Overnite Transportation Company

National Labor Relations Board - Board Decisions

Sep 26, 1979

245 N.L.R.B. 423 (N.L.R.B. 1979)

OVERNITE TRANSPORTATION COMPANY
Overnite Transportation Company and Freight Driv-
ers and Helpers Local Union No. 557, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 5-CA-9399
September 26, 1979
DECISION AND ORDER
BY MEMBERS PLNEI.LO, MURPHY, AND TRUESDALE
On June 21, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to crediblity
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully
examined the record and find no basis for reversing his findings.
In addition to his exceptions, the General Counsel filed with the Board a
motion for a heanng de novo on the ground that the Administrative Law
Judge was personally biased and prejudiced against dischargee Charles Hol-
quist, and thus could not render an objective decision based on the record
herein. In this regard, the General Counsel refers, inter alia, to a statement
made by the Administrative Law Judge in his Decision suggesting that Hol-
quist's testimony had been "doctored." In reaching our decision herein, we
place no reliance on this apparently gratuitous remark for which we find no
foundation in the record. We also disavow any implication of impropriety by
counsel for the General Counsel that may be contained in the Administrative
Law Judge's statement However, based on our careful examination of the
entire record and the Administrative Law Judge's Decision, we find no suffi-
cient basis for concluding that the Administrative Law Judge demonstrated
a bias against Holquist in his analysis or discussion of the evidence. or in his
credibility resolutions. Thus, we find Holquist's testimony to be incoherent.
internally inconsistent, and largely contradicted on critical facts by the testi-
mony of Union Organizer James Hahn. another witness for the General
Counsel, as well as by the testimony of Terminal Manager Bobby Eddins,
whom the Administrative Law Judge specifically credited. Accordingly, we
find no grounds for reversing the Administrative Law Judge's findings.
In support of his motion the General Counsel also alleges that a remark,
which he asserts the Administrative Law Judge made off the record during
the heanng. is further evidence of the Administrative Law Judge's bias. We
note that the General Counsel did not raise this issue until after the Admin-
istrative Law Judge had issued his Decision and the case was transferred to
the Board. In so doing, the General Counsel did not comply with the re-
quirement of Sec. 102.37 of the Board's Rules and Regulations. The General
Counsel's attempt to raise this issue for the first time along with its excep-
tions to the Board is untimely Powell Valles Electric Cooperative. 236 NLRB
1040 (1978). In view of the foregoing, the General Counsel's motion is
hereby denied.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
SIAIEMEN.I OF IIe CASE
THOMAS A. Ric((l, Administrative Law Judge: A hearing
in this proceeding was held on October 26. 1978 and on
March 14, 1979, in Baltimore. Maryland. on complaint of
the General Counsel against Overnite Transportation Com-
pany. here called Respondent or the Company. The com-
plaint issued on May 24, 1978, on a charge filed on April
24, 1978 by Freight Drivers and Helpers Local Union No.
557, International Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America. here called the
Union. The issue of the case is whether Respondent dis-
charged one Charles Holquist, in violation of Section
8(a)(3) of the Act. Briefs were filed by the General Counsel
and the Charging Party.
Upon the entire record, and from m, observation of the
witnesses. I make the following:
FINI)IN(S 01 FA(CTI
1. HE BSINlSS OF RESPONDENI
Overnite Transportation Company, a Virginia corpora-
tion, is engaged in the operation of freight terminals in sev-
eral States and in local and interstate transportation of
freight by motor carrier. During the 12 months preceeding
issuance of the complaint. a representative period, it had
gross revenues exceeding $50,000 from the interstate trans-
portation of freight. I find that Respondent is an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Question Presented
This case presents no more than a straight question of
fact. Charles David Holquist. one of about 200 employees
at the Company's Elkridge terminal, was discharged on
April 5. 1978. Two weeks earlier, a company truck had
been damaged and management learned, 4 or 5 days before
the discharge, the Holquist had done the damage while
moving a truck from one parking place to another in the
yard, or, while "jockeying" vehicles, a regular part of his
job. Bobby Eddins, the terminal manager, told Holquist.
when discharging him, the reason was because the em-
245 NLRB No. 58
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee had not reported the accident to management when
it happened, and thereby violated a fixed company rule.
Holquist denied, both to Eddins at the time of the events
and at the hearing 10 months later, that it was he who had
done the damage. All this happened while Teamsters Union
Local No. 557 was trying to organize the employees at the
terminal. Holquist was active in soliciting union cards: he
distributed leaflets and obtained a number of signed cards,
about 10 or 15.
The complaint alleges that the reason why Respondent
discharged Holquist was because of his union activity, and
that therefore it violated Section 8(a)(3) of the statute. An
unstated allegation, but a contention clearly advanced at
the hearing, is that management must have known Holquist
had not been responsible for the damage to the truck. As to
the necessary correlative and affirmative assertion that
management had knowledge of Holquist's union activity,
there is a separate allegation in the complaint. It is that 2
days before the discharge the terminal manager saw Hol-
quist engage in union activities; indeed that by so seeing
him do that Eddins engaged in illegal surveillance, and
committed an independent violation of Section 8(a)( ).
At first blush it would appear that the question is, did
Holquist damage the truck or did he not: the testimony is
conflicting. Actually, the more important question may
be-did the Company believe he did it, or did it have rea-
sonable basis for so concluding. A second questions, also
one of a pure fact, is whether it is true Eddins knew of
Holquist's personal participation in the prounion activities.
The Respondent denies that commission of any unfair
labor practices.
The Evidence
B. A Preliminary Matter
As in all complaint proceedings before the Board, after
the charge was filed Board agents investigated the case.
Also in the usual way the Respondent's representatives jus-
tified the discharge as perfectly lawful, and in the process
told the investigators who had been involved and could talk
about the defense assertions. Among the names so fur-
nished was that of Michael Hughes, another employee, who
had told the supervisors he saw Holquist do the damage,
and had even signed a statement to that effect before the
discharge. Again in due course, the Board investigator
spoke to Hughes, as well, I assume, as to other possible
witnesses. Hughes told the same story to the investigator,
and gave two statements which were reduced to writing,
one of them regularly signed. All this before the General
Counsel issued his complaint.
At the hearing among the first persons the General Coun-
sel called as witnesses-more importantly before calling
Holquist-was Hughes, and then proceeded to cross-exam-
ine him with the object of getting him to admit he was a
liar. But Hughes, under oath, held firm. He said that during
the night shift starting at 11 p.m. on Thursday, March 16,
and ending at 7 a.m. the next morning, while both he and
Holquist were working, he saw Holquist inadvertently back
a truck, while parking it, too close to another one and dam-
age the left door of the already parked one. While arguing
with the witness to make him change his testimony, the
General Counsel made frequent reference to the man's two
earlier statements. In the second one, Hughes made a
change, saying, in contrast to his first statement, that he did
not actually see Holquist get out of the truck cab after the
collision between the two vehicles. Still from the witness
stand, Hughes explained this partial retraction as his reac-
tion to intimidating acts towards him by other employees
resulting from his havng snitched on a fellow employee. Be
that as it may. and the evidence about quarrels and phys-
ical misconduct among employees is vague and unreliable
the fact is Hughes never deviated from his clear testimony
about who damaged that truck that day.
All this about the witness' prior statements appears in the
transcript of testimony as selective comments by the Gen-
eral Counsel as he held them in his hands while talking
during the hearing. He did not himself offer to put them
into evidence. This means, of course, that it was not a mat-
ter of confronting a witness with prior inconsistent state-
ments, which sometimes happens. In short, this was the
prosecutor, before presenting his own affirmative proof in
support of the allegations in his complaint. calling an ordi-
nary employee he thought was going to testify in support of
a defense assertion, for the purpose of destroying him.
The Respondent objected to the General Counsel's lead-
ing questions, to this entire method of proceeding: I sus-
tained the objections. Asked on what basis he could justify
such opening cross-examination of Hughes, the General
Counsel said it was because "this man was presented by the
company in the investigation," and then cited Section 611
for authority. Rule 61 I(c) of the new Federal Rules of Evi-
dence provides as follows: "Leading questions. Leading
questions should not be used on the direct examination of a
witness except as may be necessary to develop his testi-
mony. Ordinarily leading questions should be permitted on
cross-examination. When a party calls a hostile witness, an
adverse party, or a witness idenitified with an adverse party,
interrogation may be by leading questions."
If the General Counsel's postion is correct, it means he
can call for cross-examination each and every person he
knows a respondent may conceivably later offer as a de-
fense witness. Restated, what the contention amounts to is
that when a Board investigator learns of any person whose
version of events may be adverse to an intended complaint,
and it does not really matter whether he gets the name from
the prospective respondent or anywhere else, that person is
to be deemed "hostile," or management, or "an adverse
party." One argument at least is not made; there is not, and
there could hardly be, a claim of surprise in this instance.
If a person does not fall within the coverage of Section
6(11), he remains just another witness said by the General
Counsel to tell the truth about what happened. The Gen-
eral Counsel's statement on the record in this case that he
was not vouching for his [Hughes'] credibility, will not do.
The unspoken, and necessary implication arising from the
fact he called the witness is that he wants him to be be-
lieved. How may General Counsel briefs have I read that
single out only the words spoken by his witnesses as Gospel
truth. totally ignoring what anybody else swore to. The
General Counsel is not only in the inescapable posture of
vouching for his own man, but he has to live with whatever
comes out of his mouth, no matter where the chips than
424
OVERNITE TRANSPORTATION COMPANY
fall. I do not think the Union in this case, as the Charging
Party, stands in any different position.
It is a fact the truck in question was damaged. to what
extent may be a question. The General Counsel's witnesses
belittled it, while Eddins, for the Company, said it cost $300
to repair. And the testimony by company officers that fail-
ure by an employee who causes any such damage to a vehi-
cle in the yard to report the fact to management is cause for
dismissal, is uncontradicted. It was also shown, from com-
pany records, that other employees who had violated this
rule were in fact dismissed. Indeed, one or two from this
very terminal. Only two witnesses spoke about the acci-
dent-Holquist, who said he did not do it, and Hughes.
who said he saw Holquist do it. Both were the General
Counsel's witnesses. I credit Hughes.
Trucks loaded with freight keep arriving at this terminal
and are backed to numbered unloading docks. When emp-
tied they are moved to the parking areas, also numbered
places. With the scheduled flow of work, trucks are then
moved from parking areas to appopriate docks for loading
and when ready are driven away to make deliveries. The
yard employees, as distinguished from the drivers, include
dockmen, who load and unload the trucks, and others who
move the trucks from place to place all over the large termi-
nal. The shifts worked by Holquist and Hughes overlapped
over midnight. From the moment the day shift of Friday
ends in late afternoon no one works in this terminal until
the following Sunday evening.
Hughes said he saw Holquist do the damage at about
midnight during the Thursday night to Friday morning
shift on March 16, at parking lot number 69. He said Hol-
quist was backing an empty trailer to park it and hit the
other truck as he did so. Holquist said he first noticed the
damage early Monday morning, during his Sunday night to
Monday morning shift, and that it was then parked at load-
ing dock number 39. He reported the damage but dis-
claimed responsibility.
A number of arguments are advanced as supporting an
inference that Hughes could not be telling the truth. If the
damage was done at midnight Thursday. how come nobody
noticed it until Monday morning? There is some confusion
in testimony as just where the damaged truck was first seen.
Cross and Chappell, both management agents, indicated by
their testimony that they first learned of it Monday morn-
ing. Loading dock number 29 is ordinarily used to load up
for shipments to Andrews Airforce Base, and an entirely
different kind of tractor trailer is used for those runs. How
explain the presence of the damaged truck there at all? If
the truck was moved from 60 to 39. is it not more likely the
unknown driver who moved it did the damage? One witness
testified the damaged truck was in "jackknife" position at
number 39, i.e., not in straight, parallel alignment with
those next to it, and even that there was glass on the ground
nearby.
That all these facts raise a doubt as to just where the
damage was done, or just where the truck was standing on
that special Thursday night, is true. But then, was there
ever a statement of fact as to which some question could
not be raised? Even the measured passage of time has been
shown to be short of an absolute. To offset this issue of
probability so raised by the prosecution, Respondent called
Bernard Chappell. the operations manager. lie talked from
a large bundle of records in his hands. documents detailing
all the loading and unloading of trucks during the days
involved, and deliveries made. With repetitive referrals to
them, he attempted to prove it was logical to conclude the
damaged truck must have been in parking lot number 69
Thursday night, and moved to dock number 39 after the
week end. There would be no value in repeating here all the
quotations he gave from the records. because by the time
Chappell was through he candidly admitted he did not
know as fact where that truck was at any time before the
damage was reported at dock number 39. His testimony is
riddled with comments such as "it follows" such and such
must have been true, in "normal circumstances" this would
be so, "I would assume" such and such.' All this amounts to
is Chappell did not know where that truck was at any par-
ticular hour.
As is always true where the parties dispute somebody's
direct testimony, there are related facts cutting both ways
on the question of credibility. The General Counsel showed
Thursday night was a rainy one with some snow, and with
low visibility. He says Hughes could not possibly have seen
Holquist's face at such a distance. But it is also true the
whole terminal is always greatly illuminated throughout the
night, with powerful lights everywhere. With so many peo-
ple working all night. constantly moving trucks and trailers
all over the place, it had to be good vision everywhere.
Next: Hughes hoped himself to progress to the job of jock-
eying, like Holquist. and even practiced on his own time.
driving trucks around the yard. Does it follow, as the Gen-
eral Counsel hints, he made up the story to get rid of the
competition? But nothing can change the fact it was Hol-
quist who was doing the jockeying that night, and therefore
presumptively the man who moved the truck when it was
damaged. Again, Hughes changed his story a little in his
second statement to the investigator. now saying he did not
see Holquist get out of the truck cab. Does this alone make
him a liar altogether? I think, as well, his explanation is
perfectly plausible that he had been intimidated. or feared
reprisal for having turned to management against a fellow
employee. I do not know that it happened here, but such
reaction by other employees in like circumstances is not
unknown. Hughes also said that because he did do some
practice jockeying. he might have himself been blamed.
On this total record I see no sufficient reason for rejecting
Hughes' clear and direct testimony.
We come to the affirmative burden of proof requisite for
supporting the complaint. Can it be said Eddins discharged
Holquist because he favored the Union? Insofar as Eddins
was conerned, it did not really matter whether he could
prove to anybody else that Holquist was guilty. He did not
see the accident, and therefore could not "know" in any
philosophical sense. Hughes told him and he had no reason
From Chappell's record testimony:
Q. Your forms don't tell us anything about how 44506 got to he at 39
door Sunday evening when ou saw the damage and Holquist old ou
it was damaged?
A. No, they don't.
Q. Now. ou assumed and I think that is your testimon'y that it
was taken over to the pad
A Yes, sir.
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not to believe him. Despite all the tangential arguments
made, there is no substantial ground for holding Eddins
should not have believed Hughes.
But employers have been known to use even admitted
misconduct by an employee as a pretense to cloak illegal
motivation when discharging a man. This brings us to this
second part of the case.
At about 8:30 on the morning of April 3, James Hahn,
the Teamsters organizer, was distributing union literature
at the employee entrance to the terminal, near where the
employees park their cars. Hahn was standing on the com-
pany side of the road. Holquist drove out on his way home
and stopped on the other side of the street. Hahn walked
across the road to him and Holquist handed him some
signed union authorization cards. Hahn also said that Hol-
quist was accompanied by his brother Odel, and even by a
third employee Chappell, and that as he, Hahn, was being
handed the cards, "one of the Holquists-I don't know if it
was David or Odel- . . said, . . . there is Bob Eddins.
sitting up on top of the hill in his car." Whereupon Hahn
then told the men "no use in making a big scene out of this
or stretching it out. Why don't you fellows go get a cup of
coffee?" This is the testimony of Hahn, who testified the
first day of the hearing. It must be clearly understood, and
it is that Holquist, with his brother, stopped his car on the
side of the street opposite the Company property, that the
Teamsters agent went to him there, that when Holquist
handed over the union cards somebody thought he saw
Eddins "up the hill." that Hahn immediately told them to
get out of sight, and that right away they did so- Holquist.
his brother, and whoever else may have been in the car with
them.
One could read this testimony as showing that Hahn did
not want to risk the manager recognizing Holquist as an
employee having anything to do with him. For the least, it
proves Hahn did not want Eddins to get any impression
Holquist was participating in the distribution of union lit-
erature at the employee entrance, on the company side of
the street.
Eddins' testimony is that he was told that morning some-
body was giving out union material on company property
and that he therefore got into his car to go there and see.
He reached the employee gate and saw Hahn, who said he
was off the company property. This is all that was said
between the two, even according to Hahn. Eddins said he
recognized no one except Hahn that day. Considering the
testimony of all three men- Hahn, Eddins, and Holquist
I believe Eddins.
At the end of the first day there was a four and a half
month recess in the hearing, by agreement of all parties.
Holquist was the first witness after the recess and after, of
course, Hahn's testimony had been fully digested by the
prosecution side. His total study, enlarging upon and in
most critical part conflicting with that of Hahn, only serves
to discredit Holquist completely. He said he was alone in
his car when he arrived at the other side of the road that
morning, that he parked his car, walked over to the other
side, and for 10 minutes helped Hahn distribute union lit-
erature. He added that it was after this 10 minutes that his
brother and Chappell arrived, each in a separate car. But
Hahn spoke of only one car with both brothers in it and of
everybody being on the opposite side of the road at all
times. If Holquist had been at all active in union literature
distribution at that moment, while, as the witnesses con-
tended, Eddins was "surveilling" things, surely the Team-
sters organizer would have said so. Holquist's testimony
continues that after his brother and Chappell had also spent
about 5 minutes with him and Hahn on the company side
of the street, "Mr. Hahn ... turned his head and looked up
there ... and said ... there is a car up there looking down
on us." Can this be reconciled with Hahn's clear statement
that one or the other of the Holquists first noticed the car
up the hill? And finally, Holquist said he was there at the
entrance of the plant engaging in protected union activity --
"half an hour" before anyone looked up the hill and recog-
nized Eddins' car. Hahn's testimony, given 4 months ear-
lier, clearly put Holquist there no more than a minute or
two. There can be no question but that Holquist's testi-
mony was doctored in the interval. I do not believe him.
Asked about how far away was Eddins parked when
looking down the hill, when the men were told to leave,
Hahn first avoided answering. In the end he said it was
"300 yards." I am reminded, these days, of a football field,
100 yards long. If a spectator in the cheap seats, behind one
of the goal posts, knows who scored the touchdown at the
other end, it is only because the runner carries a very large
number on his back. What are the chances this spectator
could recognize anyone of the players with out numbers
from a distance three times the length of a football field?
Very little. The burden upon the General Counsel to prove
the necessary element of knowledge in this case is not "very
little.' This record does not suffice of prove Eddins saw Hol-
quist in the company of Hahn that morning. A final tidbit:
the Teamsters agent signed two prehearing investigation af-
fidavits. In neither is there mention of his having seen
Eddins' car parked at the top of the hill.
CO(N(LtSIoNs o L.AW
I find that the evidence in totality falls short of proving
the essential allegations of the complaint. It is an inference
case; there is no direct proof of illegal motivation in the
discharge. It is a fact a truck was damaged: it is a fact
Hughes told management he saw Holquist do the damage;
it is a fact Eddins told the man this was the basic reason for
the dismissal and it is a fact others were discharged for the
same reason. And, there is no evidence the Respondent had
reason to believe Holquist was a union protagonist.
As explained above, there are always questions that can
be asked. Hughes' written statement attesting to his having
seen Holquist do the damage is dated March 29, but the
man was discharged on April 5. Why did the Company
wait so long to release him? A brief by the Respondent
might have explained this seeming puzzle, but there was
none. When asked, at the first day of the hearing, why the
discharge, Eddins listed a number of reasons, including
both this incident and Holquist's bad record of many repri-
mands for past errors on the job. At the later hearing date
he went out of his way to specify the real reason was the
unreported damage. It is argued that this shifting of posi-
tion proves Eddins was hiding an illegal motive. There
could as well be another explanation. When a man is dis-
missed for a dischargeable offense, I think it not unnatural
426
OVERNITE TRANSPORTATION COMPANY
for his employer to remind him that for some time he had
not been a very desirable employee anyway,. even if his
prior derelictions fell short of justifying release. That this
could have been what Eddins was doing when telling Hol-
quist he was through is indicated by three company records
of dismissals for failure to report damages in the case of
Helms, Grayson, and Griffin. The records of each of these
men show he was dismissed both for not reporting an acci-
dent and for other reprimandable offenses. And finally.
there is no direct proof of any kind on this record, of anti-
union animus on the part of the Respondent. Doubts do not
take the place of affirmative proof to support a complaint.
Unfair labor practices must be established b substantial
affirmative evidence on the record as a whole.. L. R. B. v.
Glenn Raven Silk Mills. Inc.. 203 F.2d 949 (4th Cir. 1953).
ORDER'
I IS HEREBY RI('OMMENi)DED that the complaint be, and it
hereby is dismissed.
2 In the event no exceptions are filed as provided bs Seclion 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as prosided n Section
102.48 of the Rules and Regulations, he adopted bh the Board and become
its findings, conclusions, and Order, and all objections thereto shall he
deemed waived for all purposes
427