evidence
showing that Respondent did not always discipline em-
ployees for failure to maintain their logs in accord with
DOT regulations, as well as the Respondent’s failure to
discipline Pair. Nevertheless, because there was no
showing that the Respondent attempted to publicly link
Mangum or the Union with the discharges, the judge
found that the General Counsel’s evidence failed to es-
tablish a connection between the Respondent’s animus
and the discharges. He therefore granted the Respon-
dent’s motion and dismissed the allegations.
We find that the judge applied too narrow a view of
the law and the evidence in assessing the General Coun-
sel’s case. The General Counsel’s threshold burden in a
case alleging an unlawful discharge under Section 8(a)(3)
is to make a ‘‘showing sufficient to support the inference
that protected conduct was a ‘motivating factor’ in the
employer’s decision.” Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).14 The Board has long rec-
ognized that direct evidence of an unlawful motive, i.e.,
the proverbial smoking gun, is seldom obtainable.
Hence, an unlawful motive may be inferred from all of

13 At the hearing, Pair (who was called by the General Counsel as an
adverse witness pursuant to Rule 611(c) of the Federal Rules of Evi-
dence), did not deny ordering that Spillers and Wyrick be dispatched.
His explanation was that he thought they would be sent to Memphis as
a team, thereby splitting their hours on the road. He said that Cole was
terminated for sending the two drivers out separately. Pair did not
explain how the teamed drivers were to pick up two loads waiting in
Nashville.
14 See also Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
the surrounding circumstances. Talsol Corp., 155 F.3d
785, 797 (6th Cir. 1998). Circumstantial evidence in-
cludes animus, timing, and disparate treatment. See Tres
Estrellas de Oro, 329 NLRB 50 (1999); Queen Mary,
317 NLRB 1303, 1311 (1995); Special Mine Services,
308 NLRB 711, 721 (1992); and NLRB v. Main Street
Terrace Care Center, 218 F.3d 531 (6th Cir. 2000).
Here, the judge failed to appreciate the significance of
the circumstantial evidence and the reasonable inferences
to be drawn from it. While there may be no “smoking
gun” in this case, the General Counsel’s evidence did
satisfy his threshold burden. The General Counsel estab-
lished that the Respondent went to great lengths to
squelch the employees’ exercise of their Section 7 rights.
It threatened employees with a reduction in hours in vio-
lation of Section 8(a)(1). It sent an employee home
early, and disciplined, suspended, and discharged two
other employees because they supported the Union in
violation of Section 8(a)(3). Finally, it unilaterally im-
plemented a stricter dock policy in violation of Section
8(a)(5). These violations are more than sufficient to es-
tablish that the Respondent harbored antiunion animus.15
The General Counsel also presented substantial evi-
dence of disparate treatment. He established that dis-
patches and log misrepresentations in violation of DOT
regulations were not extraordinary events, and that Re-
spondent turned a blind eye to such practices. Indeed,
when first advised of the Nashville dispatch by Mangum,
Pair and Warner did nothing. Only after it was confronted
by Mangum, in front of other drivers, with the incongruity
of dispatching drivers out of hours while other drivers
remained on layoff did the Respondent react.16
Further, Mangum’s point at the meeting was that there
appeared to be work for laid-off drivers. Mangum did
not ask that anyone be punished and could hardly have
anticipated that anyone would be, in a setting where
bending the rules on over hours runs was at least an oc-
15 The Respondent maintained a corporate-wide policy, published in
its employee handbook, which though not unlawful itself, is further
indicative of animus. The handbook states in part, “It is important for
you to know that this Company values union-free working conditions.”
Affiliated Foods, Inc., 328 NLRB 1107 (1999); Dynatron/Bondo, 323
NLRB 1263 (1997); and Gencorp., 294 NLRB 717, n. 1 (1989). See
also, Overnite Transportation Co., 329 NLRB 990, 1008 fn. 7 (1999),
enfd. 240 F.3d 325 (4th Cir. 2001), rehearing denied Apr. 17, 2001,
petition for rehearing and rehearing en banc pending.
16 Chairman Hurtgen concedes in his dissent that the record contains
substantial evidence of antiunion animus, but finds that the General
Counsel failed to establish a nexus between the animus and the Re-
spondent’s discharge of Spillers, Wyrick, and Cole. He would require
the General Counsel to prove as part of his initial case that complaints
by nonunion adherents were ignored. We disagree. We find that the
General Counsel established a sufficient nexus by presenting evidence
that the Respondent selectively punished log book violators and over
hours drivers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
casional practice. Nevertheless, the Respondent dis-
charged the drivers. Under the circumstances, that step,
as the Respondent could not have failed to realize, effec-
tively put the onus on Mangum for their loss of jobs.
While there is no evidence that the Respondent explicitly
blamed Mangum for the discharges, there was no need to
do so given Mangum’s protest in front of other drivers at
the May 29 meeting. The connection that the Respon-
dent intended was inescapable, i.e., that union activist
Mangum, whose protests echoed the Union’s concerns,
was to blame. In short, Mangum’s protest gave the Re-
spondent an opportunity to discredit the Union. Based
on the record, it is reasonable to infer that the Respon-
dent seized that opportunity.17
For these reasons, we find that the General Counsel
has met his threshold burden of showing that the Re-
spondent acted out of antiunion animus in discharging
Spillers, Sidney Wyrick, and Cole. Accordingly, we
shall remand the case to the judge for further considera-
tion of these allegations (and the related allegation con-
cerning Anna Wyrick’s discharge), including reopening
the hearing to permit the Respondent to present evidence
supporting its defenses and the General Counsel to pre-
sent rebuttal evidence.18

17 Our dissenting colleague states that even if the Respondent acted
against Spillers, Wyrick, and Cole because the complaint about them
was voiced by a union adherent, it would not establish a violation. But,
if the Respondent was motivated even in part to act by the identity and
union sympathies of the complainer, then it took the action for an
unlawful reason, and under the longstanding guidelines set forth in
Wright Line, supra, the General Counsel has met his threshold burden.
That is the issue we address here.
18 See, Mike Yurosek & Son, 306 NLRB 1037, 1039 (1992). Respon-
dent contends, among other things, that Cole was a supervisor. On
remand, we direct the judge to take evidence and make findings about
Cole’s alleged supervisory status and whether, in the circumstances of
this case, he is afforded the protections of the Act. Parker-Robb Chev-
rolet, 262 NLRB 402 (1982), and Advertiser’s Mfg. Co., 823 F.2d 1086
(7th Cir. 1987).
We also direct the judge to permit the General Counsel to introduce
evidence regarding the discharge of driver Tommy Bowen. The judge
excluded such evidence on the ground that a 8(a)(3) allegation pertain-
ing to Bowen’s discharge was settled prior to the hearing. However,
the Board has long held that evidence pertaining to settled charges may
properly be considered as background in determining the motive or
objective of a respondent in activities occurring either before or after
the settlement. See Black Entertainment Television, 324 NLRB 1161,
1163 (1997); Park Manor Nursing Home, 277 NLRB 197, 199 (1985);
and Steves Sash & Door Co. v. NLRB, 401 F.2d 676, 678 (5th Cir.
1968). This is true regardless of whether there was specific reservation
language in the settlement agreement. See Outdoor Venture Corp., 327
NLRB 706, 708 (1999). Here, the General Counsel sought to introduce
the evidence regarding the circumstances of the Bowen discharge
solely to the extent that it was relevant to the issue of disparate treat-
ment in the discharge of Spillers, Wyrick, and Cole. Accordingly, we
reverse the judge’s ruling and direct that the General Counsel be per-
mitted to introduce evidence regarding the circumstances of the Bowen
discharge for this purpose.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Overnite
Transportation Company, Memphis, Tennessee, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in full below.
1. Cease and desist from
(a) Threatening its employees with reduction in work
hours because the employees voted in favor of the Team-
sters Local 667, affiliated with the International Brother-
hood of Teamsters.
(b) Disciplining, suspending, and discharging its em-
ployees because of their support of the Union.
(c) Unilaterally instituting a more stringent dock policy.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of this Order, offer immediate and
full employment to Robert Crawford, Marcus Cole, and
Tollie Graves to their former positions or if those posi-
tions no longer exist, to substantially equivalent positions
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Robert Crawford, Marcus Cole, Tollie
Graves, and Horace Quinn whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them plus interest, in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warnings,
suspensions and discharges of Robert Crawford, Marcus
Cole and Tollie Graves and illegally reduced hours of
Horace Quinn, and within 3 days thereafter notify those
employees in writing that this has been done and that the
warnings and discharges will not be used against any of
them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, and timecards, personnel
records, reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at
its facility in Memphis, Tennessee, copies of the attached
OVERNITE TRANSPORTATION CO. 377
notice marked “Appendix.”19 Copies of the notice, on
forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in the proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 17, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director, Region 11, a sworn certifica-
tion of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegations con-
cerning the discharges of drivers Steve Spillers, Sidney
Wyrick, and dispatcher Mark Cole are severed and re-
manded to the administrative law judge for proceedings
consistent with this Decision and Order, including re-
opening the record for the receipt of further evidence on
this issue.
IT IS FURTHER ORDERED that the judge prepare
and serve on the parties a supplemental decision contain-
ing his credibility resolutions, findings of fact, conclu-
sions of law, and a recommended Order. Following ser-
vice of the supplemental decision on the parties, the pro-
visions of Section 102.46 of the Board’s Rules and Regu-
lations shall be applicable.

CHAIRMAN HURTGEN, dissenting in part.
Contrary to the majority, I would affirm the judge’s
dismissal of the allegation that the Respondent violated
Section 8(a)(3) by discharging employees Sydney and
Anna Wyrick, Steve Spillers, and dispatcher Mark Cole.
In agreement with the judge, I find that the General
Counsel failed to establish that antiunion animus was a
motivating factor in these discharges.1

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 Because I would affirm the dismissal on the merits, I find it unnec-
essary to pass on the other matters addressed by the majority in their
decision to remand the allegations to the judge.
The relevant facts are essentially undisputed. On May
21, 1997, Sydney Wyrick and Spillers were dispatched
on separate runs from the Respondent’s Memphis, Ten-
nessee terminal to Nashville, Tennessee.2 Pursuant to
Federal Department of Transportation (DOT) hours-of-
service regulations, neither driver could lawfully drive
these runs because they had both just completed a 30-
hour California run. It is undisputed that these two em-
ployees knowingly violated the DOT regulations by ac-
cepting and completing the runs to Nashville. In addi-
tion, it is undisputed that they both falsified their driver
logs to show that they were off duty during the period of
time they were making the Nashville runs. The falsifica-
tion of the driver logs also violated DOT regulations.
Employee Johnnie Mangum, an outspoken union sup-
porter, noticed the DOT hours-of-service violation and
promptly reported it to Pair and to the Respondent’s ter-
minal manager, Danny Warner, in a private conversation.
The Respondent took no action in response to the report.
On May 29, Mangum repeated these accusations at a
drivers’ meeting conducted by the Respondent’s regional
dispatch manager, Paul Stenback, and assistant terminal
manager, Mike Eastman. Specifically, Mangum asked
why the Respondent was “aiding and abetting” the dis-
patch of drivers in violation of DOT regulations when
other drivers were still on layoff.3 After the meeting,
Mangum presented Eastman with documents that Man-
gum had gathered in the course of his investigation of the
matter, which showed that Spillers and Wyrick had vio-
lated DOT regulations. After conducting its own inves-
tigation, the Respondent discharged Spillers and Wyrick
for violating DOT regulations, and also discharged Cole
for dispatching them.4
There is no contention that Wyrick, Spillers, or Cole
were discharged because of their own union sympathies
or activities, if any. Rather, the General Counsel’s sole
contention is that they were fired as part of a scheme to
undermine the union and create disaffection among the
employees by creating the impression that a leading un-
ion supporter, Mangum, had cost the employees their
jobs. After the General Counsel rested his case, the Re-
2 There is some dispute as to whether Cole dispatched the two driv-
ers on separate runs on his own initiative or at the direction of Linehaul
Supervisor Richard Pair.
3 Mangum had been laid off from September 1996 to May 1, 1997.
At the time of his recall, at least 10 other drivers remained on layoff. At
the commencement of the hearing in this case, the parties settled com-
plaint allegations that the layoffs violated Sec. 8(a)(3) and (5).
4 The discharge of Sydney Wyrick effectively caused Anna Wyrick’s
discharge as well, because they were employed as a husband and wife
team. The General Counsel concedes that the lawfulness of Anna
Wyrick’s discharge stands or falls on the disposition of her husband’s
case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
spondent moved to dismiss these complaint allegations.
After carefully considering the evidence presented by the
General Counsel, the judge granted the Respondent’s
motion.
Considering the evidence in the light most favorable to
the General Counsel, the judge found that the General
Counsel had established that Mangum was a high-profile
union supporter and that the Respondent investigated the
Nashville runs because of Mangum’s complaint at the
May 29 drivers’ meeting. Although the judge assumed
the existence of ample evidence of antiunion animus on
the part of the Respondent, the judge found no nexus
between the Respondent’s antiunion animus and the dis-
charges. Accordingly, the judge entered an order recom-
mending dismissal of the relevant complaint allegations.
The majority reverses the judge and finds that the
General Counsel met his burden of establishing that anti-
union motivation was a motivating factor in the dis-
charges. My colleagues cite evidence assertedly showing
that the Respondent harbored antiunion animus and that
it previously “turned a blind eye” to DOT violations by
other employees at its Memphis terminal. The majority
states that, by discharging the drivers following Man-
gum’s public accusations, the Respondent effectively put
the onus on Mangum, a union activist, for their loss of
jobs. In the majority’s view, this is sufficient to meet the
General Counsel’s threshold burden. I disagree.
The General Counsel has the burden of proving that
antiunion animus was a motivating factor in the Respon-
dent’s decision to discharge Spillers, Wyrick, and Cole.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393, 399–403 (1983), overruled in part on other
grounds, Director, Office of Workers Compensation Pro-
grams, Dept. of Labor v. Greenwich Collieries, 512 U.S.
267, 276–278 (1994). As the Board held in Borin Pack-
aging Co., 208 NLRB 280, 281 (1974), “in the absence
of a showing of antiunion motivation, an employer may
discharge an employee for a good reason, a bad reason,
or no reason at all. Whether other persons would con-
sider the reasons assigned for a discharge to be justified
or fair is not the test of legality under Section 8(a)(3).”
In determining whether the General Counsel has met his
burden of proof, the Board must, of course, consider not
only the evidence supporting the General Counsel’s posi-
tion, but the evidence that tends to detract from it. Sam’s
Club v. NLRB, 173 F.3d 233, 239–240 (4th Cir. 1999).
The Board “is not free to prescribe what inferences from
the evidence it will accept and reject, but must draw all
those inferences that the evidence fairly demands.”
Allentown Mack Sales & Service, v. NLRB, 522 U.S. 359
(1998). In short, the Board must consider “all of the rea-
sonable inferences compelled by the evidence in reaching
its decision.” Pirelli Cable Corp. v. NLRB, 141 F.3d
503, 514 (4th Cir. 1998).
Applying these principles to the facts of this case, I
would find, in agreement with the judge, that the General
Counsel failed to prove that Mangum’s support for the
union was a motivating factor in the decision to dis-
charge Spillers, Wyrick, and Cole. It may be true, as the
majority states, that the Respondent harbored antiunion
animus.5 However, the existence of antiunion animus
alone is not sufficient to establish a violation of Section
8(a)(3). Rather, the General Counsel must establish a
nexus between the animus and the adverse action alleged
to be unlawful. In agreement with the judge, I would find
that no such nexus was established in this case.
My colleagues say that the Respondent did not take ac-
tion against prior violations of DOT regulations. They
say that the Respondent took action herein only because
union activist Magnum complained about the violations.
However, the evidence indicates that Respondent took
the action because a legitimate complaint was openly
made in a public meeting. The fact that it was made by a
union adherent was not controlling. Indeed, there is no
evidence of discrimination, i.e., there is no evidence of a
failure to take action in circumstances where such a
complaint is made by a nonunion adherent.
Further, even if Respondent acted because the com-
plaint was made by a union adherent, that would not es-
tablish a violation. In this regard, the theory espoused by
my colleagues is that the Respondent took the action
herein in order to blame the Union (through Magnum)
for the discharges.
The problem with the theory is that it is only a theory.
It is unsupported by the facts. There is no evidence that
the Respondent blamed Magnum for the discharges.
Indeed, Respondent could not have done so, for Magnum

5 In finding that the General Counsel established antiunion animus,
however, I rely solely on the violations of the Act found by the Board
in this case. The majority additionally relies on the following language
in the Respondent’s employee handbook: “It is important for you to
know that this Company values union-free working conditions.” Ac-
cording to the majority this statement, even though lawful, may be used
as evidence in support of a finding that the Respondent violated the
Act. I do not agree. Sec. 8(c) is quite clear on this point: “the express-
ing of any views, argument or opinion . . . shall not constitute or be
evidence of an unfair labor practice . . . if such expression contains no
threat of reprisal or force or promise of benefit.” (Emphasis added.)
Consistent with this plain language, speech protected by Sec. 8(c)
“cannot be used by the General Counsel to establish an employer’s
anti-union animus.” Medeco Security Locks, Inc. v. NLRB, 142 F.3d
733, 744 (4th Cir. 1998). See also Holo-Krome v. NLRB, 907 F.2d
1343, 1345–1347 (2d Cir. 1990) (same); NLRB v. Eastern Smelting &
Refining Corp., 598 F.2d 666, 670 (1st Cir. 1979) (same).
OVERNITE TRANSPORTATION CO. 379
never sought that discharge. Rather, the facts show that
the Respondent was confronted with an open, public, and
seemingly correct accusation that DOT regulations had
been violated.6 Of course, the fact that an accusation
comes from a union adherent does not preclude an em-
ployer from taking corrective action. For example, if a
union supporter complains about the fact that an em-
ployee is performing excess overtime work, surely the
corrective act of taking away that work is not rendered
unlawful simply because the complainant is a union ad-
herent.
My colleagues have extended Wright Line, supra.
That case involves adverse action against an employee
because of his union activity. By contrast, the instant
case involves adverse action against employees because
of their misconduct, where that misconduct was brought
to the employer’s attention by a union adherent. That is
not a Wright Line situation.
It may well be true, as the majority states, that the
other drivers blamed Mangum and/or the union for caus-
ing the discharges. However, what is at issue is the Re-
spondent’s motivation, not what Mangum’s coworkers
may have thought. As discussed, an unlawful motive has
not been established.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

Section 7 of the Act gives employees these rights.

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

WE WILL NOT threaten our employees with reduction
in their hours of work because they vote in favor of
Teamsters Local 667, affiliated with the International
Brotherhood of Teamsters, or any other labor organiza-
tion.
WE WILL NOT discipline, suspend, or discharge our
employees because of their support of the Union.

6 The prior accusation was made privately.
WE WILL NOT unilaterally implement more stringent
rules for dock employees.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.
WE WILL offer immediate and full employment to
Robert Crawford, Marcus Cole, and Tollie Graves to
their former positions or if those positions no longer ex-
ist, to substantially equivalent positions without preju-
dice to their seniority or any other right or privileges pre-
viously enjoyed.
WE WILL make Robert Crawford, Marcus Cole, Tollie
Graves, and Horace Quinn whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, plus interest.
WE WILL rescind the more stringent dock rules im-
plemented in April 1997.

OVERNITE TRANSPORTATION COM-
PANY

Linda Kirchert, Esq., for the General Counsel.
Kenneth Sparks, Esq., Lisa Wetzel, Esq. and Ted Tow, III, Esq.,
Chicago, Illinois, for the Respondent.
Samuel Morris, Esq. and Henry Perry, of Memphis, Tennessee,
for the Teamsters.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This
hearing was held in Memphis, Tennessee, on several dates from
April 22 through August 11, 1998. The charges were filed on
various dates between April 12, 1996, and April 10, 1998. A
fourth amended consolidated complaint issued on March 30,
1998. In consideration of the full record1 including briefs filed
by Respondent and General Counsel, I make the following
findings.
I. JURISDICTION
Respondent admitted that at material times it has been a cor-
poration with an office and place of business in Memphis, Ten-
nessee (the Memphis Service Center) where it has been en-
gaged in the interstate transportation of general commodity
freight; and during the 12-month period ending February 28,
1998, it sold and shipped and it purchased and received from
and to its Memphis Service Center, goods and materials valued
in excess of $50,000 to and from points outside Tennessee.
Respondent admitted that it has been an employer engaged in
commerce at material times.
1 Pursuant to my order dated October 6, 1998, R Exh. 59 was re-
jected on a determination that Respondent had failed to comply with
my instructions as specified in Rule 1006, Fed. R. Evid. That document
is now in the rejected exhibit file. Counsel for General Counsel’s unop-
posed post-hearing motion for the introduction of GC Exh. 102
through 108 is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
II. LABOR ORGANIZATION
Respondent admitted that Charging Party Teamsters has
been a labor organization at all material times.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint includes allegations of independent 8(a)(1)
violations; various 8(a)(3) violations; and a unilateral change in
a mandatory bargaining condition in violations of Section
8(a)(5).
The alleged unfair labor practices stem from and after two
election campaigns. The Union initiated an organizing cam-
paign in 1995 but lost an April 25 election. It started another
campaign and filed a representation petition in July 1996. On
September 16, 1996, a NLRB election resulted in the Union
receiving 219 votes while 201 votes were cast against the Un-
ion. Challenged ballots were determinative and objections were
filed. The Union was certified, as exclusive collective-
bargaining representative in the following bargaining unit, on
October 9, 1997:

All city drivers, road drivers, dock workers, jock-
eys/hostlers, building maintenance employees and shop
employees employed at Overnite Transportation Com-
pany’s Memphis, Tennessee, Hub and City Terminal fa-
cilities; excluding all office clerical employees, managerial
employees, professional employees, guards and supervi-
sors as defined in the Act.

There are around 450 employees at the Overnite terminal in
Memphis. Those include dockworkers, city drivers, shop per-
sonnel, road drivers and office personnel. There is now only
one terminal at Memphis. Formerly there was a city terminal
and a hub terminal.
Dan Warner is Respondent’s terminal manager. The assistant
terminal manager at material times was Michael Eastman.
Frank Plemmons is Respondent’s operations manager over the
city. Tommy Lee Jones and Jeff Cain are operations managers
on the docks. Richard Pair is linehaul supervisor for over-the-
road drivers. Around a year ago Duane Williams was an opera-
tions manager over the city drivers and the dock.
The following events may be material to this litigation (listed
in chronological order):

April 12, 1996: Union filed 26-CA-17397 charge2
May 1996: Union initiated its 1996 organiz-
ing campaign3
June 2, 1996: Michael Eastman became Assis-
tant Service Center Manager4

2 As shown in the complaint various charges were filed against Re-
spondent between April 12, 1996, and January 14, 1998.
3 The Union initiated its 1996 organizing campaign in May 1996
when four organizers were assigned to the campaign. Employees be-
came involved in handbilling at Respondent’s terminal, solicitation for
the Union, wearing union paraphernalia, and the making of a union
video.
4 Michael Eastman implemented several changes in the operations in
order to improve efficiency. He implemented a progressive discipline
system for infractions of similar nature, including counseling, written
warning, final warning and suspension and discharge.
July 9 and August 1, 1996: Written warnings to Horace
Quinn
August 1996: Union video—“Time for Unity”5
August 15, 1996: Transferred Horace Quinn for 2
weeks
September 16, 1996: NLRB Election (For Union 216,
Against 201)
September 17, 1996: Supervisor Tuggle threatened re-
duced hours
September 17, 1996: Reduced hours of Horace Quinn
October 1, 1996: Suspended Horace Quinn
October 18, 1996: Suspended Horace Quinn
October 26, 1996: Discharged Horace Quinn
April 15, 1997: Imposed more stringent enforce-
ment of damaged and misloaded
freight policies
May 6, 1997: Written warning to Robert Craw-
ford
May 15, 1997: Suspended Robert Crawford
May 28, 1997: Suspended Tollie Graves
May 28, 1997: Terminated Robert Crawford
June 6, 1997: Suspended Sidney Wyrick, Steve
Spillers, Mark Cole
June 12, 1997: Terminated Sidney Wyrick,
Spillers, Mark Cole
July 15, 1997: Terminated Marcus Cole
October 9, 1997: Union certified
October 31, 1997: Suspended Tollie Graves
November 3, 1997: Terminated Tollie Graves

1996
International Organizer Henry Perry was involved in the Un-
ion’s election campaigns with Respondent. The Union lost a
1995 election before winning in 1996. Some of the Union sup-
porting employees appeared on a videotape the Union prepared
in 1996 (GC Exh. 2). The Union distributed handbills during
that 1996 campaign. Union employees Bobby Ramshaw, Melba
Coffman and T.C. Bundrant helped Perry meet and talk with
employees as they left Respondent’s Service Center gate on the
Thursday and Friday before Memorial Day. Handbills were
passed out to the employees at Respondent’s gate at least once
a week from then until the election on September 16, 1996.
Most of the city drivers and the day and midnight shifts would
assist in that handbilling.
Paul Holder testified Respondent held dinners for the em-
ployees at the Peabody Hotel in Memphis a week before the
September 16 election. Three dinners were held to accommo-
date all unit employees. Holder also attended an employee
meeting held in the training room of the trailer shop. There
were around 20 to 25 midnight shift employees present. Pic-
tures of employees were displayed around the room. The pic-
tures were apparently from the Union video “Time for Unity”
5 Several employees appeared on that union video and made state-
ments supporting the Union. Those employees included Robert Craw-
ford, Sam Powell, Kyle Brooks, Ralph Marshall, David Kanable, Al
Parker, James Fulgum, Tony McElroy, Kenny Hill, Darrell McCall,
Charles Watkins, Johnny Mango, Charles Holbrook and James Tyler.
OVERNITE TRANSPORTATION CO. 381
and showed the employees with amusing or uncomplimentary
facial expressions.
Sam Powell, a dockworker, testified that Danny Warner
talked to about 75 to 80 employees in the training room shortly
before the September 16, 1996 election. Warner told the em-
ployees they should not belong to the Union. There were pic-
tures of some employee supporters of the Union hung on the
walls. Those pictures were taken from the 1996 Union video—
“Time for Unity.” Warner referred to the pictures and said to
the employees, “Do you want these people to be your leaders
and to represent you,” and that he did not think the employees
wanted those leaders.
1997
Assistant Terminal Manager Michael Eastman held meetings
of employees in April 1997 and warned the employees that
mistakes such as miscounting freight and misloads would no
longer be tolerated. Operations Manager Plemmons reconfig-
ured the city routes by zip codes and set productivity goals in
June and July 1997.
The representation case continued through pending objec-
tions and investigation of challenged ballots. After challenges
were resolved Respondent withdrew its objections and the Un-
ion was certified as exclusive collective-bargaining representa-
tive on October 9, 1997.
The complaint included alleged unfair labor practices involv-
ing Robert Crawford, Tollie Graves, Sidney Wyrick, Steve
Spillers, Anna Wyrick, and Mark and Marcus Cole. Robert
Crawford appeared in the August 1996 “Time for Unity” video.
Crawford’s picture, which was extracted from the Time for
Unity tape, was one of those pictures posted on the training
room wall during some of Respondent’s antiunion employee
meetings before the September 1996 election.
FINDINGS

1996

Horace Quinn:
July 9 warning:
August 1 warning:
August 15 transfer:
September 17 reduced hours:
October 1 and 18 suspensions:
October 26 discharge:

Horace Quinn initially worked for Respondent through a
temporary employment service. After 4 weeks he was hired to
work directly for Respondent. Quinn was a part-time dock em-
ployee and his total employment extended from April 24 until
October 26, 1996. At first he worked the 5 p.m. to 1:30 a.m.
shift. During his orientation he explained to Operations Man-
ager Duane Williams that he needed to pick up his small child
from the baby-sitter at 1:30 a.m. each day.
Quinn supported the Union beginning around June 1996, by
wearing union insignia and handbilling at Respondent’s front
gate. Horace Quinn testified that shortly after he started passing
out union leaflets he started receiving hand freight assignments.
On July 9 Quinn was counseled for inefficiency. Quinn ad-
mitted that he stripped 5845 pounds of freight in 4 hours but he
testified that he was unfairly assigned freight that required
unloading by hand.
A couple of weeks after his corrective action report Quinn
saw supervisor Donald Tuggle pick up a box where Quinn had
been working and throw the box into a trailer. Quinn received a
corrective action report the next day for a misload and he com-
plained to supervisor Joey Smith that Tuggle had misloaded an
item of freight and then forged Quinn’s signature on the mani-
fest. Quinn agreed that he heard nothing more about the inci-
dent after Operations Manager Duane Williams told him that he
would take care of the matter. Duane Williams testified that he
did determine that Donald Tuggle was responsible for the mis-
load and Quinn was not disciplined.
Quinn received a final warning for inefficiency on August 1.
He admitted that he unloaded 5862 pounds of freight in 6 hours
but that he was again assigned the unloading of freight by hand.
Around August 13 Quinn was called in to meet with Michael
Eastman and Dock Supervisor Joey Smith. Eastman testified
that Quinn was awarded another warning but Eastman tore up
the warning and assigned Quinn for retraining. Quinn was reas-
signed for 2 weeks or more additional training with Dale Wat-
son on the third shift. Quinn testified in agreement with East-
man that he was called before Assistant Terminal Manager
Eastman. Eastman told Quinn that he had a final warning writ-
ten up by Duane Williams and that would be Quinn’s sixth
writeup.6 Eastman said that he had reviewed the writeup and
was going to tear it up and send Quinn to train with Dale Wat-
son. A memo in Quinn’s file shows that he was assigned to the
3d shift for 2 weeks’ training under Dale Watson beginning on
August 13, 1996.
Quinn pointed out that reassignment would cause problems
in picking up his child at 1:30 a.m. He subsequently requested
to switch back to second shift after learning that Dale Watson
reported to work at 10 or 11 p.m. His request was denied but he
was allowed to return to the second shift after about 2 weeks on
the third shift.
On the day after the September 16 NLRB election, supervi-
sor Donald Tuggle told Horace Quinn to clock out after about 2
hours work. Quinn asked Supervisor Joey Smith why he was
being sent home with plenty of work left. Smith called Tuggle
over. Donald Tuggle said he had instructions to start sending
workers home early. Quinn asked why it was worthwhile to
have him come in for only 2 hours and Tuggle replied that
Quinn “made that decision, from aspects that happened last
night.” Quinn was awarded a second final warning on that day,
September 17, 1996, for taking unauthorized photographs of his
freight assignments.
On September 30 or October 1 Quinn unloaded 34 bills in
7.5 hours and was awarded a final warning and 3-day suspen-

6 In addition to the writeup that Assistant Terminal Manager East-
man tore up around August 1, Quinn had write ups for inefficiency
dated April 30, July 9, August 1, October 10 and October 18, 1996, a
May 14, 1996 writeup for failure to obey orders and a September 17,
1996 writeup for insubordination and failure to obey orders.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
sion. Respondent contended that load was 100-percent skids.7
Quinn testified that it took him too long to unload the freight
because he was not assigned a forklift and had to wait while
others finished with their forklifts.
On October 24 Quinn received his final warning for low pro-
duction for work on October 17 and 18. On October 17 he
unloaded 16 bills of 10,957 pounds in 7.4 hours. On October 18
Quinn finished 3 of 14 bills in more than 11 hours. Quinn testi-
fied that other employees—John Newton and Curtis Walker—
also had poor production. He testified on cross-examination that
Newton was also discharged for inefficiency. Quinn testified that
he felt that Newton and Walker were not union supporters.
CREDIBILITY
I was bothered by Horace Quinn’s testimony as to why he
received various disciplinary actions. In that regard even
though he testified about his discussions with supervisors, es-
pecially Duane Williams, about why he performed below pro-
duction, those discussions failed to include reasons he gave for
those same actions at the hearing. For example Quinn testified
that he received a corrective action report in June or July for
failure to make production. He testified that he did not make
production because Respondent started assigning him hand
freight after it learned he supported the Union. However, he
made no mention of being unfairly assigned hand freight during
his comments on the corrective action report (GC Exh. 71) or
in his version of a conversation he had with Operations Man-
ager Duane Williams after his only corrective action report in
June or July (GC Exh. 71, corrective action report 7/10/96). I
also noticed that Quinn’s testimony did not square with other
events including his prior statements. For example when given
a final warning on September 30 Quinn wrote “I am not the
only one on the dock you have people on the dock in the way at
some time you have to wait till they get through.” (GC Exh.
71). However, during the hearing Quinn testified that his pro-
duction was poor because he was not assigned a forklift and
had to wait for others to finish with a forklift.
I am unable to credit Quinn. In that regard I am unable to
credit that Quinn was discriminatorily assigned hand-freight
and I credit the testimony of Duane Williams that Quinn did
have the use of a forklift on September 30.
In areas where Quinn was not disputed such as his testimony
about Donald Tuggle, I credit Quinn.
Conclusions
General Counsel has the burden of proving that Respondent
was motivated to take action against Horace Quinn because of
his protected activities or that Respondent engaged in pretext in
an effort to hide the fact that it took that action. See Manno
Electric, 321 NLRB 1 fn. 12 (1996); Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); NLRB. v. Transportation Management
Corp., 462 U.S. 393 (1983).
In consideration of that issue I shall look to whether Respon-
dent had knowledge of Quinn’s union activities; whether Gen-
eral Counsel proved animus; the timing of Respondent’s ac-

7 Skids required a forklift as opposed to other freight that may have
required unloading by hand.
tions and whether Quinn was treated in a disparate manner. As
shown above Quinn engaged in union activity beginning in
June 1996 by wearing union insignia to work and handbilling
for the Union at Respondent’s front gate.
The entire record supports a finding of animus. Respondent
took action in strong opposition to the Union’s two election
campaigns and it engaged in unfair labor practices. Moreover,
as shown above, Quinn testified that supervisor Tuggle told
him on September 17 that Quinn had made the decision to re-
duce his hours by his action the prior evening. The action that
prior evening was the employees’ election of the Union.
As to timing, Quinn was disciplined in July. That was ap-
proximately a month after he first engaged in union activity.
Quinn received additional disciplinary actions in August and
September and was discharged in October. The discharge oc-
curred slightly over a month after the Union won the September
16 election.
In regard to the question of disparate treatment, Horace
Quinn testified that another employee was also discharged for
poor productivity. That employee, John Newton, was not a
union supporter.
Although the timing of Quinn’s discipline causes suspicion,
the record also shows that Quinn received a corrective action
report for inefficiency before he first engaged in union activity.
That corrective action report dated April 30, 1996 tends to
show that Quinn did have a production problem. On May 14
Quinn received another unrelated corrective action report. On
that occasion he was warned for leaving the premises after
being directed to unload a trailer.
The record and even Quinn’s testimony, draws sharp ques-
tions as to whether he was ever treated in a disparate manner. I
am not convinced that the record supports General Counsel on
that issue. As shown above I do not credit the disputed testi-
mony of Quinn that he was discriminatorily assigned only
hand-freight after he became known as a union supporter.
Quinn’s testimony and Respondent’s records show that testi-
mony was not credible. Additionally, the record supports Re-
spondent’s argument that Quinn engaged in the conduct that
caused Respondent’s corrective action. Although, as shown
below, the evidence showed disparity in the treatment of some
union supporters, such was not the case with Quinn. He was
only employed for 6 months and he was disciplined for similar
offenses on April 30, July 9, August 1, August 13, September
30 and October 24, 1997. Those writeups included two counsel-
ings, a final warning and another warning that Eastman tore up,
another final warning on September 30 and one on October 24.
Quinn was treated with more tolerance than what is provided in
Respondent’s procedure and policy of three disciplinary actions
before discharge.
Moreover, even if I should find that Respondent was moti-
vated by Quinn’s union activity, in its decision to discipline and
discharge him, there is a question as to whether Quinn would
have been disciplined and discharged in the absence of union
activity. Manno Electric, 278; Wright Line, supra; NLRB. v.
Transportation Management Corp., supra.
According to Quinn, he routinely failed to achieve produc-
tion and was only occasionally awarded corrective action re-
ports. His impression was that Respondent was trying to make
OVERNITE TRANSPORTATION CO. 383
him look bad by spacing out the corrective action reports even
though they could have been awarded more frequently. Quinn’s
impression makes no sense. If, as General Counsel alleges,
Respondent was motivated by Quinn’s union activities, then it
would have been in its interest to discipline and discharge
Quinn at the earliest opportunity. By ignoring opportunities to
discipline him as Quinn believed Respondent missed several
early opportunities to discipline and discharge him after learn-
ing of his union preference.
Additionally, the full record including Quinn’s testimony
shows that he was granted more than usual tolerance under
Respondent’s similar offense progressive discipline policy.
That policy required the disciplinary steps of (1) counseling, (2)
warning, (3) final warning and suspension, and (4) termination.
Quinn was counseled for inefficiency on April 30 and again on
July 9, 1996. He was warned for inefficiency on August 1 and
warned and suspended for inefficiency on October 1. Then he
was discharged for inefficiency on October 24, 1996. Quinn
had five corrective reports when four would have been suffi-
cient for discharge. Assistant Terminal Manager Eastman ex-
plained why Quinn was given the extra disciplinary step. Ac-
cording to Michael Eastman’s undisputed testimony Respon-
dent treated Quinn’s August 1 warning as a warning (not final)
because Quinn had not progressed to the point of a final warn-
ing when considered beginning at the time Michael Eastman
came to the Memphis terminal. That evidence supports East-
man’s testimony that he refused to consider for progressive
discipline purposes, all disciplinary actions against employees
that predated Eastman’s coming on board in Memphis. Addi-
tionally, as shown above, Michael Eastman tore up another
warning during August 1996 and assigned Quinn for retraining.
I am convinced in view of the above evidence that General
Counsel failed to prove that Respondent was motivated by un-
ion activities in disciplining and discharging Horace Quinn and
I find that Respondent would have disciplined and discharged
Quinn in the absence of union activities. As to Quinn’s retrain-
ing assignment, the credited evidence shows that he was not
discriminatorily treated in an adverse manner. Instead of receiv-
ing another warning Quinn was given an opportunity to im-
prove his production through retraining.
Unlawful threat by Supervisor Tuggle
On the day after the NLRB election, Supervisor Donald
Tuggle was asked why Horace Quinn was being sent home
with plenty of work left. Tuggle said he had instructions to start
sending workers home early. Quinn asked why it was worth-
while to have him come in for only 2 hours and Tuggle replied
that Quinn “made that decision, from aspects that happened last
night.” The NLRB election was held “last night” and the em-
ployees voted in the Union.
I find that Supervisor Donald Tuggle did tell Horace Quinn
to go home after 2 hours worktime on September 17, 1996.
When questioned by Quinn and Supervisor Joey Smith, Tuggle
explained that he was sending Quinn home because of Quinn’s
decision the night before. On the night before some employees
including Quinn celebrated the Union’s win in the NLRB elec-
tion. I find that Respondent was motivated by the election re-
sults to deprive Quinn of worktime. Respondent failed to show
that it would have sent Quinn home in the absence of the union
activity.
Credibility
The testimony regarding Donald Tuggle’s September 17
comments were not disputed. I credit the testimony of Horace
Quinn in that regard.
Conclusion
The comments by supervisor Donald Tuggle to employee
Horace Quinn on the day after the NLRB election were to the
effect that Quinn made the decision to reduce his work hours
during that election. The credited testimony of Quinn shows
that Tuggle saw Quinn and other employees celebrating the
Union victory after the election the evening before his com-
ments. The Union received 216 votes to 201 against in that
election and Quinn demonstrated by his conduct that he sup-
ported the Union. Tuggle’s comment has the tendency to re-
strain and coerce employees in the exercise of protected union
activity in violation of Section 8(a)(1) of the Act.

1997

April 15 more stringent enforcement loading policies:
Respondent admitted that the Charging Party (Union) has
been the exclusive collective-bargaining representative for
bargaining unit employees at material times, having been certi-
fied on October 9, 1997. Although an election was held on
September 16, 1996 and the Union received 216 votes as op-
posed to 201 against, challenges were determinative and objec-
tions were filed. There was no showing that the certification
should be considered retroactive.
Michael Eastman instituted changes in policy when he came
to Memphis in the summer of 1996. The record also shows that
Eastman held meetings of employees in April 1997 and warned
the employees that mistakes such as miscounting freight and
misloads would no longer be tolerated. The Union did not re-
ceive notice of changes in working conditions from Respondent
in the spring, 1997.
There is no showing of conflicts in the above evidence.
Conclusions:
The record shows only that Michael Eastman held meetings
of employees in April 1997 and threatened the employees that
dock mistakes would not be tolerated. There was no showing
that the Union was exclusive representative at that time. The
election was held before that date but certification did not occur
until several months later. There was no showing that the certi-
fication should be given retroactive effect. I find that General
Counsel failed to prove that Respondent imposed more strin-
gent enforcement of loading policies at a time when the Union
was the exclusive collective-bargaining representative.
Robert Crawford
May 6 warning:
May 15 suspension:
May 28 termination:

Robert Crawford was a city driver. He handbilled and wore
union insignia and appeared on the union video. Crawford was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
one of a number of union supporting employees including Sam
Powell and Jimmy Gillentine, whose photographs were posted
on the wall of Respondent’s training room. As shown above
before the September 16, 1996 election, the terminal manager
and assistant (Danny Warner and Michael Eastman) spoke to
the employees about those pictures. Warner said the photo-
graphs showed who would be the union leaders if the employ-
ees voted for the Union and he did not think they wanted those
leaders. Respondent does not dispute that it knew of Craw-
ford’s union activities. Frank Plemmons admitted that Craw-
ford appeared on the union unity tape video.
Crawford was terminated on May 29, 1997 (GC Exh. 15, 17,
18). At the time of his discharge Crawford had worked for Re-
spondent for over 17 years. Until 1997 Crawford was not disci-
plined because of production. Other than Crawford no one has
been discharged because of poor production on the downtown
route. Drivers Donald and Tyler drove the downtown route and
were never told to perform at the level required of Crawford.
Credibility
I found Robert Crawford to be a straightforward witness that
gave the impression of truthfulness. He appeared to answer
questions fully and completely without evasion. I was im-
pressed with his demeanor and I credit his testimony. Opera-
tions Manager Plemmons testified as to the reasons why Craw-
ford was disciplined. Plemmons’ testimony was vague and
oftentimes made little sense. For example it was unclear why
Crawford who had worked for over 17 years without discipline
and without Plemmons taking time to survey (trail) his work,
was suddenly given a high standard of production and fired
within a 1-month period. Moreover, Plemmons’ testimony that
he determined that Crawford had averaged 1.63 stops per hour
during the week of April 21 when he was accompanied by
Duane Williams, and that he deducted 10 percent from that
figure and set Crawford’s standard for production at 1.55 stops
per hour, makes little sense. I credit Crawford’s testimony that
Duane Williams assisted him during the week of April 21. Wil-
liams admitted helping Crawford 1 day that week but Williams
testified that day was not counted in determining Crawford’s
week’s production. However, when questioned as to the specif-
ics of computing Crawford’s week’s production, Williams
could not recall if he was involved in computing those figures.
By using the figures supplied on Respondent’s July 16, 1997,
position statement (see also GC Exh. 14) Crawford’s produc-
tion for the 4 days that week excluding Thursday, actually av-
eraged 1.617 stops per hour (51 total stops divided by 31.54
hours). If Thursday is averaged along with all the other days
that week, Crawford averaged 1.71 stops per hour (68 stops
divided by 39.82 hours). According to Plemmons he told Craw-
ford his production standard would be the rate he achieved with
Duane Williams minus 10 percent. If 10 percent is deducted
from 1.617 stops per hour, the result should be 1.46, not 1.55,
stops per hour.
Respondent records show that Crawford’s weekly production
after the week of April 21, averaged 1.21, 1.17, 1.27, 1.55, and
1.43, stops per hour (GC Exh. 16). That evidence supports my
determination that Plemmons’ testimony was not credible.
During his initial testimony Plemmons denied that Williams
had helped Crawford. Plemmons testified that Williams told
him that he had not touched any freight at all. After Williams
testified Plemmons changed his testimony and admitted that
Williams had helped Crawford 1 day. Plemmons testified that
the suggested target for city drivers set by Respondent’s Rich-
mond, Virginia office was 1.1 stops per hour. Plemmons was
able to set the monthly targets provided those targets were no
lower than the ones set by Richmond. He set Crawford’s down-
town route higher than 1.1 because the driving time between
stops should have been shorter than on other routes.
Conclusions
General Counsel has the burden of proving that Respondent
was motivated to take disciplinary action against Robert Craw-
ford because of his protected activities. See Manno Electric,
321 NLRB 1 fn. 12 (1996); Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
As shown herein and in a prior decision by the National La-
bor Relations Board,8 Respondent has strongly opposed the
Union in efforts to organize this and other terminals. I am con-
vinced that General Counsel proved that Respondent harbored
anti-union animus. In view of that showing and the evidence
that proved that Respondent was fully aware of the productivity
of Robert Crawford, I find the timing of the action against
Crawford raises suspicion.
Over the years Crawford first drove a bob-truck and then a
pup-trailer on the downtown route. The pup-trailer handled a
larger load than the bob-truck. That was apparently necessary
due to consolidation of several routes. Nevertheless, there was
no showing that Crawford’s work was less than productive until
May 1997.
Operations Manager Frank Plemmons cautioned drivers that
he might ride with them or follow them (trail) in order to check
on production. Plemmons did neither with Robert Crawford. He
did ask Operations Manager Duane Williams to ride with
Crawford. Williams rode with Crawford during the entire week
on April 21, 1997. According to Plemmons, Williams did not
report anything unusual about Crawford’s work. After that
week Plemmons set a standard for Crawford of 1.55 stops per
hour. Crawford agreed with Plemmons’ testimony that Plem-
mons set a 1.55 stop standard but Crawford told Plemmons that
he did not understand the production rate and that he would
perform at his best work. Crawford credibly testified that
Duane Williams complimented his work while Williams rode
with him during the week of April 21.
Crawford explained that there is a month long festival in
downtown Memphis called “Memphis in May.” The major
street along the Mississippi River (Riverside Drive) is blocked
to all traffic during that festival. That caused more downtown
traffic, which, along with added traffic for the festival, resulted
in very heavy traffic along Crawford’s route. That caused a
slowdown in Crawford’s work.

8 In Overnite Transportation Co., JD(ATL)-13-98, the NLRB issued
an order affirming the decision on May 1, 1998.
OVERNITE TRANSPORTATION CO. 385
Crawford was disciplined for poor production during May.
He received a May 6 corrective action report and a May 15
final warning and suspension. Robert Crawford was discharged
for poor production on May 29, 1997.
Despite Crawford’s alleged production problem, Plemmons
did nothing after the week of April 21 to check into why Craw-
ford was not achieving 1.55 stops per hour. The record failed to
show that Respondent normally reacted without checking into
the basis for a driver’s slow work. Frank Plemmons testified
that he rode with one other driver for a full week. Unlike the
situation with Crawford where Plemmons did not even investi-
gate why Crawford was not as productive when Duane Wil-
liams did not accompany him, Plemmons discovered that other
driver (Roy Ford) took longer and more frequent breaks when
Plemmons was not riding with him. Ford was not discharged.
That evidence shows that Crawford was treated in a disparate
manner. Other city drivers testified including Roy Donald,
James Tyler and Gary Wade. Their testimony showed that
Crawford was the only driver discharged over production9 and
that they were not familiar with the downtown production stan-
dards that had been applied to Crawford. That evidence plus the
evidence that Crawford was held to a much higher production
standard than the standard required by the Richmond office,
adds to my finding that Crawford was treated in a disparate
manner.
Crawford’s disciplinary actions occurred during the same pe-
riod as other alleged violations. For example, as shown below
Tollie Graves was suspended on May 20. That was a little over
1 week before Crawford was discharged on May 28.
In view of the evidence showing animus, Crawford’s union
activity and Respondent’s knowledge of his activity, the timing
of its actions against Crawford and the disparate treatment of
him, I find that Respondent was motivated by it animus to dis-
cipline and discharge Robert Crawford.
There remains a question of would Respondent have disci-
plined and discharged Crawford in the absence of union activi-
ties. Manno Electric, 321 NLRB 278 fn. 12 (1996); Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983).
Operations Manager Plemmons testified there was a drop in
Crawford’s production over the course of months beginning
around July 1996. Plemmons talked to Crawford about his pro-
duction several times over those months. Crawford was running
a little over a stop an hour, which was unacceptable. Plemmons
never rode with Crawford because of production problems as
he did for some drivers. Plemmons did ask Crawford if there
was something causing his production to go down and Craw-
ford replied there was nothing. On April 18, 1997, Duane Wil-
liams agreed to ride with Crawford for a week. Williams made
daily reports to Plemmons during that week which was the

9 Respondent’s records show that no downtown driver other than
Crawford was discharged. Other production records in evidence in-
cluded Roy Donald and Dennis Hilliard but their performance occurred
after Crawford was fired. Donald averaged 1.59 stops per hour during
the times he ran the downtown route from June 4 through July 3, 1997.
Hilliard averaged 1.95 stops per hour during the time he ran the down-
town route between June 10 and July 3, 1997.
week after April 18. Williams did not report anything out of the
ordinary regarding how Crawford ran his routes. Crawford ran
from around 1.0 to 1.210 stops per hour during the week before
Williams ran with him. While running with Duane Williams
Crawford’s production averaged 1.6311 stops per hour. Plem-
mons then set a goal of 1.55 stops per hour and asked Crawford
if he could maintain that average. Crawford said that he could
but he added that he was only going to “do what I’m going to
do.” Plemmons told Crawford that he would talk with him in 1
week, on the following Monday. When Crawford talked with
Plemmons that following Monday, May 6, Plemmons wrote
him up because of low production. On May 15 Crawford re-
ceived a final warning and suspension.
However, Respondent failed to show why Crawford was
held to a higher standard than other employees. It did offer
evidence that downtown drivers that drove after Crawford was
discharged achieved production higher than 1.55 stops per hour
but there was no showing that anyone was required to satisfy
that standard other than Crawford. As shown herein, the 1.55
stops per hour standard was not justified using Plemmons’ al-
leged formula of 10 percent below what Crawford had achieved
in 4 days with Duane Williams.12 Moreover, the jump from a
stop an hour to 1.55 would have been an unlikely production
increase even according to Plemmons’ testimony as to what
could be expected in the way of increased production. It ap-
pears that Plemmons must have known that Crawford could not
achieve a production increase of from 1.0 or 1.2 to 1.55 stops
per hour within a period of less than 2 weeks.
Moreover, there was no showing that the conditions during
the week of April 21 were similar to those during May while
Memphis in May caused additional traffic. In view of the full
record I am convinced that Respondent would not have disci-
plined and discharged Crawford in the absence of union activi-
ties. I find that Crawford was disciplined and discharged in
violation of Section 8(a)(1) and (3) of the Act.
Sydney and Anna Wyrick, Spillers, Mark Cole:13
June 6 suspensions:
10 Despite the fact that according to Plemmons recollection, Craw-
ford had never been disciplined even though his production ran at or
below 1.2 stops per hour, he was disciplined and discharged after
achieving production at a rate of from 1.17 to 1.55 stops per hour
throughout the remainder of April and all of May, 1997.
11 As shown herein, Plemmons was incorrect as to Crawford’s pro-
duction while Operations Manager Duane Williams rode with him.
Respondent’s records show that Crawford’s production during the 4
days that week when Duane Williams allegedly did not assist him, was
actually 1.617 stops per hour.
12When viewed in the best light from Respondent’s viewpoint,
Plemmons’ arithmetic was in error. Moreover, the standard required of
Crawford was only 1.1 stops per hour and there was no showing of
why Crawford was held to a standard some .45 stops per hour above
that standard.
13 The allegations regarding Sidney Wyrick, Spillers and Cole were
dismissed by June 26, 1998 order (JDO (ATL)–07–98). General Coun-
sel concedes that order effectively disposed of the allegations regarding
Anna Wyrick since her allegation is conditioned upon the validity of
the allegations relating to her husband Sidney Wyrick (Fn. 2, Brief of
General Counsel).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
June 12 discharges:

On June 6 Respondent suspended Sidney Wyrick and Steve
Spillers. Wyrick, Spillers and Dispatcher/Supervisor Mark Cole
were discharged on June 12, 1997.
The allegations involving Wyrick, Spillers and Cole are
unique. Instead of alleging they were discharged because of
their union activities, they were allegedly discharged because a
union supporter complained that Wyrick and Spillers had made
an illegal run. Union advocate Johnnie Mangum made the
complaint. Mangum made that complaint during a May 29,
1997, drivers meeting held by Respondent. There is no dispute
but that Mangum’s information was accurate and that Respon-
dent’s investigation following Mangum’s complaint illustrated
that Wyrick and Spillers had made individual runs from Mem-
phis to Nashville and return at a time when neither had suffi-
cient allowable hours left to make individual runs. Moreover,
Respondent learned during that investigation that neither
Wyrick nor Spillers had logged the Nashville run. Both the run
and the failure to log the run constituted action in violation of
applicable laws. Mark Cole was discharged because he was the
dispatcher that sent Wyrick and Spillers on those illegal runs.
General Counsel conceded that the complaint allegation regard-
ing Anna Wyrick depends on a finding that her husband Syd-
ney was illegally discharged. Counsel for General Counsel also
conceded that Wyrick, Spillers and Cole were not discharged
because of their own union activity.
By June 26, 1998 order the allegations regarding Sydney
Wyrick, Spillers and Mark Cole were dismissed.
As to whether Respondent illegally terminated Wyrick,
Spillers and Cole, the NLRB considers whether General Coun-
sel proved through persuasive evidence that the Respondent
acted out of antiunion animus. Manno Electric, supra 278;
Wright Line, supra, NLRB v. Transportation Management
Corp., supra. Here, the alleged motivation is of a peculiar type.
General Counsel contended that Respondent was motivated by
a desire to undermine the Union. If the record is found to sup-
port General Counsel, I must consider whether the evidence
shows that Respondent would have discharged those employees
(and supervisor) in the absence of union activities.
As shown in the order dismissing the allegations regarding
Wyrick, Spillers and Cole, I accepted for the sake of considera-
tion of Respondent’s motion, that General Counsel proved anti-
union animus. Here the question is was Respondent motivated
at least in part, to undermine the Union. Obviously, Respondent
opposed the Union and would have favored the Union being
undermined in the eyes of its employees. However, was that a
motivation in its decision to discharge Wyrick and Spillers on
learning of their illegal activity. There was no showing that
Respondent acted to motivate the May 29 complaint by union
advocate Mangum. Once Mangum brought up the matter Re-
spondent was placed in the position of either acting or ignoring
the complaint. By investigating the complaint and acting pursu-
ant to that investigation, Respondent did nothing more than
what was requested by Mangum. When it determined that
Mangum’s complaint was meritorious, it had before it informa-
tion that Wyrick, Spillers and Cole had involved themselves in
illegal runs and that Wyrick and Spillers had illegally failed to
log the runs.
I am convinced under the circumstances that the evidence
failed to show that Respondent was motivated even in part, to
undermine the Union. Moreover, even if there were evidence
supporting that finding, the record established that Wyrick,
Spillers and Cole would have been discharged in the absence of
a motivation to undermine the Union. Even though there was
evidence that Respondent had failed to discharge a husband and
wife driving team after the wife was ticketed for driving while
her log showed that she was sleeping, that evidence of disparity
failed to overcome the showing that Respondent was motivated
only by its determination that Wyrick and Spillers engaged in
unlawful activity by both making their Nashville runs and by
failing to log those runs. Instead of undermining the Union,
Respondent actually acted to open up drive slots for laid off
employees. That was the point that Mangum was making in his
May 29 complaint. He complained that Respondent should
recall laid off drivers instead of permitting its drivers to make
illegal runs. Respondent by acting in agreement with that point
was actually acting in support of the Union and the laid off
employees. See Alachua Nursing Center, 318 NLRB 1020
(1995).
I found that even if considered in the light most favorable to
General Counsel, the record failed to show that Respondent
discharged Wyrick, Spillers and Cole in an effort to undermine
the Union.14
Tollie Graves
May 20 suspension:
October 31 suspension:
November 3 discharge:
Marcus Cole
July 15 termination
Tollie Graves worked for Respondent for 5 years. He was a
dockworker. Graves supported the Union from 1995 until he
was terminated. He wore union insignia, talked to other em-
ployees about the Union and handbilled at the front gate during
the 1996 campaign. Graves was suspended on May 20, coun-
seled on May 28, and discharged on November 3, 1997.
Marcus Cole worked for Respondent from June 1994 until he
was terminated in July 1997. Although he supported the Union
in 1996 by wearing union insignia to work and handbilling, he
did not support the Union during the 1995 election campaign.
Cole worked in the shop from early 1995 and was not trans-
ferred back to the dock until October 1996. Respondent admit-
ted in its brief that Marcus Cole wore a union hat.
Tollie Graves received a 5-year pin in October and was
complimented on the quality of his work by Michael Eastman.
Within a few days Graves was disciplined (counseled) by su-
pervisors Tommy Lee Jones and Billy Scott for loading a ship-
ment of paint and failing to document it as hazardous. Later

14 See JDO(ATL)–07–98. Although Respondent’s investigation was
precipitated by a complaint from Union advocate Johnnie Mangum,
Respondent discovered that Mangum was correct and that Wyrick and
Spillers had made illegal runs and failed to log those runs.
OVERNITE TRANSPORTATION CO. 387
that day, he was called in to meet with Dale Watson along with
Jones and Scott, where he was suspended pending further in-
vestigation.
Cole received only one corrective action report in 1996. That
was because he was tardy. On March 14, 1997 Cole was
awarded a corrective action report marked “counseling” for
inefficiency and for failure to sign a hazardous material section
(GC Exh. 73). On April 7, Cole received a corrective action
report for inefficiency. Supervisor Donald Tuggle told Cole that
corrective action report was being changed from counseling to
a warning. When asked why, Tuggle showed him his file where
he had received similar infractions back when he first started
working for Respondent. That was in 1994 and 1995.15
Marcus Cole received a final warning and 3-day suspension
on April 22 for inefficiency and misloading. When Cole came
in after July 9 he met with Michael Eastman. Eastman showed
him documents that Cole had misshipped some freight (R Exh.
21). He told Cole that he was suspended indefinitely until fur-
ther notice. Cole admitted that the information on his corrective
action reports was accurate. On April 22, 1997, Marcus Cole
was suspended and awarded a final warning for misloads and
failure to complete a hazardous material document. On July 9
Cole was terminated for mis-shipping freight. Cole mistakenly
referred to a bill of lading instead of the linehaul manifest. As a
result the freight was misloaded onto the wrong trailer.
Former supervisor Paul Holder testified that misloads occur
several times each day. Usually the employee guilty of a mis-
load is required to take the misload off the trailer but is not
otherwise disciplined. Holder has misloaded some freight and
he was not disciplined. As shown herein Holder has held sev-
eral supervisory positions with Respondent.
Credibility
Tollie Graves appeared to be a candid witness. His testimony
was not disputed as to several material points. I was impressed
with his demeanor and I credit his testimony. In many respects
the testimony of Marcus Cole was not in dispute. Donald Tug-
gle did not testify and Cole’s testimony regarding one-on-one
conversations with Tuggle is not in dispute. I was impressed
with Cole’s demeanor and except as specifically noted herein, I
credit his testimony.
Conclusions
General Counsel has the burden of proving that Respondent
was motivated to take action against Tollie Graves and Marcus
Cole because of their protected activities or that Respondent
engaged in pretext in an effort to hide the fact that it took that
action. See Manno Electric, 321 NLRB 278 fn. 12 (1996);
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
The record shows that Respondent was aware of Tollie
Graves and Marcus Cole’s support of the Union. Although Cole

15 As shown herein Assistant Terminal Manager Eastman testified
that it was Respondent’s policy to discount and not consider offenses
that occurred before he came to Memphis in June 1996. Additionally, it
was Respondent’s policy that offenses more than 1-year old were not
considered for progressive discipline purposes.
was not disciplined for anything other than tardiness during
1996, he was disciplined all the way through to discharge in
1997 after Respondent learned of his union activity. Cole ad-
mitted that he did engage in the misconduct alleged in the vari-
ous corrective action reports and discharge documents. How-
ever, a question remains as to whether Respondent treated Cole
differently than other employees and if so, was that disparate
treatment motivated by Respondent’s union animus.
Tollie Graves had some 17 writeups beginning on January
12, 1994 and extending up to his discharge. Twelve of those
writeups occurred before June 1996 and seven occurred before
any union organizing activity. On August 12, 1996, Dale Wat-
son made a note in Graves’ file stating he had a formal discus-
sion with Tollie Graves about the OS&D shipments charged—
shortage & damage charged to Graves. No other notation ap-
peared in Graves’ file until April 7, 1997. At that time Graves
was awarded a warning by Dale Watson for inefficiency. On
May 20, 1997 Dale Watson awarded Graves a final warning
and 3-day suspension for inefficiency. Then, on May 28, 1997,
Graves was awarded counseling by Dale Watson for ineffi-
ciency and 18 shortages and 11 damages. The next corrective
action report in Graves file is also signed by Dale Watson,
dated October 28, 1997, and is for inefficiency and hazardous
material data not signed on the trailer diagram. However, writ-
ten across that corrective action report is “Notes Not a Write-
up.” (R Exh. 42). Graves testified that he was not shown the
October 28 corrective action report. He was called in, ques-
tioned, then sent back to work. Later that day, Graves was sus-
pended. Subsequently he was discharged.
In consideration of whether Graves or Cole was treated dif-
ferently than other employees, I have measured their treatment
against Respondent’s standard procedure as outlined in the
testimony of Assistant Terminal Manager Michael Eastman for
similar offenses during a 1-year period. Eastman started that
procedure after he came on board in June 1996. The progres-
sive discipline outlined by Eastman included (1) counseling, (2)
warning, (3) final warning/suspension, and (4) discharge.
There was evidence of disparate treatment.16 On May 14,
1997, Dale Watson17 submitted a report (GC Exh. 105) that
employee Kirk Mason failed to follow freight handling tech-
niques and unloading procedures and that there had been a
claim for damages of $498.67 because of damages to freight
unloaded by Mason. That report (not a corrective action report)
was described as providing training in claims prevention. Wat-
son wrote on that report that Mason was responsible for 13
shortages and 20 damages since April 1, 1997. On May 14,
1997, Dale Watson submitted written report (not on a correc-
tive action report form) that employee Nathan Bins had
unloaded doors and there was a claim for damages of
$1,114.70. The report shows that Bins was advised that it is his
responsibility to follow Overnite freight handling techniques
16 Respondent submitted evidence showing that its procedure for
disciplining employees changed when Michael Eastman came on board
in June 1996. Therefore, I have carefully examined disciplinary docu-
ments and other reports dated on and after June 1996.
17 Dale Watson also signed Cole’s March 14, 1997, and April 7,
1997 corrective action reports.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
and unloading procedures and the report was an opportunity to
train Bins concerning his responsibilities (GC Exh. 102). As
shown above, Tollie Graves received an April 7, 1997, warning
for inefficiency even though Graves had nothing in his record
since August 12, 1996. Marcus Cole was suspended and given
a final warning on April 22, 1997. Before that date Cole had
received an April 7 counseling that was changed to a warning
because Cole had allegedly received corrective action reports
that predated the institution of the new policy when Michael
Eastman came on board in June 1996.
Employee Harry Edwards received 38 corrective action re-
ports or other written reports between February 18, 1994 and
January 27, 1998. Six of those reports were dated after Michael
Eastman came on board in June 1996 and several were dated
after May 1997. On May 2, 1997, Dale Watson issued a warn-
ing to Edwards for inefficiency and apathy. That report noted
that Edwards had been charged with 6 shortages in April 1997.
On June 17, 1997 Dale Watson issued another warning to Ed-
wards for inefficiency and showed that Edwards has failed to
follow the standard operating procedures. On October 2, 1997,
Dale Watson issued a third warning that year to Edwards for
inefficiency (apathy) and failure to follow basic unloading pro-
cedures. On January 8 and 27, 1998, Edwards received a coun-
seling and another warning through corrective action reports. In
the 1-year period beginning on May 2, 1997, Harry Edwards
received one counseling and four warnings without being sus-
pended or discharged.
Verdell Hayes received several writeups (approximately 22)
beginning in January 1994. Hayes received nine writeups be-
ginning in June 1996. He received counseling signed by Dale
Watson on June 2, 1996 for four shortages and three damages
to freight. Watson issued another counseling to Hayes on July
22, 1996 for inefficiency in loading. Watson again counseled
Hayes on December 4, 1996 for inefficiency causing 6 short-
ages and 7 damages. On April 4, 1997, Hayes received a warn-
ing from Dale Watson for inefficiency. That load included haz-
ardous material and the corrective action report noted the metal
pails were crushed and appeared to be leaking. Watson issued a
May 7, 1997, final warning to Hayes for inefficiency and fail-
ure to list hazardous material on the trailer diagram. That cor-
rective action report shows that it is “VOID 05/13/97.” On May
12, 1997, Watson issued another final warning to Hayes for 4
shortages and that corrective action report was also marked
“VOID” and dated “05/13/97.” On May 28, 1997, Hayes was
counseled for inefficiency and 11 shortages and 9 damages. On
June 6, 1997, Hayes was awarded another counseling for ineffi-
ciency. He also received a warning on June 6, 1997 for ineffi-
ciency (misload). On September 11, 1997, Hayes received an-
other warning for inefficiency (misload). Therefore, during the
one year from July 22, 1996 until June 6, 1997, Hayes was
awarded four counselings, three warnings and three final warn-
ings for inefficiency. During the 1-year period from December
4, 1996 Hayes received three counselings, three warnings and
two final warnings but was not discharged.
Tyrone Lewis received 8 writeups between February 11,
1996 and September 1997. Beginning in June 1996 Lewis re-
ceived 5 writeups. On June 2, 1996 Lewis received counseling
from Dale Watson for 4 shortages and 7 damages during a 10-
day period. Lewis received a corrective action report dated July
3, 1996, for misload. That corrective action report did not show
whether it was a counseling, warning or what. On July 19, 1996
Dale Watson issued counseling to Lewis for inefficiency and
improper use of forklift causing damage. Lewis received an-
other counseling on May 12, 1997 for inefficiency and overall
work performance. On September 4, 1997, Lewis received
another counseling for inefficiency and failure to count freight.
That evidence shows, among other things, that Tyrone Lewis
received two counselings for similar offenses during less than 5
months without receiving a warning, a suspension or a dis-
charge.
The above evidence established that Respondent treated
known union advocates Tollie Graves and Marcus Cole in a
disparate manner. The next question is one of animus. Was
Respondent motivated to treat Graves or Cole differently be-
cause of its union animus. In that regard I have considered Re-
spondent’s animus, the timing of Cole and Graves’ discipline,
Respondent’s knowledge of their union activities and the dispa-
rate treatment of Graves and Cole, in finding that Respondent
was motivated by its union animus in its actions against Tollie
Graves and Marcus Cole. Respondent argued that General
Counsel failed to show why it selected Graves and Cole for
discipline when more obvious union supporters remain em-
ployed by Respondent. However, that is not a standard that
General Counsel must meet. It is not necessary to show that an
employer punished the most vocal union advocates in order to
show that the employer was motivated to punish some em-
ployee(s) because of union activity.
I have also considered whether Respondent would have dis-
ciplined and discharged Marcus Cole in the absence of pro-
tected activity. Manno Electric, Inc., 278 fn. 12; Wright Line,
supra; NLRB v. Transportation Management Corp., supra. Re-
spondent failed to show that it would have taken action against
Graves and Cole in the absence of union activity. Occasionally,
other employees were disciplined for offenses similar to Graves
and Cole. However, as shown above, on many other occasions
Respondent imposed milder disciplinary measures for offenses
similar to those committed by Tollie Graves and Marcus Cole.
Graves had worked for Respondent for 5 years. Cole had
worked for Respondent since 1994.
Tollie Graves received a 5-year pin and was complemented
on his work in October 1997. At that time he had a history of
disciplinary actions. Before he received his 5-year pin, Graves
had received a total of one notation to file on August 12, 1996;
a warning on April 7, 1997; a final warning and 3-day suspen-
sion on May 20; and counseling on May 28, 1997. During the
1-year period before his November 3, 1997, discharge, Graves
received the April 7 warning, the May 20 final warning and the
May 28 counseling. As shown herein, Assistant Terminal Man-
ager Eastman instituted a practice of progressive discipline for
similar offenses when he came on board in June 1996. That
progressive disciplinary policy called for disciplinary actions of
(1) counseling, (2) warning, (3) final warning and suspension,
and (4) discharge. Graves did not progress from counseling to
warning to final warning, then discharge. Instead, the discipli-
nary action he received immediately before his discharge was a
counseling.
OVERNITE TRANSPORTATION CO. 389
Marcus Cole received no discipline similar to his 1997 cor-
rective action reports, at any time in 1996. In 1997 Cole was
counseled on his first offense and a counseling changed to a
warning on the second offense. His supervisor used 1994 and
1995 offenses from Cole’s record. As shown above Cole was
allegedly subject to the progressive discipline policy instituted
by Michael Eastman in 1996. Eastman decided that no discipli-
nary action would be considered for progressive disciplinary
purposes if the action predated his coming on board in June
1996. Additionally, only similar disciplinary actions within the
last year before any progressive discipline would be considered.
However, as to Marcus Cole, his supervisor ignored Eastman’s
policy and used disciplinary actions dated both before Eastman
came on board and more than 1-year old, in changing a coun-
seling to a warning. Cole then received a final warning and
suspension for his third similar offense in 1997 and was dis-
charged after his fourth similar offense. Although it was Re-
spondent’s announced policy to discharge on the fourth similar
offense, the record shows that policy was oftentimes ignored.
In view of the above and the full record, I find that neither
Tollie Graves nor Marcus Cole would have been discharged in
the absence of their protected union activity. The record shows
that Graves and Cole were discharged in violation of Section
8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Overnite Transportation Company, is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Teamsters Local 667, affiliated with the International
Brotherhood of Teamsters is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent by threatening its employees with reduced
hours because the employees voted in favor of the Union as
their exclusive collective-bargaining representative, engaged in
conduct in violation of Section 8(a)(1) of the Act.
4. Respondent by discharging its employees Robert Craw-
ford, Tollie Graves and Marcus Cole and by reducing the hours
of employee Horace Quinn, because of its employees’ union
activities engaged in conduct in violation of Section 8(a)(1) and
(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent has illegally discharged
Robert Crawford, Marcus Cole and Tollie Graves in violation
of sections of the Act, I shall order Respondent to offer those
employees immediate and full employment to their former
positions or, if those positions no longer exist, to substantially
equivalent positions. I further order Respondent to make those
employees and Horace Quinn, whom I find was illegally de-
prived of work hours, whole for any loss of earnings suffered as
a result of the discrimination against them. Backpay shall be
computed as described in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as described in New Horizons for the Re-
tarded, 283 NLRB 1573 (1987).
[Recommended Order omitted from publication.]