Rent Me Trailer Leasing

National Labor Relations Board - Board Decisions

Jan 9, 1992

305 N.L.R.B. 1094 (N.L.R.B. 1992)

1094
305 NLRB No. 169
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent contends in its answering brief that the Charging
Party’s exceptions are deficient in form and that all exceptions
should be deemed waived. Although the Charging Party’s exceptions
do not strictly comply with Sec. 102.46(b)(1) of the Board’s Rules
and Regulations, we accept them because they are not so deficient
as to warrant striking.
2 The Charging Pary has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resloutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 We agree with the judge, for the reasons stated in his opinion,
that the General Counsel failed to establish a prima facie case that
the Charging Party’s asserted union activities were motivating fac-
tors in the Respondent’s termination of his employment. We also
agree that, even if such a case was established, the Respondent has
shown that it would have terminated the Charging Party for lawful
reasons. In these circumstances, dismissal of the complaint is war-
ranted under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
1 The General Counsel filed a motion to strike portions of the Re-
spondent’s brief on the ground that it contained erroneous statements
of the record. Although there may have been some overstatements
in Respondent’s brief, the motion is essentially an attempt to file a
reply brief which is not permitted under Board Rules. I will neither
strike the Respondent’s brief nor reject the General Counsel’s reply
brief. Frankly, the posttrial papers filed by counsel were not particu-
larly helpful. I cannot fully accept the view of the evidence ex-
pressed in the briefs of either counsel.
Rent Me Trailer Leasing, Inc. and Dennis Black.
Case 14–CA–21348
January 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 2, 1991, Administrative Law Judge Rob-
ert A. Giannasi issued the attached decision. The
Charging Party filed exceptions and the Respondent
filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
William P. Barrett, Esq. and Dorothy D. Wilson, Esq., for
the General Counsel.
James N. Foster, Jr., Esq. and Steven Griswold, Esq., of St.
Louis, Missouri, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
case was tried on June 10, 1991, in St. Louis, Missouri. The
General Counsel’s complaint alleges that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging em-
ployee Dennis Black because of his union activities and Sec-
tion 8(a)(1) of the Act by making three unlawfully coercive
statements. Respondent filed an answer denying the essential
allegations in the complaint. The parties filed briefs which I
have read and considered.1
Based on the testimony of the witnesses, and my observa-
tion of their demeanor while testifying, as well as the docu-
mentary evidence and the entire record herein, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of
business in Vandalia, Illinois, is engaged in the interstate and
intrastate transportation of freight. During a representative 1-
year period, Respondent derived gross revenues in excess of
$50,000 from the transportation of freight from the State of
Illinois directly to points outside the State. Accordingly, I
find, as Respondent admits, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
Leather Goods, Plastics and Novelty Workers’ Union,
AFL–CIO, Local No. 160 (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Dennis Black was originally employed with Respondent
from August 13, 1988, through April 27, 1989. He delivered
freight for Witte Hardware Company, Respondent’s primary
customer, indeed, its only customer in the Vandalia area. His
supervisor was Mack Coker, the Respondent’s general man-
ager at the Vandalia terminal. Black was laid off in April
1989 because Respondent’s new insurance carrier required
drivers to have 2 recent years of over-the-road driving expe-
rience. Because Black did not meet this requirement he was
laid off. There is no evidence that Black’s work was found
to be deficient in any way during this initial period of em-
ployment.
Black was rehired by Respondent in August 1990 after
having met the 2-year driving requirement. Black heard that
Respondent was in need of a driver and he called Coker
about a job. Coker hired Black specifically to replace drivers
who were on vacation or otherwise off work because of ill-
ness or injury. Black was hired as a temporary employee. He
was told at the end of each week he worked whether he
should come back the following week.
At the beginning of Black’s second period of employment,
in August 1990, Coker specifically told and explained to
Black that he was being hired as a temporary employee.
Coker also told Black that he did not want to take Black
away from his then-existing regular job. Black responded
that he would take his chances with Respondent because he
1095RENT ME TRAILER LEASING
2 Black testified that during his second period of employment he
‘‘settled in with two northeastern Missouri runs’’ and that Coker
said ‘‘nothing’’ about whether Black’s status was temporary or per-
manent. To the extent that his testimony conflicts with that of White
and Coker and the documentary evidence, I discredit Black. On
cross-examination, Black conceded that he operated numerous dif-
ferent runs which were normally driven by others, a fact clearly es-
tablished by the documentary evidence. He also admitted that when
he went to work for Respondent he advised Coker that he could re-
turn to work for his then-employer. Although he did not testify in
detail about any pre-employment conversations with Coker in his di-
rect testimony, he was called as a rebuttal witness after Coker and
White testified in detail about the conversations which led to his re-
hire as a temporary employee. He did not then testify about those
conversations or refute their testimony. In all the circumstances, I
find that Coker and White testified truthfully about these matters.
Black was not a reliable witness on either the conversations, as to
which he testified only generally at best, or the status of his employ-
ment, as to which I am convinced he testified untruthfully.
3 Black denied that Coker ever mentioned such complaints to him.
I reject Black’s testimony on this point because of his unreliability
on other aspects of his testimony. Coker was clearly a more credible
witness than Black.
could always return to his existing employer. At least two
such conversations took place between Coker and Black. One
was at a restaurant the day before Black started work and the
other was in the Respondent’s office the next day. The latter
conversation took place in the presence of and was overheard
by office employee Lynette White who testified credibly
about the conversation. She essentially corroborated Coker
on this point. White, who prepared the paperwork on Black’s
employment, made a notation that Black was hired as a tem-
porary employee. Because he was considered a temporary
employee, Black was not issued a uniform like regular per-
manent employees, given material to join the incumbent
Union which represented the Respondent’s drivers, or placed
in the Respondent’s insurance plan. Documentary evidence,
explained in meaningful detail by White, confirms that, al-
though Black worked fairly regularly in August, September,
and October 1990, he did so as a replacement for drivers
who were off work for vacation or illness or injury. He
drove different runs which were normally driven by other
employees. The evidence is overwhelming that Black was
hired and actually functioned as a temporary employee.2
In the fall of 1990, according to Black, he made inquiries
of his fellow drivers about union representation and the name
of the steward, if any. In fact, Respondent’s 17 or so drivers
were represented by the Union and covered under a collec-
tive-bargaining agreement. It does not appear, however, that
the Union appointed a steward at Respondent’s Vandalia ter-
minal, or, indeed, that any written grievances were actually
filed on behalf of employees. There is no evidence that
Black’s inquiries about union representation, if, indeed they
were made to employees, came to the attention of any of Re-
spondent’s supervisors.
On Tuesday, November 6, 1990, Black went on a run to
Chicago, Illinois. On his return on November 9, Black was
notified that he would not be needed the following week.
The notification came from Doug Meske who was in charge
of the Vandalia terminal because Coker was away. Meske
mentioned something about a letter complaining that Black
had run someone off the road.
During Black’s period of temporary employment Coker
considered converting Black to a permanent driver. However,
in October 1990, Coker received several customer complaints
about Black. The complaints came from Witte Hardware, Re-
spondent’s primary customer. Coker discussed some of these
complaints with Black.3
In early November, Witte Hardware forwarded another
complaint to Coker, this in the form of an October 31, 1990
letter from a woman stating that she and her husband were
nearly killed by one of Respondent’s Witte Hardware trucks
in Sweet Springs, Missouri. Coker investigated dispatch
records and determined that the incident must have occurred
on a run which Black was operating, on a substitute basis,
at a time when Black would have been the driver involved.
Coker made a decision at this point to terminate Black and
he did so without showing Black the complaint letter or ask-
ing him for an explanation. Coker did write Witte Hardware
on November 8, 1990, apologizing for the incident and noti-
fying Witte that the driver had been terminated.
In addition to Black’s poor driving and the complaints
about him, Coker was faced with two other circumstances in
early November which contributed to his decision to termi-
nate Black at this time. First, Witte Hardware had forwarded
to him the name of an applicant for permanent employment.
That applicant, John Thompson, was hired by Respondent in
November 1990; his first day of work was November 13.
Secondly, the reason for Black’s temporary employment had
evaporated. By early November employees who were un-
available because of vacations, illness, or injury had returned
to work. For these reasons, as well as Coker’s loss of con-
fidence in Black’s driving and work abilities Coker decided
to end Black’s temporary employment. Coker’s testimony
about his reasons for terminating Black was candid and truth-
ful.
On November 19, 1990, Black and his wife drove to Re-
spondent’s terminal to talk to Coker about his termination.
According to Black, Coker came outside and told him, ‘‘I
don’t like you nosing around about a union. I’m your union
president, your union steward, and now your ex-boss.’’ Black
then brought up the letter that Meske had mentioned. Coker
replied that ‘‘we do have a letter in there where you run
somebody off the road, too.’’ Black said that this did not
happen, but Coker said, ‘‘I have no choice.’’ According to
Black, his wife was present during this conversation. How-
ever, when she testified in this proceeding, she did not men-
tion any such conversation, even though she did testify—on
cross-examination—that she saw Coker on November 19.
She did not corroborate her husband’s testimony concerning
Coker’s alleged remarks. Coker denied that he made the
statements attributed to him by Black.
I do not credit Black’s testimony about the November 19
conversation. This is based not only on Black’s unreliable
testimony on another issue, that is, whether he was hired as
a temporary employee, but also because he was not corrobo-
rated by his wife who was also present during this alleged
conversation. Furthermore, Black’s testimony does not ring
true. There is no context for Coker to have made statements
about union activity; there is no evidence that he even knew
that Black was ‘‘nosing around’’ about unions. In any event,
Coker was much the more reliable witness and I credit his
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The General Counsel’s attempt to make something of the fact
that Black was once a union president when he worked for a pre-
vious employer falls far short of any relevancy. This work and union
experience ended in November 1985 well before even Black’s initial
employment with Respondent. There is no evidence that Respondent
held this against Black. Indeed, it hired him twice and there is no
evidence that, assuming knowledge and concern about this fact,
something happened during the second period of his employment
that would have made this an operative consideration in Black’s ter-
mination.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
denial that he made the statements attributed to him by
Black.
On January 17, 1991, Mrs. Black stopped by the Vandalia
terminal to speak with Coker about the complaint letter. She
asked Coker for a copy of the letter. Coker said he could not
provide her with a copy. According to Mrs. Black, Coker
said that the letter was not the reason for the termination of
her husband. Coker said, ‘‘Have you ever heard of politics,’’
and Mrs. Black responded, ‘‘I’m afraid I have.’’ Coker can-
didly admitted that he mentioned ‘‘politics’’ in his conversa-
tion with Mrs. Black in January 1991.
Black himself testified that later that day he called Coker
and asked him to explain what he meant by ‘‘politics’’ and
that Coker refused to elaborate. Because of Black’s
unreliability as a witness, I cannot accept this version of
events. However, even if something like this happened, I do
not believe anything can be read into what allegedly was said
other than the words which were allegedly spoken.
B. Discussion and Analysis
Based on my credibility determinations, I shall dismiss the
allegation that Respondent violated Section 8(a)(1) when
Coker told Black in November 1990 that he was fired for
‘‘nosing around’’ about a union. Not only was that statement
never uttered, but there is no evidence that Coker knew that
Black was ‘‘nosing around’’ about a union or cared if he did.
The second 8(a)(1) allegation is based on Coker’s state-
ment to Mrs. Black in January 1991 which assertedly implied
that her husband had been fired because of his interest in the
Union. The reference to ‘‘politics’’ in that conversation is
much too ambiguous for me to base a finding that this meant
that Coker was admitting that the discharge was due to union
considerations. It could well have been a reference to a belief
that Coker was forced to hire someone referred to him by
his major customer or that he had to fire Black because his
major customer complained about Black’s driving. Pleasing
the customer can be viewed as ‘‘politics.’’ In any event, it
is the General Counsel’s burden to demonstrate that the ref-
erence was to union activities. And there is no evidence or
context from which I could infer that Coker meant his ref-
erence to relate to union activities of which there is no evi-
dence that he had knowledge.
Finally, even assuming, contrary to my credibility deter-
mination, that Coker refused to further define ‘‘politics’’ in
a subsequent telephone conversation with Black, there is no
reason to infer that this implied that Black’s discharge was
based on union considerations. Here again there is no context
within which to make the inference urged by the General
Counsel.
In sum, I shall dismiss all of the 8(a)(1) allegations in the
complaint because the General Counsel has not proved viola-
tions by a preponderance of the evidence.
In view of my findings set forth above, and my credibility
determinations, there is no basis for even a prima facie case
of a violation of Section 8(a)(3) and (1) in the discharge of
Black. There is no evidence that his rather innocuous union
activity—even if his testimony is believed—was known by
Respondent. Nor is there any evidence that Respondent cared
that he was talking to other employees about union represen-
tation. There was after all a bargaining relationship between
Respondent and the Union. The General Counsel’s unsup-
ported allegation of a ‘‘cozy’’ relationship between the Re-
spondent and the Union is in any event irrelevant in the ab-
sence of an allegation of Section 8(a)(2) assistance or evi-
dence that Respondent knew or cared about whatever Black
was trying to do to disturb such an alleged ‘‘cozy’’ relation-
ship. The General Counsel’s contention in this respect is pure
speculation. In short this case lacks both knowledge and ani-
mus; indeed it is woefully short of union activity.4
Moreover, Respondent’s reasons for dismissing Black were
not, contrary to the General Counsel’s contention, shifting
and inconsistent; they were plausible, consistent and con-
vincing. They came from a credible witness whose story
hung together with the rest of the evidence in this case.
Black was hired as a temporary employee. The temporary
work had run out. Black had spawned customer complaints.
The last such complaint was serious and it was timed in such
a way as to coincide with the return of drivers for whom
Black was substituting and the hire of a new driver who had
been referred by Respondent’s primary customer. There is
thus no basis for a finding that a reason for Black’s dis-
charge was his alleged union activity. Even if there was, Re-
spondent has shown conclusively that it would have termi-
nated him in any event for lawful reasons. The only arguably
suspicious aspect of Respondent’s handling of the termi-
nation was its failure to show Black the complaint letter or
to give him a chance to answer it. However, the General
Counsel does not dispute that Coker’s investigation correctly
pointed to Black as the offending driver. In view of this
complaint forwarded to Coker from his major customer, and
the other circumstances which show overwhelmingly that the
termination was not based on union considerations, but on
other legitimate considerations, I cannot make any adverse
inferences based on this failure. Accordingly, I find that, here
again, the General Counsel has failed to prove a violation—
this time discrimination—by a preponderance of the credible
evidence.
CONCLUSION OF LAW
The Respondent has not violated the Act in any way.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended5
ORDER
The complaint in this case is dismissed in its entirety.