Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1431 (N.L.R.B. 2004)

OVERNITE TRANSPORTATION CO.
343 NLRB No. 134
1431
Overnite Transportation Company and Teamsters
Local 667, affiliated with the International
Brotherhood of Teamsters. Cases 26–CA–19037,
26–CA–19044, 26–CA–19100, 26–CA–19168, 26–
CA–19208–1, and 26–CA–19208–2
December 16, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On July 17, 2002, Administrative Law Judge Leonard
M. Wagman issued the attached decision. The General
Counsel, the Charging Party, and the Respondent each
filed exceptions and supporting briefs. The General
Counsel and the Charging Party filed separate answering
briefs to the Respondent’s exceptions and separate reply
briefs to the Respondent’s answering brief. The Respon-
dent filed separate answering briefs to the General Coun-
sel’s and the Charging Party’s exceptions, and separate
reply briefs to the General Counsel’s and the Charging
Party’s answering briefs.
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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified and to adopt his recommended Order as modi-
fied and set forth in full below.3
A. Overview
The issues presented in this case are: (1) whether the
Respondent violated Section 8(a)(3) and (1) by terminat-
ing six employees for engaging in protected concerted
conduct, and by terminating a seventh employee in order
to mask the reason for terminating the other six; (2)
whether the Respondent violated Section 8(a)(3) and (1)
by disciplining, suspending, and terminating employee
Sam Powell for engaging in protected concerted activity;
(3) whether the Respondent violated Section 8(a)(5) and
(1) by failing to respond to the Union’s information re-
quest; and (4) whether the Respondent violated Section

1 No exceptions were filed to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(1) and (3) by terminating Tony
Perezz Brown.
2 The parties have each excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Drywall 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.
3 In accordance with this decision, we have included an amended
remedy, a new Order, and a new notice to conform to the language in
the Order.
8(a)(3) and (1) by terminating employees Walter Jones
and Terry Holcomb for engaging in protected concerted
activity.
The panel unanimously agrees with the judge, for the
reasons set forth in his decision, that (1) the Respondent
violated Section 8(a)(5) and (1) by failing to respond to
the Union’s information request, and (2) the Respondent
did not violate Section 8(a)(3) and (1) by allegedly ter-
minating employees Walter Jones and Terry Holcomb
for engaging in protected concerted activity. A majority
of the panel (Chairman Battista and Member Liebman)
disagrees with the judge’s findings that the Respondent
violated Section 8(a)(3) and (1) by suspending and then
discharging seven employees4 in February 1999. A dif-
ferent majority (Member Liebman and Member Walsh)
agrees with the judge’s findings that the Respondent vio-
lated Section 8(a)(3) and (1) by twice disciplining em-
ployee Sam Powell, on February 18 and 24, by suspend-
ing him on April 22, and by discharging him on May 4,
because of his protected concerted union activity.
B. The Respondent did not Violate Section 8(a)(3) and
(1) of the Act by Terminating Seven Employees
in February 1999
1. Factual background
The Respondent is a commercial freight carrier head-
quartered in Richmond, Virginia. The Respondent em-
ploys 530 employees at its Memphis facility, 200 of
whom are dockworkers who load and unload freight.
Following a representation election, on October 9, 1997,
the Board certified the Union as the exclusive collective-
bargaining representative of a unit including all city driv-
ers, road drivers, dock workers, jockey/hostlers, building
maintenance employees, and shop employees. The Un-
ion and the Respondent have been bargaining, both lo-
cally and nationally, since 1997, but had failed to reach
agreement as of the date of the judge’s decision. On Oc-
tober 21, 1998, a decertification petition was filed. The
Regional Director dismissed the petition on April 22,
1999, and the Board affirmed that dismissal on May 19,
1999.
On December 24, 1998, the Respondent discovered
that the fence at its Memphis Service Center had been cut
and that approximately $250,000 worth of merchandise
had been taken. The Respondent launched an immediate
investigation. A second incident occurred the following
week. In both incidents, the thieves cut holes into the
terminal fence and broke into selected trucks containing
high value cargo. Based on this evidence, the Respon-
dent’s officials and company investigators concluded that

4 Charles Watkins, Floyd Wilbanks, Frederick L. Clark, Autra
Wilkerson, Wilford Hugh McCalla, William Palmer, and Kyle Medley.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1432
the thieves were either company employees with knowl-
edge about the cargo or outsiders who were assisted by
company employees.
Thereafter, the Respondent continued investigating the
thefts with the help of the FBI, State, and local police.
The Respondent posted notices offering a $25,000 re-
ward for information regarding the persons responsible
for the thefts, but received no leads. In February,5 the
Respondent’s investigators, Roger Gleason and Mike
Martin, who were former police officers, decided to per-
form background checks on all employees and supervi-
sors/managers whose job applications predated 1997,
when the Respondent began conducting prehire back-
ground checks on all job applicants. The investigators
were looking for any employees who had criminal back-
grounds that they failed to divulge on their employment
applications. If they found employees in this category,
they would confront the employees with this information
and the investigators hoped that the employees would be
more forthcoming with information about the Memphis
thefts. The investigators had previously employed this
technique in their theft investigations at the Respondent’s
facilities in Los Angeles, Atlanta, and Houston, as well
as Oakland and Fontana, California.
Since 1994, the Respondent’s employee handbook has
included a provision that employees who falsify their
employment applications will be subject “to disciplinary
action, including dismissal.” Employees are required to
sign an acknowledgement on job applications that each
answer is “true and correct” and that “incomplete or de-
ceptive” responses will result in termination. Prior to
September 1994, the Respondent’s employment applica-
tion included the question: “Have you ever been con-
victed of a felony?” Subsequent to September 1994, the
Respondent changed the question to “Have you ever
been convicted of or pled guilty or nolo contendre (no
contest) to a crime other than a traffic violation?” That
question was followed by: “If yes, describe in full and
give court location, date.”
Investigators Gleason and Martin searched the crimi-
nal court records of Shelby County, Tennessee, which
included Memphis, and De Soto County, Mississippi.
Most of the employees resided in these two counties. As
a result of its investigation, the Respondent discovered
that seven employees and one supervisor at the Respon-
dent’s Memphis facility had failed to disclose criminal
records on their job applications. After questioning these
employees, the Respondent terminated all eight of those
individuals.6

5 All dates hereafter refer to 1999, unless otherwise specified.
6 The individual circumstances of each of those individuals are de-
tailed in sec. II,(B) of the judge’s decision. Five of the eight individu-
2. The judge’s findings
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by suspending and later dis-
charging six employees because of their union activities,
and discharging the seventh employee (Hugh McCalla,
who was not a union supporter), in order to mask its rea-
son for discharging the other six employees. The judge
determined that the General Counsel made an initial
showing of discriminatory intent, based on the timing of
the investigation and discharges,7 the fact that six of the
eight of the suspended and discharged individuals openly
supported the Union, and the Respondent’s stated anti-
union policy, as reflected in its employee handbook. The
judge also relied on the Board’s decision in Overnite
Transportation, 335 NLRB 372 (2001), in which the
Board found that the Respondent had committed multiple
violations of the Act at the same Memphis facility in
1996 and 1997, 2 years prior to these events.
The judge rejected the Respondent’s defense. He
noted that the Respondent’s policy stated that such con-
duct (i.e., failure to disclose criminal records on job ap-
plication) would be subject to “disciplinary action, in-
cluding dismissal” and therefore dismissal was not man-
dated. The judge further rejected the Respondent’s evi-
dence that its discharge of the seven employees was con-
sistent with its past practice both at the Memphis facility,
where it had discharged three employees for application
falsification in 1998, and at five other Overnite facilities.
The judge found that the Respondent terminated the
three employees at the Memphis facility in 1998 because
of their criminal backgrounds, rather than application
falsification. The judge further found that the Respon-
dent failed to show that the 1998 discharges presented
circumstances comparable to the discharges of the seven
employees here. Finally, the judge relied on the Respon-
dent’s failure to discharge two employees who commit-
ted posthire felonies as evidence of disparate treatment,
particularly in light of the Respondent’s consideration of
the employees’ employment records in those cases.

als answered “no” to the question of whether they had ever been con-
victed of a felony (in pre-9/94 applications), despite having been con-
victed of felony crimes. Three employees answered “no” to the ques-
tion of whether they had been convicted of/pled guilty to any crime (in
the post-9/94 applications), despite the fact that two had been convicted
of misdemeanors and one of a felony.
As noted above (fn. 1), we need not address whether the discharge of
one of the eight terminated individuals (Tony Perezz Brown) violated
the Act, because there were no exceptions to the judge’s finding that
Brown was a supervisor (and thus exempt from the Act’s protection).
7 The judge found that the timing of seven of the eight suspensions,
and seven of the eight discharges, in February 1999, while the decerti-
fication petition was pending, suggested that the Respondent was mind-
ful of that petition and sought to erode the Union’s majority support.
OVERNITE TRANSPORTATION CO. 1433
3. Analysis
In order to prove a violation of Section 8(a)(3) and (1),
the General Counsel has the initial burden of establishing
that the employee’s union activity or other protected ac-
tivity was a motivating factor in the employer’s adverse
personnel decision. See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in Transportation Man-
agement, Inc. v. NLRB, 462 U.S. 393 (1983). The ele-
ments commonly required to support such a showing are
union activity by the employee or employees, employer
knowledge of that activity, and antiunion animus on the
part of the employer. Wal-Mart Stores, 340 NLRB 220,
221 (2003) (citing Briar Crest Nursing Home, 333
NLRB 935, 936 (2001)).
Once the General Counsel has made an initial showing
of discrimination, the burden of persuasion shifts to the
employer to prove that it would have taken the same ac-
tion even if the employee had not engaged in protected
activity. Wright Line, supra, at 1089. That burden re-
quires a Respondent “to establish its Wright Line defense
only by a preponderance of evidence.” Merillat Indus-
tries, 307 NLRB 1301, 1303 (1992).
Applying this Wright Line test, we find that, even as-
suming that the General Counsel satisfied his initial bur-
den of showing that the Respondent’s actions were moti-
vated in part by its animus towards the employees’ pro-
tected conduct, the Respondent met its rebuttal burden
under Wright Line.8 More specifically, the Respondent
has sufficiently demonstrated that it would have dis-
charged the seven employees even in the absence of their
protected concerted conduct.
To begin, there is no allegation or finding here that the
Respondent’s investigation into the criminal back-
grounds of its employees in February 1999 was improp-
erly motivated. Moreover, the Respondent’s loss of a
quarter million dollars of its property in two separate
thefts amply supported its decision to undertake an inves-
tigation into the case. After more traditional methods
failed, the Respondent’s two investigators, both former
police officers, decided to perform criminal background
checks on all employees in order to ascertain if any of the

8 Although Chairman Battista agrees that it is unnecessary to resolve
whether the General Counsel met his initial burden, he disagrees with
two of the factors relied on by the judge to support a finding of animus.
In his view, the Respondent’s timing for the discharges, in February
1999, was clearly justified by the large-scale theft only 1 month earlier,
and therefore does not demonstrate the Respondent’s animus. Like-
wise, the judge’s reliance on the statement in the company handbook
(i.e., “the Company values union-free working conditions”) is not evi-
dence of animus. In Chairman Battista’s view, such a statement is
protected by Sec. 8(c) of the Act, which protects expression of views
containing no threat of reprisal or promise of benefits.
Respondent’s employees had been involved in crimes
involving theft in the past. The Respondent had em-
ployed this investigative technique previously at several
other facilities.
The Respondent’s subsequent decision to terminate
those employees whom it discovered had falsified their
job applications was consistent with its widely published
company policy. It is undisputed that all seven employ-
ees failed to disclose criminal backgrounds on their job
applications. Their prior undisclosed criminal histories
collectively included, among other offenses, convictions
for manslaughter, rape, drug possession, possession of
weapons, and unemployment fraud. The Respondent’s
job application itself notified the employees that “incom-
plete or deceptive” responses to application questions
“would result in termination.” The 1994 employee
handbook further notified employees that such falsifica-
tion would be subject to disciplinary action “including
dismissal.”9
Moreover, the Respondent’s decision to terminate
those seven employees was consistent with its past prac-
tice both at the Memphis facility and at other facilities.
Specifically, in 1998, the Respondent fired 3 employees
for application falsification at the Memphis facility and
12 employees at 5 other facilities. We find unpersuasive
the judge’s attempt to distinguish the prior discharges of
the three Memphis employees on the grounds that those
employees were terminated (1) after the company rou-
tinely started imposing its background checks in 1996;
and (2) because of their criminal background, rather than
for falsifying their employment applications. The fact
that the Respondent fired the three employees in 1998
pursuant to its post-1996 routine background check is not
material, so long as the Respondent treated the employ-
ees similarly once it discovered the falsifications. The
evidence shows that all three were terminated once the

9 The dissent asserts that “three of the employees disclosed their
convictions at the interview, but were told not to worry about it.” As to
employee Autra Wilkerson, even if he did disclose this information to
the interviewer he did not reveal any of this to the investigators when
they inquired years later. As to employee Floyd Wilbanks, the Re-
spondent’s investigator simply did not believe his story that he was
given permission to omit information from the application. Irrespective
of whether he was, in fact, given that permission, the Respondent could
reasonably disbelieve him and act on that basis. As to employee
Charles Watkins, while he did testify that he revealed his prior criminal
history at the time of his interview, the Respondent presented evidence
to the contrary (i.e., that Watkins never informed his interviewers of his
prior record). In any event, the Respondent’s investigators did not
believe his story and the interviewers themselves denied it. Following
Watkins’ discharge, the Respondent received documentation from the
State of Tennessee showing that Watkins had disclosed his conviction
to the company. The Respondent then admitted it had made a mistake
and offered Watkins reinstatement and backpay. That the discharge
was mistaken does not however prove that it was unlawfully motivated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1434
application falsifications were discovered. Further, in
paperwork for each of the three individuals terminated
post 1996, the Respondent cites application falsification
as the reason for the termination.10
The judge erred by disregarding evidence that the Re-
spondent fired 12 employees at other facilities for appli-
cation falsification. The judge reasoned that “crucial
factors required to show comparable circumstances were
absent,” such as whether the employees attempted to
show extenuating circumstances, the union status of the
employees fired, and whether all employees who falsi-
fied their applications at those locations were fired. The
relevant inquiry, however, is whether the Respondent
treated its employees consistently when it discovered
application falsification. It did. The evidence shows that
the Respondent had a “zero tolerance” policy for applica-
tion falsification and that it applied that policy in an
evenhanded manner.
In the absence of countervailing evidence of disparate
treatment based on protected activity (a point discussed
below), this showing was sufficient, under the prepon-
derance-of-the evidence standard. See Merillat Indus-
tries, supra, 307 NLRB at 1303. The Respondent was
not required to demonstrate that the employees at other
facilities were fired under identical circumstances. Id.
The evidence the Respondent introduced was probative,
even if no situation was ‘“on all fours’ with the case in
question.” Id.11
Finally, we find that to support his finding of disparate
treatment of the employees in this case, the judge errone-
ously relied on evidence that three nonunion supporters
at the Memphis facility were not discharged after engag-
ing in posthire misconduct. For example, the judge noted
that the Respondent allowed employee Charles Foster to
remain as an employee, despite its knowledge that he

10 For example, according to the “Employee Separation Sheet[s]” of
employees Thomas Roberson and Robert Scott, the two employees
were purportedly terminated for “falsifying documents.” Likewise, Jeff
Ashburn’s HR “Action Form” listed the reason for his termination as
“due to falsifying application, criminal section.”
11 First, there is direct evidence that the investigators also disre-
garded the excuses (or “mitigating circumstances”) offered by the other
employees who were fired for falsifying documents at other facilities.
For example, investigator Martin testified at the hearing that the em-
ployees at the other facilities all had “some type of an excuse” for fail-
ing to disclose their prior convictions, but the investigators rejected all
such excuses. Moreover, investigator Gleason testified that such falsi-
fication “always resulted in termination for everyone that I’ve ever
been involved with since I’ve been with the company since 1994.”
Again, in the absence of evidence to the contrary, this testimony sup-
ports the Respondent’s assertion that it applied its termination policy in
a consistent manner.
was convicted of a felony and engaged in other miscon-
duct while employed by the Respondent.12
However, we find that the Respondent’s treatment of
Foster is not an accurate comparison to its treatment of
the seven terminated employees in this case. It is undis-
puted that Foster did not falsify his employment applica-
tion, unlike the seven employees at issue in this case.
Although Foster had been convicted of a 1982 misde-
meanor and a 1983 felony, he was not required to dis-
close either on his job application. When Foster filled
out his application in March 1983, the Respondent did
not require disclosure of misdemeanor convictions.
Moreover, he could not have disclosed his 1983 felony
conviction, as it occurred after he submitted his job ap-
plication. Thus, as the Respondent asserts, Foster’s mis-
conduct did not involve “willful deceit against the com-
pany.”
Likewise, the judge’s reliance on the Respondent’s
tolerance of misconduct by employees Gloria and Jerry
Burnsides is misplaced. The Burnsides were accused of
falsifying their driving logs while employed for the Re-
spondent. Again, the Burnsides were not alleged to have
committed application falsification. Furthermore, the
Burnsides were ultimately found not guilty of falsifying
their driving logs, so the judge’s reliance on the Respon-
dent’s failure to discipline them for a violation of a com-
pany policy is inapposite.
In sum, the record supports the Respondent’s defense.
The Respondent’s investigation was legitimately moti-
vated. Moreover, the Respondent’s subsequent decision
to terminate the seven employees was consistent with its
policy that employees who falsified their employment
applications by concealing prior criminal histories would
be immediately terminated.
C. The Respondent Violated Section 8(a)(3) and (1) of
the Act by Twice Disciplining and then Suspending
and Discharging Employee Sam Powell
We find, in agreement with the judge and for the rea-
sons set forth below, that the Respondent violated Sec-

12 Foster was hired by the Respondent in March 1983. Foster had
been convicted in 1982 of the misdemeanor of impersonating a police
officer. However, Foster had not been required to disclose this misde-
meanor on his application, which only required disclosure of felonies.
On November 14, 1983, Foster pled guilty to obtaining services under
false pretenses (i.e., health insurance benefits), conduct which was
unrelated to his job. He paid a fine and was put on 5 years’ probation,
but was not required, either by the terms of his conviction or the Re-
spondent’s rule, to inform the Respondent. Additionally, in Foster’s
personnel file, the investigators discovered that, on October 15, 1997,
Foster was issued a final warning and suspension for misappropriating
a trash can while on duty. The investigators discovered both the 1982
and 1983 convictions and the discipline during the 1999 criminal back-
ground checks, but decided not to take action against Foster.
OVERNITE TRANSPORTATION CO. 1435
tion 8(a)(3) and (1) of the Act by twice disciplining and
then suspending and discharging employee Sam Powell.
1. Background: Sam Powell’s union involvement
Powell had been employed as a dockworker at the
Memphis facility for over 20 years at the time of his dis-
charge. He was indisputably one of the most outspoken
and active members of the Union working on the docks.
From the inception of the Teamsters’ organizing efforts
in 1995, Powell wore clothing with union insignia, hand-
billed, and made house calls, and appeared in an organiz-
ing video making statements in support of the Union.
In the first Board held election in 1995, Powell served
as a union observer and also appeared as a witness in
Board hearings involving the Union and the Respondent.
Following the Union’s certification as the unit’s repre-
sentative after the second Board-conducted election in
1996, Powell was elected by the Union to serve as the
bargaining unit’s chief steward and traveled around the
country, assisting with the Union’s organizing efforts
elsewhere.
The Respondent was openly hostile towards Powell’s
organizing efforts. For 2 consecutive years, 1995 and
1996, Powell was asked to leave formal dinners spon-
sored by the Respondent, after he interrupted the Re-
spondent’s CEO’s address to the employees. Powell
came to the 1995 dinner dressed in a Teamsters T-shirt.
After the CEO made public statements regarding the
pension fund, Powell rose and attempted to correct those
statements. Powell was not allowed to speak and was
soon escorted out of the dinner by security.
At the 1996 dinner, Powell arrived again in a union t-
shirt. After the CEO began making statements regarding
the potential impact of Teamsters representation, Powell
again rose to correct the speaker’s misstatements. Pow-
ell was asked to leave and, when he rose to do so, 70 or
80 of his coworkers (also wearing Teamsters T-shirts)
stood up to join him. The Respondent’s operations man-
ager, Duane Williams, warned the employees that if they
left they would be fired. Nonetheless, 70 employees
accompanied Powell out of the dinner. Neither Powell,
nor any of the employees who left with him, were disci-
plined for this conduct.
After the second representation election in 1996,
Memphis Service Center Manager Danny Warner met
with Supervisor Dale Watson and discussed Powell’s
union activism and outspoken conduct at the Respon-
dent’s annual meetings. Warner suggested to Watson at
that meeting that Watson should “come up with an ex-
cuse to discipline Powell.”
a. The February 18 discipline
In mid-February 1999, Powell, acting in his capacity
as chief union steward, approached Acting Manager Joe
Jasmer on the dock and inquired why the Respondent
had terminated 10 or 11 employees for falsifying their
job applications. Jasmer responded that it was “none of
Powell’s business.” Later that week, Powell again raised
the issue with Supervisor Dale Watson who also had “no
comment.” Powell then asked whether supervisors were
being investigated and made references to Watson’s past
service in the Vietnam war.13 Powell further commented
that someone should investigate Watson’s past, and sug-
gested that Watson could be guilty of war crimes similar
to the Nazis.
Watson became upset by the remarks and told Powell
to return to work. Powell approached Watson two addi-
tional times thereafter, attempting to discuss the dis-
charges and Watson’s war photographs. Watson again
repeated that he did not want to talk about the termina-
tions or the photographs. There is no evidence that any
other employees overheard any of the war crimes discus-
sions.
On February 18, Watson complained to Acting Man-
ager Jasmer about Powell’s conduct and Jasmer filed an
incident report. The report contained a statement that
Watson “asked Mr. Powell to only speak about freight
handling issues.” Watson signed the statement, but later
denied directing Powell in such a way. Based on this
report, Powell was issued a corrective action report for
“insubordination.”
b. The February 24 discipline
On February 24, during the midnight shift, an em-
ployee broke his leg after being run over by a forklift.
When Powell arrived at work later that morning for a
preshift meeting, Midnight Shift Supervisor David
Braden encouraged the employees to “speed up and
unload more trailers that day” because they were behind
in their work. Powell, who was upset about the em-
ployee’s injury on the previous shift, commented that the
Respondent’s manual said that employees should not
sacrifice safety for speed. Powell added, “Let’s don’t
work faster. Let’s work safer.” When Supervisor
Braden became upset with Powell’s comment, Powell
reminded him about the forklift accident and commented
that he did not want it to happen again. Powell insisted
that the employees would work slower to be safe.

13 Watson had served in the military during the Vietnam war and,
during that service, had taken photographs containing graphic images
of mutilated bodies. In 1984 or 1985, he brought those photographs in
to work and showed them to Powell.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1436
Powell began his shift unloading freight, consisting of
thirty 55 gallon drums, each weighing 500 pounds. Pow-
ell unloaded the drums, one at a time, using a drum jack,
which the judge found to be “sort of like a two wheeler.”
That same morning, Supervisor Willie B. Jones advised
Powell that there was some “hot freight” (i.e., freight that
a customer needed unloaded quickly) on the trailer that
Powell was unloading. Powell said that he would unload
that freight when he could. Jones repeatedly reminded
Powell of the need to unload the freight quickly. Powell
began his work at 5:30 a.m. and completed the unloading
at 11:55 a.m., at a rate of productivity later determined to
be 3.7 bills/hour.14 Powell subsequently unloaded a sec-
ond trailer containing a similar mix of freight at a rate
later determined to be 7.5 bills per hour. Based on
Jones’ determination that Powell was intentionally
unloading the first trailer slower than usual, Jones issued
Powell a corrective action report for inefficiency.
c. The April 22 suspension and May 4 discharge
On the morning of April 22, Plant Manager Bob Cecil
and Assistant Manager Jasmer conducted a tour of the
Memphis facility for 40 visiting employees from other
facilities. These employees had volunteered to replace
strikers in the event of a strike at Memphis. Powell was
working on the dock that day, wearing a T-shirt that read
“Will strike if provoked.”
As the group passed by, Powell asked Cecil if they
were the replacements. Cecil responded, “could be.”
Powell advised the group “to take their hands out of their
pockets if they intended to work” at the Memphis facil-
ity.
As the group continued to pass by, Powell confronted
two employees at the rear of the group and asked them
what they were doing in Memphis. When one of the
employees answered that they had come to work, Powell
stated: “Well, you guys don’t want to come down here.
You’d get hurt if you come down here and work. Have a
lot of accidents.” He also warned that “people get hurt
with forklifts down here,” and that “[w]e get run over
with forklifts on this dock.” Powell pointed at one of the

14 Todd Fisher, manager of operations planning, defined bills per
hour as follows: “Each day the hours that we actually pay, not reported
but pay, are then compared to those shipments and we get a productiv-
ity indicia called bills per hour.” Although every incoming trailer
contained a predetermined number of bills, the bills per hour measure-
ment was highly dependent upon what types of freight each trailer
contained. For example, one trailer could contain 20 bills sitting on
pallets that could be unloaded easily, while another trailer could contain
just one bill, but consist of hundreds of small boxes that had to be
unloaded manually. Thus, the only accurate way to compare bills-per-
hour rates of trailers was to compare trailers containing the same mix of
freight.
two employees on the tour and asked him if he wanted to
get hurt.
The two employees reported this exchange to Cecil
and the Respondent investigated the incident. That same
day, after interviewing Powell, the Respondent sus-
pended Powell, pending the investigation. Subsequently,
the Respondent interviewed additional witnesses to Pow-
ell’s conduct on April 22. On May 4, the Respondent
discharged Powell for threatening the two visiting em-
ployees.
2. Analysis
We find that the Respondent’s decisions to twice dis-
cipline, suspend, and then discharge Powell were dis-
criminatorily motivated and therefore violated Section
8(a)(3) and (1) of the Act. In so doing, we adopt the
judge’s conclusion, but modify his rationale, as ex-
plained below.
a. The General Counsel’s initial burden
Again, we are guided by the legal framework of
Wright Line, supra. We find that the General Counsel
met his initial burden of demonstrating that the Respon-
dent’s actions were motivated in part by its animus to-
wards Powell’s protected conduct. It is undisputed that
Powell, a 20-year employee, was one of the most out-
spoken advocates for the Union, and that the Respondent
was well aware of his prounion sympathies. In addition
to performing in the very visible role as union steward,
Powell had also publicly expressed his prounion views to
the Respondent, including during two dinners before the
CEO and all of corporate management. As a result of
Powell’s public expression of his union support and op-
position to the CEO’s comments, Powell was twice re-
quired to leave Respondent’s companywide dinners in
1995 and 1996.
The record further demonstrates that the Respondent
was openly hostile towards Powell’s protected conduct
and desired to retaliate against him for that reason. In-
deed, the judge credited Former Supervisor Dale Wat-
son’s testimony that Memphis Service Center Manager
Danny Warner had expressed his strong dislike of Powell
and “suggested that Supervisor Dale Watson come up
with an excuse to discipline Powell.”
Where an employer’s representatives have announced
an intent to discharge or otherwise retaliate against an
employee for engaging in protected activity, the Board
has before it “especially persuasive evidence” that a sub-
sequent discharge of the employee is unlawfully moti-
vated. Turnbull Cone Baking Co. of Tennessee v. NLRB,
778 F.2d 292, 297 (6th Cir. 1985) (citing cases), cert.
denied 476 U.S. 1159 (1986). See also Golden State
Foods, 340 NLRB 382, 385 (2003). Thus, we find that
OVERNITE TRANSPORTATION CO. 1437
the General Counsel has met his burden of showing that
the Respondent’s decision to discipline and discharge
Powell was motivated by Powell’s protected concerted
conduct.
b. The Respondent’s defenses
The Respondent maintains that it twice disciplined,
suspended, and then discharged Powell, not because of
his protected union conduct, but because of his miscon-
duct on February 18 and 24, and April 22. For the rea-
sons that follow, we reject the Respondent’s assertions
that it legitimately disciplined, suspended, and dis-
charged Powell. Instead, we find that the reasons cited
by the Respondent were pretextual and that the true rea-
son for the disciplines, suspension, and discharge was the
Respondent’s hostility towards Powell’s union activities.
(1) The February 18 discipline
We find that Powell was unlawfully disciplined on
February 18, for engaging in protected conduct as a un-
ion steward. In instigating a conversation with Watson
regarding the reasons for the discharge of his eight co-
workers, Powell was legitimately seeking information
from Watson that might assist the Union in deciding
whether to challenge the discharges. Powell thus was
fulfilling his duties as union steward in gathering infor-
mation for potential grievances, and was thereby engaged
in protected concerted conduct.15 We reject the Respon-
dent’s arguments (1) that Powell’s conduct was not pro-
tected, and (2) that even if it was protected, Powell lost
the protection of the Act by discussing matters outside
the scope of the Act.
We first reject the Respondent’s argument that Powell
was disciplined for attempting to bargain without author-
ity with his supervisor, allegedly in violation of its “La-
bor Communication Policy.” The Respondent failed to
mention Powell’s violation of its “Labor Communication
policy” as a reason for Powell’s discharge in his correc-
tive action report. Instead, the Respondent noted only
that Watson instructed Powell to “discuss only freight
related issues.” However, the judge credited Powell’s
testimony (as corroborated by Watson) that Watson had
never instructed Powell in such a manner. This justifica-
tion for the discharge is thus unsubstantiated and further
supports a finding of unlawful motive.
The Respondent (and our dissenting colleague) further
assert that, even if Powell was engaged in protected con-
duct, he lost the protection of the Act by suggesting to
Watson that he should be investigated for possible war
crimes in connection with his Vietnam service. In con-
sidering the issue of whether an employee, who is ini-

15 See, e.g., Winston-Salem Journal, 341 NLRB 124, 126 (2004).
tially engaged in protected conduct, subsequently loses
the protection of the Act through opprobrious conduct,
we apply the four-factor test set forth by the Board in
Atlantic Steel Co., 245 NLRB 814 (1979). Pursuant to
that test, we consider: “(1) the place of the discussion;
(2) the subject matter of the discussion; (3) the nature of
the employee’s outburst; and (4) whether the outburst
was, in any way, provoked by an employer's unfair labor
practice.” Id. at 816.
Applying these factors, we find that Powell’s conduct
was not so opprobrious as to warrant the loss of the Act’s
protection. As to the first factor, the conversations oc-
curred on the dock, during work hours, and at Powell’s
instigation. Given the public setting for the discussion
and the potential for disruption to work, we recognize
that this factor might ordinarily weigh in favor of loss of
protection. However, here there is no record evidence
that other employees actually heard this exchange.
Therefore, we do not find that there was any actual dis-
ruption of the employees’ work schedule or public un-
dermining of Watson’s authority.
Moreover, we find that the remaining factors also
weigh in favor of finding that Powell’s conduct retained
its protected status. As to subject matter, it is clear that
the discussion concerned Powell’s legitimate inquiries
into the termination of several of Powell’s coworkers,
clearly a protected subject. This is not altered by the fact
that Powell later mentioned Watson’s Vietnam experi-
ence. Indeed, it was only after Jasmer, then Watson re-
fused to discuss the matter, that Powell brought up the
subject of Watson’s Vietnam activities.
As to the nature of Powell’s outburst, Powell’s sugges-
tion to Watson that he might be investigated for war
crimes was unaccompanied by obscenity or any type of
verbal or physical threat.16 Thus, we do not find the con-
duct so egregious as to warrant his loss of protection un-
der the Act, particularly where Powell was clearly ini-
tially engaged in his official duties as a steward.17
Finally, as previously noted, Powell’s outburst was
triggered by Watson’s complete refusal to discuss the
circumstances of the discharges of Powell’s colleagues.

16 Compare Trus Joist MacMillan, 341 NLRB 369 (2004) (where
employee used obscenities with her supervisor and accused her of being
a prostitute, employee lost protection of the Act); Felix Industries,
supra, 339 NLRB 195, 196 (2003) (employee’s use of obscenities on
the telephone to supervisor weighs in favor of loss of Act’s protection;
although Board ultimately found conduct to be protected), enfd. mem.
2004 WL 1498151 (D.C. Cir. 2004).
17 See Clara Barton Terrace Convalescent Center, 225 NLRB 1028,
1034 (1976) (union steward’s conduct in processing grievance pro-
tected by the Act “unless the excess is extraordinary, obnoxious, wholly
unjustified, and departs from the res gestae of the grievance proce-
dure”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1438
Even if the discharges ultimately proved lawful, Powell’s
outburst nevertheless was provoked by Watson’s hostile
refusal to discuss the situation. Felix Industries, 331
NLRB 144, 145 (2000) (considering employer’s pro-
vocative conduct, even though not alleged as unfair labor
practice), enf. denied and remanded 251 F.2d 1051
(2001), on remand 339 NLRB 195 (2003), enfd. mem.
2004 WL 1498151 (D.C. Cir. 2004).
In sum, we find that the Respondent violated Section
8(a)(3) of the Act by disciplining Powell for engaging in
protected concerted conduct on February 18.
(2) February 24 discipline
The Respondent further asserts that its decision to is-
sue a written warning to Powell on February 24 was jus-
tified by his misconduct on that date. More specifically,
the Respondent maintains that, despite the Respondent’s
repeated instructions to Powell to unload the cargo
quickly, Powell intentionally unloaded that freight in a
slower than normal fashion and failed to use the most
efficient means to do so.
We find, in agreement with the judge, that Powell’s
discipline for inefficiency was pretextual. The judge
credited testimony that Powell worked “as fast as he
could” on the morning in question. While his efficiency
rate may have been lower than usual that day, that rate
was explained by the unusually difficult freight he was
unloading (i.e., thirty 500-pound drums). Moreover, in
light of the fact that a coworker had broken his leg on the
previous shift, Powell’s effort to work at a safe pace was
understandable. Thus, contrary to the dissent’s charac-
terization, Powell’s pace likely reflected both the diffi-
culty of the task and his stated intent, at the morning
meeting, to complete the task in as safe a manner as pos-
sible.
We further find significant evidence of the Respon-
dent’s animus in its failure to discipline any other em-
ployees that day, despite the fact that five employees had
efficiency rates lower than Powell’s. The dissent criti-
cizes our reliance on evidence of other employees’ effi-
ciency rates where there is no evidence as to what types
of freight those other employees were unloading. While
it is true that the record is silent on this matter, the Re-
spondent itself compared Powell’s inefficiency rate on
his first trailer to his second without proof that the con-
tents were comparable.18 Thus, the record supports our
finding that employees with lower efficiency rates than
Powell’s were not disciplined. This disparate treatment

18 In the absence of evidence that Powell’s second trailer contained
500-pound drums that required individual unloading, we give no weight
to the Respondent’s assertion that the two trailers contained a “similar
mix of freight.”
is further evidence that the Respondent was targeting
Powell for discipline. See Ellicott Development Square,
320 NLRB 762 (1996), enfd. mem. 104 F.3d 354 (2d Cir.
1996); Allegheny Ludlum Co., 320 NLRB 484 (1995),
enfd. in relevant part 104 F.3d 1354 (D.C. Cir. 1997).
(3) The April 22 suspension and the May 4 discharge
The Respondent asserts that its decisions to suspend
Powell on April 22, and to discharge him on May 4, were
motivated not by Powell’s protected conduct, but by his
misconduct on the morning of April 22. Specifically, the
Respondent points to Powell’s threatening remarks to
visiting potential strike replacements who were touring
the dock that day, as the legitimate and non-
discriminatory reason for the termination.
We reject the Respondent’s contention that it would
have suspended and discharged Powell for his April 22
misconduct, even in the absence of his protected conduct.
While Powell’s remarks made to the visiting employees
(“you don’t want to work here, you could get hurt here.
People get run over by forklifts”) could have been con-
strued as intimidating,19 those brief verbal remarks were
unaccompanied by gestures or physical contact. Given
the circumstances of the statements—during the Respon-
dent’s scheduled “tour” in which potential strike re-
placements were paraded in front of predominantly
prounion dock employees prior to an expected strike—
the Respondent reasonably might have anticipated such a
conflict and some verbal exchange. Thus, we find that
the Respondent seized on these statements as a pretext
for carrying out its previously expressed desire to retali-
ate against Powell for his union activities. See Golden
State Foods, supra, at 386.20
As found by the judge, Powell’s termination is incon-
sistent with the Respondent’s tolerance of violent threats
by employees at the Respondent’s other facilities. In-
deed, the Respondent failed to take any adverse action
against several procompany employees who made ex-
tremely violent threats, including the use of weapons to
intimidate prounion coworkers at the Respondent’s Kan-

19 In this regard, we disagree with the judge’s determination (sec.
II,(D)) that Powell’s remarks did not constitute a threat. Clearly, a
reasonable employee who heard Powell’s remarks could interpret them
as containing at least an implicit threat or warning that they might get
injured (either accidentally or intentionally) if they decided to work
there.
20 The dissent’s reliance on the Respondent’s discharge of three em-
ployees at the Memphis facility for making threats as evidence of its
consistent termination of employees engaging in such conduct is mis-
placed. Those terminations involved employees who made overtly
violent threats to supervisors and to coworkers, including obscene
language, threats to kill a supervisor, and threats to use guns in the
workplace. This case does not present such extreme facts.
OVERNITE TRANSPORTATION CO. 1439
sas City facility.21 Although the victims reported these
incidents to the Kansas City management, the Respon-
dent failed to discipline the employees involved. By
contrast, its decision to suspend and terminate Powell for
a relatively benign statement demonstrates that its motive
was to single him out because of his protected conduct.
See Sonoma Mission Inn & Spa, 322 NLRB 898 fn. 2
(1997) (employer failed to show that employees would
have been discharged for threats, irrespective of their
prounion status, where other employees engaged in com-
parable conduct not similarly punished).
We disagree with the dissent that the Respondent’s
conduct at a neighboring facility has no relevance to this
case. The judge who tried this case also heard the testi-
mony in the Kansas City case, as both cases were con-
solidated for trial. Accordingly, the judge was uniquely
qualified to weigh the evidence before him and draw
conclusions from it. Although those charges ultimately
settled, the parties agreed that any of the evidence in the
record could be referred to in other litigation. Accord-
ingly, it was entirely appropriate for the judge to consider
such evidence.
Additionally, although there is no direct evidence that
any of the managers at the Memphis facility were di-
rectly involved in those incidents, there is strong circum-
stantial evidence that the Memphis management likely
learned of that misconduct. One of those employees who
committed the violent misconduct, Charles Foster, was a
truckdriver who operated out of the Memphis facility.
The employee who was threatened by Foster reported the
incident to the facility’s Fleet Service manager, Tony
Pratt, who stated that he would contact the Memphis
terminal about Foster’s conduct. In light of the Respon-
dent’s failure to rebut this testimony, we may reasonably
draw the adverse inference that the supervisors at the
Memphis facility learned of Foster’s conduct, but failed
to discipline him for it.22 Grimmway Farms, 314 NLRB

21 More specifically, the unrebutted testimony of Anthony Johnson
(employee at the Kansas City facility) is that several employees who
did not support the Union made the following threat to him: drivers
Jim Powell and Bob Hall threatened that they carried a gun and would
use it; Brad White and Buss McKenzie placed knives to Johnson’s
stomach while complaining about union supporters who were passing
out literature at the terminal; Ron Meyer threatened to come back with
a gun and shoot supporters of the Union, and Charlie Foster put a knife
to Johnson’s throat and said that he would use it on union supporters.
The Respondent presented no evidence that it ever disciplined any of
these employees, although it is undisputed that this misconduct was
reported to several supervisors and the terminal manager at the Kansas
City terminal.
22 We further reject the Respondent’s assertion that Powell’s back-
pay was cut off by his subsequent unlawful secondary picketing. We
agree with the judge that there is insufficient evidence in the record that
Powell engaged in such conduct. In any event, the Respondent will
73 fn. 2 (1994), enfd. in relevant part mem. 85 F.3d 637
(9th Cir. 1996).
In sum, there is ample evidence of the Respondent’s
unlawful motive in terminating Powell, including: (1) the
Respondent’s directions to “get rid” of Powell; (2) the
two pretextual disciplinary warnings; and (3) the Re-
spondent’s disparate treatment of Powell. We further
find that the Respondent failed to meet its burden of re-
butting this evidence by showing that it would have dis-
charged Powell in the absence of his protected conduct.
Accordingly, we find that the Respondent violated Sec-
tion 8(a)(3) of the Act in disciplining and discharging
Powell.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having discrimi-
natorily disciplined, suspended, and discharged em-
ployee Sam Powell, the Respondent shall offer him rein-
statement and make him whole for any loss of earnings
and other benefits, computed on a quarterly basis from
date of the suspension to the date of a proper offer of
reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). We shall also order the
Respondent to remove from its files any references to the
discipline, suspension, and discharge of Sam Powell, and
notify him in writing that it has done so and that it will
not use these adverse actions against him in any way.
Finally, having found that the Respondent violated Sec-
tion 8(a)(5) and (1) by refusing to comply with the Un-
ion’s February 16, 1999 information request, we shall
order that the Respondent shall furnish the requested
information.
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) Disciplining, suspending, discharging, or otherwise
discriminating against any employee for engaging in
union activity on behalf of, or otherwise supporting

have the opportunity to raise such matters during the compliance hear-
ing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1440
Teamsters Local 667, affiliated with the International
Brotherhood of Teamsters, or any other union.
(b) Refusing to furnish information about the Respon-
dent’s investigation of bargaining unit employees’ crimi-
nal records, which the Union requested in February 1999,
and which is necessary and relevant to the Union’s duties
as the exclusive representative of the unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
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 from the date of this Order, offer
Sam Powell full reinstatement to his former job, or if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(b) Make Sam Powell whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the amended
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline,
suspension, and discharge of Sam Powell, and within 3
days thereafter notify him in writing that this has been
done and that the discipline, suspension, and discharge
will not be used against him in any way.
(d) Provide the Union with the information it requested
in February 1999 regarding the Respondent’s investiga-
tion of the criminal records of the employees in the fol-
lowing bargaining unit:
All city drivers, road drivers, dock workers,
jockey/hostlers, building maintenance employees and
shop employees employed at Overnite Transportation
Company’s Memphis, Tennessee, Hub and City Ter-
minal facilities; excluding23 all office clerical employ-
ees, managerial employees, professional employees,
guards and supervisors as defined in the Act.
(e) 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, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.

23 In describing the unit in his decision (sec. II,A of recommended
Order at par. 2(d)), the judge erroneously omitted the word “exclud-
ing.”
(f) Within 14 days after service by the Region, post at
its facility in Memphis, Tennessee, copies of the attached
notice marked “Appendix.”24 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 and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 February 11, 1999.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
CHAIRMAN BATTISTA, dissenting in part.
I disagree with the majority’s finding that the Respon-
dent violated Section 8(a)(3) and (1) by twice disciplin-
ing, suspending, and ultimately discharging employee
Sam Powell. My reasons are set forth below.
The majority has set forth the relevant facts and I will
not repeat them here. Even assuming that the General
Counsel met his initial burden of showing that the Re-
spondent’s actions were motivated in part by antiunion
animus, I find that the Respondent adequately demon-
strated that it would have taken these actions, even in the
absence of protected conduct.
a. The February 18 discipline
As to the first disciplinary incident, I agree with the
majority that Powell initially approached Watson in his
role as a steward and made legitimate inquiries regarding
his coworkers’ terminations. Thus, I would find that
Powell’s conduct was initially protected by the Act.
However, Powell lost the Act’s protection by repeatedly
and personally attacking his supervisor and by compar-

24 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.”
OVERNITE TRANSPORTATION CO. 1441
ing his supervisor’s conduct in the Vietnam war to the
conduct of the Nazis in World War II.
My colleagues rely on Atlantic Steel.1 They find that
Powell’s references to Watson’s war record were not so
opprobrious as to lose the protection of the Act. I dis-
agree.
First, as the majority recognizes, Powell chose a public
location—i.e., the docks—to approach Watson on three
separate occasions. See Aluminum Co. of America, 338
NLRB 20, 22 (2002) (employee lost the protection of the
Act where his profane outbursts took place in employee
breakrooms). Indeed, Powell’s outburst at this place was
designed to publicly humiliate Watson on a sensitive
issue.
Next, with respect to the subject matter of the remarks,
Powell’s personal attack on Watson regarding his Viet-
nam service was wholly unrelated to his inquiries regard-
ing the discharges of his coworkers. Thus, the subject
matter of Powell’s remarks were “personal, highly offen-
sive, and escalated” to the point where Watson felt the
need to complain to the Plant Manager. See Trus Joist
MacMillan, 341 NLRB 369, 372 (2004).
Third, in regard to the nature of the remarks, I note that
Powell’s remarks were not a mere passing reference.
Powell repeated his references three times, notwithstand-
ing Watson’s efforts to defuse the situation by saying
that he did not want to talk about it.
Finally, I would find that the outburst was not pro-
voked by any unlawful conduct by the Respondent. As
the majority finds above, and I agree, the Respondent
lawfully discharged the seven employees in question.
Thus, the Respondent had not committed any unfair la-
bor practices that would have incited such a response.
Thus, I find that the Respondent has shown that Powell
engaged in misconduct towards his supervisor, Watson,
and that he was disciplined therefore.
b. The February 24 discipline
I further disagree with the majority’s finding that the
Respondent’s decision to discipline Powell on February
24, violated the Act. Instead, I would find that the Re-
spondent’s decision to discipline Powell for his work
inefficiency was legitimate and not motivated by any
antiunion animus.
The majority recognized that Powell had started his
day by instructing his fellow employees “don’t work
faster . . . work safer.” As such instructions have been
found to be code words for advocating an unlawful work
slowdown, the Respondent was justified in closely moni-
toring Powell’s conduct after that point. See United Air-
lines, Inc. v. IAM, 243 F.3d 349, 366 (7th Cir. 2001).

1 245 NLRB 814 (1979).
Powell subsequently made good on his implicit threat
to slow his pace. He unloaded a trailer at an unreasona-
bly slow rate of speed, as observed by three supervisors.
Powell persisted in this slow pace, even after being re-
peatedly informed that the cargo contained “hot freight”
and that the Respondent’s customer needed it immedi-
ately.
Moreover, the Respondent later corroborated the su-
pervisors’ perception that Powell had decreased his pro-
ductivity. His productivity rate for the first trailer, con-
taining “hot freight,” was 3.7 bills per hour, as compared
to his “normal rate,” as found by the judge, of 7.5 bills
per hour for the second trailer containing a “similar mix
of freight.”2 Additionally, Powell did not explain his
failure to use a more efficient means of unloading (i.e., a
forklift instead of hand unloading), although he acknowl-
edged at trial that using a forklift would have doubled his
efficiency. Further, contrary to the majority’s sugges-
tions that the Respondent should have assisted Powell, I
note that Powell was a seasoned veteran with 20 years’
experience, 8 of those years as leadman. Thus, Powell
did not need the help or advice of his supervisors in de-
ciding the most efficient means of unloading a trailer.
To be sure, employees have a right to refrain from un-
safe work practices. However, there is no showing that
Powell would have endangered himself or others if he
had worked at the Respondent’s desired rate. Indeed, the
evidence suggests that Powell was engaging in a slow-
down, not an effort to protect himself from workplace
injury.
In sum, I would find that the Respondent’s decision to
discipline Powell for his inefficiency on February 24, did
not violate the Act.3
c. The April 22 suspension and May 4 termination
Finally, I disagree with the majority’s finding that the
Respondent’s decisions to suspend Powell on April 22,
and to terminate him on May 4, violated the Act. I find
that the Respondent adequately demonstrated that these
decisions were legitimately motivated by his threatening

2 The majority’s reliance on the comparison of other employees’
productivity rate with Powell’s is misplaced. Unlike the evidence
regarding Powell (where we can compare his rate for the two trailers
unloaded because the freight was similar), such a comparison is not
appropriate with the other employees, where we have no information
regarding the contents of the freight they unloaded. The majority ac-
knowledges as much in its fn. 14 where it finds “the only accurate way
to compare bills-per-hour rates of trailers was to compare trailers con-
taining the same mix of freight.”
3 With respect to both disciplines, my colleagues note that in 1996,
Manager Warner told Supervisor Watson to “come up with an excuse
to discipline Powell.” In response, I note that the remark was made 3
years before the events herein. Further, even assuming arguendo that it
is relevant, it simply strengthens the General Counsel’s prima facie
case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1442
conduct on April 22, rather than by any antiunion ani-
mus.
My colleagues admit that Powell’s conduct on April
22 (i.e., threatening the potential strike replacements that
they “could get hurt” and suggesting that they would be
“run over” by a forklift), constituted threatening behav-
ior. They would nonetheless find that the Respondent’s
suspension and discharge of Powell was evidence of dis-
parate treatment. However, the Respondent’s decision to
terminate Powell was consistent with its termination of
four other employees at the Memphis facility, all of
whom had made similar threats to either coworkers or
supervisors.4
The majority relies on evidence that the Respondent
tolerated violent threats by company supporters at the
Kansas City facilities to support a finding of unlawful
animus. That reliance is misplaced. The majority rea-
soned that such evidence is relevant because those
charges were consolidated with this case (though tried
separately) and the settlement was made part of the re-
cord. While that is true, the settlement also contained a
“non-admissions clause” explicitly stating that the Re-
spondent was not admitting to liability by settling the
cases. In the absence of a decision setting forth the
judge’s explicit factual findings and credibility resolu-
tions in that case, I would not rely on such testimony to
establish a violation here.
Further, I do not see the relevance of events that oc-
curred at one of the Respondent’s facilities several hun-
dred miles from Memphis to this case. There is no evi-
dence in the record that, at the time of the instant disci-
pline, any of the management officials at the Memphis
facility had any connection to or knowledge of the disci-
plinary decisions at the Kansas City facility. Although
one of the employees involved, Charlie Foster, was an
employee of the Memphis facility, the evidence fails to
definitively demonstrate that Foster’s Memphis supervi-
sors were ever informed of his misconduct. Indeed, the
Respondent’s policy is to discipline the employee at the
facility where misconduct occurred (i.e., Kansas City), so
the Memphis supervisors would have had no reason to
take action against Foster. Thus, the Respondent’s fail-
ure to discipline employees at the Kansas City facility is
simply not relevant here.
In sum, I would find that the Respondent adequately
demonstrated that it decided to twice discipline, suspend

4 The majority attempts to distinguish these discharges from Pow-
ell’s on the basis that the employees involved made threats of a more
violent nature (i.e., involving gun, threats to kill, etc.) than Powell did.
In my view, Powell’s threat to potential replacement employees that
they could be run down by forklifts is every bit as intimidating as any
of the threats made by prior employees.
and then to terminate Powell for legitimate reasons (i.e.,
because he engaged in misconduct), rather than for dis-
criminatory reasons.
MEMBER WALSH, dissenting in part.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act when it suspended and dis-
charged six employees because of their union activities
and when it discharged a seventh employee to mask its
reason for discharging the other six. The judge rejected
the Respondent’s claim that it lawfully discharged the
employees because they had falsified their job applica-
tions. The judge’s findings are fully supported by the
record and should be adopted. First, many of the dis-
charged employees had legitimate explanations for fail-
ing to disclose their convictions or were told they did not
need to disclose them. For example, three of the em-
ployees advised the Respondent about their convictions
at their job interview, but were told not to worry about it.
Another employee was told by both his probation officer
and a company official that his conviction was a misde-
meanor. Second, the evidence offered by the Respondent
to show that it consistently discharged employees who
falsified their employment applications by denying their
criminal histories is unpersuasive. Such evidence de-
scribes employees who were discharged or not offered
employment under circumstances that are not compara-
ble to the employees discharged here. Finally, the record
also establishes disparate treatment, with the Respondent
choosing to look the other way when it came to wrong-
doing by employees who had indicated they did not sup-
port the Union. For instance, one employee who had
expressed that he had nothing to do with the Union re-
ceived no discipline at all following a post-hire felony
conviction, notwithstanding the fact that the Respon-
dent’s employee handbook provided that he was subject
to disciplinary action including dismissal because of such
conviction. Accordingly, I agree with the judge that the
Respondent has failed to prove it would have imposed
these discharges in the absence of the employees’ union
activity, and I dissent from my colleagues’ failure to
adopt the judge’s decision in this regard.
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 Federal labor law and has ordered us to post and obey
this notice.
OVERNITE TRANSPORTATION CO. 1443
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discipline, suspend, discharge, or other-
wise discriminate against any employee for engaging in
union activity on behalf of, or otherwise supporting
Teamsters Local 667, affiliated with the International
Brotherhood of Teamsters, or any other union.
WE WILL NOT refuse to furnish information about the
Respondent’s investigation of bargaining unit employ-
ees’ criminal records, which the Union requested in Feb-
ruary 1999, and which is necessary and relevant to the
Union’s duties as the exclusive representative of the unit
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Sam Powell full reinstatement to his former job, or
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make Sam Powell whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the decision.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
cipline, suspension, and discharge of Sam Powell, and
within 3 days thereafter notify him in writing that this
has been done and that the discipline, suspension, and
discharge will not be used against him in any way.
WE WILL provide the Union with the information it re-
quested in February 1999 regarding the Respondent’s
investigation of the criminal records of the employees in
the following bargaining unit:
All city drivers, road drivers, dock workers,
jockey/hostlers, building maintenance employees and
shop employees employed at Overnite Transportation
Company’s Memphis, Tennessee, Hub and City Ter-
minal facilities; excluding all office clerical employees,
managerial employees, professional employees, guards
and supervisors as defined in the Act.
OVERNITE TRANSPORTATION COMPANY
Linda M. Mohns and David M. Biggar, Esqs., for the General
Counsel.
Andrew M. Slobodien and Kenneth F. Sparks, Esqs. (Matkov,
Salzman, Madoff & Gunn), of Chicago, Illinois, for the Re-
spondent.
Samuel Morris and Timothy Taylor, Esqs. (Allen, Godwin,
Morris, Laurenzi & Bloomfield), of Memphis, Tennessee,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. These
cases were tried in Memphis, Tennessee, on June 19–20, 23,
and 26–28; on July 11–13 and 18–21; on November 6–10,
2000; and on March 19 and 20, 2001. When these proceedings
commenced before me on June 19, 2000, Cases 26–CA–19037,
26–CA–19044, 26–CA–19100, 26–CA–19168, 26–CA–19208–
1, and 26–CA–19208–2 were consolidated with Cases 10–CA–
31891, and 10–CA–32257, 17–CA–20134, 17–CA–20329–3,
25–CA–26709–2, 26–CA–19263, 26–CA–19402. Informal
settlements in these latter cases resulted in their severance from
the other cases during the trial.
Upon charges filed by the Union, Teamsters Local 667, Af-
filiated with the International Brotherhood of Teamsters in
Cases 26–CA–19037, 26–CA–19044, 26–CA–19100, 26–CA–
19168, 26–CA–19208–1, 26–CA–19208–2, and 26–CA–19402,
on various dates in 19991 and 2000, alleging that the Company,
Overnite Transportation Company, had violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act), the Re-
gional Director for Region 26 issued an order consolidating
cases, consolidated complaint, and notice of hearing. Thereaf-
ter, as stated above, Cases 26–CA–19263 and 19402 were sev-
ered from the consolidated complaint after the General Counsel
and the Company had executed an informal settlement in those
cases. In the remaining cases captioned above, the first con-
solidated complaint alleged that the Company violated Section
8(a)(1) and (3) of the Act by disciplining, suspending, and
discharging employees Walter G. Jones and Terry Holcomb,
and by disciplining and discharging employee Sam Powell,
because they engaged in concerted activity protected by Section
7 of the Act and because they supported the Union.
In a fourth order, dated March 29, 2000, the Regional Direc-
tor consolidated cases alleging that the Company violated Sec-
tion 8(a)(1) and (3) by suspending and then discharging em-
ployees Fred Clark, Kyle Medley, William Palmer, Charles
Watkins, Autra Wilkerson, K. W. Wilbanks, Tony Brown, and
Wilford Hugh McCalla because they were union members.
This consolidated complaint also alleged that the Company
violated Section 8(a)(5) and (1) of the Act by failing and refus-
ing to furnish the Union with information necessary for and
relevant to the Union’s performance of its duties as exclusive
collective-bargaining representative. The Company, by its
answers to the complaints, denied committing the alleged unfair
labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

1 All dates are in 1999 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1444
by the General Counsel, the Company, and Local 667, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, with an office and place of
business in Memphis, Tennessee, referred to below as its Mem-
phis service center, engages in the interstate transportation of
general commodity freight. During the 12-month period ending
February 29, 2000, the Company derived gross revenues in
excess of $50,000 for transporting freight from the State of
Tennessee directly to points outside the State of Tennessee.
During the same 12-month period, the Company, in conducting
its business operations, purchased and received at its Memphis
Service center goods valued in excess of $50,000 directly from
points located outside the State of Tennessee. The Company
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that Local 667 is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues Presented
The Company is a less-than-truckload commercial freight
carrier headquartered at Richmond, Virginia. In Overnite
Transportation Co., 333 NLRB 1392 (2001), the Board found
that the Company operates approximately 175 service centers
nationwide. One of these centers, located at Memphis, Tennes-
see, is involved in the instant cases. The Memphis service cen-
ter performs as a city terminal and a hub terminal. The Mem-
phis service center receives freight from other company service
centers for distribution in and around Memphis. The Memphis
facility also picks up freight in and around Memphis for ship-
ment to other company terminals. The Memphis service center
also receives and ships through freight to other company ser-
vice centers.
The Company employs approximately 530 employees at its
Memphis facility. Of these, 200 are dockworkers, who unload
and load freight. They use forklift trucks and other equipment
to accomplish their tasks. The Memphis service center also
employs 147 over-the-road drivers, 41 city drivers, and ap-
proximately 60 shop employees, who maintain the tractors and
trailers. In addition, the Company employs dispatchers and
office employees at Memphis. The management of the Mem-
phis service center consists of 1 service center manager, 2 assis-
tant managers, 6 operations managers, and 12 supervisors.
On October 9, 1997, following a representation election,2 the
Board certified Local 667 as the exclusive collective-bargaining
representative of the following unit of the Company’s employ-
ees:
All city drivers, road drivers, dock workers,
jockey/hostlers, building maintenance employees and shop
employees employed at Overnite Transportation Com-
pany’s Memphis, Tennessee, Hub and City Terminal fa-

2 In the Board-held election, on September 16, 1996, Local 667 re-
ceived 219 votes: 210 votes were cast against Local 667. Overnite
Transportation Co., 335 NLRB 1392, 1396 (2001).
cilities; all office clerical employees, managerial employ-
ees, professional employees, guards and supervisors as de-
fined in the Act.
On April 22, the Regional Director dismissed a petition filed
in Case 26–RD–1008, on October 21, 1998, seeking a decertifi-
cation election in the above-described bargaining unit. On May
5, the Company filed a timely request for review by the Board.
Thereafter, the Board, in an order issued on May 19, affirmed
the Regional Director’s dismissal. Thus, Local 667 continues
to be the exclusive collective-bargaining representative of that
unit.
Local 667 and the International Brotherhood of Teamsters
have been bargaining with the Company locally and nationally
since 1997. However, the parties have not reached an agree-
ment. Local 667 engaged in a strike at the Memphis service
center from July 5 to 9. Other Teamster locals conducted simul-
taneous strikes at Atlanta and Kansas City. Local 667 began a
second strike at Memphis in October that was in progress when
the hearing in these cases closed in March 2001.
On the morning of December 24, 1998, Acting Hub Manager
Joseph G. Jasmer received word from the facility’s guard ser-
vice that there had been a break-in at the Memphis service cen-
ter. He immediately contacted company investigator, Roger
Gleason. On December 26, 1998, Jasmer also contacted com-
pany investigator Mike Martin and advised him of the break-in.
Gleason and Martin began their investigation of the Memphis
break-in during the interim between Christmas and New Year’s
Day. They learned that approximately $250,000 worth of mer-
chandise had been taken. The loss included computers, televi-
sion sets, and other electronic equipment, satellite dish equip-
ment, and Nike shoes and apparel.
A second break-in occurred during the New Year’s weekend.
As in the earlier break-in, the thieves cut holes in the terminal
fence, and broke into selected trailers containing high value
cargo. Jasmer, Gleason, and Martin concluded that the thieves
were either company employees, who knew which trailers con-
tained high priced cargo, or were people who had help from
Company employees.
Gleason and Martin sought help in their investigation from
the FBI, the Memphis Police Department, and the Shelby
County Sheriff’s office. The two investigators also sought
information from selected dock employees and management
staff. The Company posted notices on all the buildings at its
Memphis service center, offering a $25,000 reward for infor-
mation regarding the person or persons responsible for the
thefts. These efforts produced neither leads nor suspects.
Gleason and Martin decided to review employment applica-
tions. I find from Mike Martin’s uncontradicted testimony that
he and Gleason included rank-and-file employees and man-
agement in their search. They planned to do background
checks on all employees and members of management whose
job applications predated 1997, when the Company began mak-
ing prehire background checks on all job applicants.
Issues presented in the captioned cases are whether a pre-
ponderance of the evidence shows that the Company violated
Section 8(a)(3) and (1) of the Act by:
OVERNITE TRANSPORTATION CO. 1445
(a) Suspending and then discharging eight employees
because they falsified their job applications.
(b) Issuing two written warnings to Sam Powell, and
then discharging him because he engaged in union activ-
ity.
(c) Suspending and discharging Walter Jones and
Terry Holcomb because they engaged in union activity.
A further issue presented is whether the Company violated
Section 8(a)(5) and (1) of the Act by refusing to furnish the
Local 667 with information it requested in February 1999, re-
garding the Company’s investigation of bargaining unit em-
ployees’ criminal records.
B. The Eight Discharges Resulting From the Investigation
l. The facts
a. The investigation
I find, from Roger Gleason’s testimony, that in February, he
and company investigator Martin began conducting their crimi-
nal background checks. Gleason considered this to be “part of
an investigative technique” to identify employees who “may
have a propensity” to get involved in theft or theft-related con-
duct. He also finds this technique reveals falsifications of ap-
plications regarding criminal records. Armed with this infor-
mation, Gleason has found that employees are more forthcom-
ing with information about the theft when confronted with their
own falsification.
Gleason and Martin in recent years have used this technique
at company service centers at Los Angeles, California, Atlanta,
Georgia, and Houston, Texas. In these three instances, the
background check was restricted to only the particular shift
involved in the theft at each service center. In 1998 or 1999,
Gleason did background investigations for the entire Oakland
and Fontana, California service centers, where the Company
was unable to pinpoint a specific shift or group of employees as
suspects in either theft. There was no showing that the Com-
pany solved any of the thefts at those locations.
At Memphis, in 1999, Gleason and Martin limited their
background searches to the criminal court records of Shelby
County, Tennessee, which included Memphis, and DeSoto
County, Mississippi. I find from Gleason’s testimony that most
of the Company’s Memphis employees live in those two juris-
dictions. The records available in Shelby County went back to
the 1970’s. Those in DeSoto County went back 7 to 10 years.
Since 1994 Overnite’s “Employee Handbook” has included
in its “Employee Conduct” section a list of employee miscon-
duct “that will subject the employee to disciplinary action, in-
cluding dismissal.” One specification of such misconduct in-
cluded in this list is the following:
17. Falsifying any Company record or employment applica-
tion.
Prior to September 1994, the Company’s employment appli-
cations included the question: “Have you ever been convicted
of a felony?” followed by “If yes, explain.” After September
1994, the Company’s employment applications contained the
following question: “Have you ever been convicted of or pled
guilty or nolo contendre (no contest) to a crime other than a
traffic violation?” followed by: “If yes, describe in full and give
court location, date.”
b. The discharges
(1) Charles Watkins
Charles Watkins applied for work at the Company’s Mem-
phis service center on January 30, 1992. When he filled out his
application on that date, he answered no to the felony question.
The Company did not respond to this application. On April 13,
1992, Watkins filled out a second Company job application in
which he left blank the answer to the question about a felony
conviction. However, Assistant Terminal Manager J. J. Lewis
interviewed him and asked Watkins for an answer to that ques-
tion. Watkins disclosed that he had a felony conviction. In
fact, he had pleaded guilty to two drug possession charges in
1989.
Upon hearing his disclosure, Lewis made a phone call and
handed the phone to Watkins. A woman on the other end of the
phone asked Watkins about his felony and whether he was
ready to turn his life around if her agency helped him get a job.
Watkins said he was willing to turn his life around if they
helped him get a job. After further questioning Watkins, the
woman asked him to put Lewis back on the phone. After Lewis
got off the phone, he said Watkins would be hired, but would
be required to go to an office elsewhere and fill out some pa-
pers.
Watkins began working at the Company’s Memphis service
center 1 or 2 days after his interview with Lewis. Approxi-
mately 1 month later, on the advice of Supervisor Willie Jones,
Watkins went to an office of the Tennessee Department of Em-
ployment Security where he completed a form for the Targeted
Job Tax Credit program. The form stated that an employer who
hired Watkins would enjoy a Federal income tax credit.
The Company employed Watkins first on its dock and later
in terminal maintenance. Until Acting Service Center Manager
Jasmer fired him on February 17, the Company had never dis-
ciplined Watkins. During his employment, Watkins actively
supported Local 667. He belonged to its 1995 organizing
committee and handbilled at the Memphis terminal’s gate.
Watkins participated in both the July and October 1999 strikes.
Since Local 667’s certification, he has been the dock employ-
ees’ steward.3
On February 11, Acting Manager Jasmer summoned Wat-
kins to Jasmer’s office.4 Waiting for Watkins were Jasmer, and
company investigators Martin and Gleason. The investigators
confronted Watkins with their discovery of his 1989 felony
conviction. He protested that he understood that his criminal
record was confidential and should not be brought up. He also
asserted that he had filled out a second application in April
1992. Watkins admitted omitting any disclosure of his drug

3 I based my findings regarding Watkins’ employment history and
union activity upon his testimony, which was uncontradicted.
4 Jasmer denied that he had participated in Watkins’ interview. Wat-
kins impressed me as being a careful and candid witness. Further Jas-
mer’s testimony shows he participated in at least two investigative
interviews with Gleason and Martin. I also noted that Watkins’ inter-
view took place in Jasmer’s office. Accordingly, I have credited Wat-
kins’ testimony showing Jasmer’s presence at Watkins’ interview.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1446
conviction on his applications. Watkins insisted that the Com-
pany knew of his 1989 conviction because of the papers he
filled out for a tax credit that it received for hiring him. Wat-
kins told the investigators that J. J. Lewis and former Memphis
City Service Center Manager Carroll McKee also knew of his
1989 conviction and the tax credit.
The investigators had no evidence to support Watkins’ story.
They did not believe Watkins’ explanation. Gleason and Mar-
tin took Watkins out of service and escorted him to the service
center’s parking lot. They passed the results of their investiga-
tion and interview with Watkins to Acting Manager Jasmer.5
On February 17, Jasmer telephoned Watkins and fired him.
By this time, Watkins had assembled evidence supportive of his
explanation. Jasmer was not interested in Watkins’ evidence.
Martin conducted a further investigation. He sought and ob-
tained written statements from J. J. Lewis, Carroll McKee, and
Willie Jones. None of the three substantiated Watkins’ story.
Indeed, they denied hearing about his conviction at the time
that he was hired. However, in March, Local 667’s counsel
obtained documents from the State of Tennessee showing that
Watkins had been telling the truth about his participation in the
Targeted Job Tax Credit program (TJTC) and about his disclo-
sure to the Company of his felony conviction when he applied
for work in 1992. Counsel sent the documentation to the Com-
pany’s counsel. In mid-April, Martin received confirmation of
Watkins participation in the TJTC program. Martin notified the
Company’s director of Hub Operations, H. Thomas Nelson III,
of the new information on Watkins.6
Local 667 filed an unfair labor practice charge in Case 26–
CA–19100 on March 29, alleging Watkins’ discharge as one of
a series of violations of Section 8(a)(3) and (1) of the Act.
Thereafter, on March 29, the Acting Regional Director issued a
consolidated complaint including an allegation that the Com-
pany had violated Section 8(a)(3) and (1) of the Act by dis-
charging several employees, including Watkins.
In May, the Company’s director of Hub Operations tele-
phoned Watkins and announced that there had been some mis-
takes and went on to offer reinstatement and backpay for the
period following Watkins’ discharge on February 17. Watkins
returned to work on May 10.7
At the hearing of the above cases on June 28, 2000, counsel
for the General Counsel announced that there was a non-Board
settlement of Watkins’ portion of Case 26–CA–19100. Coun-
sel for the General Counsel also reported that the Company’s
counsel had agreed to expunge the record of Watkins’ dis-
charge from the Company’s records. Counsel for the General
Counsel stated that if the expungement occurred prior to the
resumption of the hearing on July 11, 2000, she would request
withdrawal of so much of that case as concerned Watkins.
The record does not show that the Company has expunged
Watkins’ discharge from its records. Nor has the General

5 I based my findings regarding Watkins’ interview on his and Mar-
tin’s testimony.
6 I based my findings regarding Martin’s further investigation and
his contact with Nelson on their testimony.
7 My findings regarding Watkins’ telephone contact with Nelson are
based on their testimony.
Counsel moved for withdrawal of the complaint allegations
regarding Watkins’ discharge on February.17
(2) Floyd Wilbanks
Floyd Wilbanks applied for work as a city driver at the
Company’s Memphis service center on March 26, 1992. When
he filled out his application, he left blank the space after the
question: “Have you ever been convicted of a felony?” How-
ever, in 1981 Wilbanks was convicted of a drug offense, which,
after plea-bargaining, was reduced to an attempt to commit a
felony. Also, in 1984, Wilbanks was convicted of illegal pos-
session of firearms. Terminal Manager Carroll McKee inter-
viewed Wilbanks and reviewed the latter’s application. McKee
noted the blank space and asked Wilbanks about it. Wilbanks
explained the convictions resulting from his plea bargain and
the 1984 firearm offense. He said he was not certain that his
1981 convict was a felony. McKee advised Wilbanks to leave
the space blank. McKee said he would check with the Com-
pany’s main office at Richmond, Virginia, and let Wilbanks
know. Two or three days later, McKee telephoned Wilbanks
and told him to report to the Memphis terminal for work on the
following Monday.8
McKee testified that he had no specific recollection of his
conversation with Wilbanks when they discussed the blank
space on the latter’s employment application in April 1992.
However, McKee carefully explained his practices during a
prehire interview. One such practice related to instances when
the applicant had left blank the answer to the question regard-
ing felony convictions. In that circumstance, McKee’s practice
was to ask the applicant if he had a felony conviction. If the
applicant answered that he did, and if McKee was interested in
hiring the applicant, he would have asked his regional vice-
president or vice-president of personnel for clearance to hire the
applicant. That Wilbanks was hired 2 or 3 days after his inter-
view strongly suggests that McKee followed his practice and
obtained the necessary clearance.
I have noted that Assistant Terminal Manager James J.
Lewis apparently signed the last page of Wilbanks’ application
on April 6, 1992. Next to Lewis’s signature is the declaration
that Lewis interviewed and hired Wilbanks. However both
McKee and Wilbanks credibly testified that McKee interviewed
and hired Wilbanks.8
The record contains no evidence regarding Lewis’s participa-
tion in Wilbanks’ hiring, beyond his signature at the end of
Wilbanks’ application. Lewis did not testify in these proceed-
ings. No testimony was elicited from the two company investi-
gators, who testified extensively before me, regarding Lewis’
role in the hiring of Wilbanks. On cross-examination before
me, Joseph Jasmer, who was acting service center manager at
Memphis during the investigation of Wilbanks’ employment
application, admitted that no effort was made during that proc-

8 McKee distinctly recalled that at the prehire interview, Wilbanks
wore his hair in a long gray ponytail and had tattoos all over his arms.
McKee’s frank admission that he did not remember details of the inter-
view and his frank and forthright testimony regarding his relationship
with Wilbanks persuaded me that he was a reliable witness doing his
best to tap his recollection.
OVERNITE TRANSPORTATION CO. 1447
ess to contact Lewis and ask him about his signature and what
he knew of Wilbanks’ prehire interview. Jasmer also admitted
that he considered such information irrelevant. Without any
explanation for Lewis’ signature, I have relied on Wilbanks’
and McKee’s credible testimony in making my findings of fact
regarding the circumstances leading up to the Company’s hir-
ing of Wilbanks in April 1992.
Except for a short stint as a dockworker, Wilbanks worked
for the Company as a city driver from 1992 until his discharge
in 1999. McKee, who resigned as manager of the Memphis
service center in 1996, became acquainted with Wilbanks’
work performance. I find from McKee’s testimony that he
considered Wilbanks to be an exceptional employee, “very
good with customers, very good with other drivers, dispatch-
ers.” McKee was not aware of Wilbanks having any discipli-
nary problems at work. Nor was there any showing that Wil-
banks’ work performance or conduct deteriorated after
McKee’s resignation. Due to a heart attack, Wilbanks was on
sick leave from his employment from June 1998 until February
1999. 9
Wilbanks supported Local 667 during his employment at the
Company’s Memphis service center. He attended a few union
meetings; distributed union literature wore a union button on
occasion and dallied at the terminal’s gate with other union
activists. He distributed union literature by leaving copies of it
in the two or three different trucks he drove on a working day.
During his tenure as manager of the Memphis service center,
McKee was not aware of Wilbanks’ union activity. Indeed,
Wilbanks’ usual response to questions about his union senti-
ment was that it was nobody’s business.
In February 1999, soon after he returned from sick leave,
Acting Manager Jasmer and Roger Gleason,10 one of the Com-
pany’s investigators, confronted Wilbanks in an office at the
Memphis service center. Gleason explained that during the
investigation of the break-in at Memphis during Christmas
1998, the investigators found that Wilbanks had a criminal
record and was a convicted felon. The investigator went on to
say that Wilbanks would be suspended or terminated. Wil-
banks told Jasmer and Gleason that he had mentioned the fel-
ony to McKee. Mckee had said he would get back to Wilbanks
about it, but never did. When Wilbanks asked if he should
contact McKee, Jasmer and Gleason said they would.
At the conclusion of the meeting, Jasmer sent Wilbanks
home with instructions to call the Memphis terminal’s office on
the following Friday. Wilbanks called the office on Friday and
was told to call again on Monday. When he called on Monday,
the person who answered the phone told him to call the next
day. When he called as instructed, Wilbanks learned that he
had been discharged. Jasmer made the decision to discharge
Wilbanks.11

9 My findings of fact regarding Wilbanks work assignments and his
sick leave are based on his uncontradicted testimony.
10 Jasmer testified that investigator Mike Martin was with him when
they questioned Wilbanks in February 1999. However, I find from
Martin’s and Gleason’s testimony that Gleason was the sole investiga-
tor present on that occasion.
11 My findings regarding Wilbanks’ suspension and his notification
of discharge are based on his and Jasmer’s testimony.
On February 11, Gleason took a short statement from Wil-
banks regarding the latter’s prehire interview with McKee in
April 1992. In this statement, Wilbanks asserted that during his
exchange with McKee, the felony charge was “mentioned.”
Also, in his statement, Wilbanks stated, in substance, that he
and McKee agreed that in light of the 11-year span since the
conviction, there was “no reason to fill in the blank.”
Soon after his discharge, Wilbanks contacted McKee and
asked if he would talk to the Company on Wilbanks’ behalf.
McKee said he thought it better that he wait until the Company
contacted him. The Company investigators contacted McKee
about Watkins’ termination. However, they did not ask him
about Wilbanks.12
Investigator Gleason telephoned Frank Plemmons, a former
Memphis operations manager and asked him to contact McKee
about Wilbanks’ job application. Plemmons reported back that
McKee was uncertain about whether he had had any conversa-
tion with Wilbanks regarding the latter’s job application and
that McKee was annoyed by the Company’s repeated inquir-
ies.13
I find from McKee’s testimony that he told Plemmons that
he believed that he had received clearance to hire Wilbanks
after explaining the applicant’s felony conviction. The Com-
pany’s investigators did not contact J.J. Lewis, the assistant
manager whose signature appeared at the bottom of Wilbanks’
application.
McKee contacted Acting Manager Joe Jasmer at the Mem-
phis service center by telephone and then visited him. McKee
looked at Wilbanks’ application and told Jasmer that he,
McKee, “was not one-hundred percent sure” but he believed
that he had “done something” about the application, that he had
“called someone.” McKee insisted that Wilbanks’ application
had been cleared. McKee told Jasmer that Wilbanks was being
falsely accused.14
After his encounter with Jasmer, McKee attempted to pursue
the matter of Wilbanks’ application by telephoning the Com-
pany’s Richmond office. He sought help from the Company’s
General Counsel’s office. McKee explained Wilbanks’ plight
to someone in that office. McKee asserted his belief that after
learning of Wilbanks’ felony conviction he had obtained clear-

12 My findings regarding Wilbanks’ request for McKee’s assistance
and McKee’s initial contact with the Company’s investigation are
based on their testimony.
13 My findings regarding investigator Gleason’s contact with Plem-
mons are based on Gleason’s uncontradicted testimony.
14 According to Jasmer, McKee lied about visiting Jasmer regarding
Wilbanks’ discharge. However, McKee’s testimony in this regard
seemed logical in light of his decision to help Wilbanks. Also, I find
McKee’s account of his visit amply detailed and reasonable. The deci-
sive factor in resolving this issue of fact was my impression that
McKee was a frank witness, doing his best to fathom his recollection.
In contrast, Jasmer seemed less forthright on cross-examination. His
testimony that confirming whether J .J. Lewis had in fact interviewed
and hired Wilbanks was irrelevant to the mystery surrounding the hir-
ing of Wilbanks in 1992, added to my doubt as to the reliability of his
testimony regarding Wilbanks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1448
ance from Richmond to hire Wilbanks. McKee’s testimony did
not reveal the response to his attempt to verify his assertions.15
(3) Frederick L. Clark
On October 17, 1988, Frederick L. Clark pleaded guilty to
the felony of fraudulent receipt of unemployment benefits un-
der the Tennessee Criminal Code. He received a 6-month sus-
pended sentence and probation. Following his conviction,
Clark’s probation officer told him that he had been convicted of
a misdemeanor.16.
On April 5, 1994, Clark applied for work at the Company’s
Memphis service center. He received a job application from
Personnel Director Gail Luna. In filling out the form, Clark
came upon the question, “Have you ever been convicted of or
pled guilty to a felony?” In the blank space provided for an
answer. Before writing this answer, Clark told Luna that in
1988, he had been arrested for overdrawing on his unemploy-
ment. She replied that his offense was not a felony. Accord-
ingly, Clark wrote “No” in the space. Luna completed the in-
terview and said she would get back to Clark, who went home.
Upon arrival at home, he found a message from Luna inviting
him to return to the Company and take a drug test. Clark re-
turned to the Memphis Hub, took the drug test, and was hired.
Luna put him to work that evening on the night shift.17
The Company hired Clark as a dockworker, a position he
held at the Memphis hub until his discharge on February 11.
The Company assigned him to the day shift, which began at
6:30 a.m. Until his discharge, the Company did not discipline
Clark.18
Clark was an open and persistent supporter of the Teamsters.
He frequently handed out literature for the Teamsters at the
terminal’s entrance from 5:30 until 6:15 a.m. He also wore
shirts at work, daily, that contained Teamster messages. One
such message was “Will Strike If Provoked.” Clark began
supporting the Teamsters in 1995, during their organizing drive
at Memphis.
In February, Martin and Gleason interviewed Clark in con-
nection with the investigation of the Christmas break-in. They
began the interview by asking if he knew about the break-in.
Clark said he had heard rumors about it but had no knowledge
of it. I find from Gleason’s testimony that he told Clark that in
the course of their investigation Gleason and Martin had dis-
covered a criminal conviction that Clark neglected to show on

15 I based my findings regarding McKee’s call to the Company’s
Richmond office on his uncontradicted testimony.
16 My findings regarding Clark’s conviction and his probation offi-
cer’s remark are based on Clark’s uncontradicted testimony.
17 My findings regarding Clark’s encounter with Luna are based on
his full and forthright testimony. On direct examination, in answer to
leading questions, Luna denied that she had ever given advice to any-
one that a particular crime was a felony or that she had ever advised
any applicant how to fill out a job application section dealing with
criminal background. Her denials came quickly, without hesitation. Of
the two, Clark seemed more conscientious in his effort to provide his
recollection. Accordingly, I have credited Clark’s testimony in this
regard.
18 My findings regarding his work at the Memphis Hub and his
manifestation of support for the Teamsters are based on his uncontra-
dicted testimony.
his job application. Clark replied that he had been put on pro-
bation as a result of that conviction and was under the impres-
sion that it was a misdemeanor and not a felony. Clark also said
that inasmuch as he didn’t kill anybody, he believed his crime
could not be a felony. Gleason relieved Clark of his duty until
further notice. On the Thursday of the following week Clark
received a telephone call from a person who said they were
calling from the Company’s Richmond, Virginia office and
announced that Clark was discharged for falsification of his
application.19
On March 15, Clark visited a Tennessee Department of Cor-
rection office and obtained the following letter from Benjamin
J. Poindexter, manager20 I find from;
To Whom It May Concern:
This letter is to verify that Mr. Frederick Clark, D.O.B.
6/24/55 was sentenced for six (6) months on a misde-
meanor for the offense of Unemployment Fraud. He was
placed on probation on 10/17/88 and his probation expired
on 10/17/93 11/89.
If you should have any questions, please feel free to
contact me at (901) 344-5076.
Sincerely,
Benjamin J. Poindexter, Manager
Clark never showed this letter to either Assistant Manager
Jasmer or to investigators Gleason and Martin. The Company’s
investigative files related to Clark’s termination included a
copy of this letter together with cover memorandum from Con-
gressman Harold E. Ford Jr.’s office dated April 26 and May
24, respectively.
In February, following the interview, Martin went to a law
library and found that Clark’s offense was a felony under Ten-
nessee law. He reported his finding to Acting Manager Jasmer,
who admittedly discharged Clark on February 11.21
At the hearing in these cases, counsel for the General Coun-
sel used the letter quoted above in cross-examining Gleason
and Jasmer. Gleason testified that the letter quoted above
would not have changed his view that Clark had falsified his
employment application in 1994. Jasmer testified that he did
not remember anyone telling him that Clark had answered no to
the question about whether he had been convicted of a felony
because he believed his conviction in 1988 had been for a mis-
demeanor. When shown the letter from the Tennessee Depart-
ment of Correction, quoted above, Jasmer testified that he
might have considered Clark’s false answer as the result of
misunderstanding rather than willful deceit. Jasmer also con-
ceded that the letter might have caused him to think differently
about Clark’s termination.

19 My findings regarding the investigators’ interview with Clark are
based on Clark’s and Gleason’s uncontradicted testimony.
20 My findings regarding the circumstances under which Clark re-
ceived this letter are based on Poindexter’s and Clark’s uncontradicted
testimony.
21 My findings regarding Martin’s legal research are based on his
uncontradicted testimony.
OVERNITE TRANSPORTATION CO. 1449
(4) Autra Wilkerson
In November 1995, while an employee of Manpower, Incor-
porated, Autra Wilkerson was assigned to work at the Com-
pany’s Memphis service center as a dockworker. In January
1996, Wilkerson applied to the Company for employment as a
dockworker. The Company employed him as a dockworker at
Memphis until February 14.22
In his application dated January 15, 1996, Wilkerson wrote
in “no” in response to the question: “Have you ever been con-
victed of or pled guilty to a crime other than traffic violations?”
However, at the time he filled out this application, Wilkerson
was on a 3-year term of probation following his manslaughter
conviction in Tennessee. He explained to his interviewer,
David Allgaier, that he had been convicted of manslaughter and
was now on probation. Allgaier told Wilkerson not to worry
about the conviction and not to write it down.
At the time of this interview, the Company was concerned
about a drug problem among its Memphis’ employees. All-
gaier asked if Wilkerson had a drug problem. Further, Allgaier
noted that Wilkerson had worked at his last job for 14 years and
asked why he had left it. When Wilkerson had completed the
application, he submitted it to Allgaier. The Company hired
Wilkerson approximately 3 weeks later.23
In his testimony before me, Wilkerson admitted that he also
had a felony conviction in 1979 for larceny and a further con-
viction in 1985 for gambling. There was no showing that he
ever revealed these two convictions to Allgaier, or to any other
member of the Company’s management.
On July 16, 1996, Wilkerson filed a second application for
employment by the Company as a dockworker. He again wrote
“no” in the space following the question about prior crime con-
victions. Wilkerson’s testimony at the hearing in these cases
did not disclose why he filed the second application. Nor is
there any explanation anywhere in the record.
During his employment at the Company’s Memphis service
center, Wilkerson consistently came to work on time and was
absent for only 2 days because of a strep throat. At most, the

22 My findings of fact regarding Wilkerson’s job history and union
activity are based on his uncontradicted testimony.
23 Allgaier testified on direct examination by company counsel that
he had no specific recollection of interviewing Wilkerson in 1996.
Allgaier also testified that, as a matter of practice, he never told any job
applicant to leave blank the answer to the application’s question regard-
ing crime conviction. However, he conceded, on cross-examination,
that when company supervisors recommended a manpower dock-
workers for hire by the Company, that recommendation, alone, was
enough information to sustain a decision to hire him or her. Allgaier
admitted that, in the face of such a recommendation, there “[p]robably
wouldn’t be much of an interview.” Allgaier also conceded that at the
time of Wilkerson’s interview, the company interviewers were more
focused on drug use. This last assertion corroborated Wilkerson’s
testimony that during his interview in 1996 Allgaier asked Wilkerson if
he had “ever been involved in drugs.” Allgaier’s testimony left open
the possibility that he hired Wilkerson without regard to the latter’s
manslaughter conviction. As he testified, Wilkerson seemed to be
giving his recollection frankly. His demeanor and Allgaier’s admis-
sions convinced me to credit Wilkerson’s version of his prehire inter-
view by Allgaier in 1996.
Company issued two disciplinary writeups to him during his
tenure at Memphis.
Wilkerson supported Local 667 and the Teamsters. He wore
union shirts, caps, and pins, attended all the union meetings and
handbilled before his shift started. During the years he worked
at the Company’s Memphis service center, Wilkerson hand-
billed for the Teamsters or Local 667 10 or 12 times. Every
workday, Wilkerson wore a union cap and a union pin or but-
ton.
In February 1999, Roger Gleason, while investigating the
Christmas 1998 break-in at the Company’s Memphis service
center, discovered a court record showing Wilkerson’s 1995-
manslaughter conviction. Gleason checked Wilkerson’s appli-
cations and noted the discrepancy between the employee’s
answer to the question about convictions and the court record.
Gleason and Martin arranged to interview Wilkerson.
On or about February 15, Gleason and Martin met with
Wilkerson and informed him of their investigation. The inves-
tigators told Wilkerson about the break-in, the offer of a reward
and the absence of any response. They also told Wilkerson that
they were doing a background check on everyone at the termi-
nal.
The remarks focused on Wilkerson’s two applications.
Gleason asserted that the investigation had found a manslaugh-
ter conviction against Wilkerson that he had not shown on his
applications. Wilkerson admitted that he had a criminal con-
viction. He insisted that he was a good employee and that his
criminal act came in the context of self-defense. Wilkerson
explained that his attorney had advised him to take a plea as-
serting self-defense. He also admitted that he had not answered
the application’s question regarding prior convictions.
Wilkerson said his lawyer advised him not to reveal his con-
viction on his application. He also said he thought that a truth-
ful answer would prevent him from being hired and that he did
not want anyone to know about it. The investigators suspended
Wilkerson, who was escorted to the terminal’s entrance.24
The investigators reported the discrepancy between
Wilkerson’s job applications and the court records showing the
manslaughter conviction to Acting Manager Jasmer. Jasmer
decided to discharge Wilkerson. Three or four days after
Wilkerson’s suspension, Jasmer telephoned Wilkerson and
discharged him.25
On April 20, the Memphis office of Congressman Harold E.
Ford Jr. sent a memorandum from the Tennessee Department of
Correction to the Company regarding Autra Wilkerson’s 3-year
probation period following his manslaughter conviction. In
pertinent part, the memorandum stated:
This is to advise you, that in the course of monitoring
Mr. Wilkinson’s employment status, the probation officer

24 My findings regarding Wilkerson’s interview with the Company’s
investigators are based on Martin and Gleason’s testimony.
Wilkerson’s recollection of that encounter seemed sketchy. Martin and
Gleason seemed to have a much better grasp of the interview and testi-
fied in an objective manner about it.
25 My findings regarding the investigators’ report to Jasmer and his
decision to fire Wilkerson are based on the uncontradicted testimony of
Jasmer and the investigators.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1450
would have verified Mr. Wilkerson’s employment with his
employer/supervisor.
Maintaining employment is a condition of probation. It is
the probation officer’s responsibility to verify employment with
the employer. It should be assumed that at some point that Tay-
lor talked to Wilkerson’s employer/supervisor.
Taylor, whose given name was London was a probation offi-
cer for the Tennessee Department of Correction until Novem-
ber 1998. He monitored Wilkerson’s 3-year probation. As of
March 3, Taylor was deceased.
The Company quickly passed the memorandum to investiga-
tor Mike Martin, who read it and contacted Dorothy B. John-
son, manager of the Tennessee Department of Correction’s
Memphis office. On May 24, pursuant to Martin’s request
made on or about May 16, Johnson faxed copies of Taylor’s
contact notes to Martin. These notes reflected verification of
Wilkerson’s employment during his probation. Martin re-
viewed the contact notes and found no reference to any per-
sonal contact with a member of company management regard-
ing Wilkerson’s employment.
I have reviewed the same notes and agree with Martin’s
analysis. I also find from Martin’s testimony that he learned
from discussion with Johnson and other Correction employees
that Taylor’s verification of Wilkerson’s employment would be
satisfied by company payroll check stubs supplied by
Wilkerson and that contact with a Company official would be
unnecessary for verification. After considering the memoran-
dum and the other evidence and testimony provided by the
Memphis office of the Tennessee Department of Correction,
Martin and ultimately, the Company, saw no grounds for
changing their conclusions regarding Wilkerson’s falsification
of his job applications.26
(5) Wilford Hugh McCalla
Wilford Hugh McCalla was convicted of rape in October
1966, after pleading guilty, by the Criminal Court of Shelby
County, Tennessee. On May 19, 1970, while McCalla was
serving a jail sentence for that conviction, the Governor of
Tennessee commuted his sentence and McCalla was released.
On August 29, 1978, McCalla applied to the Company for
employment as a salesman. In filling out his application,
McCalla did not respond in the blank space next to the ques-
tion: “Have you ever been convicted of a felony?” After he
submitted his application, two Company sales managers inter-
viewed McCalla without asking about his failure to disclose
whether he had ever been convicted of a felony. McCalla did
not volunteer the information. On the following day, the Com-
pany hired McCalla as a sales representative at its Memphis
service center.27
I find from McCalla’s uncontradicted testimony that his im-
mediate supervisor was the Company’s district sales manager

26 My findings regarding the memorandum from Congressman Ford
and Mike Martin’s subsequent inquiry are based on Martin and Dorothy
Johnson’s testimony.
27 My findings regarding McCalla’s conviction, the commutation of
his sentence, his prehire interview, and the Company’s decision to hire
him are based on his uncontradicted testimony.
based at Indianapolis, Indiana. Prior to his discharge on June 1,
McCalla’s work record was clear any disciplinary action. Dur-
ing his tenure, McCalla received recognition for his perform-
ance, having won several companywide sales contests.28 Car-
roll McKee, who managed the Company’s Memphis service
center from August 1990 until sometime in 1996, observed
McCalla’s work performance. I find from McKee’s testimony
that he considered McCalla to be an outstanding trucking com-
pany sales representative in Memphis. Paul Reed, the Com-
pany’s district sales manager, who supervised McCalla in 1999,
until June 1, considered him to be an average employee. In a
range of 1 to 5, Reed rated McCalla a 3.
There was no showing that McCalla supported the Teamsters
or Local 667. Further, I find from the testimony of Sam Pow-
ell, a strong activist for Local 667 and the Teamsters, who
worked at the Company’s Memphis service center for over 20
year prior to his discharge on April 22, McCalla did not show
any union sentiment.
In the winter of 1999, the Company’s investigators, in check-
ing McCalla’s background, did not find any record of his 1966-
rape conviction in Shelby County’s files. That record was not
available either on-line or on microfiche. The county’s on-line
and microfiche records went back only to 1979. To obtain
records of McCalla’s conviction, which was 13 years earlier
than 1979, the investigators needed to know the date of
McCalla’s conviction and the nature of his crime. They did not
have that information.29
The cover sheet on the memorandum of April 20, regarding
Wilkerson, from Congressman Ford to the Company, included
the assertion that “I have been informed by some of the em-
ployees that have called our office . . . that the sales department
has a felon working everyday.” Soon after the arrival of this
tip, investigator Mike Martin learned that McCalla was the
employee referred to on the cover sheet. He had other matters
to work on. Field investigator Joseph Giebler took over the
further investigation of McCalla’s background.30
Soon after the Company learned that McCalla might be the
felon working in the sales department, Acting Manager Jasmer
summoned McCalla to his office for an interview. Jasmer told
McCalla about the letter from Congressman Ford’s office and
its suggestion of disparate treatment of other employees, who
had been discharged because they had criminal records. Jasmer
asserted that he had heard an allegation that McCalla had falsi-
fied his job application by failing to report a conviction for
rape. McCalla claimed that the Governor had pardoned him
and that was why he had failed to mention the conviction in his
application. Jasmer asked McCalla to provide a copy of the
pardon. McCalla asserted that he would look for it at home.
Jasmer suggested that if he couldn’t find the document at home,

28 My findings regarding McCalla’s clean record and his recognition
for outstanding sales records are based on his uncontradicted testimony.
29 My findings that the Company’s initial background check on
McCalla provided no showing of his rape conviction are based on the
uncontradicted testimony of investigators Gleason and Martin.
30 My findings regarding Mike Martin’s receipt of information re-
garding McCalla’s criminal record and Geibler’s role in the new inves-
tigation are based on the two investigators’ uncontradicted testimony.
OVERNITE TRANSPORTATION CO. 1451
McCalla should contact the court for a copy of the pardon.
Jasmer also told McCalla to get in touch with Geibler.31
Later in April, McCalla contacted Geibler. McCalla ex-
plained that he had been convicted of rape “around 1963.” He
also asserted that he had received a pardon from Governor Bu-
ford after serving 3 years of a 15-year sentence and that the
criminal record had been expunged. Geibler requested docu-
mentation of the pardon. McCalla replied that he would search
his attic and come up with the document.32
On April 27, Geibler wrote to Donna Drake at the Tennessee
Board of Paroles seeking a copy of a pardon issued by Gover-
nor Buford to McCalla. On or about April 29, Geibler received
a letter from Drake reporting that there was no pardon. Instead,
she wrote, Governor Buford had commuted McCalla’s jail
term. Geibler reported his discovery to Paul Reed, McCalla’s
immediate supervisor.
In May, McCalla went on a 2 or 3-weeks leave from his em-
ployment at the Company for a hernia operation. During his
recovery period, McCalla told Geibler that he could not find the
documents showing his pardon and the expungement of his
conviction.
McCalla returned to work on June 1. On June 10, the Com-
pany discharged him for submitting a falsified job application.
Reed testified that with the advice of counsel and on the infor-
mation Geibler provided, he made the decision to discharge
McCalla for falsifying his job application. Reed, who was
stationed in Indianapolis, did not go to Memphis to discharge
McCalla. He asked Service Center Manager Bob Cecil to per-
form that function. On June 10, Cecil together with the Com-
pany’s director of Hub operations, H. Thomas Nelson III, and
Andy Carpenter, the Company’s director of national accounts,
met with McCalla. Cecil discharged McCalla. Cecil also ex-
plained to McCalla that the reason for discharge was falsifying
his job application by failing to report his conviction for rape.33
(6) William Palmer
In 1986, William Palmer had two convictions for driving un-
der the influence of alcohol and one conviction for possession
of a knife over 4 inches long. Palmer had the knife, along with
fishing tackle, in the back of his jeep when he was stopped on
the DUI charges. I find, from the records of the General Ses-
sions Court of Shelby County, Tennessee, that Palmer pleaded
guilty to DUI and was fined $250 for that conviction. The
same records show that Palmer pleaded guilty to possession of
a knife over 4 inches long and was fined $25 for that convic-
tion.
On October 4, 1995, Palmer filled out an employment appli-
cation to be a parts man at the Company’s Memphis service
center. In filling out his application, Palmer answered no to the

31 My finding regarding Jasmer’s encounter with McCalla are based
upon their testimony. Where I found inconsistency between their testi-
mony, I relied on Jasmer’s version. Of the two, Jasmer seemed to have
a better grasp of details of their conversation. Jasmer also testified in
an objective manner.
32 My findings regarding McCalla’s conversation with Geibler are
based on their testimony.
33 My findings regarding McCalla’s meeting with Cecil, Nelson, and
Carpenter are based on Cecil, Nelson, and McCalla’s testimony.
following question: “Have you ever been convicted of or pled
guilty to a crime, other than traffic violations?” Supervisor
John Ballard interviewed Palmer for employment at the Com-
pany. Ballard asked Palmer how he felt about the union.
Palmer answered that he never saw much use in one.
The Company hired Palmer as a parts man in 1995. After 1
year, the Company transferred him to work as a trailer me-
chanic at the same location. He worked on the third shift, from
11:30 p.m. until 7 a.m., under the immediate supervision of
Danny Jackson. Aside from “maybe a couple of writeups here
and there,” Palmer’s record at the Company was clean.34
I find from Palmer’s uncontradicted testimony that he openly
supported the Teamsters while employed at the Company’s
Memphis Hub. Occasionally, at work, Palmer wore a union hat
or a T-shirt adorned with a teamster logo on the back and
“Overnite Teamster” on its front side.
In February 1999, investigators Gleason and Martin inter-
viewed Palmer about his conviction and his failure to acknowl-
edge it in his 1995 job application. Palmer was surprised to
learn of their discovery. He explained that his conviction was
for a driving related offense and that the police found his fish-
ing knife with his fishing tackle in his jeep in the course of their
search. Palmer did not consider the knife to be of sufficient
importance to warrant reporting it on his job application. The
investigators took Palmer out of service and told him that he
would soon be called.35
I find from investigator Gleason’s testimony that he reported
Palmer’s falsification to Acting Manager Jasmer. Gleason
disregarded the DUI conviction and focused on the knife pos-
session conviction. I find from Jasmer’s testimony that he did
not know Palmer and could not pick him out of a crowd. I also
find from Jasmer’s testimony that he decided to discharge
Palmer. Jasmer asked one of the investigators to notify Palmer.
I find from Palmer’s testimony that a few days later, he re-
ceived a call from the investigators telling him that he was
fired.
(7) Kyle Medley
On October 29, 1986, Kyle Medley pleaded guilty to the
misdemeanor of carrying a dangerous weapon, a pistol. The
records of the General Sessions Court of Shelby County show
that Medley paid a fine of $250. I find from his testimony that
the court also sentenced him to 1 year’s probation. On May 2,
1988, Medley pleaded guilty to violation of his probation. The
court sentenced him to serving 2 weekends in jail. Medley
violated his probation by his arrest for driving under the influ-
ence of alcohol.
On April 14, 1989, Medley filled out a job application for a
dock position at the Company’s Memphis service center. Med-
ley answered no to the following question: “Have you ever
been convicted of a felony?” Approximately 3 months later,
the Company called Medley and invited him in for an inter-
view. Following the interview, the Company hired Medley.

34 My findings regarding Palmer’s job interview, and his employ-
ment at the Company’s Memphis facility are based on his uncontra-
dicted testimony.
35 My findings regarding Palmer’s interview by the Company’s in-
vestigators are based on the testimony of Gleason, Martin, and Palmer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1452
Medley began his employment at the Memphis service cen-
ter as a dock employee. He did some truck jockeying at the
Memphis facility. After 3 or 4 years, the Company employed
him as a part-time over-the-road driver.
On July 8, 1995, Medley filed a second job application with
the Company, seeking the position of driver. This application
included the following question: “Have you ever been con-
victed of or pled guilty to a crime other than traffic violations?”
Medley answered no. I find from Medley’s testimony that he
treated this question as a request for information about felonies,
not misdemeanors.
Soon after he submitted this application, the Company em-
ployed him as a full-time driver at Memphis, and retained him
in that position until his discharge in February 1999. Aside
from a few writeups for misloads, when he worked on the dock,
Medley suffered no discipline by the Company throughout his
employment at Memphis.
Medley was opposed to the Teamsters and Local 667 in the
first representation election in 1995. However in 1997 and
1998, Medley’s attitude toward the Teamsters and Local 667
changed. He frequently wore a blue T-shirt bearing Local 667’s
name and yellow symbols of the local. A supervisor saw the
shirt and expressed surprise that Medley was wearing it. On
occasion, when passing through the Memphis facility’s gate,
Medley would accept prounion handbills from union activists.
From time to time, he visited a Teamsters’ tent located near the
Company’s Memphis facility, where hot dogs and Cokes were
available.36
In February 1999, company investigators Gleason and Mar-
tin interviewed Medley, who had no information regarding the
Christmas break-in. Gleason and Martin showed his 1995
application to Medley, pointing out his answer to the question
about prior crime convictions. They then confronted Medley
with a court record showing his conviction for carrying a pistol.
Medley said he knew about the conviction but thought that the
1995 application was similar to his 1989 application and thus
was asking about felonies. Medley also told the investigators
that he feared that disclosure of his conviction would prevent
him from obtaining the job he was seeking and might cause his
termination. The investigators suspended Medley pending
further investigation. They said they would get back to him.37
I find from Martin’s testimony, that Gleason and Martin re-
ported the results of their investigation of Medley’s 1995 job
application and his false answer to the question regarding
criminal convictions to Acting Manager Jasmer, who decided to
discharge Medley. I find from Medley’s testimony that a few
days after his suspension, one of the investigators called Med-
ley and told him he was discharged.
(8) Tony Perezz Brown
On August 17, 1989, in the U.S. District Court for the West-
ern District of Tennessee, Tony Perezz Brown, after a guilty
plea, was found guilty of possessing cocaine with intent to dis-

36 My findings regarding Medley’s employment at the Company’s
Memphis facility and his union sentiment and activity are based on his
uncontradicted testimony.
37 My findings regarding Medley’s interview by Gleason and Martin
are based on the testimony of all three.
tribute. On November 9, 1989, the court sentenced Brown to
52 months in prison and 4 years’ probation.
On July 26, 1994, Brown signed an application for employ-
ment as a dockworker at the Company’s Memphis service cen-
ter. The application contained the following: “Have you ever
been convicted of or pled guilty to a felony? If yes, explain.”
Brown wrote N/A in spaces provided for reply. Brown’s inten-
tion was to abbreviate “no answer at this time.” At the time he
filled out the application, he was in a hurry to return to work
that day as a gardener. He assumed that before hiring him,
someone from the Company would ask Brown to explain his
N/A responses.
A few days later, Office Manager Gail Luna telephoned
Brown and invited him to attend an informational meeting at
the Company’s Memphis service center. Brown attended the
meeting, at which Luna and seven or eight other job applicants
were present. Luna told the job applicants that if they were
mentally or physically handicapped, or had been arrested, the
Company would receive a “tax break.’’ Luna also advised the
applicants that if they met any of the three criteria, they should
report to an office on Mendenhall. Luna showed a movie about
the Company and had the job applicants fill out W-2 tax forms.
During the meeting, Brown spoke by telephone with someone
who told him that he qualified for the tax relief program and
should report to the Mendenhall office. Brown told Luna that
he needed to go to the Mendenhall office. However, Brown
could not go there because he had to return to his job. After
getting directions to the Mendenhall office, Brown left the
meeting and returned to work. Luna did not discuss Brown’s
job application with him.
Within a few days, someone from the Company telephoned
Brown and instructed him to report to the dock at its Memphis
service center. Brown worked on the dock for about 6 months,
at which point he was assigned as a billing clerk. He remained
a billing clerk for some time until he became a dock supervisor.
For approximately 1 year before his discharge in February
1999, Brown was a dispatcher. Brown may have been disci-
plined only once during his employment at the Company’s
Memphis facility.38
As a dispatcher, Brown was not a member of the bargaining
unit. The parties disagree as to whether he was a supervisor
within the meaning of Section 2(11) of the Act.39 I find from
Brown’s uncontradicted testimony that as a road dispatcher he
did not have authority to hire or fire employees. However, the
uncontradicted testimony of former Assistant Manager Jasmer
shows that, as a road dispatcher, Brown had authority to disci-
pline employees. I also find, from Brown’s testimony, that he

38 My findings regarding Brown’s employment history at the Mem-
phis terminal are based on his uncontradicted testimony.
39 Sec. 2(11) defines supervisor:
The term “supervisor” means any individual having au-
thority, in the interest of the employer, to hire, transfer, sus-
pend, lay off, recall, promote, discharge assign, reward, or
discipline other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
OVERNITE TRANSPORTATION CO. 1453
exercised independent judgment when he decided that the
Company’s commitment to service required that he dispatch a
trailer with only one-half or three-quarters of a load. I also find
from Jasmer’s testimony that road dispatchers have authority to
use their judgment to assign loads to company drivers, or con-
tract drivers, or to authorize rail transportation of loaded trail-
ers.
I also find from Jasmer’s uncontradicted testimony that
Brown had authority to approve payment of wage supplements
to road drivers. These included drop and hook pay, fueling
pay, off route mileage, and delay pay. I also find from Jasmer’s
uncontradicted testimony, that Brown used his judgment when
deciding that a driver was entitled to one of these wage sup-
plements. Brown used his judgment to decide if the driver had
properly performed his job. The Company’s brief contends that
these payments are rewards. I find that these payments re-
flected Brown’s authority to responsibly direct road drivers and
reward them.
Unlike bargaining unit employees, who were hourly paid,
company supervisors were salaried. When Brown worked as a
road dispatcher, he was salaried. The Company paid its Mem-
phis supervisors an annual bonus based upon the Memphis
facility’s productivity. As a road dispatcher, Brown received
the same bonus.40
During his employment at the Company’s Memphis service
center, Brown made no secret of his criminal record. In a con-
versation with Supervisors Donald Tuggle, Billy Scott, and
David Bradin, Brown revealed his having been confined in
prison. Shortly after the Company hired him, Brown told of his
prison experience to Rick Eller, who was then the Memphis s
ervice center’s manager.
There was no showing that Brown supported the Teamsters
or Local 667. Jasmer never saw Brown wear any union cloth-
ing or engage in union handbilling. Nor did Jasmer ever hear
Brown express any prounion sentiment. However, Brown is a
distant cousin of Henry Perry, who, between 1996 and January
8, was a Teamster organizer. After the latter date, Perry be-
came a full-time employee of Local 667. Perry has been in-
volved in bargaining with the Company and has filed unfair
labor practice charges against the Company.41
During Brown’s employment, Service center Manager
Danny Warner, in the presence of Supervisors Tommy Lee
Jones, Billy Scott, and Jeff Cain, asked Brown if Henry Perry
was his cousin. When Brown said yes, Scott told Brown:
“Don’t be tradin him no information.” In January 1999, the
month before Brown’s discharge, Jasmer in conversation with
Brown asserted that he had seen Brown’s cousin, Henry
Perry.42

40 My findings regarding Brown’s wages and bonuses are based on
his and Jasmer’s testimony.
41 My findings regarding Perry’s status and relationship to Brown
are based on their testimony. My findings regarding Jasmer’s knowl-
edge of Brown’s union activity are based on Jasmer’s uncontradicted
testimony.
42 My findings regarding Brown’s confrontation with Warner and the
other supervisors regarding Perry are based on Brown’s uncontradicted
testimony.
In February 1999, investigators Gleason and Martin inter-
viewed Brown. They told him that they had found records of
his conviction and incarceration for possession of cocaine with
intent to distribute it. The investigators asked Brown for an
explanation of his failure to reveal his criminal record on his
job application. Brown explained that, in haste, he had written
N/A in answer to the question regarding whether he had a fel-
ony conviction on his record. He further explained that he was
in a hurry to get back to work and expected to have an opportu-
nity to explain it in an interview, if the Company were inter-
ested in hiring him. The investigators suspended Brown from
work and reported the results of their investigation to Acting
Manager Jasmer, who discharged him later in February.
(9) Charles E. Foster
The Company hired Charles E. Foster as a road driver on
March 16, 1983. In filling out his employment application for
the Company, Foster truthfully wrote no in answer to the ques-
tion whether he had ever been convicted of a felony. However,
on November 14, 1983, Foster pled guilty and was found guilty
of a felony, obtaining services under false pretenses under
$200. The Shelby County Criminal Court put Foster on 5
years’ probation. He did not report this felony to the Company.
In February 1999, Gleason and Martin did a background
check on Charles E. Foster. At the Shelby County courthouse,
the investigators discovered Foster’s 1983 felony conviction
and a 1982 misdemeanor conviction for impersonating a police
office. In reviewing Foster’s personnel file, the investigators
also found that on October 15, 1997, the Memphis service cen-
ter manager had issued a final warning and suspension to Foster
for misappropriation of a trash can belonging to Exxon. The
investigators mentioned the final warning and the contents of
the corrective action report of October 15, 1997, to Jasmer.43
Investigator Martin and Acting Manager Jasmer interviewed
Foster.44 Martin asked Foster to explain his felony conviction.
Foster asserted that he had engaged in a fraud involving health
insurance for which he had been convicted, and that he had
made restitution. At first, Jasmer testified that, Foster was very
forthcoming about the circumstances that resulted in his felony
conviction. However, Jasmer changed his opinion after counsel
for the General Counsel showed him Martin’s notes reporting
that Foster had to be reminded of both of his convictions. I also
find from Jasmer’s testimony that during the interview, Foster
declared that he was for the Company and had nothing to do
with the Union.
According to Martin’s testimony and notes of the interview,
Foster did not remember either of his convictions until Martin
showed him the documents obtained from the county court-
house. At that point, Foster began to remember the felony of-

43 My findings regarding Martin and Gleason’s investigation and re-
port to Jasmer are based on the two investigators’ uncontradicted tes-
timony
44 I find from Martin and Gleason’s testimony that Martin and Jas-
mer interviewed Foster. Of the three, Martin and Gleason seemed more
certain of their recollections of the processing of the revelations of
Foster’s criminal record. Accordingly, I have credited the investigators
rather than Jasmer where his testimony contradicts or is inconsistent
with theirs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1454
fense and the misdemeanor. Foster explained both. At the
conclusion of the interview, Martin suspended Foster pending
further investigation.
On further investigation, Martin determined that Foster’s
felony conviction had occurred after he had filed his job appli-
cation with the Company. Thus, Foster concluded that Foster
had not filed a false application. Martin also learned, on further
investigation, that if committed in 1999, Foster’s fraud would
have been classified as a misdemeanor.45
I find from their testimony that Martin and Gleason made an
oral report of their findings to Jasmer. This report covered the
posthire felony, the prehire misdemeanor, and the charged theft
of the Exxon garbage can. I find from Jasmer’s testimony that
he decided that further discipline of Foster was unwarranted
and restored him to service.
Since 1994, the Company’s employee handbook has stated
that an employee who committed a posthire felony is subject to
disciplinary action, including dismissal. The same handbook
also specifies “Dishonesty” as grounds for disciplinary action,
including dismissal. I find from Gleason and Martin’s uncon-
tradicted testimony that the Company’s policy has been, rou-
tinely, to discharge employees found guilty of a posthire felony.
(10) Gloria Burnside
The Company’s employee handbook, in effect since 1994,
includes a rule stating: “Any driver knowingly falsifying
his/her logs will be terminated.” In 1998, testimony at a Board
hearing revealed that the Arizona Department of Public Safety
had cited company driver Gloria Burnside on November 11,
1997, for making false log entries. I find from the testimony of
Richard Pair, who was her immediate supervisor in 1997 and
1998, that the Company did not investigate Burnside’s alleg-
edly false entries. I also find from Pair’s testimony that the
Company did not look into the entries in the log of her husband,
Jerry Burnside, who was her codriver on that date. I also find
from Pair’s testimony that at the time of the hearing in these
cases, both Burnsides remained in the Company’s employ and
were not participating in the Teamsters’ strike.
2. Analysis and conclusions
The General Counsel contends that the Company violated
Section 8(a)(3) and (1) of the Act46 by suspending and later,
discharging employees Watkins, Clark, Wilkerson, Wilbanks,
Palmer, Medley, Brown, and McCalla in an effort to reduce
Local 667 and the Teamsters’ support among its Memphis em-
ployees. Specifically, the General Counsel argues that the first
seven-named employees suffered suspension and discharge
because they supported Local 667 and the Teamsters and that

45 My findings regarding Martin’s further investigation are based
upon his uncontradicted testimony.
46 Sec. 8(a)(3) of the Act provides in pertinent part:
“It shall be an unfair labor practice for an employer by discrimina-
tion in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor
organization.”
Because antiunion discrimination necessarily “coerces employees in
the exercise” of their rights under Section 7, “a violation of [Section]
8(a)(3) constitutes a derivative violation of [Section] 8(a)(1).” Metro-
politan Edison Co. v. NLRB, 460 U.S. 693, 698 fn. 4 (1983).
the Company suspended and discharged McCalla, who was not
a union supporter, to camouflage its unlawful motive for get-
ting rid of the seven. The Company seeks to avoid a finding
that these suspensions and discharges were unlawful by show-
ing that its motive for punishing each of these eight employees
was that they falsified their respective employment applica-
tions. The Company also contends that Tony Perezz Brown
was a supervisor within the meaning of Section 2(11) of the
Act, and thus not entitled to the Act’s protection.
Under Board policy, if the record shows that the Company’s
hostility toward union activity was a motivating factor in its
decision to take adverse action against an employee, that action
will be found unlawful unless the Company shows, as an af-
firmative defense, that it would have taken the adverse action
even in the absence of the union activity. NLRB v. Transporta-
tion Management Corp., 462 U.S. 393, 402–403 (1983), affg.
Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.989 (1982).
Accord: Manimark Corp. v. NLRB, 7 F.3d 547, 550 (6th Cir.
1993). Where it is shown that the reason or reasons given by
the Company for its adverse action were a pretext—that is that
the reasons either do not exist or were not in fact relied on—it
necessarily follows that the Company has not met its burden
and the inquiry is logically at an end. Wright Line, supra at
1083. Accord: Architectural Glass & Metal Co. v. NLRB, 107
F.3d 426, 431 (6th Cir. 1997).
The required unlawful motivation may also be shown where
an employer has taken adverse action against a neutral or anti-
union employee in furtherance of an effort to discourage union
activity. Mini-Togs, Inc., 304 NLRB 644, 648 (1991), enfd. in
part 980 F.2d 1027 (5th Cir. 1993); accord: Birch Run Welding
& Fabricating, Inc., 761 F.2d 1175, 1180 (6th Cir. 1985).
Motive is a question of fact, and as an employer rarely ad-
mits unlawful motivation, circumstantial evidence alone can be
sufficient to support an inference of unlawful motivation. Lime-
stone Apparel Corp., 255 NLRB 722, 735 (1981). Accord:
Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 297 (6th
Cir. 1985), cert. denied 476 U.S. 1159 (1986). Circumstantial
evidence supporting an inference of unlawful antiunion motiva-
tion includes the employer’s knowledge of the employees’
union activity,47 the employer’s antiunion animus as demon-
strated by its willingness to engage in unfair labor practices,48
the employer’s expressed hostility toward unionization,49 the
timing of the adverse action in advance of a contemplated
Board-directed representation election,50 and “the disparate
treatment of certain employees compared to other employees
with similar work records or offenses.” Turnbull Cone Baking
Co., 778 F.2d at 297.
The two break-ins at the Company’s Memphis service center
occurred, respectively, on Christmas Eve 1998, and during the
following New Year’s weekend, while a petition for a decertifi-

47 NLRB v. E. I. DuPont De Nemours, 750 F.2d 524, 529 (6th Cir.
1984).
48 NLRB v. DBM, Inc., 987 F.2d 540, 543 (8th Cir. 1993).
49 E. I. DuPont De Nemours, 750 F.2d at 529.
50 NLRB v. Piezo Mfg. Corp., 290 F.2d 455, 456 (2d Cir. 1961). See
also Taylor Machine Products, 317 NLRB 1187, 1214 (1995).
OVERNITE TRANSPORTATION CO. 1455
cation election was pending before the Regional Director for
Region 26, in Case 26–RD–1008. That petition held out the
possibility that Local 667 would lose its status as the certified
collective-bargaining representative of the Company’s Mem-
phis City and Hub terminal employees. The vote in the Board-
held election in 1996, which resulted in Local 667’s October 9,
1997 certification, was decided by 18 votes out of the 420 cast.
The confluence of the petition and the necessary investigation
that quickly ensued provided an opportunity to attack Local
667’s majority.
The Company’s attitude toward Local 667 and the Teamsters
strongly suggests that this opportunity did not go unnoticed by
Acting Manager Jasmer and his superiors in Richmond, Vir-
ginia. Indeed, the Company’s employee handbook shows a
corporatewide antiunion policy in the following statement:
It is important for you to know that the Company values un-
ion-free working conditions. We believe that true job security
can come only from you and the management of this com-
pany working together in harmony to produce a quality prod-
uct. A union-free environment allows this kind of teamwork
to develop. We look forward to working with you as an indi-
vidual, with dignity and in a spirit of mutual trust and respect.
The Board, in Overnite Transportation Co., 335 NLRB 1392,
1395 (2001), recognized that the quoted policy, while “not
unlawful itself” is “indicative of animus.”
In the same decision, id. the Board found that in 1996 and
1997, at its Memphis City and Hub terminal, the Company
“harbored antiunion animus” when it violated Section 8(a)(5)
of the Act by unilaterally implementing a stricter dock policy,
and Section 8(a)(1) and (3) of the Act by threatening employees
with a reduction in hours and by sending an employee home
early and by disciplining, suspending, and discharging two
other employees because they supported Local 667. It is well
settled that such evidence of prior unfair labor practices is rele-
vant in determining the Company’s motivation in the instant
case. E.g., Maphis Chapman Corp. v. NLRB, 368 F.2d 298,
303–304 (4th Cir. 1966). The application of this principle is
appropriate in the instant case, where less than 2 years elapsed
between the 8(a)(3) violations in the prior Overnite case and the
eight alleged unlawful discharges complained of in the instant
cases, which occurred in February 1999, at the same facility,
now called the Memphis service center.
The timing of seven of the eight suspensions and seven of
the eight discharges in February 1999 suggests that the Com-
pany was mindful of the decertification petition and sought to
erode the Union’s majority support. The record shows that six
of the eight suspended and discharged employees openly sup-
ported Local 667 and the Teamsters. Their immediate supervi-
sors must have seen the hats and shirts bearing words and logos
showing support for Local 667. It is reasonable to assume, as I
do, that these same supervisors reported such observations to
Assistant Terminal Manager Jasmer. The timely departure of
the six would remove their support from Local 667. Also, news
of their discharges might persuade other bargaining unit em-
ployees to abandon Local 667.
The six were open supporters of Local 667. Charles Watkins
was a prominent supporter of Local 667. He was a member of
its1995 organizing committee and, since October 1997, had
been the dock employees’ steward. Floyd Wilbanks supported
Local 667 by handbilling and wearing a union button. He also
attended union meetings and stood with other Local 667 sup-
porters at the Memphis service center’s gate. Fred Clark was
an active supporter of Local 667 during its 1995 organizing
campaign at Memphis and thereafter until his discharge. He
distributed union literature at the Memphis service center’s
entrance and wore shirts bearing pro-Teamster messages.
Autra Wilkerson openly supported Local 667 at work. Every
work day, he wore a union cap and a union pin or button to
work. He distributed handbills before his shift started and at-
tended Local 667 meetings. William Palmer openly supported
the Teamsters by wearing a union hat or a T-shirt adorned with
a Teamster logo on the back and “Overnite Teamster” on its
front side. Kyle Medley became a Local 667 and Teamsters
supporter in 1997. He frequently wore a shirt bearing Local
667’s name and symbols. At times, when passing through the
terminal entrance, Medley accepted union literature from union
activists and occasionally stopped by a Teamsters’ tent, located
near the terminal. I find it likely that the Company’s manage-
ment at Memphis observed these open manifestations of proun-
ion sentiment by the six employees.
At the time of his discharge, the Company’s Memphis man-
agement was aware of Tony Perezz Brown’s family ties to
Henry Perry, an official of Local 667. However, the Company
contends that Brown was a supervisor, within the meaning of
Section 2(11) of the Act, at that time and thus not entitled to the
Act’s protection. I agree. Section 2(11) of the Act defines the
term “supervisor’” as follows:
The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment[.]
This section is to be read in the disjunctive; possession of any
one of the enumerated powers establishes supervisory status.
Eastern Greyhound Lines v. NLRB, 337 F.2d 84, 87 (6th Cir.
1964). As the party contending that Brown was a statutory
supervisor at the time of his discharge, the Company bears the
burden of proof on this issue. W. C. McQuaide, Inc., 319 NLRB
756, 758–759 (1995), enfd. in pertinent part 133 F.3d 47 (DC
Cir. 1998).
I have found above, that Brown had authority to discipline
employees. I have also found above, that Brown exercised au-
thority to approve payment of wage supplements to road driv-
ers. These included drop and hook pay, fueling pay, off route
mileage, and delay pay. I also found that Brown used his judg-
ment when deciding that a driver was entitled to one of these
wage supplements. Further, Brown used his judgment to de-
cide if the driver had properly performed his job. The Com-
pany’s brief contends that these payments are rewards. I find
that these payments reflected Brown’s authority to responsibly
direct road drivers and to reward them. I find, therefore, that at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1456
the time of his discharge, Brown was a supervisor within the
meaning of Section 2(11) of the Act. As there has been no
showing that Brown’s discharge interfered with employee
rights under Section 7 of the Act,51 I find that it did not violate
the Act. Parker-Robb Chevrolet, Inc., 262 NLRB 402, 403–
404 (1982).
The General Counsel contends that the Company discharged
Brown in retaliation for Henry Perry’s union activity and
thereby violated Section 8(a)(1) of the Act, citing Tasty Baking
Co., 330 NLRB 560, 578–581 (2000). In that case, the Board
concluded that there had been a violation of Section 8(a)(1) of
the Act, where it found that the employer had demoted a super-
visor in retaliation for her husband’s union activity. In the
instant case, the evidence shows only that the Company dis-
charged Brown after Service Center Manager Danny Warner
had told him not to “be tradin” any information to Perry. Thus,
I find that the Company’s motive for discharging Brown was to
prevent him from assisting Local 667 with information about
the Company’s activities and sentiments. I further find, there-
fore, that Brown’s discharge did not violate Section 8(a)(1) of
the Act. Parker-Robb Chevrolet, 402 NLRB at 404. I shall
recommend dismissal of the allegation that Brown’s discharge
violated Section 8(a)(3) and (1) of the Act.
The Company did not talk to McCalla about his criminal re-
cord until April 1999, after management had received a letter
from Congressman Ford’s office. That letter reported that Com-
pany employees had complained that a felon was working in
the sales department. In the same letter, the Congressman had
included documents pertaining to Autra Wilkerson, who was an
open supporter of Local 667.
Congressman Ford’s letter alerted the Company to the possi-
bility that the complaining employees had noticed that it had
suspended and discharged six supporters of Local 667 and the
Teamsters for having criminal backgrounds and had continued
to employee McCalla, who had a felony in his past. Absent the
alarm from Congressman Ford’s office, the Company would
not have taken the trouble to look into McCalla’s past.
The Board, with court approval, has recognized that a show-
ing that an employer has selected a large percentage of union
adherents among a group of employees to be laid off may be
used as evidence of discriminatory motive. Camco Incorp., 140
NLRB 361, 366 (1962), enfd. 340 F.2d 803, 809 (5th Cir.
1965), cert. denied 382 U.S. 926 (1965). Here, the Company
discharged one supervisor and seven employees of whom only
one had no connection with Local 667 and the Teamsters.
Brown’s connection was a family relationship with Henry
Perry, an official of Local 667. The other 6, or 75 percent of
the group, were open adherents of Local 667 and the Team-
sters. This percentage exceeds by approximately 23 percent the
Union’s percentage of the votes counted in the Board-held elec-
tion of 1996. In light of the Company’s demonstrated union
animus as recited above, the percentage of union adherents in
the group of discharged employees and the timing of their dis-

51 Sec. 7 of the Act guarantees employees the right to engage in
“concerted activities . . . for mutual aid or protection.” Section 8(a)(1)
of the Act makes it an unfair labor practice to “interfere with, restrain,
or coerce employees in the exercise of their [Sec. 7] rights.”
charges strongly suggest a design to erode Local 667’s support
in the contemplated decertification election. In sum, I find
from the foregoing that the General Counsel has made a prima
facie showing that the Company suspended and then discharged
employees Watkins, Clark, Wilkerson, Wilbanks, Palmer, and
Medley because of their adherence to Local 667 and the Team-
sters. The General Counsel also made a prima facie showing
that the Company suspended and then discharged employee
McCalla in June 1999 to mask its unlawful motive for discharg-
ing the six prounion employees.
The Company contends that it suspended and discharged
Watkins, Clark, Wilkerson, Palmer, Medley, and McCalla be-
cause they falsified their employment applications by answer-
ing no to a question regarding a criminal record or by not an-
swering the question. According to the Company, its employee
handbook announces that an employee, who falsifies an em-
ployment application, is subject to discharge. However, I note
that the exact language of the handbook states that an employee
who has engaged in such conduct would be subject to “discipli-
nary action, including dismissal.” Thus, the handbook does not
mandate dismissal as the only punishment for falsifying an
employment application. The Company could have resorted to
suspension alone or a warning. In light of the General Coun-
sel’s prima facie showing that the Company was anxious to
erode Local 667’s support among the bargaining unit employ-
ees, the use of the ultimate punishment adds support to the
General Counsel’s case. The Company’s attempt to show that
its treatment of the alleged discriminates was evenhanded does
not withstand analysis.
The Company’s argues that it consistently discharged em-
ployees who falsified employment applications by denying
criminal histories. The Company sought to support its position
by offering records showing the discharges of employees
Robert Scott, Thomas Roberson, and Jeff Ashburn, who had
applied for employment at its Memphis service center in 1998.
However the documents show that these three applied for em-
ployment when the Company was enforcing its new policy of
doing background checks on new applicants.
Under this new policy, the Company did a background check
on Scott and found that he had a criminal record, contrary to the
denial of such a record in his application. When Roberson
filled out his application, he checked the “yes” box next to the
question about his criminal record and wrote in “will discuss.”
The employee separation sheet included in his file reported that
the last day Roberson worked was May 4, 1998, and that the
Company discharged him for “Falsifying Documents.” The
Memphis service center’s human resources manager, Deborah
Murphy Walker, approved the discharge on May 20, 1998.
The same Deborah Murphy Walker, in a letter to Roberson,
dated May 6, 1998, announced that the Company could not
offer employment to him because of his criminal record, a copy
of which was included with the letter. I find that the Company
discharged him because of his criminal record. As the Com-
pany discharged Scott under the same policy it applied to
OVERNITE TRANSPORTATION CO. 1457
Roberson, I find that Scott’s criminal record was the real reason
for his discharge.52
Ashburn’s file, as received in evidence, lacked a separation
sheet. A document headed “Human Resources Action Form”
reports that he was terminated on July 14, 1998, but does not
state a reason for this action. In a section of the form labeled
“Termination Information” there appears under a “Remarks”
space the words “Criminal Section.” A memorandum in the
file reports that “Ashburn’s background results have been re-
ceived and not approved for hire, due to falsifying his applica-
tion, criminal section.” An attached report shows that on No-
vember 6, 1997, Ashburn pleaded guilty to the misdemeanor of
“Leaving Scene of Accident.” Ashburn’s file, as received in
evidence, did not include a letter announcing that his criminal
record precluded his employment by the Company. The date of
Ashburn’s employment application was June 26, 1998. Thus, I
find that he was subject to the same policy enforced against
Roberson. Accordingly, I find that the real reason for
Ashburn’s discharge was his criminal record.
In sum, the circumstances surrounding the discharges of
Roberson, Scott, and Ashburn deprive them of any comparabil-
ity to the seven discharges under consideration here. Another
ingredient absent from the comparison is a showing of the un-
ion sentiments of the three. The record does not disclose
whether each was prounion, antiunion, or neutral.
The Company ‘s further evidence of discharges during the
90s at Fontana and Oakland, California, at South Holland, Illi-
nois, Houston, Texas, and Indianapolis, Indiana, for falsifica-
tion of employment applications by denying any criminal back-
ground does not present circumstances comparable to those
surrounding the seven discharges under examination here.
Thus in the discharges presented by the Company, there is no
showing of the employees’ efforts to present extenuating ex-
planations. Nor did the Company show its impressions of their
respective sentiments toward union representation. Finally,
there is no showing that the Company discharged all employees
at those locations, who falsified their employment applications
regarding criminal backgrounds. Here again, crucial factors
required to show comparable circumstances were absent.
The Company also attempted to show that it treated Charles
Foster with the same consideration it had shown the seven al-
leged discriminates. In February 1999, the Company’s investi-
gation revealed that Foster had a post-hire conviction of a fel-

52 Gleason testified that the Company discharged Scott for falsifying
his employment application. The Company’s records support Glea-
son’s testimony and show that Scott was discharged on May 5, 1998.
Indeed, Gleason testified using those records. His testimony also
shows that he did not investigate Scott’s background. Gleason also
conceded that Scott was processed under the Company’s new policy
requiring background checks on job applicants. Scott applied to the
Company for employment in April 1968 and began work while the
Company was doing a background check on him. His last day of work
was May 2, 1998. Having considered the circumstances leading up to
Scott’s discharge and the Company’s new policy as applied to
Roberson, I have rejected Gleason’s testimony regarding the reason for
Scott’s discharge. Although Gleason was generally a credible witness,
on this occasion his testimony amounted to restating the information on
Scott’s separation sheet, which I find unreliable in light of the Com-
pany’s new policy as applied to Roberson.
ony and a misdemeanor. Under company policy, as stated in its
employee handbook, Foster was subject to “disciplinary action,
including dismissal” because of his posthire felony conviction.
However, the Company did not discipline Foster at all. On
direct examination, Jasmer testified that he decided against
terminating Foster because he was “very forthcoming with
information regarding [the conviction] during the interview.
Didn’t try to hide anything.” Jasmer added: “[A]nd because of
the time he had been with the company.”
Jasmer’s explanation of his decision to retain Foster was fa-
tally damaged on cross-examination. Investigator Martin’s
notes of Foster’s interview revealed that the latter had to be
reminded of both convictions. Also, on cross-examination,
Jasmer admitted that during the interview, Foster asserted that
he was “for the [C]ompany and had nothing to do with the un-
ion.” As a member of a management actively hostile to Local
667, Jasmer must have found comfort in Foster’s declaration of
allegiance to the Company. I find that Jasmer’s attitude toward
this expression of procompany sentiment during the pendency
of a decertification petition caused him to shrug off the felony
conviction in light of Foster’s 15-year tenure.
In contrast to his careful treatment of Foster, Jasmer dis-
charged the six alleged discriminates, who he knew were sup-
porters of Local 667 without considering their employment
record, tenure, or any other favorable information in their per-
sonnel files. Similarly, District Sales Manager Paul Reed did
not stop to weigh McCalla’s 25-year history as a company
salesman and the commutation of his 1966-jail sentence. Nor
did Medley’s 10-year history, first as a dockman and later as a
full-time driver, at Memphis give Jasmer pause. Jasmer fo-
cused on the falsification of employment applications and dis-
charged six known supporters of Local 667. Reed did the same
and discharged Wilford Hugh McCalla, who did not support
Local 667, but whose discharge would mask the Company’s
attempt to reduce Local 667’s numbers at the Memphis facility.
The Company’s treatment of Gloria Burnside and her hus-
band regarding alleged false log entries contrasts sharply with
the treatment accorded the seven employees referred to in the
previous paragraph. The Company’s employee handbook in-
cludes a separate section devoted to hours of service and log
entries. In that section, the Company warns that: “Any driver
knowingly falsifying his/her logs will be terminated.” The
Company did not enforce that policy against Gloria Burnside or
her husband after it learned that the Arizona Department of
Public Safety had cited her for making false log entries, and
that her husband had been her codriver at the time the Arizona
authorities had examined Gloria’s logbook. The Company did
not investigate the alleged violations. This relaxed attitude
toward falsification of a company record contrasts sharply with
the strict enforcement of its policy regarding falsification of
applications for employment against the seven.
The Burnside’s have shown the Company their loyalty by
not supporting either the Teamsters’ strike in July 1999 or the
Teamsters’ strike that began in October 1999 and was in effect
at the time of the hearing in these cases. Given the Company’s
demonstrated hostility toward Local 667 and the Teamsters, it
appears that the Burnsides’ repudiation of the strikes persuaded
the Company to tolerate some false log entries.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1458
In sum, I find that the Company has not rebutted the General
Counsel’s prima facie showing that the Company’s motive for
the seven suspensions and discharges was its desire to eradicate
the Union’s support among the bargaining unit employees. I
find, therefore, that the seven suspensions and discharges vio-
lated Section 8(a)(3) and (1) of the Act.
C. Local 667’s Request for Information
1. The facts
On February 16, Local 667’s counsel sent a letter to the
Company’s counsel requesting bargaining about “the discipli-
nary issues arising out of the Company’s intensified criminal
records search.” The same letter requested the following in-
formation “[I]n connection with the Company’s investigation of
the criminal records of Overnite Memphis employees:
1. Any and all records of the theft prompting the inves-
tigation, including police reports memos, supervisory
documentation, and internal memoranda.
2. Copies of any and all company rules regarding
criminal records, including handbooks, work rules and hir-
ing criteria.
3. Copies of any and all job application forms utilized
since 1980.
4. Copies of any and all searches run regarding Mem-
phis employees’ criminal records.
5. Any and all discipline relating to current or past
criminal investigation of Memphis employees since 1980.
In a letter dated March 9, the Company’s counsel assured
Local 667’s counsel that the Company was “in the process of
gathering information responsive “to the Union’s request of
February 16. However, the Company did not provide the re-
quested information.
On March 29, Local 667 filed an unfair labor practice charge
in Case 26–CA–19100 alleging that the Company had violated
Section 8(a)(3) and (1) of the Act in February by discharging
seven employees at the Memphis service center. The same
charge alleged that the Company had violated Section 8(a)(5)
and (1) of the Act by refusing to furnish Local 667 with the
requested information.
In a letter dated April 7, the Company’s counsel stated that
the Company would not produce the requested information.
Citing six cases as authority for its position, the Company’s
counsel declared that by filing the unfair labor practice charge,
Local 667 had waived its right to receive information related to
the discharges.
2. Analysis and conclusions
The Company’s duty to bargain collectively with Local 667
included the obligation to provide Local 667 with information
necessary for the performance of its duties as the certified col-
lective-bargaining representative of the Memphis service cen-
ter’s employees. NLRB v. Acme Industrial Co., 385 U.S. 432,
435–437 (1967). Among those duties is the processing of
grievances, including the decision to proceed with a grievance.
Id. Consistent with this policy, the Board has recognized that
an employer is obligated to honor a union’s request for neces-
sary information that has “no apparent connection to any pend-
ing unfair labor practice allegation.” Western Summit Flexible
Packaging, Inc., 310 NLRB 45, 46 (1995).
In Western Summit, at 46, the Board found that a union’s re-
quest for information had been “outstanding for 2 months be-
fore the Union amended its [unfair labor practice] charges to
allege [the] additional matter [related to the information
sought]. The Board held that the employer violated Section
8(a)(5) and (1) of the Act. Id. at 45.
Here, there was no pending unfair labor practice allegation
that any discharges resulting from the Company’s investigation
violated the Act, when Local 667 made its request for informa-
tion on February 16. The Company did not provide the re-
quested information, notwithstanding its assurance on March 9,
that it would be “responding shortly.” Local 667 waited until
March 29, 6 weeks after its request before it filed an unfair
labor practice charge touching on the requested information. In
its letter of February 16, Local 667 requested bargaining on the
“disciplinary issues” rising from the Company’s investigation.
That was a valid reason for Local 667’s request for the informa-
tion specified in the same letter. The Company’s refusal to
comply with that request violated Section 8(a)(5) and (1) of the
Act.
D. Sam Powell’s Warnings and Discharge
1. The facts
When the Company discharged Sam Powell on April 22,
Sam Powell had been an employee at its Memphis service cen-
ter for over 20 years. During that time, the Company employed
him as a dock employee, a lead man, and as a book man. At
the time of his discharge, Powell was a dock employee, work-
ing on the day shift, beginning at 5:30 a.m., under the immedi-
ate supervision of Willie Jones.
During the Teamsters’ organizing efforts at the Company’s
Memphis facility in 1995 and 1996, Powell took an active role
in support of the organizing campaign. He wore Teamsters
hats, shirts, buttons, and caps. He handbilled for the Teamsters
in 1995 and in 1996 and made house calls. In Overnite Trans-
portation Co., 335 NLRB 1392 fn. 5 (2001), the administrative
law judge found that during its organizing campaign, in August
1996, Local 667 produced a video entitled “Time for Unity.”
In footnote 5, on page 9 of his decision, the judge also found
that Sam Powell was 1 of 14 employees who appeared in the
video and “made statements supporting the Union.”
During the Board-held elections, Powell was a Teamsters’
observer. He appeared as a witness in Board hearings involv-
ing Local 667 and the Teamsters. Since the second election in
1996, Powell has served as the bargaining unit’s chief steward,
an elected office. During his employment at Memphis, Powell
has traveled around the country, helping the Teamsters organize
other Company terminals.
Prior to each of the representation elections at its Memphis
service center, the Company held a dinner for the employees of
that location. The Company invited the employees, their
spouses or girlfriends. In 1995, the Company held the dinner at
a country club. Four or five hundred people attended the func-
tion. Powell and two other employees attended the dinner,
wearing yellow T-shirts inscribed: “Vote Teamsters.”
OVERNITE TRANSPORTATION CO. 1459
The Company’s CEO, Jim Douglas was the speaker at the
1995 dinner. He addressed the employees about the Teamsters.
He made a comment that stirred Powell to respond immedi-
ately, while the CEO was talking. The CEO attempted to
drown out Powell and told him to sit down. Powell complied
and resumed his dinner. Soon, one of Powell’s companions,
speaking from the floor, interrupted Douglas.
A security guard approached Powell and ordered him and his
two companions to leave the dinner. The guard escorted the
three out of the dining room. The Company imposed no disci-
pline on Powell and his colleagues for their conduct at this
dinner.
In 1996, prior to the Board-held election in September of that
year, the Company held a dinner for the Memphis employees,
at the Peabody Hotel, in Memphis. Again, CEO Jim Douglas
spoke about the Teamsters to the assemblage of perhaps 300.
Powell and other Teamsters supporters at this dinner wore
Teamsters T-shirts. Douglas said something that provoked
Powell, who spoke up and disrupted the CEO’s discourse.
Company Operations Manager Frank Plemmons ordered
Powell to sit down and stop directing questions at the speaker.
Powell said he would ask questions if he wanted to. Plemmons
ordered Powell to leave the dining room. As Powell rose to
leave, 70 or 80 of his fellow employees rose to follow him out.
Operations Manager Duane Williams warned Powell’s support-
ers that if they left they would be fired. Powell suffered no
discipline for his conduct at the 1996 dinner.53
Danny Warner, who was the Memphis service center’s man-
ager from August 1996 until December 1998, was well versed
in Powell’s union activity and sentiment. He noted that Powell
wore union insignia daily and that he was vocal about his sup-
port for the Teamsters. Warner also observed that Powell
called attention to himself at group meetings. Following the
second representation election, Warner expressed strong dislike
of Powell and suggested that Supervisor Dale Watson come up
with an excuse to discipline Powell.54
Joe Jasmer was an assistant manager at the Memphis service
center from July or August 1998 until May 1999. I find from
Jasmer’s testimony that during his tenure at Memphis, he was
aware that Powell was Local 667’s shop steward. I also find
from Jasmer’s testimony that he saw Powell as openly proun-
ion; that he wore union hats, buttons, and T-shirts and made
prounion remarks. Jasmer believed that Powell was an outspo-
ken union supporter.
Hugh McCalla’s employment at the Company’s Memphis
service center, as an account manager, covered the period from
August 1978 until June 1. His last actual workday was on April
1. During his employment, McCalla attended meetings with
Memphis-based management. At sometime before the 1995
representation election, the meetings included discussions of
labor problems at the service center. During such discussions,

53 I based my findings of fact regarding Powell’s union activity upon
his uncontradicted testimony.
54 Warner, in response to a leading question by the Company’s coun-
sel, denied telling Watson to write up union supporters. However,
Watson testified in detail, in a full and forthright manner, when he
provided his version of Warner’s instructions regarding Powell. There-
for, I have credited Watson’s testimony.
Sam Powell’s name, his activity on the dock, and his conversa-
tions with employees surfaced. I find from McCalla’s testi-
mony that these discussions continued until the end of his em-
ployment. Bob Cecil presided at these meetings, after he be-
came manager of the Memphis Hub in February 1999. I find
from McCalla’s testimony that Manager Cecil was present
when Powell’s name and union activity were discussed.55
I also find that Jasmer’s contact with Cecil from February
1999 until May 1999, provided opportunities for Jasmer to
share with the new manager his knowledge of Powell’s leader-
ship in Local 667’s and the Teamsters’ activities. I also find
that Cecil’s superiors were aware of Powell’s union activity at
the dinner meetings conducted by the Company’s CEO and
during the Teamsters’ organizing campaigns at Memphis and at
other company facilities. His contacts with the Company’s
higher management regarding his transfer provided opportunity
for Cecil to learn about Powell, the pending decertification
petition and the investigation of the Christmas Eve 1998 break
in. I find from these circumstances that, by the time he arrived
at Memphis, Cecil had learned that Powell was Local 667’s
chief steward on the dock and a strong supporter of Local 667
and the Teamsters. After Cecil’s arrival, I find that Jasmer and
the sales-management meetings updated Cecil on Powell’s
union activity.
Sometime about mid-February 1999, Powell heard that the
Company had terminated 10 or 11 employees for falsifying
their job applications. Powell, in his capacity as chief steward
of the bargaining unit, approached then Acting Manager Jas-
mer, and asked him why the Company had terminated those
employees. Jasmer replied that it was none of Powell’s busi-
ness. Powell reminded Jasmer that, as chief steward, Powell
had a right to know why the Company was terminating these
employees. Jasmer again said it was none of Powell’s business.
Later in the same week, Powell approached Supervisor Dale
Watson and asked him to explain the recent terminations. Wat-
son answered “no comment.” Powell also asked if managers
were being investigated and suggested that as Nazis were con-
victed of war crimes someone should examine Watson’s past.
Powell was referring to photographs of mutilated bodies taken
during the Vietnam war that Watson had brought in to work in
1984 or 1985 and shown to Powell. Powell’s remarks upset
Watson, who ended the encounter by telling Powell to return to
work.

55 Cecil flatly denied that anything was said about Powell at any of
the meetings he attended. Cecil also denied knowing when he fired
him in April 1999, that Powell was a leading union activist. The record
makes plain Powell’s reputation, and the fact that Jasmer and other
members of Company management, including its CEO, were well
aware of Powell’s strong prounion sentiment and his many activities on
behalf of Local 667 and the Teamsters. Jasmer had ample opportunity
to inform Cecil about Powell. Company officials at its Richmond
headquarters also had opportunity to tell Cecil about Powell. Manager
Cecil’s circumlocution when first asked a leading question about his
knowledge of Powell’s union sentiment and activity strongly suggested
that Cecil was not being forthright about this topic. In contrast,
McCalla impressed me as being an objective witness giving his best
recollection. Accordingly, I have credited McCalla’s testimony and
have rejected Cecil’s denials regarding his knowledge of Powell’s
union activity and sentiment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1460
Powell approached Watson two more times with the same
question about the terminations of employees and the remarks
about war crimes and Watson’s Vietnam photographs. During
these encounters Powell said that the Company had hired Wat-
son away from another carrier so that he could fire the Team-
sters’ supporters. On each occasion, Powell returned to work
as directed by Watson. Supervisor Watson thought Powell was
on a rampage and tried to avoid him. Watson told Powell he
did not want to talk about the terminations and the photos.
Upon completing his rounds on February 18, Watson went to
Acting Manager Jasmer’s office and complained. When he had
completed his complaint, Jasmer asked Watson to repeat what
he had reported. As Watson recited Powell’s repetitious re-
marks, Jasmer began to type a memorandum including the fol-
lowing assertion: “I have asked Mr. Powell to only speak to me
about freight handling issues.” Watson read the memorandum
and signed it.
At the hearing, Watson asserted that he never asked Powell
to speak to him only about freight handling issues and that the
memorandum was incorrect in attributing that remark to Wat-
son.56 I find from Jasmer’s uncontradicted, frank and forthright
testimony that Watson was visibly upset on February 18, when
he dictated the details of his complaint against Powell. Under
such stress, Watson might not have noticed the disputed state-
ment. Given Watson’s state of mind on that occasion and his
admission, on cross-examination, that he usually reads docu-
ments before signing them, I also credit Jasmer’s testimony that
Watson read over the memo before signing it.
Somewhere between 10 and 15 minutes after Watson had
signed the memorandum, Jasmer wrote a warning, in the form
of a corrective action report, to Powell. The form of discipline
called for on the corrective action report was counseling. Jas-
mer designated insubordination as Powell’s offense. In the
“Remarks’ section of the form, Jasmer counseled Powell as
follows:
You have been instructed by Operations Manager Dale
Watson to discuss only freight-related issues with him.
You have failed to adhere to this instruction. For this rea-
son you are receiving this counseling for insubordination.

56 Jasmer testified that he typed the memorandum exactly as Watson
dictated it on February 18. However, Watson after reading the memo at
the hearing testified that he had signed it without reading it when Jas-
mer submitted it to him. Watson also testified that he did not include in
his recitation to Jasmer the statement that he had asked Powell to talk to
him only about freight handling issues. I have noted that in testifying
about Powell’s remarks about the Vietnam photos and war crimes,
Watson did not include testimony that he had instructed Powell to talk
him only about freight handling issues. Review of Powell’s testimony
also shows that Watson did not impose that restriction upon Powell. As
Powell and Watson testified candidly, I credit them as to the content of
their encounters. On February 18, when he complained to Jasmer about
Powell’s remarks about the Vietnam pictures and possible war crimes,
Watson was agitated and upset. In that state of mind, Watson might
have embellished his complaint by adding the assertion that he had told
Powell to limit his remarks to Watson to issues related to freight. As
Jasmer testified about Watson’s complaint and dictation in a full and
forthright manner, I have credited Jasmer’s testimony regarding the
preparation of his memorandum from Watson’s dictation.
In the future you are to discuss issues directly related to
the performance of your job with Dale Watson.
Dale Watson sought out Powell on the dock and conducted
him to Jasmer’s office. Jasmer handed the corrective action
report to Powell for reading and signature. Powell protested
that the assertions about Watson’s instruction to limit discus-
sions with him to “issues directly related to the performance of
[Powell’s] job” were false. Powell signed the disciplinary form
under protest. I find from Watson’s testimony that he did not
read the corrective action report. I also credit Watson’s testi-
mony that he never instructed Powell to limit discussions with
Watson to issues directly related to Powell’s work performance.
There was no showing by the Company that, after his third
confrontation with Watson, Powell asked Watson about the
terminations of bargaining unit employees or pursued him
about his Vietnam war pictures. According to Jasmer’s testi-
mony, the ground for his determination that Powell had been
insubordinate was Powell’s following statement to Watson, as
reported in Jasmer’s memorandum; “[Y]ou are not going to tell
me when I can or cannot talk to you, I will talk to you any time
I want.”
Later in the same day, Powell approached Jasmer in the main
office and, in Watson’s presence, addressed Jasmer, and asked
him why everyone was being terminated. Jasmer said it was
none of Powell’s business. Powell reminded Jasmer that he,
Powell, was chief job steward, and that he represented the ter-
minated employees. Jasmer ended the discussion by repeating
that it was none of Powell’s business. As soon as this discus-
sion ended and Powell had walked off, Jasmer accompanied by
Watson, went to Jasmer’s office. Jasmer asked Watson to dic-
tate his recollection of this last encounter between Jasmer and
Powell. Watson complied with Jasmer’s request. Jasmer typed
the dictation on a computer and had Watson sign it.57
On the Monday after Jasmer had counseled him, Powell ar-
rived at work and noticed 10 strangers working on the dock.
He inquired and learned from them that they were employees
from the Company’s Gaffney, South Carolina terminal. Powell
did not understand why these visitors were doing the Memphis
dock employees’ work. He sought an explanation from Joe
Jasmer.
Jasmer explained that as the Memphis employees were be-
hind in their work, he had obtained these 10 employees from
Gaffney to move the freight along. Powell also complained
about the Gaffney employees to Terminal Manager Bob Cecil,
to Supervisor Willie B. Jones, and to Operations Manager
Tommy Lee Jones.

57 Watson testified that Powell returned to Jasmer’s office a few
minutes after the counseling session and argued that as senior steward
he was entitled to know about the terminations. According to Watson,
Jasmer’s answer was to tell Powell to return to work. Watson also
testified that after Powell had left, Jasmer typed up his account of this
exchange and Watson signed it. However, as I read the account, it is in
the form of a witness’ recollection of the conversation, rather than that
of a participant. Watson’s signature reflects his adoption of the recol-
lection recited on the document. These circumstances and my impres-
sion that Jasmer was providing his best recollection of the incident and
the recording of the conversation in an objective manner. Accordingly,
I have credited Jasmer here.
OVERNITE TRANSPORTATION CO. 1461
Later that same day, Powell noticed that the Company was
sending some of the bargaining unit employees home before
they could complete their normal 8 hours. He also noted that
the Gaffney employees continued to work that day. As Powell
saw it, the unit employees could not be behind in their work if
the Company was sending them home before they could com-
plete 8 hours’ work. Some of the Gaffney employees worked
at Memphis for the rest of the week and departed.
Powell’s shift began at 5:30 a.m. on February 24. However,
as was his custom, Powell came to work somewhat earlier to
look for a forklift truck to use during his shift. He also arrived
early to attend a preshift meeting. During this day’s preshift
period, Powell became upset, on learning that a midnight shift
employee had suffered a broken leg in a forklift accident that
same night.
After learning of the injury, Powell attended the preshift
meeting conducted by Midnight Shift Supervisor David
Braden. Powell’s shift supervisor, Willie B. Jones, came to
work at 6 a.m. Braden told the assembled employees that they
were behind in their work. He urged them to speed up and
unload more trailers that day. Powell spoke up, reminding his
listeners that the company manual entitled “Work Safely,” said
employees should not sacrifice safety for speed. Powell also
said, “Let’s don’t work faster. Let’s Work safer.”
Powell observed that his remarks disturbed Supervisor
Braden. As the meeting broke up, Braden told the employees
to go to work. After Braden and Powell left the break area,
where the meeting had taken place, Powell sought to pacify the
supervisor by telling him not to take Powell’s remarks person-
ally. Powell reminded Braden about the forklift accident that
had broken an employee’s leg and said he did not want it to
happen again. Finally, Powell insisted that the employees
would work slower to be safe. Powell’s remarks did not pla-
cate Braden.
Powell began his shift unloading a trailer containing thirty
55-gallon drums loaded at its front end. Each drum weighed
500 pounds. Powell used a drum jack to move the drums to
another trailer. I find from Powell’s testimony that a drum jack
is “sort of like a two-wheeler.” I also find from his undenied
testimony that the jack is used to scoop up the drum and move
it, an operation requiring “a considerable amount of force.”
While Powell was moving these drums, supervision moved the
receiving trailer to a door next to the trailer he was unloading. I
find from Powell’s testimony that he worked as fast as he
could. I also find from his sincere denial on cross-examination
that the forklift accident that occurred during the midnight shift
did not cause him to slow up.
During the same morning, Service Center Assistant Manager
Tommy Lee Jones advised Supervisor Willie B. Jones that
there was some “hot freight” on the trailer Powell was unload-
ing. Willie B. Jones went to Powell and told him about the “hot
freight” that a customer needed right away. Powell said that he
would unload that freight when he could. The customer called
again about his “hot freight.” Assistant Manager Tommy Lee
Jones became impatient and pressed Supervisor Jones about the
“hot freight.” Supervisor Jones went to Powell and reminded
him about the “hot freight.”
Powell finished unloading his first trailer at 11:55 a.m. Su-
pervisor Jones checked the work record of the previous shift
showing that Powell began unloading the trailer at 5:30 a.m.
Jones also looked at the work record for his shift to see when
Powell completed the task.
Supervisor Jones determined that Powell had worked at the
rate of 3.7 bills/hour.58
Supervisor Jones assigned a second trailer to Powell for
unloading on February 24. Powell unloaded this trailer at the
rate of 7.5 bills per hour. I find from Supervisor Jones’ testi-
mony that the Company considered this a normal rate. He ob-
served that Powell unloaded this trailer at normal working
speed.
Supervisor Jones decided to issue a written warning to Pow-
ell. However, before issuing the warning, Supervisor Jones
discussed it with Assistant Manager Tommy Lee Jones. Super-
visor Jones explained his decision to Operations Manager Jeff
Kane, who drafted a corrective action report asserting that
Powell had been inefficient in unloading his first trailer that day
and that Powell had been counseled about this shortcoming.
At about 4 p. m., on February 24, Supervisor Jones called
Powell to the front office. When Powell arrived at the front
office, he found Supervisor Jones and Assistant Manager
Tommy Lee Jones waiting for him. The supervisor and the
assistant manager rejected Powell’s request for the presence of
a union representative on the ground that there was no investi-
gation pending. Powell received the corrective action report,
read it, protested that its assertions about his inefficiency were
false, and signed it under protest.
In February 1999, the Company heard rumors that a strike
was imminent at its Memphis service center. These rumors
persisted during March and April of that year. Dock employees
supporting Local 667 and the Teamsters wore shirts carrying
the message: “Will strike if provoked.”59
In mid-April, Local 667 began distributing buttons to the
Company’s Memphis employees. These buttons proclaimed:
“Now is our time. Contract in ‘99.” On or about April 16,
Powell obtained some buttons that he distributed to dock em-
ployees during his shift. When the evening shift began, Powell
had no more buttons. When his shift ended, at 4:30 p.m., he
went to Local 667 to get more buttons.
Powell returned to the Memphis service center during the
evening shift and began distributing the buttons on the dock.
Assistant Manager Jeff Kane approached Powell and, noting
that he was not wearing steel-toed shoes, ordered Powell to
leave the dock. Powell asked if Kane was wearing steel-toed
shoes. Kane said no. Powell argued that he did not need steel-
toed shoes, as he was not working and Kane didn’t have them
either. Kane warned that he would have Powell arrested if he
did not leave the dock immediately.

58 My findings regarding Supervisor Jones’ determination of Pow-
ell’s performance in unloading the two trailers on February 24, are
based on Jones’ uncontradicted testimony.
59 My findings regarding the strike rumors and the shirts proclaiming
the possibility of a strike are based on Sam Powell’s uncontradicted
testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1462
After leaving the dock, Powell visited a rest room and no-
ticed it was “filthy.” He also saw there were neither paper tow-
els nor soap in the rest room. Powell went to Kane and com-
plained about the bathroom. Powell suggested that Kane cor-
rect the situation so that the employees could clean up before
their break and lunch. Kane replied that there were neither
towels nor soap. Powell asked how he knew that. Kane replied
that Powell had just told him that. Assistant Manager Hunter
arrived in time to hear Powell tell Kane that he should look in
the supply room instead of getting “smart” with Powell.
Hunter intervened and assured Powell that he would check
the supply room and put towels and soap in the restroom.
Hunter advised Powell to go home and get some rest to get
ready for the next day’s work. Powell went home.
The next morning, Powell came to work and immediately
checked the rest rooms. He noted that there were adequate
towels and soap in all of them. Hunter held a preshift meeting
for Powell’s shift. During this meeting, Powell thanked Hunter
for attending to the rest room supplies.
On the following Tuesday, Supervisor Willie B. Jones sent
Powell to Joe Jasmer’s office. Assistant Terminal Manager
Jasmer and Operations Manager Frank Plemmons were present
when Powell arrived. Jasmer explained that he was conducting
an investigation of Powell’s encounter with Assistant Manager
Kane on the previous Friday. Powell requested the presence of
a steward. Jasmer complied with this request and proceeded to
ask about what went on between Powell and Kane.
Powell reported that he had been handing out union buttons
on the dock when Kane threatened him with arrest for trespass-
ing. Jasmer asked how Powell felt about the incident. Powell
complained that he was a 20-year employee and that Kane’s
threat was uncalled for. Powell added that he, Powell, was
unhappy about Kane’s conduct. That concluded Powell’s meet-
ing with Jasmer. Powell returned to work and the Company did
not discipline him for his encounter with Kane.60
On the morning of April 22, Manager Cecil and Assistant
Manager Jasmer conducted a tour of the Memphis Service cen-
ter for about 40 employees from other Company terminals.
Company Vice President Phil Warren arranged the tour with
Cecil and set up the transportation and necessary hotel accom-
modations for the visiting employees. These employees had
volunteered to replace strikers in the event of a strike at the
Memphis service center. The Company wanted to acquaint
them with that facility’s layout, with a short tour.
The visiting employees arrived in the morning, early in the
day shift, in a yellow touring bus. Cecil, Jasmer, and Field
Security Investigator Joseph Geibler met the visitors and ush-
ered them into a conference room in the trailer shop. Vice
President Warren had dispatched Geibler to Memphis in case
there was a work stoppage. Geibler was in Memphis to assist
in avoiding a confrontation between the visitors and the Mem-
phis dock employees.
During the meeting with the visiting employees, Geibler
spoke to them in the presence of Cecil and Jasmer. Geibler

60 My findings regarding Powell’s encounters with Kane, Hunter,
and Jasmer and Powell’s distribution of union buttons are based on
Powell’s uncontradicted testimony.
advised the employees to avoid conversations with local em-
ployees regarding why the visitors were in Memphis. He ad-
vised Cecil and the employees to keep a low profile during the
tour.
Duane Amerson, a company employee from Atlanta, volun-
teered for the tour. He attended the pretour meeting and asked
Cecil how to respond if someone asked him why he was at
Memphis. Cecil told Amerson and the group not to say much,
just tell them that you are touring the Memphis facility in the
event you are needed to come back.61
Jasmer and Cecil divided the group into two sections, one led
by Cecil, and the other under Jasmer’s guidance. The two
groups toured the shop, office, and dock. Each tour took no
more than 1 hour and 15 minutes and they were both completed
by 11:30 a.m.62 The tours occurred during Powell’s shift.
On April 22, Powell wore a Teamster shirt that bore the in-
scription: “Will strike if provoked.” When he encountered Bob
Cecil and the latter’s tour group, Powell asked Cecil if the
group were replacements in case the Memphis employees went
on strike. Cecil answered, “Could be.” Turning to the group,
Powell advised them to take their hands out of their pockets if
they intended to work at the Memphis service center. Powell
continued to work using a forklift.
Robert S. Yarborough, a trailer mechanic employed at the
Company’s Gaffney terminal, and Duane Amerson fell behind
their group after chatting with a dock employee from Gaffney.
As they walked down the dock to catch up to their group, they
encountered a forklift driver, later identified by Cecil and
Geibler as Powell. Yarborough began with: “Good morning.”
Powell asked, in substance, what Amerson and Yarborough
were doing in Memphis. Yarborough answered that they had
come to help with the freight, to work.
Powell warned: “Well, you guys don’t want to come down
here. You’d get hurt if you come down here and work. Have a
lot of accidents.” He also warned that “people get hurt with
forklifts down here,” and that “[w]e get run over with forklifts
on this dock.” Powell again cautioned: “You don’t want to
come down here and work.” Yarborough observed that Powell
was “angry at someone.”
Yarborough attempted to break off his encounter with the
forklift operator. But Powell continued his verbal assault, ad-
vising Yarborough against coming to work at Memphis. Pow-
ell warned that Yarborough and others who might come to
work at Memphis would “get hurt on this dock.” Powell
pointed at Yarborough and asked him if he wanted to get hurt.
At this point, Yarborough took Powell’s warning personally
and felt threatened.
During Yarborough’s encounter with Powell, Duane Amer-
son was strolling down the dock, in front of the participants.
He looked back and saw Yarborough talking and then heard the
employee sitting on the forklift say: “We don’t need you in
Memphis. [Y]ou’ll get hurt in Memphis. People get run over

61 My findings regarding Amerson’s question and Cecil’s response
are based on Amerson’s uncontradicted testimony.
62 My findings regarding the extent and duration of the tours are
based on the uncontradicted testimony of security investigator Geibler
and employee Duane A. Amerson.
OVERNITE TRANSPORTATION CO. 1463
by forklifts in Memphis.” Amerson also heard the man, who
turned out to be Powell, forcefully warn: “I’m telling you you’ll
get hurt.”
Amerson came back to Yarborough, who was attempting to
calm Powell down. As Powell resumed his warnings, Amerson
and Yarborough began walking down the dock, trying to break
off the encounter. Powell pursued them continuing his ha-
rangue. Finally Amerson and Yarborough reached their tour
group and left Powell on the dock.63
The tour ended at 11:30 or 11:45 a.m. The visiting employ-
ees congregated in a conference room at the Memphis service
center, where Cecil and Jasmer thanked them for being there.
Yarborough attempted to tell Cecil about his encounter with the
forklift driver. However, in the commotion of the meeting,
Cecil did not hear Yarborough’s complaint. The Company had
arranged for a luncheon for the visiting employees at a nearby
hotel. The visiting employees, Cecil and investigator Geibler
reconvened for lunch at the hotel.
At the hotel, Yarborough went to Cecil and said an employee
had threatened him. Yarborough explained that the employee
had threatened to run Yarborough over with a forklift. Yarbor-
ough described the employee and the location of the incident.
Dwayne Amerson was present when Yarborough made his
complaint to Cecil. After hearing Yarboorough’s detailed ac-
count, Cecil concluded that Sam Powell was the employee, who
had spoken to Yarborough and Amerson. Manager Cecil in-
structed Yarborough to write down what the employee had said
and give the writing to Cecil.
Yarborough and Amerson obtained some paper and a pen at
the hotel and wrote their account of their confrontation with the
forklift operator. They also approached Geibler at the hotel.
Yarborough reviewed the incident with the investigator.
Geibler reported to Cecil about his conversation with Yarbor-
ough. Cecil told Geibler that Powell was the employee in-
volved in Yarborough’s complaint.
Yarborough and Amerson collaborated on the content of the
written account that Amerson wrote. They composed the fol-
lowing shortened version of Yarborough’s earlier report to
Cecil:
While taking a tour of the South End of the Dock,
Driver of 681 Lift repeatedly stated y’all don’t want to
work here on our dock, people get hurt working on our
dock. People get run over with forklifts, you will get hurt
on this dock.
This took place while we were at the rear of the touring
group.

63 Powell admitted warning members of the tour about the danger in
working on the Memphis dock, advising them about 10-and 12-hour
shifts and telling them they would not like working at Memphis. He
also testified about talking to a 55-year-old member of the tour and
telling him that it would be dangerous to work at Memphis. However,
Powell’s testimony about this encounter and his admissions about
warning visitors are sketchy compared to Yarborough’s and Amerson’s
testimony, which they gave as if they were reliving their confrontations
with Powell. I also noted that they answered questions on cross-
examination in a forthright manner. Accordingly, I have credited their
accounts of Powell’s remarks to them on April 22.
Yarborough and Amerson both signed the quoted statement
and gave it to Cecil. The two employees checked out of the
hotel and departed.
That same afternoon, Cecil returned to his service center,
checked the Company’s records, and identified Powell as the
employee who spoke to Yarborough and Amerson during the
tour. After Geibler and Cecil summoned Powell to the latter’s
office, Geibler, in Cecil’s presence interviewed Powell. Upon
learning of the purpose of the interview, Powell asked for a
union steward to be present. Steward Larry Arnold arrived, and
the interview proceeded.
Geibler advised Powell that the interview had to do with al-
legations that Powell had directly threatened two employees.
Powell denied threatening anyone. Upon further questioning,
Powell told of asking touring employees if Cecil had promised
them pizza, and warning them that, if so, Cecil would probably
renege. Geibler asked whether Powell had said anything about
being run over by a forklift or being hurt in Memphis. Powell
answered, “No.” He also denied threatening anyone. When
pressed further, Powell admitted telling touring employees that
“[p]eople get hurt in Memphis,” and: “There’s lots of forklift
accidents.” Powell assured Geibler and Cecil that Company
records would support these remarks. Geibler asked Powell for
more specificity about his remarks to the touring employees.
Powell replied that he had told Geibler everything. At the end
of this interview, Geibler put Powell out of service. During his
direct testimony Geibler was asked why he thought it necessary
to put Powell out of service. Geibler testified: “Well, I treat
threats very seriously and always have within the company.”
Geibler prepared a written report of his interview with Powell,
which the investigator furnished, to Company counsel.64
Yarborough arrived home, at Gaffney, South Carolina, late
Thursday night, April 22. The next morning, a Company attor-
ney telephoned Yarborough and asked if he would give a
statement regarding the incident with Sam Powell. Yarborough
agreed to give a statement to the attorney over the phone and
did so. That same day, Yarborough received a typed transcript
of his statement from the Company’s attorney. Yarborough
signed the statement on Monday, April 26, and returned it to
the Company’s attorney. On May 3, at the request of the same
company attorney, Yarborough made, and signed, a second
statement describing his encounter with Powell on April 22.65
The Company’s attorney wasted no time in contacting Am-
erson a day or two after the latter had departed from Memphis.
Amerson agreed to give a statement over the phone and did so.
He received a faxed, typed statement that he signed on April
26, and returned to the Company’s attorney.66
During the week of April 26, Geibler proceeded with the in-
vestigation of Yarborough and Amerson’s complaint about
Powell. Geibler interviewed seven employees, after he had
received copies of Yarborough and Amerson’s affidavits from

64 My findings regarding Geibler’s interview with Powell on April
22, and the resulting memorandum are based on Geibler and Powell’s
testimony.
65 My findings regarding the circumstances surrounding Yarbor-
ough’s two affidavits are based on his uncontradicted testimony.
66 My findings regarding Amerson’s affidavit are based on his un-
contradicted testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1464
the Company’s counsel. Geibler learned that most of the seven
heard Powell “addressing the issue of, ‘You don’t want to work
in Memphis. It’s dangerous here. You can get hurt here. You
can get run over by forklifts.’’
Three of the seven told Geibler that Powell’s remarks were
“improper.” Employee Gary Smith stated that if Powell di-
rected his remarks to Smith, he would take them as a threat.
Employee Hill was of the opinion that Powell had been “out of
line” and “should learn to keep his mouth shut.”67
Geibler made the notes of his investigation available to Cecil
and the two discussed them. Cecil considered Yarborough and
Amerson’s affidavits, their initial report, Geibler’s investiga-
tion, and several affidavits obtained during that investigation.
Cecil also reviewed earlier instances in which the Company
discharged Memphis employees for making threats to other
employees. Beginning on April 22, Cecil also had frequent
consultations with legal counsel regarding the treatment of
Powell’s misconduct. Finally on May 4, Cecil discharged
Powell for threatening Yarborough and Amerson. The Com-
pany’s employee handbook, under a section entitled: “Em-
ployee Conduct,” states that the use of threatening language
subjects an employee “to disciplinary action, including dis-
missal.”68
The record in Overnite Transportation Co., Cases 17–CA–
20134 and 17–CA–20329–3 included evidence of threats and
assaults by antiunion employees against prounion employees, at
the Company’s Kansas City, Missouri facility, who reported the
threats to Company management.69 The same record shows that
the Company did not discipline any of the offenders.
On a morning in April 1999, Teamsters supporter Anthony
Johnson was going to his locker at the end of his shift to change
clothes, when he encountered antiunion employees Brad White
and Buzz McKenzie. At the time of this incident, two employ-
ees were standing at the entrance to the Kansas City service
center, handbilling on behalf of the Teamsters. White com-
plained to Johnson that the two employees had blocked his
entrance to the terminal. He then asked Johnson for his knife.
Johnson handed his closed Craftsman knife to White. White
opened the knife up and said it was not a tool, but a weapon.
Whereupon, McKenzie pointed a knife in front of Johnson’s
stomach, looked him in the eye, and said, “I have a knife, too.”
Johnson froze with fear.
White took McKenizie’s knife. Using both knives, White
made a “Z” motion across Johnson’s chest, but did not touch
the blades to Johnson’s skin. Johnson estimated that the length
of each blade was 6 or 7 inches. Again, Johnson was fearful.
A “couple of days” later, Johnson reported his encounter
with Brad White and Buzz McKenzie to Fleet Services Man-

67 My findings regarding Geibler’s investigation are based on his un-
contradicted testimony.
68 My findings regarding Cecil’s conduct leading up to and including
his discharge of Powell on May 4, are based on Cecil’s uncontradicted
testimony.
69 Under the informal settlement agreement in Cases 17–CA–20134
and 17–CA–20329–3, the General Counsel reserved the right to use the
evidence presented in that case in the captioned cases.
ager Anthony Pratt.70 Johnson described the entire incident and
emphasized his fear. Pratt said he would interview White and
McKenzie.
On April 13, Johnson reported the same incident to Service
Center Manager Wry, in a written statement. Johnson also
reenacted the incident for Wry in the manager’s office on the
same day. Johnson never heard anything more about his en-
counter with White and McKenzie. There was no showing that
the Company disciplined either of them for threatening Johnson
with knives.
I find from the pleadings in Cases 17–CA–20134 and 17–
CA–20329–3 that International Brotherhood of Teamsters,
Local Union No. 41, is a labor organization, within the meaning
of Section 2(5) of the Act. Employees supporting Local No. 41
engaged in a strike at the Company’s Kansas City facility from
July 5 until 9. One of these employees, Anthony Johnson, re-
turned to work on the night of July 9–10, as a fuel bay atten-
dant.
Soon after Johnson had returned to work, and was refueling a
Company truck from Des Moines, its operator, Ron Meyer,
approached him, and asked where everyone was. Johnson an-
swered that the strike was over. Meyer declared that “no
motherf—ker” was going to tell him when he could or couldn’t
work and that Iowa and Kansas were right-to-work states and
began cursing. As he spoke, Meyer began jabbing Johnson’s
chest with two fingers. A button pinned to Johnson’s shirt, near
the jabbing read; ‘Shut Overnite Down.” As he was jabbing,
Meyer said “That is the reason I don’t like Union right there.”
Johnson told Meyer, “If Overnite doesn’t sign a contract, the
Teamsters will shut Overnite down.” Meyer replied in sub-
stance that: it was lucky he was going to retire in 1 week or he
would bring his 9 millimeter in and shoot the Teamsters sup-
porters.
Later that same night, Memphis driver Charles Foster
brought his truck to Johnson for refueling. Upon arrival, Foster
got out of his cab and went to Johnson, who was refueling the
vehicle. Foster asked if Johnson was “one of those motherf—
kers that was out on the strike line.” Johnson answered that he
did not cross the picket line, but stayed at home. Foster said,
“[Y}ou got to be for or against it a hundred percent.” Foster
asked about a driver out of Kansas City, who drove to Mem-
phis. Johnson answered that he didn’t know who he was.
Johnson began fueling the passenger side of Foster’s truck.
After finishing, Johnson replaced the hose on the pump. At this
point, Foster warned, “When I see that motherf—ker, this is
what I am going to do.” At this point, Foster had a switchblade
knife with its blade open, that he stuck to Johnson’s neck. Fos-
ter, while holding the knifepoint at Johnson’s neck, said, “Do
something now, punk motherf—ker. You’re not so tough are
you, motherf—ker? You’re nothing but a punk, motherf—ker.”
Throughout Foster’s diatribe, he kept his knife pressed against
Johnson’s neck. Foster stepped back and said, “But me and

70 In its answer to the consolidated complaint in Cases 17–CA–
20134 and 17–CA–20329–3, the Company admitted that Pratt and
Kansas City Service Center Manager Jeff Wry were supervisors and
agents of the Company, within the meaning of Sec. 2(11) and (13) of
the Act.
OVERNITE TRANSPORTATION CO. 1465
you is cool.” Johnson interpreted this last remark as a warning
not to say anything about this incident. According to Johnson,
the blade of Foster’s knife was 7 or 8 inches long.
Employee Michael Lounsberry, a mechanic, approached
Foster and Johnson. Foster began asking Lounsberry about the
Kansas City driver who drove to Memphis. Lounsberry identi-
fied that driver as Steve Rickert. Foster warned that when he
came upon Rickert, “I’m going to get him on my turf.” John-
son invited Foster to do to Lounsberry what he had just done to
Johnson. Foster pulled out his knife and stuck it to Louns-
berry’s stomach. Lounsberry was scared and told Foster to put
the knife away. Foster put the knife away and drove off.
On the morning of July 13, after his shift, Johnson reported
his encounter with Foster to Fleet Services Manager Anthony
Pratt and to Shop Supervisor Bob Lindsay. John was scared
and did not want to fuel Foster’s truck again. He had a meeting
with Pratt on the morning of July 13. Johnson complained
about Ron Meyer’s conduct, but complained mainly about
Charles Foster’s assault. Johnson reported Myers thumping on
Johnson’s chest and Myers remarks about his 9 millimeter gun.
Pratt took notes while Johnson was speaking. At the end of this
meeting, Pratt said he would check into Johnson’s complaint.
During the next week, Johnson was called to Fleet Services
Manager Pratt’s office, where he met with Pratt and Service
Center Manager Jeff Wry. Johnson repeated his reports on his
encounters with Don Meyer and Charles Foster. Pratt and Wry
assured Johnson that they would check into his complaints.
However, neither Pratt nor Wry ever got back to Johnson about
his confrontations with either Meyer or Foster. There is no
showing in the record that the Company disciplined either
Meyer or Foster for their conduct toward Johnson.71
On the morning of July 13, Lounsberry reported his encoun-
ter with Foster to Fleet Services Manager Pratt. Lounsberry
reported that Foster had pointed a knife at him and threatened
to hurt any Teamsters’ supporter who might “mess” with him
on the road or at a terminal. Foster mentioned Steve Rickart as
someone he might use his knife on. Lounsberry also reported
what he knew of Foster’s assault on Johnson. Lounsberry re-
ported that Foster’s conduct had scared him. Pratt said he
would look into Lounsberry’s complaint and call Memphis.
Pratt used a tape recorder to record Lounsberry’s report. Pratt
never reported back to Lounsberry. Nor did Pratt give a copy
of his tape to Lounsberry.
Two to four days later, Lounsberry told his story to Service
Center Manager Wry, who had not yet heard about it. Wry told
Lounsberry he would look into the matter and report back.
Lounsberry never heard anything further about his complaint

71 My findings of fact regarding Johnson’s encounters with Meyer
and Foster and his meetings with members of the Company’s manage-
ment are based on Johnson’s uncontradicted testimony. Lounsberry
denied hearing Johnson invite Foster to point his knife at Lounsberry.
However, the record does not disclose how far Lounsberry was from
Johnson at the time of the asserted invitation. However, Johnson im-
pressed me as being a careful and objective witness. I have credited his
testimony in this regard.
from Wry. Lounsberry also noticed that Foster continued his
run between Memphis and Kansas City.72
ANALYSIS AND CONCLUSIONS
The General Counsel contends that the Company violated
Section 8(a)(3) and (1) of the Act by disciplining Powell on
February 18 and 24, and by discharging him on May 4. The
Company argues that Powell’s union activity had nothing to do
with its decisions to discipline him and discharge him. Here,
again, I apply the Board’s policy in Wright Line, 251 NLRB
1083, 1084 (1980).
There is ample evidence showing that Sam Powell was an
active and outspoken chief steward for Local 667 at the Com-
pany’s Memphis service center. He actively supported Local
667 and the Teamsters in their organizing campaigns in 1995
and 1996. Powell made his presence known to company offi-
cials by disrupting their CEO’s speeches to their Memphis em-
ployees in 1995, and again in 1996. Powell advertised his un-
ion sentiment every day by wearing shirts and other parapher-
nalia showing support for Local 667 and the Teamsters. Jasmer
viewed Powell as an outspoken union supporter. After Cecil’s
arrival in Memphis in February 1999, he quickly learned about
Powell’s leading role in the union activity. I also find that,
between his superiors in Richmond and Jasmer in Memphis,
Cecil had ample opportunity to learn, by the end of February
1999, of Powell’s reputation as a strong outspoken supporter of
Local 667 and the Teamsters
Memphis’s management found Powell annoying. After the
1996 representation election, Manager Danny Warner ex-
pressed strong dislike of Powell and wanted an excuse to fire
him. In February 1999, Joe Jasmer became annoyed when
Powell asked him about the flurry of discharges of bargaining
unit employees. Jasmer told Powell it was none of his business.
Powell’s union activity in 1999 occurred against a backdrop
of tension growing out of a pending decertification petition
which challenged Local 667’s representative status and rumors
of an economic strike by Local 667 and the Teamsters. The
Company’s management was worried enough about the possi-
bility of a strike at Memphis to recruit volunteers from the em-
ployees of other company facilities to be replacements for strik-
ing Memphis employees. Also, the Company showed interest
in the decertification petition by filing an appeal on May 5, of
the Regional Director’s dismissal of the petition on April 22.
As previously noted, one of the manifestations of hostility
toward union organizing among its employees appears in the
Company’s employees handbook as follows:
It is important for you to know that the Company values un-
ion-free working conditions. We believe that true job security
can come only from you and the management of this com-
pany working together in harmony to produce a quality prod-
uct. A union-free environment allows this kind of teamwork
to develop. We look forward to working with you as an indi-
vidual, with dignity and in a spirit of mutual trust and respect.

72 My findings regarding Lounsberry’s encounter with Foster and
Lounsberry’s reports to Pratt and Wry and their responses are based on
Lounsberry’s uncontradicted testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1466
Also, as recited in detail, above, the Board, in Overnite
Transportation Co., 335 NLRB 1392, 1395 (2001), found that
in 1996 and 1997, at its Memphis City and Hub Terminal, the
Company “harbored antiunion animus” when it violated Sec-
tion 8(a)(5), (3), and (1) of the Act there. Finally, I have found
above that the Company displayed its desire to get rid of Local
667 and the Teamsters by using unlawful suspensions and dis-
charges in violation of Section 8(a)(3) and (1) to diminish their
support in the certified bargaining unit.
The timing of Powell’s two warnings and his discharge sug-
gest management’s annoyance at his relentless activity on be-
half of the bargaining unit represented by Local 667. Thus, the
warning of February 18, came on the heels of an inquiry to
Jasmer about the recent discharges of bargaining unit employ-
ees. The warning issued by Jasmer on February 24, followed
by a few days Powell’s complaints to Jasmer and other supervi-
sors that Gaffney terminal employees were working at Mem-
phis. Cecil’s decision to discharge Powell came 12 days after
the latter had advised two possible strike replacements not to
work on the Memphis facility’s dock. Here, again, Powell was
trying to help Local 667 achieve a successful strike against the
Company. The timing of the two warnings and the discharge
when viewed in light of Powell’s union activity and the Com-
pany’s hostility toward Local 667 and the Teamsters add up to
a prima facie showing that Powell’s union activity motivated
the Company’s decisions to discipline him twice and then dis-
charge him.
The Company argues that Joe Jasmer issued a corrective ac-
tion report to Powell because Powell insisted on talking to Op-
erations Manager Watson about subjects other than freight
related issues, in violation of Watson’s instructions. However,
the record shows that Watson did not issue such an instruction
to Powell. Instead, I have found Watson became annoyed by
Powell’s repeated questions as to whether supervisors were
being investigated and whether Watson should be investigated
for war crimes in the Vietnam war. Contrary to the Company’s
contention in its brief, Powell was not trying to bargain with
Watson. Powell was trying to get information about the inves-
tigations, which had resulted in the discharges of bargaining
unit employees.
Jasmer’s response to Watson’s complaint was to ask him to
repeat it as Jasmer wrote it down. When Watson finished, Jas-
mer handed him the memorandum, which included the asser-
tion that Watson had asked Powell to limit his conversation
with Watson to “freight handling issues.” Watson had not im-
posed that restriction on Powell. However, Watson was upset
by Powell’s remarks about a war crime investigation of Wat-
son’s conduct during the Vietnam war. Watson quickly read
the memorandum and signed it without correcting the asserted
restriction.
Within 10 to 15 minutes after Watson had signed the memo-
randum, Jasmer wrote out a corrective action report announcing
counseling for Powell because of his insubordination toward
Operations Manager Dale Watson. Specifically, the report
stated that Powell had failed to adhere to Watson’s instruction
that Powell discuss only issues “directly related to the perform-
ance of your job.” Jasmer summoned Powell to Jasmer’s office
and gave the warning notice to him for reading and signature.
When he finished reading, Powell said that the assertions in the
warning were false. Jasmer did not pause to ask Powell to give
his version of Watson’s instruction. Apparently, Jasmer saw no
issue of fact, and insisted on Powell’s signature. Powell wrote
on the corrective action report: “This is false & I sign under
protest.”
Jasmer’s unquestioning acceptance of the agitated Watson’s
report seems to be at odds with the Company’s appraisal of the
latter’s credibility. Indeed, in its brief to me, at p. 19, the Com-
pany asserted that Watson “has an abnormally large proclivity
for exaggeration and fabrication.” Also, the Company intro-
duced the testimony of some of Watson’s superiors showing his
reputation for such proclivity. Jasmer was not one of those
witnesses. However, when Jasmer wrote up the corrective
action report on February 18, he had been stationed at the
Company’s Memphis service center for approximately 7
months, during which time he should have learned of Watson’s
reputation. In any event, Jasmer did not seek corroboration of
Watson’s complaint.
The warning that Jasmer issued on February 18, gave a ficti-
tious reason for disciplining Powell. Jasmer did not afford
Powell an opportunity to answer Watson’s complaint. Nor did
Jasmer try to find possible witnesses to their confrontations.
Instead, Jasmer hastily seized on Watson’s false complaint to
punish Local 667’s chief steward.
Contrary to the Company’s assertion in its brief, Powell was
not seeking to bargain with Watson about the discharges of
bargaining unit employees. Powell, acting as a steward, was
seeking information that might assist Local 667 in deciding
how it might seek to remedy the discharges. I find that Pow-
ell’s efforts to obtain that information was protected by Section
7 of the Act.
I find no merit in the Company’s contention that Powell’s
repeated questioning of Watson, accompanied by references to
Watson’s possible war crimes, deprived Powell of the Act’s
protection. In support of its position, the Company cites Board
decisions in Calmos Combining Co., 184 NLRB 914 (1970);
Charles Meyers & Co., 190 NLRB 448 (1971); Fibracan
Corp., 259 NLRB 161 (1981); and Hyatt on Union Square, 265
NLRB 612 (1982). Those decisions are in harmony with the
Board’s well-established policy applicable to improper remarks
made in the course of activity otherwise protected by Section 7
of the Act. The Board expressed that policy, as follows, 29
years ago in Prescott Industrial Products Co., 205 NLRB 51,
52 (1973):
The Board has long held that there is a line beyond
which employees may not go with impunity while engag-
ing in protected concerted activities and that if employees
exceed the line the activity loses its protection. That line
is drawn between cases where employees engaged in con-
certed activities exceed the bounds of lawful conduct in a
moment of animal exuberance or in a manner not moti-
vated by improper motives and those flagrant cases in
which the misconduct is so violent or of such character as
to render the employee unfit for further service.
In each of the four cases presented by the Company, the
Board found that an employee, engaged in concerted activity,
OVERNITE TRANSPORTATION CO. 1467
lost the protection of the Act by crossing the line established by
Board policy. In Calmos, supra, the employee insisted on
shouting and using obscene language on the plant floor during
working hours which necessitated calling the police. In
Charles Meyers, supra, 190 NLRB at 449, the Board found that
the employee, while engaged in her duties as a union commit-
teewoman, had taunted her supervisor with a demand that he
fire her, and “unnecessarily disrupted operations at the plant.”
In Fibracan, supra, 259 NLRB at 161, the Board found that an
employee directed profane language at a supervisor on two
occasions during meetings between employees and the supervi-
sor. The Board held that the employee’s “repeated and blatant”
use of such language against the supervisor amounted to insub-
ordination. Id. Finally, in Hyatt on the Square, supra, 265
NLRB at 616, the Board found that an employee lost the Act’s
protection when he engaged in “unprovoked insubordination
and threatened violence.” The misconduct occurred after a
supervisor had refused to discuss a grievance with a shop stew-
ard. The shop steward’s response to the supervisors’ refusal
was: “F—k you,” “I’ll get even with you later,”and “I’ll get you
outside.” Id. I find the case authority the Company has cited in
support of its contention is clearly inapposite here.
I find that Powell’s remarks to Watson on February 18 were
part of the res gestae of the chief steward’s effort, on behalf of
Local 667, to obtain information about the discharges of bar-
gaining unit employees. Jasmer’s refusal to provide such in-
formation to Powell and his remark that it was none of Powell’s
business had angered Powell. Watson’s negative responses
further provoked Powell. Powell’s remarks to Watson, in the
course of his concerted protected activity, was not so flagrant or
egregious as to remove the protection of the Act and warrant
Powell’s discipline. E.g., Postal Service, 250 NLRB 4 (1980);
Thor Power Tool Co., 148 NLRB 1379 (1964), enfd. 351 F.2d
5584 (7th Cir. 1965). Accordingly, I find that the Company
violated Section 8(a)(3) and (1) of the Act when it issued the
disciplinary warning to Powell on February 18.
The Company issued a corrective action report to Powell on
February 24 for inefficiency in unloading a trailer in the morn-
ing, that same day. The circumstances surrounding the decision
to issue that warning strongly suggest that the asserted reason
was pretextual. The warning states that Supervisor Willie B.
Jones discussed with Powell “his inefficient use of time and
equipment to accomplish his overall goals.” According to Wil-
lie B. Jones, Powell’s immediate supervisor, Powell was having
difficulty late in the morning with thirty 500-pound drums.
Powell ‘s task was to move the 30 drums to a trailer located
about 30 doors down the dock from the trailer he was unload-
ing, using a cart, which did not fit through the door of the
trailer. This cart could transfer only one 500-pound drum at a
time. A forklift would have moved two drums at a time. Jones
knew that a forklift would accomplish the task faster. Yet he
said nothing about it to Powell. Nor did Jones order Powell to
get a forklift, or bring a forklift to Powell and direct him to use
it. Jones testified that as a dock supervisor, his duties included
making sure that trailers were unloaded efficiently. Jones also
admitted that two employees, using hand drum jacks, would
have speeded up the process. However, Jones did not employ
this alternative to speed up Powell’s performance. Jones’ con-
duct strongly suggests that he wasn’t interested in doing much
to get the work done quickly.
Jones observed the distance Powell had to traverse to reach
the designated trailer. Jones also noted that the cart could not
enter that trailer. Jones did not discuss this situation with Pow-
ell or make any suggestions to him. Instead, Jones moved a
suitable trailer to a location right next to the trailer Powell was
unloading. Thus, Jones did something to help lighten Powell’s
burden. On cross-examination, Jones admitted that while Pow-
ell was supposedly working too slowly Jones did not discuss
with Powell his inefficient use of time and equipment. Indeed,
Jones admitted that the first time he counseled Powell was
when he issued the warning to Powell. Thus, did Jones show
that the corrective action report issued to Powell on February
24, falsely asserted that he had counseled Powell on that date.
The Company also asserts that part of Powell’s inefficiently
was his failure to promptly unload some “hot freight” on the
morning of February 24. However, here again, Jones did little
to expedite Powell’s unloading. Certainly, Jones told Powell
that the trailer the latter was unloading that morning contained
freight that the customer wanted quickly. When a customer
makes such a request, the Company’s policy is to designate the
requested freight as ‘hot freight” and comply with the cus-
tomer’s request. However, in his remarks to Powell, Jones
never specified which items in the trailer load were ‘‘hot
freight.”
Jones testified that he spoke about three times to Powell that
morning, about the “hot freight.” Jones also testified that he
first raised the “hot freight” with Powell at about 8 a.m. and
noticed that he was moving slowly. Powell said he would get
that freight off when he could. Supervisor Willie B. Jones ad-
mitted that he said nothing to Powell about helping him or as-
signing anyone to help unload the “hot freight” faster.
Willie B. Jones testified that during the morning of February
24, Assistant Manager Tommy Lee Jones was in a hurry to
unload the “hot freight” on Powell’s trailer. However, Willie
B’s testimony shows that Tommy Lee observed Powell work-
ing slowly, but said nothing to Powell, and gave no guidance to
Willie to speed up the process. Tommy Lee was more inter-
ested in observing Powell than in satisfying the “hot freight”
customer.
I find from Willie B. Jones’ uncontradicted testimony that as
of February 24 he had been Powell’s immediate supervisor
“probably about a year.” Prior to that date, Willie B had not
ever disciplined Powell for inefficiency. I find from Willie B’s
testimony that he rarely issues discipline for inefficiency. As of
November 7, 2000, Willie B had issued only one warning for
inefficiency for the year, and that to an employee whose name
he could not recall. Thus, the issuance of the warning to Pow-
ell on February 24 was an unusual resort to discipline.
The Company’s records show instances on the very day it
disciplined Powell in which it failed to discipline other Mem-
phis employees for inefficiency, where their production per
hour was less than Powell’s 3.7 bills. I find from Willie B.
Jones’ testimony, and the Company’s dock management report
for the day shift on February 24 that five dock employees on
his shift performed below the 7.5 bills/hour standard set by the
Company. Thus, Spoon’s rate of performance was 4.2 bills per
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1468
hour; Lewis’ rate was 3.5 bills per hour; Griffin’s rate was 2.5
bills per hour; Blanchard’s rate was 3.0 bills per hour, and
Hill’s rate was 3.6 bills per hour. The Company did not disci-
pline any of these five employees for inefficiency in unloading
trailers. Four of these employees had rates lower than Powell’s
3.7. Yet there was no showing that Willie B. or Tommy Lee
counseled them about using time and equipment more effi-
ciently. I find that Powell suffered disparate treatment on Feb-
ruary 24 when the Company singled him out for discipline for
inefficiency.
In sum, I find that the Company seized on Powell’s difficulty
in unloading his first trailer of the day on February 24 as a pre-
text for issuing a warning to him. I also find that the Company
acted against Powell in this manner to punish him for, and to
discourage him from, engaging in union activity in support of
Local 667 and the Teamsters. I further find that by this dis-
criminatory punishment of Powell, the Company violated Sec-
tion 8(a)(3) and (1) of the Act. Pepsi-Cola Bottling Co., 301
NLRB 1008, 1024 (1991), enfd. mem. 953 F.2d 638 (4th Cir.
1992).
The Company argues that it suspended, and later discharged,
Sam Powell because he threatened visiting employees Yarbor-
ough and Amerson with injury if they worked at its Memphis
service center. I find no merit in the Company’s position.
According to the Company, Powell told the two employees the
following, or words to the same effect; “You don’t want to
work in Memphis. It’s dangerous here. You can get hurt here.
You can get run over by forklifts.”
Powell made these remarks after he learned from Manager
Cecil that the touring employees might be strike replacements.
On cross-examination, Powell revealed that his motive for issu-
ing this warning was to get rid of these prospective replace-
ments. I find that Powell’s words did not amount to a threat.
The word “threat” is defined in The American Heritage Dic-
tionary of the English Language, New College Edition, at 1340
as: “1. An expression of intention to inflict pain, injury, evil, or
punishment on a person or thing. 2. An indication of impend-
ing danger or harm.” A third definition has no application here.
Powell’s words to Yarborough and Amerson did not contain
any expressed intent “to inflict pain, injury, evil or punishment”
on them. Nor did Powell’s language indicate any impending
danger or harm to them. Powell was expressing an assessment
of the risk involved in working on the Memphis facility’s dock,
albeit exaggerated. Powell’s testimony showed that he issued
this warning in an attempt to discourage potential replacements
from volunteering to work at Memphis during a strike. His
purpose was to defeat Company efforts to weaken the economic
impact of the threatened strike. This was concerted activity
protected by Section 7 of the Act. Nor-Cal Beverage Co. Inc.,
330 NLRB 610, 611 (2000). I also find that Powell’s warnings
to the potential strike replacements did not deprive him of the
Act’s protection. Prescott Industrial Products Co., 205 NLRB
51, 52 (1973):
However, assuming that Powell’s remarks are deemed to be
a threat that Yarborough, Amerson, and others would suffer
injury at the hands of Powell and his fellow union supporters,
there is another grounds for rejecting the Company’s proffered
explanation for his discharge. The record makes plain that
Powell’s discharge constituted disparate treatment motivated by
union animus. The Company’s attitude is revealed by compar-
ing its treatment of Powell’s alleged threat against pro-
company employees with its treatment of physical attacks by
antiunion employees on prounion employees at its Kansas City
facility.
On the afternoon of April 22, employees Yarborough and
Amerson complained to Manager Cecil about receiving a threat
from Powell. Beginning that same afternoon, the Company,
using its investigator, Geibler and attorneys, launched an inves-
tigation of the complaint. In the meantime, on that same after-
noon the Company suspended Powell pending the completion
of the investigation. Geibler carried out a thorough investiga-
tion, culminating in Powell’s discharge on May 4.
In April 1999, Johnson reported to Fleet Service Manager
White, at the Company’s Kansas City service center, that anti-
union employee Buzz McKenzie’s had pointed a knife at John-
son. Later in April, Johnson repeated his report to Service Cen-
ter Manager Wry. The Company did not take the matter fur-
ther.
Again, in July 1999, after employee Anthony Johnson re-
ported being jabbed in the chest by antiunion employee Ron
Meyers and assaulted with a knife by antiunion employee
Charles Foster, there was no discipline imposed on either
Meyers or Foster. No does it appear that there was any investi-
gation of Johnson’s reports. No Company investigator ap-
peared at the Kansas City facility. No company attorney sought
out Johnson for an affidavit.
The Company’s employee handbook states that commission
of an assault is grounds for discipline including dismissal. The
same handbook imposes the same range of punishment for
threatening language. The Company dismissed Powell on May
4 for “threatening visiting employees with physical harm.”
However, the Company did not apply its policy against anti-
union employees McKenzie, Meyers, or Foster, who assaulted
an employee. I find, therefore, that discharging Powell for
threatening employees was disparate treatment. W. C.
McQuaide, Inc., 319 NLRB 756, 776 (1995), enfd. in pertinent
part 133 F.3d 47, 49 (4th Cir. 1998).
In light of the General Counsel’s strong prima facie showing,
as set forth above, I find that Powell’s asserted threat was a
pretext. Instead, I find that Powell’s union activity and proun-
ion sentiment motivated both Geibler’s decision to suspend
Powell on April 22, and Manager Cecil’s decision to discharge
Sam Powell on May 4. Accordingly, I find that by suspending
and then discharging Powell, the Company violated Section
8(a)(3) and (1) of the Act.
The Company contends that Sam Powell is not entitled to re-
instatement or backpay on the ground that he advocated an
unlawful slowdown prior to his discharge. I find no merit in
this contention.
The record shows that Powell cautioned unit employees
against a slowdown whenever he heard them talking about it.
The record also shows that Powell told employees to work safer
when they complained about having to work long hours and
spoke of a slowdown as a form of protest. Also, there is no
evidence that Powell’s advice carried any additional message.
Thus, I see no grounds for denying reinstatement and backpay.
OVERNITE TRANSPORTATION CO. 1469
On May 22, 2002, the Company filed a motion to reopen or
supplement the record in this case to show that, after his dis-
charge, Sam Powell engaged in secondary picketing and other
misconduct in support of a strike by Local 667, the Teamsters
and other local unions affiliated with the Teamsters. As an
alternative, the Company has made an offer of proof showing
Powell’s alleged misconduct. The General Counsel and the
Charging Party, Local 667, have filed timely oppositions to this
motion. On July 11, 2002, the Company filed a reply memo-
randum in support of its motion. I find no merit in the Com-
pany’s motion and reject its offer of proof.
The Company asserts that the informal settlement of the sec-
ondary boycott complaint in Teamsters (Overnite Transporta-
tion), Case 9–CC–1629–1 satisfies the conditions I imposed for
receiving as evidence findings in those cases showing Powell’s
participation in secondary conduct. However, the Company’s
assertion is wide of the mark. My ruling at the hearing in the
instant cases, on November 7, 2000, was as follows:
I think I can take official notice of findings in another pro-
ceeding that has been fully litigated that the man did some-
thing that, under the Board policy, is such that the employer
doesn’t have to take him back.
At a later point, counsel for the General Counsel sought
clarification of my ruling and I responded in the following col-
loquy:
Ms. Kirchert: Are you saying that you’re inclined to defer to a
CB proceeding or a compliance proceeding where these mat-
ters would be litigated?
The Court: Wherever the matter has finally been determined
that this man did something,
The informal settlement agreement in the secondary boycott
complaint in Case 9–CC–1629, includes no determination that
any of the respondents or any individuals violated Section
8(b)(4) of the Act. More important, there has been no determi-
nation in that proceeding that Sam Powell engaged in any sec-
ondary conduct against the Company.
I find that the Board has not determined that Sam Powell en-
gaged in secondary conduct. Accordingly, I find no merit in
the Company’s motion and I also reject its offer of proof. The
motion is dismissed.
E. The Discharges of Terry Holcomb and Walter Jones
1. The facts
The Company employed Terry Holcomb at its Memphis fa-
cility as a dock employee for 9 years and 10 months. The
Company discharged him on June 25. Holcomb worked on the
day shift under Willie B. Jones’ supervision. Prior to his dis-
charge, the Company issued written warnings to him on two or
three occasions.
Holcomb actively supported Local 667. He distributed leaf-
lets to employees at the terminal’s gate. He wore shirts, pins,
and hats showing Local 667’s name or other ornamentation
encouraging support for that labor organization. 73

73 My findings regarding Holcomb’s employment history and union
activity are based on his uncontradicted testimony.
The Company employed Walter Jones as a dock employee at
its Memphis terminal from June 16, 1985, until June 25, 1999.
At the time of his discharge, Walter Jones’ immediate supervi-
sor was Wayne Reed. Jones worked on the first shift. Prior to
his discharge, Jones had no problem with management. His
record was clean.
Jones was a strong supporter of Local 667. In 1995, he and
employee Jeff Rubicheck accompanied Sam Powell to a coun-
try club, where the Company was holding a dinner for its
Memphis employees. Company CEO Jim Douglas was the
speaker at this function. The three employees wore yellow T-
shirts inscribed “Vote Teamsters.” Powell interrupted Douglas,
who attempted to drown out Powell and told him to sit down.
Rubicheck also interrupted the speaker. A guard approached
Powell, Jones, and Rubicheck and escorted them from the din-
ing room.74 During Local 667’s election campaigns in 1995
and 1996, Jones was active, making house calls, and passing
out leaflets to encourage employees to support the Local. After
Local 667 won the 1996 election, Jones regularly wore Local
667 pins and hats at work. Jones handed out literature for Lo-
cal 667 at the Memphis service center’s entrance in 1999, and
participated in practice picketing at the same gate in spring
1999.75
In early May 1999, an employee approached dock employee
Jimmy Pickett, as he was operating a forklift on the Company’s
Memphis dock, and told him to slow down. The employee also
said that Pickett was driving too fast up and down the dock;
that all the freight pays the same; that people would see him
and others as trying to outdo everyone else, that he should slow
down and do the same as everyone else, and that everyone got
paid the same. The employee did not raise any concerns about
safety, nor did he claim that Pickett was operating in an unsafe
manner. The employee’s tone was unfriendly. At the time of
this incident, Pickett did not know the employee’s name.
Pickett replied that he was there only to make money.
About 1 week later employee Terry Holcomb told Pickett
and employee Jamie Davis to slow down, that they were work-
ing too fast, that the freight paid the same, and that all the em-
ployees received the same pay, so Pickett and Davis should do
the same job as everyone else. Holcomb did not raise any is-
sues related to Pickett’s forklift driving. Holcomb’s tone was
hostile.
Holcomb told Pickett and Davis that the entire first shift
supported the Union. Holcomb urged Pickett and Davis to “get
with the program.” Holcomb’s tone remained hostile. Pickett
replied that he was there to make a paycheck, and that was all
he was concerned about.
Holcomb approached Pickett a few days later, and addressed
him in a friendlier tone but with the same message. The em-
ployees needed to slow down; that the freight paid the same; all

74 My findings regarding the 1995 confrontation between Powell,
Jones, the third employee, and CEO Douglas are based on Powell’s and
Jones’ testimony. Where Jones’ and Powell’s testimony differed, I
have credited Powell, who seemed to have a better recollection of the
details of the incident.
75 My findings regarding Jones’ election campaign activity for Local
667, his display of Local 667 pins and hats at work, and his practice
picketing are based on his uncontradicted testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1470
the employees would be paid the same, no matter how much
freight they handled; they might as well all slow down, and
stop making everyone else look bad.
Approximately 10 days after his second encounter with Hol-
comb, Pickett began having flat tires on his car. For a week
and a half Pickett would experience, daily, two to four flats.
On June 9, on the Company’s Memphis dock, Pickett told
Operations Manager Joey Smith, a supervisor of his confronta-
tions with the two employees who told him to slow down.
Pickett identified Holcomb as one of the two. Pickett told
Smith the details of the employees’ remarks. As he was mak-
ing his report, Pickett pointed to a dock employee, who Smith
identified as Walter Jones.76
Immediately, Smith wrote a short summary of Pickett’s re-
port that Pickett signed. Smith escorted Pickett to the front
office, where Service Center Manager Cecil and Hub Manager
Tom Nelson were conferring. Pickett told Cecil and Nelson of
his encounters with Jones and Holcomb and about the flat tires.
Soon, Smith came to Pickett for a second statement, which
contained more information about Jones and Holcomb’s effort
to obtain Pickett’s support for Local 667. Pickett gave another
brief statement to Bob Cecil. 77
Cecil wanted a detailed report and asked Pickett to dictate a
full report to Assistant Manager Vince Spataro. Pickett dic-
tated his recollection to Spataro and then read and signed the
written statement.
On June 9, Bob Cecil and his superior, Tom Nelson, inter-
viewed Holcomb and Jones about Pickett’s complaint. The
managers interviewed Holcom first. Cecil began by asking if
Holcomb knew why he was summoned to the office. Holcomb
answered no. Cecil asked why Holcomb would tell employees
to slow down. The employee did not answer. Cecil repeated his
question. Holcomb said he did not know what Cecil was talk-
ing about. Cecil said he had a report that Holcomb was telling
dock workers to slow down. Cecil asked why Holcomb would
do that. Holcomb had a blank look. Cecil repeated his ques-
tion.
Holcomb finally replied, admitting that he may have said,
“work safe.” Cecil pressed for more information from Hol-
comb, who repeated that he might have, said, “work safe.”
Cecil studied Holcomb’s demeanor and said that the employee
knew more than what he was telling. Cecil thought that Hol-
comb looked not dumbfounded, but “more like the cat that ate
the canary.” Cecil suspended Holcomb pending further inves-

76 I based my findings regarding Pickett’s encounters with Holcomb
and Jones, employee Davis’s encounter with Holcomb, Pickett’s report
to Joey Smith, and the preparation of Pickett’s reports on June 9, on
Pickett’s full and forthright testimony. Jones denied knowing employ-
ees Jamie Davis and Jimmy Pickett. He also denied telling anyone to
slow down their work unless they were driving a forklift too fast. Hol-
comb denied knowing Pickett and admitted “vaguely” knowing Jamie
Davis. Holcomb also denied ever telling an employee to slow down,
except if the employees were driving a forklift at excess speed. How-
ever, Pickett impressed me as being an honest witness giving his best
recollection.
77 My findings regarding Pickett’s reports to Cecil and Pickett’s
written statements are based on Pickett’s uncontradicted testimony.
tigation. In Nelson’s opinion, during Cecil’s questioning, Hol-
comb was “very nervous.”
Nelson participated in the interview. He asked Holcomb if
he had asked other employees to slow down. After a consider-
able pause of perhaps 45 seconds, Holcomb answered, “Yes, I
did and to work safe.” Nelson was furious at Holcomb and told
him: “You damn guys are not going to run my dock.” When
Holcomb insisted that he was only telling employees to work
safely, Nelson and Cecil told him that it wasn’t his job to tell
people to work safely. Holcomb insisted that it was his busi-
ness if he might suffer injury. Nelson noted that unlike a previ-
ous encounter with Holcomb, in which the employee spoke
looking Nelson in the eye, on this occasion Holcomb diverted
his gaze.
Holcomb asked the name of his accuser. Cecil and Nelson
rejected Holcomb’s request and said they had sworn affidavits.
They did not show the affidavits to Holcomb.
Holcomb testified, and I find, that he was on vacation from
May 28 until June 8. He also specifically testified that he came
back to work on June 8. His credited testimony shows that he
raised his vacation as a defense to the accusations that Cecil
and Nelson leveled against him. However, the record does not
show that he specifically told them that he had been away from
the loading dock from May 28 until June 8. Further, there was
no showing that Holcomb spent his vacation out-of-town, nor
did he deny visiting the Memphis terminal during his vacation.
In any event, I have found from Pickett’s testimony that his
encounters with Holcomb occurred in early and mid-May, well
before Holcomb’s vacation.
Nelson said he was ashamed of Holcomb and ordered him
out of the office. Cecil escorted Holcomb to the gate and told
the guard that Holcomb was not allowed to reenter the prem-
ises.
On June 25, Cecil, without Nelson, had a second interview
with Holcomb, who was accompanied by Steward Herman
Lewis. Cecil asked Holcomb if he had anything to add to what
he had already said. Holcomb repeated his assertions that he
had told employees to work safely, but had not told anyone to
slow down. Cecil ended the interview by saying that he would
get back to Holcomb later.
On June 9, after escorting Holcomb to the Memphis termi-
nal’s gate, Cecil came upon employee Walter Jones and
brought him into the dock office for an interview. Nelson was
present and participated in the interview. Under Cecil’s ques-
tioning, Jones admitted telling employees to work safe. He
denied telling anyone to work slower. Cecil saw that Jones
looked as if he were hiding the truth. Jones protested that
someone was lying about him.
Nelson briefly questioned Jones, asking if he had told em-
ployees to slow down. Jones appeared nervous, and after a
pause, during which he looked through the open door, an-
swered: “No, I did not.”
OVERNITE TRANSPORTATION CO. 1471
Cecil suspended Jones indefinitely, pending investigation.
Cecil escorted Jones to the gate. On the way, Cecil told Jones,
“Your people are not going to overrun this dock.”78
Cecil continued to investigate Holcomb and Jones’ alleged
misconduct. Cecil was concerned about production at his ser-
vice center. As of June 9, Memphis’ productivity was among
the worst of the Company’s hubs nationally, and was the worst
of the hubs under Nelson’s management. Before June 9, Cecil
had told Nelson of his impression that dock employees were
moving “in slow motion on the dock.” Now, after interviewing
Holcomb and Jones, Cecil wanted to know his dock’s produc-
tivity.
Cecil contacted an industrial engineer at the Company’s
Richmond, Virginia office and asked him to run Memphis’
production numbers. The engineer e-mailed figures for all of
1998, and part of the current year, 1999. The figures showed
that Memphis’ production had slipped from 3.454 bills per hour
in October 1998 to an hourly rate of 2.668 in June 1999. In
March 1999, Memphis’ hourly rate was 3.328. Cecil studied
these figures, noting that his dock was producing below 3 bills
per hour, in the 2.5, 2.6, 2.7 bills per hour range.
Cecil also studied his own computer records to determine if
there had been a slow up at Memphis. He noted the sharp con-
trast between the March 1999 hourly average of 3.328 bills and
the 2.040 bills per hour achieved on June 9, the date of
Pickett’s complaint. Cecil also noted a steady reduction in bills
per hour from May 9 until June 9. There was no work on May
9. The production on May 10 was 3.059 bills per hour. Pro-
duction on June 9, was 2.040 bills per hour. Cecil was troubled
by this low rate.
Cecil considered the possibility that Pickett’s forklift driving
might be a safety concern. Cecil checked Pickett’s personnel
folder and found no record of any discipline for unsafe forklift
driving. Also, Cecil obtained written statements from two dock
supervisors, who were familiar with Pickett’s driving. They
both asserted that they had not observed him driving in an un-
safe manner. Both supervisors reported that they had not re-
ceived any complaint about Pickett’s forklift operation.
On June 17, Cecil interviewed employee Jamie Davis, a dock
employee. Cecil came on Davis, who was working on the
Memphis’ terminal’s dock. Cecil asked if anyone had told
Davis to work slower. Davis said yes. Cecil asked for names.
Davis identified Holcomb and Jones. Cecil wrote notes of this
interview.79
Cecil testified that he concluded from his investigation that
Holcomb and Jones were telling employees to slow down their
dock work. It is undisputed that on June 25 Cecil notified Hol-
comb and Jones that they were discharged.
2. Analysis and conclusions
The General Counsel and the Charging Party argue that the
Company discharged Holcomb and Jones because they were

78 My findings regarding Cecil and Nelson’s confrontations with
Holcomb and Jones are based on a composite of the four participants’
testimony.
79 I have credited Cecil’s uncontradicted testimony regarding his in-
vestigation of the allegations of misconduct against Holcomb and Jones
prior to their discharges on June 25.
urging unit employees to work safely and thus engaged in ac-
tivity protected by Section 7 of the Act, in support of Local
667. The Company contends that Holcomb and Jones engaged
in misconduct unprotected by Section 7 of the Act. I find merit
in the Company’s explanation of Cecil’s decision to discharge
Holcomb and Jones.
Holcomb and Jones made no secret of their support for Local
667 and the Teamsters. In 1995, Jones aligned himself with
Powell at the Company’s preelection dinner. When Powell
interrupted CEO Douglas’ speech with questions from the
floor, Jones was standing next to Powell, wearing a yellow
Teamsters T-shirt. Jones made strenuous efforts to assist Local
667’s preelection campaigns in 1995 and 1996. He passed out
leaflets and made house calls. Thereafter, he wore Local 667
hats and pins at work, on the Memphis service center’s dock.
In 1999, prior to his discharge, Jones was visible at the Mem-
phis Service center’s gate, handing out literature for Local 667
or engaging practice picketing.
For his part, Holcomb did not conceal his prounion senti-
ment. He regularly wore shirts, hats, and pins to work, showing
Local 667’s name or urging support for the Local.
I have no doubt that Joey Smith, Bob Cecil, and Tom Nelson
were aware of Jones and Holcomb’s pro-Local 667 activity and
sentiment. In view of the Company’s demonstrated hostility
toward employees who supported Local 667 and the Teamsters,
it was likely that Smith, Cecil, and Nelson would be alert for an
opportunity to diminish Local 667’s strength by getting rid of
these two open union supporters. Thus, I find that the General
Counsel has made a prima facie showing that the two employ-
ees’ union activity was a factor in Cecil’s decisions to dis-
charge Jones and Holcomb on June 25.
The Company claims that Cecil suspended and fired Jones
and Holcomb for attempting to slow production on the Mem-
phis terminal’s dock. In support of this claim, the Company
had reports from employees Pickett and Davis showing that
without any mention of safety concerns, Holcomb told them to
slow down. Similarly, the Company had Pickett’s detailed
report that Jones had urged him to slow down without any men-
tion of safety concerns. Cecil and Nelson gave Jones and Hol-
comb opportunity to explain their alleged misconduct. Cecil
and Nelson provided credible testimony showing why they did
not believe Jones and Holcomb. Cecil was in no hurry to dis-
charge Jones or Holcomb. Cecil carefully investigated
Pickett’s report. He also gathered information showing the
drop in production on his dock in May and June and checked
Pickett’s safety record. Finally, he questioned other dock em-
ployees and came up with Davis, who corroborated Pickett’s
report on Holcomb. At this point, Cecil concluded his investi-
gation, but only after giving Holcomb one more chance to de-
fend himself. Holcomb had nothing new to offer. There has
been no showing that any employee, other than Holcomb and
Jones urged an employee to slow down his or her work and got
away with less punishment. Cecil was disturbed by his service
center’s poor production. He had a legitimate interest, as a
company manager, to remove obstacles to the flow of work on
his dock.
I have no doubt that the Company was unhappy about Jones
and Holcomb’s adherence to Local 667 and the Teamsters. Yet
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1472
I cannot find that their prounion stance motivated the Company
to discharge them. Accordingly, I find that the Company has
rebutted the General Counsel’s prima facie showing of unlaw-
ful motive. I further find that the General Counsel has not
shown by a preponderance of the evidence that the Company
discriminated against Jones and Holcomb within the meaning
of Section 8(a)(3) and (1) of the Act. General Electric Co., 321
NLRB 662, 677 (1996). I shall, therefore, recommend dis-
missal of the allegations that Jones and Holcomb’s respective
discharges violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By disciplining, suspending, and then discharging em-
ployee Sam Powell, and by suspending and then discharging
employees Charles Watkins, Floyd Wilbanks, Frederick L.
Clark, Autra Wilkerson, Wilford Hugh McCalla, William
Palmer, and Kyle Medley, because of their union activity and
prounion sentiment, the Company has engaged in unfair labor
practices affecting commerce, within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
2. The Company did not violate Section 8(a)(3) and (1) of
the Act by discharging Dispatcher Tony Perezz Brown and
employees Walter Jones and Terry Holcomb.
The Company violated Section 8(a)(5) and (1) of the Act by
refusing to furnish the Union, Teamsters Local 667, affiliated
with the International Brotherhood of Teamsters, with informa-
tion it requested in February 1999, regarding the Company’s
investigation of bargaining unit employees’ criminal records.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Company, having discriminato-
rily disciplined, suspended, and discharged Sam Powell, and
having discriminatorily suspended and discharged employees
Charles Watkins, Floyd Wilbanks, Frederick L. Clark, Autra
Wilkerson, Wilford Hugh McCalla, William Palmer, Kyle
Medley, and Sam Powell, it must offer them reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of suspension to date
of proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). I shall also recommend that the Com-
pany be required to remove from its files any references to the
unlawful discipline, suspension, and discharge of Sam Powell
and any references to the suspensions and discharges of Charles
Watkins, Floyd Wilbanks, Frederick L. Clark, Autra Wilkerson,
Wilford Hugh McCalla, William Palmer, and Kyle Medley, and
notify these employees that it has done so and that it will not
use these adverse actions against them in any way.
[Recommended Order omitted from publication.]