Ryder Distribution Resources

National Labor Relations Board - Board Decisions

Mar 19, 1991

302 N.L.R.B. 76 (N.L.R.B. 1991)

76
302 NLRB No. 11
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
We note that in the factual portion of his decision, the judge erroneously
stated that Jones was employed by the Respondent from July 1988 until Janu-
ary 1989 rather than January 1990.
We correct the judge’s characterization of the Respondent’s burden of proof
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), which appears in his analysis of the alleged unlawful discharges. In this
regard, we find that the Respondent did not meet its burden of demonstrating
that it would have discharged its employees even in the absence of protected
conduct. With this clarification, we are fully satisfied that the judge’s analysis
was consistent with the standard set forth in Wright Line.
Regarding the application of Wright Line, in agreeing with the judge’s find-
ing that the Respondent had knowledge of Gibson’s prounion activities, we
rely on Gibson’s credited testimony that he told both Waggoner and Bracewell
that although he arrived at the polls late and could not vote, he was ‘‘for the
Union.’’
2 With the following modifications, we agree with the judge’s conclusion
that in discharging Gibson in violation of Sec. 8(a)(3) and (1) of the Act, the
Respondent departed from its past practice of permitting local management to
handle traffic offenses and inaccurate reports of violations (ROVs) and of dis-
playing leniency toward traffic offenses and falsifications of ROVs. First we
find, contrary to the judge, that the Respondent has rebutted the General Coun-
sel’s evidence of Gibson’s disparate treatment compared to Kelly and Hollo-
way. Waggoner’s uncontroverted testimony established that Kelly, who was
placed on probation after being convicted for driving under the influence of
alcohol (DUI), did not falsify his ROV like Gibson but immediately informed
Waggoner of his offense. After Kelly indicated that he really needed a job,
Waggoner discussed Kelly’s good work record with a superior and the deci-
sion was made to place him on probation. By contrast, we note that additional
violations appear on Gibson’s record. Further, although Holloway was not dis-
ciplined after pleading nolo contendre to a DUI citation, Waggoner’s testimony
established that Holloway received his conviction in June 1986 as a driver for
Saunders Leasing Company, whose business was subsequently purchased by
the Respondent. We therefore find that, with respect to these two employees,
the Respondent has explained the apparent disparity in its reliance on Gibson’s
DUI conviction as a reason for discharge. See generally Brownsville Garment
Co., 298 NLRB 507 (1990) (citing Philips Industries, 295 NLRB 717 (1989)).
Finally, in view of the conflicting evidence concerning the Respondent’s
disciplinary procedures, we do not rely on the judge’s finding that none of
the alleged discriminatees was disciplined in accord with the progressive sys-
tem described by Ashley.
3 We shall modify the recommended Order to conform to the violations
found.
Ryder Distribution Resources, Inc. and Commu-
nications Workers of America, Local No. 3263.
Cases 10–CA–24585 and 10–CA–24644
March 19, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On October 5, 1990, Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ryder
Distribution Resources, Inc., Norcross, Georgia, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) On request, bargain with the Union as the ex-
clusive representative of the employees in the follow-
ing appropriate unit regarding the discharges of em-
ployees Donaldson, Gibson, Nix, and Jones, and pro-
vide the Union, on request, information necessary for
collective bargaining:
All regular full time drivers employed by the Re-
spondent at its AT&T account in Norcross, Geor-
gia, but excluding all professional employees,
clerical employees, dockmen, guards and super-
visors as defined in the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate our employees about their
activities on behalf of Communications Workers of
America, Local No. 3263, or any other labor organiza-
tion.
WE WILL NOT threaten our employees with loss of
jobs because of their selection of Communications
Workers of America, Local No. 3263, as their collec-
tive-bargaining agent.
WE WILL NOT discharge, refuse to reinstate, or oth-
erwise discriminate against our employees because of
their activities on behalf of Communications Workers
of America, Local No. 3263, or any other labor organi-
zation.
77RYDER DISTRIBUTION RESOURCES
WE WILL NOT refuse to bargain, on request, with
Communications Workers of America, Local No. 3263,
regarding the discharges of employees in the below-de-
scribed collective-bargaining unit.
WE WILL NOT refuse to bargain with the Union as
exclusive collective-bargaining agent for our employ-
ees in the below-described unit, by failing to furnish
the Union with requested documents which are mate-
rial to its responsibilities as bargaining agent.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL offer immediate and full reinstatemet to
employees Donaldson, Gibson, Jones, and Nix to the
positions they formerly held or, if those positions no
longer exist, to substantially equivalent positions with-
out prejudice to their seniority or other rights and
privileges.
WE WILL make Donaldson, Gibson, Jones, and Nix
whole for all losses of earnings they suffered by reason
of our dicrimination against them, plus interest.
WE WILL expunge from our records any reference to
our discharge of Donaldson, Gibson, Jones, and Nix
and all references to absences and tardies of Donald-
son, Gibson, Jones, and Nix during 1989, and WE WILL
notify Donaldson, Gibson, Jones, and Nix in writing of
our action in that regard.
WE WILL, on request, bargain with Communications
Workers of America, Local No. 3263, as exclusive col-
lective-bargaining representative of our employees in
the below-described bargaining unit regarding the dis-
charges of unit employees and furnish requested docu-
ments which are relevant to the Union’s bargaining re-
sponsibilities:
All regular full time drivers employed by us at
our AT&T account in Norcross, Georgia, but ex-
cluding all professional employees, clerical em-
ployees, dockmen, guards and supervisors as de-
fined in the Act.
RYDER DISTRIBUTION RESOURCES, INC.
B. Renee Sanderlin, Esq. and Josephine Miller, Esq., for the
General Counsel.
Richard H. Allen, Jr., Esq., of Memphis, Tennessee, and
Lawrence W. McDonald, of Miami, Florida, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. This case
was heard in Atlanta, Georgia, on June 13 and 14, 1990. The
charge in Case 10–CA–24585 was filed on February 1, 1990.
The charge in Case 10–CA–24644 was filed on March 8 and
amended on April 6, 1990. An amended consolidated com-
plaint issued on April 16, 1990.
The complaint alleges that Respondent engaged in conduct
violative of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act).
On the basis of the entire record, my observation of the
witnesses and their demeanor, and after considering briefs
filed by counsels for the General Counsel and Respondent,
I make the following findings.
Respondent admitted that it is, and has been at material
times, a Florida corporation with a business located in Nor-
cross, Georgia, where it is engaged in the business of provid-
ing drivers for AT&T; that, during the past calendar year, a
representative period, it provided services to AT&T at its
Georgia operation valued in excess of $50,000; during the
same period AT&T received gross revenues in excess of
$500,000; and, during the same period, Respondent pur-
chased and received goods at its Norcross operation valued
in excess of $50,000 directly from customers located outside
the State of Georgia; and that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
Respondent admitted that the Charging Party (the Union)
is, and has been at material times, a labor organization within
the meaning of Section 2(5) of the Act.
Respondent in its answer admitted that the following de-
scribed bargaining unit is appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(b) of the
Act, that in an election on October 2, 1989, a majority of
the employees in the below-described unit selected the Union
as their representative for collective-bargaining purposes and
that, on October 11, 1989, the Regional Director for Region
10 of the Board, certified the Union as exclusive collective-
bargaining representative for the employees in the below-de-
scribed unit:
All regular full time drivers employed by the Respond-
ent at its AT&T Account in Norcross, Georgia, but ex-
cluding all professional employees, clerical employees,
dockmen, guards and supervisors as defined in the Act.
The Union’s Out-State Director James Adler testified, and
Respondent in its opening statement agreed, that it entered
negotiations with the Union on January 9 and reached agree-
ment on May 30, 1990.
I. THE UNFAIR LABOR PRACTICE ALLEGATIONS AND
THE EVIDENCE
A. The 8(a)(1) Allegations
The complaint alleges that Respondent interrogated and
threatened employees with loss of jobs and created the im-
pression of surveillance of its employees union activities.
Interrogation and Threat of Loss of Jobs
James Waggoner: David Gibson testified about a phone
conversation he had with Distribution Manager Waggoner
when the Union first started up. Gibson testified that it was
before the petition, which was filed on September 12, 1989,
although he could not recall whether it was ‘‘a week, two
weeks or what before.’’ Gibson described the conversation:
The first time is when the Union was first started up.
I was in Virginia and I called in and Jim Waggoner has
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a phone and they said that he wanted to talk to me. I
asked him about what and he said, well, I guess you
heard about the Union? I said, yeah, I heard something
about it once.
I told him that Gene [Ashley] had stopped and intro-
duced the Union to me at the gate as I was leaving,
going home. So he said, well, I guess you know if the
Union get in we’re out. I said, well, I don’t know about
that. So he said, well, I want you to make up your
mind—No, he didn’t say he wanted me to make up my
mind then. He said, I want you to think about it. I said,
well, Jim, I think I’m grown enough to know what I
want to do, whether I want to join the Union or not.
That was the end of that conversation.
James Waggoner recalled a conversation with Gibson in
Waggoner’s office regarding the Union. According to
Waggoner:
Mr. Gibson told me that, Jim, he says I want to let
you know that I’m not for this thing that they’re doing.
You know, the thing that I was—I guess he was refer-
ring to the union because he says, I’ve got a mind of
my own and I know how I can vote. He says, you
helped me out and I appreciate what you did for me in
the past and I’m not gonna forget it.
Gibson also testified about a second occasion, just before
the Union was voted in, when he had a conversation with
Distribution Manager James Waggoner. Gibson was in the
office to be dispatched along with employees Lett and
Mobley. Gibson testified:
The time we were talking in his office he said that
AT&T did not want a union trucking company in be-
cause if they go on strike we would have to strike,
too. . . .
. . . .
We started off talking about a raise and Jim told us that
we wouldn’t—that we would not get a raise at that
time. Then he told us about a penny that we would get
but we would lose something else some place else.
Then he said, well, you don’t need a raise no way
because you’re trying to get this union. He said all this
is out of my hands now. Then from that to Mobley, and
we all was just talking.
John—So he got up and got some documents or
something and brought back in and showed us where
Ryder doesn’t make the money that we drivers think
they make. He showed us the documents and all and
then we started talking about the different things we
had to pay.
The conversation just went about a lot of different
things but the Union also was involved.
. . . .
Well, he explained to us how that AT&T did not
want a union trucking company in and he was explain-
ing the disadvantages that it would be to AT&T if a
union trucking company got in.
. . . .
Well, the disadvantages about if—if the Union—if
the trucking company get in that is union, AT&T being
union, if they go on strike we would have to strike.
This is the reason that AT&T did not want a trucking
company that is union handling their contract and they
would probably forfeit the contract.
. . . .
One thing I remember he said about—about we getting
our raise, the raise that we were getting when we asked
for the raise. He said that if we hadn’t started a union
that he could probably do something.
He told us about he would call Mr. McDonald to
come—Mr. McDonald was coming down to talk to us
from Miami and that’s about the Union. He did come
down, and . . . .
On cross-examination Gibson was asked about the con-
versation involving Waggoner, Lett, and Mobley and he
added,
[Waggoner] told us that, well, you guys are getting a
union now and the raise—about how we was gonna get
this penny but it would be taken away with something
else or if you get a violation or something like that.
The way I understood it is that this will be taken
away from you. We were asking him saying, well, what
good is it giving to us if you’re gonna take it? Give
us here and take it there.
. . . .
He said that it was out of his hands to get us a raise
now.
. . . .
Because the petition had been filed with the Union.
. . . .
Yes. But he didn’t say that the Union could do this.
He said that this could happen.
. . . .
He was telling us about when you get a penny on
the mile then if you get a citation—I’m just making this
as an example—
Q. Did he make that as an example?
A. Not about the citation, but we can lose it on our
bonus.
Q. But he was talking about the give and take of ne-
gotiation, wasn’t he?
A. Right, right.
James Waggoner recalled the above conversation. How-
ever, Waggoner denied that the Union was included in the
conversation. Waggoner did respond to a question about
when the drivers would get a raise, by saying they now have
a negotiator who would have to deal with that problem. Ac-
cording to Waggoner, he simply responded to questions
posed by Lett, Mobley, and Gibson, after they came into his
office. Waggoner testified that he did not remember any
comments regarding AT&T and a strike, at that time.
Malcolm Jones testified about a conversation with
Waggoner about 3 weeks before the election:
During one of my trips I was talking to the dis-
patcher on the phone and after I finished talking to the
dispatcher Jim Waggoner came on the phone and he
was asking me had I heard about the Union. I told him
yeah. He said it wouldn’t be a good idea if the Union
79RYDER DISTRIBUTION RESOURCES
came in because if the Union came in AT&T would
cancel their contract with us.
. . . .
He said he was talking to some other employees
about the Union, trying to see how they feel about it.
He said if—I—He said the other guys—the other peo-
ple that he was talking to—were saying that they were
in favor of the Union but if it would come around they
wasn’t going to vote for it.
Gene Ashley, who is currently employed by Re-
spondent as a truckdriver, testified that he had several
conversations with Waggoner about the Union. The first
conversation occurred in the drivers’ lounge in early
September 1989:
There was three or four of us sitting around talking
about the Union and we didn’t know what was going
to happen. We didn’t know the procedures and every-
thing that it went by.
We was sitting around talking. Jim [Waggoner] come
out and he pulled up a chair and sat down. He sat right
next to me. He got involved in the conversation and he
looked over at me and he said, Gene, with your bad
heart you don’t want to get involved in this. You need
medical attention down the road. You can’t afford to
lose your medical coverage.
I just got up and walked out of it. I didn’t want to
hear him.
James Waggoner recalled exchanging comments with Ash-
ley regarding Ashley’s health. However, Waggoner recalled
that Ashley made a comment about Waggoner being out of
shape. Waggoner responded because Ashley was smoking
and Waggoner said, ‘‘the cigarettes are gonna kill you.’’
Nothing was said regarding the Union.
Ashley recalled a second conversation with Waggoner in
early September:
We was sitting there talking about what was going
to happen when the Union come [sic] in. He was afraid
that AT&T did not want union drivers in there, that
they had stipulations in their contract that we could not
become in the same union they are.
He said what Ryder would just take their trucks out
against the wall, strip the sides off of them, take them
out of service and put them up for sale and Thom and
himself and me and all of us would be out of a job.
Distribution Manager Waggoner testified that he did not
remember having the above conversation.
The was a third conversation involving Ashley and
Waggoner in September before the election. Ashley testified:
Mike Holly was there. We stayed after work and was
talking. [Waggoner] says Ryder is not going to sign a
contract. He says all you’re going to do is put the forty-
two people out of work.
James Waggoner recalled a conversation involving Holly
and Ashley in the drivers’ room:
Gene was in there. He would make a statement, have
you heard anything from Mr. McDonald? Well, things
are gonna change when the Union gets in. Those type
of questions.
To be perfectly honest with you, I got fed up with
it. So he made a statement that things are gonna
change. I said, look, Gene, I said more power to you.
I said if you guys voted in the Union, I said, if you’re
happy with that that’s great. It doesn’t matter what I
say. It doesn’t matter what Miami says. It doesn’t mat-
ter what anybody says. If that makes you happy, fine.
I turned around and walked back into the office.
On cross-examination, Gene Ashley testified about a con-
versation with Jim Waggoner in Waggoner’s office before
the election. Ashley went into Waggoner’s office to ask
Waggoner about having Ashley’s truck repaired. Waggoner
brought up the Union during the conversation,
He told me you guys are gonna have to get away
from this union. You’re gonna have to get it decertified.
It’s not gonna do that. I’m gonna lose my job. Thom’s
gonna lose his job. You’re gonna lose your job. We’re
all gonna be out of a job.
B. The 8(a)(3) Allegations
David Gibson: David Gibson was employed by Respond-
ent as a truckdriver from August 1988 until January 1990.
Gibson testified that he campaigned on behalf of the
Union by talking with other employees, signing an authoriza-
tion card, and attending two union meetings. As shown
above in the section dealing with 8(a)(1) allegations, Gibson
testified about a phone conversation he had with Distribution
Manager Waggoner when the Union first started up in which
Waggoner asked if Gibson had heard about the Union.
Also as shown above, on another occasion, just before the
Union was voted in, according to Gibson, he had a conversa-
tion with Waggoner along with drivers Lett and Mobley
dealing with the Union.
Gibson recalled a conversation involving Distribution Su-
pervisor Thom Bracewell and two or three drivers on the day
after the October election,
I told him that I, you know, voted for the Union but
Jim [Waggoner] told me I was too late [when I arrived
at the polls to vote]. I said, well, my vote is still in.
I am for the Union. Just—What Thom [Bracewell] said,
well, I wish you guys luck whatever way it go but I
don’t really see where you’re gonna benefit.
Thom Bracewell denied that he heard Gibson make the
above comments.
Gibson admitted receiving a traffic citation which he did
not include on a ROV he completed on April 20, 1989. Gib-
son omitted a DUI citation he received in February 1989
while driving his own personal car. He admitted that he did
not include that on his ROV because he did not want Re-
spondent to know about it. He said that he was afraid that
if Respondent knew about his DUI, he may be fired.
Although the police officer retained Gibson’s license, he
was given a ‘‘citation with a State seal on there to drive, to
continue driving with that. I can drive with that.’’
Gibson testified that he was convicted of the DUI offense
but his sentence involved only a fine and did not include sus-
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pension of driving privileges. He was placed on probation
and his license was not released until he completed driving
school and paid his fine.
On December 21, 1989, Gibson was suspended. He testi-
fied,
I just came in off a run and doing my logs and paper-
work and Jim Bracewell [sic] told me as soon as I fin-
ished he would like to talk to me. I said, okay. When
I finished and turned my paperwork in, I went to his
office and he asked me, he said, is Gene Ashley out
there? He said, you might want a Union representative
in here.
. . . So I said, yes, Gene Ashley is out there. He
asked me did I want to get them. So I got Gene Ashley
and he went in with me.
That’s the time he showed me the paper and said
you failed to put a DUI on your report to get this
MVR. He said that he’s gonna have to let me go. At
that time Gene asked him, he said Thom, is that his
first offense of anything? He said yeah. He said why
can’t you give the guy a suspension, three-day suspen-
sion or something? He said this being Christmas time
and everybody need to work.
He said well, Gene, I’ve got to do what I’ve got to
do. So I said well, I’ll let you have this review. So I
signed the copy that he gave me for it to be reviewed.
He said. . .
Gene Ashley testified in corroboration of the above testi-
mony by Gibson. Thom Bracewell’s testimony did not differ
in material respects from that of Gibson and Ashley.
Under cross-examination, Gibson recalled that during the
conversation when Bracewell suspended him, he made the
following comment to Bracewell,
Okay. What I explained is that they had pulled one
(MVR) in April. I don’t know when they pulled it, but
when I signed this they had gotten the MVR then. If
they were gonna fire me, why wouldn’t they fire me
then.
. . . .
[Bracewell] said that’s the way it is. I’ve got to do
what I’ve got to do.
Respondent wrote Gibson on December 21, 1989, regard-
ing his suspension,
According to your MVR dated 12–14–89, you were
charged with a DUI on 2–5–89. Also, you have re-
ceived 5 other traffic violations over the past 2 plus
years, This is not acceptable under Ryder standards.
This letter is to inform you that I have no other re-
course but to suspend you from driving a Ryder truck
until your situation can be reviewed further.
Gibson returned 2 weeks later to inquire about his status,
I asked [Jim Waggoner in the presence of Thom
Bracewell and Gene Ashley] what was the—what were
their decisions. He said, buddy, I’m gonna have to let
you go. Gene said just like that? He said Jim can’t you
give the guy a warning letter or something? Jim said,
well, it’s out of my hands. He said if the Union weren’t
in, he said, I probably could do something, he said, but
the Union is in.
Gene came back and said, well, if that’s the case
you’re gonna have to let everybody here go. He said,
if that’s what I have to do, that’s what I’ll do. He told
me that Thom Bracewell didn’t have time to make
up—give me a dismissal notice where they had let me
go. He said, well, they’ll send me one in the mail.
Gene Ashley testified that he told Waggoner during the
above meeting,
I told Waggoner if you fire this man for this little
rinky dink thing you’re gonna have to fire eighty per-
cent of your fleet. He said, I hope not but if I do I will.
. . . .
[Waggoner] said you guys wanted a union and this is
what you got and things are going to be done on a dif-
ferent scale than they’ve been done before.
James Waggoner also testified about the above conversa-
tion. According to Waggoner, after Ashley said he could not
believe they were going to fire Gibson over a silly little vio-
lation, Waggoner responded,
Gene, I’ve got to be fair. I’ve got to treat everyone the
same. I cannot treat one person different from the other.
Waggoner denied that the word union was mentioned in
that conversation.
Thom Bracewell testified that he did not hear Waggoner
use the word union in the above conversation. His account
of the conversation corroborated Waggoner’s version.
James Waggoner, in agreement with Lawrence McDonald,
testified that McDonald was the deciding official in the dis-
charge of Gibson.
Ernest E. Donaldson: Donaldson was employed by Re-
spondent as a truckdriver.
According to Donaldson he was the employee that called
the Union and set up a meeting between the Union and em-
ployees. Donaldson attended that meeting. Donaldson re-
called that the meeting occurred sometime in August 1989.
He solicited and signed about 15 employees to pledge cards
and he passed out union literature. Donaldson wore a union
cap to work from the time of the first meeting through the
time of the election. Donaldson also wore a union button.
Respondent discharged Donaldson, alleging that he had
failed to properly report a traffic violation. Donaldson testi-
fied that once each year, each truckdriver is required to fill
out a ROV form for the Department of Transportation.
On April 6, 1989, Donaldson completed a ROV. On that
report he listed two traffic violations.
Ernest Donaldson admitted that he had been awarded a
ticket on April 5, 1989, for speeding and no insurance in a
personal car, which he did not include on his April 6 ROV.
Donaldson testified that he did not include that ticket be-
cause he planned to contest the ticket in court.
The record shows that although Donaldson was cited on
April 5, he was not convicted of that traffic violation until
April 26, 1989.
81RYDER DISTRIBUTION RESOURCES
According to Donaldson he did tell his supervisor, Thom
Bracewell, about the ticket when he arrived at work on April
5. Donaldson had another conversation with Bracewell about
that ticket on the day after his discharge,
I called him back the next day and told him that I
verbally remember telling him about the speeding ticket
and insurance because I was talking to him about it. He
said he thought he remembered something about it but
it didn’t matter because Miami had already told them
to terminate me.
On January 3, 1990, Donaldson was called into Distribu-
tion Manager James Waggoner’s office and told that he had
failed to include his April 5 speeding ticket on the April 6
ROV. Donaldson was told that he was being discharged be-
cause of that omission. According to Donaldson he had two
conversations with Waggoner regarding his discharge and the
Union before he left Respondent’s property:
I was told then [by Waggoner], well, I told you
about this Union. I did not reply and went and got my
stuff out of the truck. . . .
I told Mr. Ashley that they had dismissed me. Me and
him went back upstairs to Mr. Waggoner’s office and
he asked him about my case and—
. . . .
Gene Ashley asked Mr. Waggoner about discharging
me and asked him if he could put me on a paper sus-
pension. [Waggoner] said, y’all asked for this Union.
It’s gonna be by the book now.
Gene Ashley also testified about the above comments by
Waggoner. After Ashley asked Waggoner to put Donaldson
on paper suspension,
[Waggoner] told me, no, it’s not gonna be like that no
more. You guys wanted a union. It’s gonna be different
from now on.
James Waggoner denied that he had a second conversation
regarding Donaldson’s discharge with Donaldson and Ashley
and Waggoner denied telling Donaldson that he was dis-
charged because of the Union.
Donaldson was given a letter from Transportation Super-
visor Thom Bracewell regarding his discharge,
To be in compliance with the Federal Motor Carrier
Safety Regulations, Section 391.27, Ryder Rental has
forwarded to us your MVR dated 12–14–89. That MVR
shows you were issued a citation on 4–5–89 for speed-
ing in Georgia.
In accordance with the Truck Lease and service
Agreement between Ryder Truck Rental and Ryder
Distribution Resources, and the Federal Motor Carrier
Regulations, you are no longer qualified to operate a
commercial motor vehicle or any vehicle owned by
Ryder.
Therefore, please be advised that your employment
with Ryder Distribution Resources is hereby terminated
effective immediately.
Malcolm Jones: Malcolm Jones was employed by Re-
spondent as an over-the-road truckdriver from July 1988
until January 1989.
Jones testified that he signed a union authorization card
and talked to some five employees about the Union. How-
ever, Jones testified that he was not aware that Respondent
had reason to suspect that he favored the Union.
About 3 weeks before the election, Jones had a phone con-
versation with Jim Waggoner,
During one of my trips I was talking to the dis-
patcher on the phone and after I finished talking to the
dispatcher Jim Waggoner came on the phone and he
was asking me had I heard about the Union. I told him
yeah. He said it wouldn’t be a good idea if the Union
came in because if the Union came in AT&T would
cancel their contract with us.
. . . .
He said he was talking to some other employees
about the Union, trying to see how they feel about it.
He said if—if—He said the other guys—the other peo-
ple that he was talking to—were saying that they were
in favor of the Union but if it would come around they
wasn’t going to vote for it.
Jones completed a ROV on June 8, 1989. He did not show
any traffic violations on that ROV. Jones admitted that it was
his understanding of Respondent’s policies, that drivers were
required to notify Respondent within 30 days of receiving a
traffic citation and that the drivers were required to list all
traffic citations on their annual ROV.
On September 5, 1988, Malcolm Jones was cited for
speeding in Virginia. He was in a company vehicle. On Sep-
tember 22, 1988, Jones was convicted.
On January 3, 1989, Jones was told to come in and see
Thom Bracewell,
So I went up to the office. He called me in and he
informed me that an employee had been terminated for
not reporting a ticket and some drivers were complain-
ing that if one driver was gonna be terminated for this
then all of them that hadn’t reported their tickets should
be terminated also. He said due to that fact that he was
gonna have to let me go.
. . . .
Well, he showed me a copy of my ROV, a copy of
my MVR and a termination letter.
Jones’ termination letter stated,
To be in compliance with the Federal Motor Carrier
Safety Regulations, Section 391.27, Ryder truck rental
has forwarded to us your MVR dated 12–14–89. That
MVR shows you were issued a citation on 9–5–89 for
speeding in Georgia. In accordance with the Truck
Lease and Service Agreement between Ryder Truck
Rental and Ryder Distribution Resources, and the Fed-
eral Motor Carrier Regulations, you are no longer quali-
fied to operate a commercial motor vehicle or any vehi-
cle owned by Ryder.
Therefore, please be advised that your employment
with Ryder Distribution Resources is hereby terminated
effective immediately.
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
William D. Nix: William Dewayne Nix worked for Re-
spondent for 4-1/2 to 5 years before he was discharged on
January 3, 1990.
Nix signed a union authorization card before the election.
On an occasion before the election, Nix asked for a union
cap while he was in the drivers’ lounge. Thom Bracewell
and Jim Waggoner were standing in the hallway when Nix
asked for the union cap.
On October 23, 1989, Nix completed a ROV. He did not
list any traffic violations on that ROV. Nix admitted that he
had received a traffic citation for an illegal left turn on April
27, 1989.
William Nix testified that it slipped his mind that he had
received the ticket when he completed the ROV. However,
according to Nix, Respondent knew about the ticket because
he gave the ticket to Thom Bracewell after April 27 when
he returned to the terminal from that trip, and asked that Re-
spondent pay his fine.
Nix argued that Respondent should pay the fine because
he was following a boomtruck as part of his job duties.
The discharge incident was covered by Nix’s testimony,
Thom had called me in to the office and I got down
there and he called me in the back room, closed the
door and he told me. He said, Wayne, this is the hard-
est thing I’ve ever had to do. I said, what are your try-
ing to tell me, Thom, are you firing me? He said, yeah,
and he handed me that MVR. I said, for illegal left
turn? I said, Thom, this is a bunch of junk. He said,
well, I told you the innocent guys are gonna get hurt
because of that union and this is part of it and it’s out
of my hands.
. . . .
Well, he told me that, you know, he’d give me a ex-
cellent recommendation wherever I went, and if it
worked out that I’d come back to work that they’d wel-
come me back with open arms.
Q. Did he say anything about when you come back
to work?
A. No, he just said when this union bit is over.
Thom Bracewell admitted the above conversation, but
Bracewell denied saying anything to Nix about the Union.
Respondent gave Nix a letter regarding his discharge,
To be in compliance with the Federal Motor Carrier
Safety Regulations, Section 391.27, Ryder Truck Rental
has forwarded to us your MVR dated 12–14–89. That
MVR shows your were issued a citation on 4–27–89
for improper turning in Georgia.
In accordance with the Truck Lease and Service
Agreement between Ryder Truck Rental and Ryder
Distribution Resources, and the Federal Motor Carrier
Regulations, you are no longer qualified to operate a
commercial motor vehicle or any vehicle owned by
Ryder.
Therefore, please be advised that your employment
with Ryder Distribution Resources is hereby terminated
effective immediately.
Before leaving the terminal, Nix ran into Jim Waggoner,
I asked Jim what the heck was going on. He said,
I told you guys when you started this union a lot of in-
nocent people is gonna get hurt and this is part of it.
I said, Jim, what’s gonna happen? He said, I don’t
know. He said, before we could sit down and hash this
out but now it’s out of my hands.
James Waggoner denied that he had the above conversa-
tion with Nix.
Respondent offered the testimony of its manager of labor
relations and its distribution manager to show how it came
to discharge its drivers Donaldson, Gibson, Jones, and Nix.
Respondent’s manager of labor relations, Lawrence W.
McDonald, testified that he made the decision to terminate
the four alleged discriminatees. McDonald testified,
They were terminated essentially because a driver
who falsifies or does not complete their ROV’s are
deemed not to be qualified to drive under Federal
Motor Carrier Act. So because they weren’t qualified to
drive and because of who we are and what we do, I
made a decision to terminate them. That obviously ex-
tends to increase risks and liability for insurance pur-
poses as well as interstate commerce or right to engage
in interstate commerce and to operate on the roads.
Subsequent testimony by McDonald illustrated that he had
advised Jim Waggoner that during the union activity, he
(McDonald) should be advised of all discharges. On Decem-
ber 18 or 19, 1989, and in January 1990, Waggoner phoned
McDonald. Waggoner told McDonald that he had discovered
instances where drivers had not included traffic citations on
their ROV’s. The first of those instances involved David
Gibson’s DUI citation.
McDonald testified that Gibson’s situation was com-
pounded by the fact that his involved a DUI citation.
According to McDonald, Respondent’s ability to operate
would be jeopardized if they permitted falsification of
ROV’s.
One other employee—a driver at Ryder’s Georgetown,
Kentucky terminal—was also discharged. Joseph Sparrow
was discharged on March 28, 1989, because ‘‘it was deter-
mined [Sparrow] falsified not only this [ROV], but [Spar-
row’s] application as well.’’
Lawrence McDonald could not recall whether there was an
ongoing union campaign at Georgetown, Kentucky, at the
time of Sparrow’s discharge.
Distribution Manager James Waggoner explained that be-
fore 1989, Respondent would request each employee’s MVR
on that employee’s employment anniversary date. However,
in early 1989, Respondent decided to request all employee
MVR’s during December 1989. In accord with that decision,
all MVR’s were requested for all Waggoner’s accounts in
December 1989.
In addition to the AT&T account, which is the one in-
volved in the 1989 union campaign, Waggoner identified ac-
counts with Ryerson Steele, Singer, and Herman Miller.
Waggoner made his request for MVR’s, for all his ac-
counts, to Ryder Truck Rental (RTR). Waggoner testified
that RTR supplied those MVR’s to him in three different
batches.
The first group of MVR’s were given to Waggoner around
December 14, 1989. At that time he noticed that one MVR
83RYDER DISTRIBUTION RESOURCES
indicated a DUI that had not been included in the driver’s
ROV. That record involved David Gibson.
After being presented with the first batch of MVR’s in-
cluding Gibson, Waggoner admitted that he went over all the
Norcross account employees’ MVR’s because he was con-
cerned with a Union being on the scene. Waggoner admitted
that he did not go over MVR’s for employees of other ac-
counts throughout the State.
In accord with instructions he had received from Lawrence
McDonald, Waggoner phoned McDonald regarding Gibson’s
MVR. Waggoner testified that McDonald told him to termi-
nate Gibson. Waggoner asked to delay the termination be-
cause Gibson was out on a trip and Waggoner wanted to
look further into the matter. McDonald then told him to sus-
pend Gibson and look into the matter.
When RTR supplied the second batch of MVR’s,
Waggoner discovered falsifications in the cases of Donald-
son, Nix, and Jones. Waggoner testified that he phoned
McDonald and,
So I in turn called Mr. McDonald again immediately
and I said, Mr. McDonald, we’ve got another problem.
I said, I’ve got three MVR’s here on three employees
that shows that they falsified their ROV.
He said, that’s a terminating offense. He said, we
can’t show any partiality, no different than—He said,
by the way, what did you ever determine on David
Gibson? I said, I terminated him. I said, I gave him a
suspension. We talked to him. I terminated him.
He said, we can’t show any partiality over David and
these other three. He said they falsified theirs, he fal-
sified his. He said, you terminate them. I said yes, sir.
He said what would you have done if this contract
wasn’t under negotiation and the Union wasn’t in here?
I said, well, I would have terminated them. He said
well that’s what you do now. I said yes, sir. That was
the extent of that conversation.
C. The 8(a)(5) Allegations
The complaint alleges that the Union requested, and Re-
spondent failed to furnish, information regarding the dis-
charges of bargaining unit employees Malcolm Jones, David
Gibson, and Gene Donaldson.
During the hearing the parties agreed that by letters dated
January 4, 1990, the Union requested information including
the personnel files of Malcolm Jones, David Gibson, and
Gene Donaldson and,
2. The Motor Vehicle Report (MVR) records of all
bargaining unit employees over the past two (2) years.
3. The names of all employees disciplined for
MVR’s within the past two years. Dates and description
of each discipline of those who failed to report traffic
violation convictions within the thirty day time frame.
Respondent, in response to the Union’s request, supplied
the Union with a number of documents which were received
in evidence as General Counsel’s Exhibits 2(a)–2(ddd). How-
ever, Respondent’s counsel agreed that that response did not
include
every single piece of documentation which the Union
had requested initially and therefore it is incomplete
with response to all the MVR’s and all the ROV’s.
James Adler, the Union’s out-of-state director, testified
that the Union and Respondent held their first negotiation
session on January 9, 1990. Adler testified that he brought
up the discharges of Donaldson, Gibson, Nix, and Jones and,
Larry McDonald, Company Chairman, said that he
was not going to discuss anything about that subject
and that if we wanted to pursue it any further we’d
have to pursue it through other means, including the
Board. We went on about our business.
On January 11, 1990, the Union wrote Respondent regard-
ing bargaining unit employees,
I do hereby request a meeting with Company represent-
atives in order to engage in bargaining with reference
to the discharges of employees Ernest Donaldson,
David Gibson, Malcolm Jones, and Wayne Nix.
Inasmuch as these employees are now unemployed,
time is of utmost importance. Therefore, please, without
delay, contact me so that we may promptly schedule a
meeting for this purpose.
On January 23 Respondent answered:
This letter is to advise you that Ryder Distribution
Resources, Inc. refuses to bargain over the discharges
of E. Donaldson, D. Gibson, M. Jones and W. Nix as
you requested in your letter of January 11, 1990.
It is a requirement of the Department of Transpor-
tation and Ryder Distribution Resources that an em-
ployee report his record of violations is writing at the
time of his annual review (as required under D.O.T.).
Donaldson, Jones and Nix failed to report moving vio-
lations which had occurred during the past twelve
months, and Gibson did not report a citation for driving
under the influence for which his driving privileges
were temporarily suspended. This information was pro-
vided to the Company as a result of a periodic Depart-
ment of Motor Vehicle check.
Each of the four individuals was advised of the basis
for his termination, none of whom offered any denial.
II. CREDIBILITY
David Gibson: David Gibson testified to matters which
were obviously harmful to his position. For example, Gibson
admitted that he did not mention his DUI conviction on his
ROV form, because he did not want his employer to know
about that conviction.
Both James Waggoner and Thom Bracewell denied testi-
mony by Gibson regarding Gibson’s support of the Union.
According to Waggoner, Gibson told him that he would not
support the Union. Bracewell testified that Gibson did not in-
dicate to Bracewell that he would have voted for the Union
if he had arrived before the polls closed.
Gibson’s testimony in most respects corroborates that of
others including, in the case of his suspension, that of Ashley
and Bracewell.
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent, in its brief, points to substantial conflicts be-
tween witnesses regarding the discharge of Gibson.
As to the conversation at Gibson’s discharge, there were
two major areas of disagreement. Both Gibson and Ashley
testified that Waggoner commented to the effect that matters
were being handled differently because of the Union’s pres-
ence. As to the second area of disagreement Gibson and
Ashley claimed that Waggoner was told by Ashley, that he
would have to take action against most of the drivers if he
was going to engage in the type of disciplinary action he was
imposing on Gibson.
As to the second area of dispute, Gibson’s testimony in
that regard was,
Gene came back and said, well, if that’s the case
you’re gonna have to let everybody here go.
Ashley’s testimony in that regard was,
I told Waggoner if you fire this man for this little
rinky dink thing you’re gonna have to fire eighty per-
cent of your fleet. He said, I hope not but if I do I will.
Waggoner testified as to that point, that, after Ashley said
he could not believe they were going to fire Gibson over a
silly little violation, Waggoner responded,
Gene, I’ve got to be fair. I’ve got to treat everyone the
same. I cannot treat one person different from the other.
The above shows substantial agreement that the conversa-
tion included the subject of how the policy being used in the
discharge of Gibson would affect the remaining employees.
I do not find the different versions of this particular issue to
be significant.
As to the first area of dispute, Gibson testified:
[Ashley] said Jim can’t you give the guy a warning let-
ter or something? Jim said, well, it’s out of my hands.
He said if the Union weren’t in, he said, I probably
could do something, he said, but the Union is in.
Ashley testified:
[Waggoner] said you guys wanted a union and this is
what you got and things are going to be done on a dif-
ferent scale than they’ve been done before.
Waggoner denied that the word union was mentioned in
that conversation.
Thom Bracewell testified that he did not hear Waggoner
use the word union in the above conversation. His account
of the conversation corroborated Waggoner’s version.
As to this particular issue there is substantial agreement
between Waggoner and Bracewell and between Gibson and
Ashley. Although Gibson and Ashley recalled different
words, both recall that Waggoner indicated that the discipli-
nary procedure would be handled differently now that the
Union is in.
I credit Gibson and Ashley on both points. As to the first
area of dispute, I note and I rely in part on the fact that the
record as a whole establishes that Respondent handled Gib-
son’s discharge differently than it normally would have if the
Union had not been on the scene. The testimony of Law-
rence McDonald, Respondent’s manager of labor relations,
shows that he becomes involved in discharge decisions only
when union activity is ongoing and in those situations he ap-
plies a stricter standard than might be applied by local termi-
nal managers when no union activity is present. Waggoner’s
statements to Gibson and Ashley simply reflect what was in
fact the case.
On the basis of the record, including the matters men-
tioned above, and especially on the basis of my observation
of his demeanor, I credit the testimony of David Gibson.
Ernest E. Donaldson: On the basis of the record and my
observation of Donaldson’s demeanor, I credit his testimony.
Ernest Donaldson demonstrated no basis on the record to
discredit his testimony. He answered responsively to both di-
rect and cross-examination. His answers under cross included
admissions against his interest including his admission re-
garding regulations for completing ROV reports.
Donaldson admitted on cross-examination, that he had not
included in his affidavit, testimony regarding his second con-
versation with Transportation Manager Waggoner following
his discharge. In his affidavit Donaldson testified that he was
not present during the meeting between Waggoner and Gene
Ashley.
Gene Ashley appeared to be acting in the capacity of
union steward on several occasions during material times.
At the hearing Donaldson explained there was a subse-
quent meeting between Ashley and Waggoner and that he
was not present during that meeting. However, Donaldson
testified there was a meeting before he left the terminal after
his discharge, involving himself, Waggoner, and Gene Ash-
ley. Donaldson admitted that he had not recalled during his
prehearing affidavit testimony, about the conversation involv-
ing Ashley, Waggoner, and himself before he left the termi-
nal on April 6.
I found Donaldson’s explanation to be persuasive.
Ashley’s testimony regarding the occurrences during
Donaldson’s discharge corroborates that of Donaldson.
Waggoner, on the other hand, denied there was a conversa-
tion involving himself, Ashley, and Donaldson, after he fol-
lowed Donaldson out to the parking lot after he had dis-
charged Donaldson.
As shown below, I discredit Waggoner’s testimony, in-
cluding that mentioned above, which conflicts with credited
testimony.
William Dewayne Nix: The parties stipulated that Nix’s af-
fidavit did not include a comment which he included in his
testimony regarding his discharge conversation with Thom
Bracewell. According to his testimony Bracewell mentioned
that the innocent would get hurt because of the Union. The
parties stipulated that Nix’s prehearing affidavit did not in-
clude those comments about the Union. During the discus-
sion regarding the stipulation it was mentioned that the affi-
davit version of the discharge conversation was as follows,
At the time I was discharged Bracewell said he would
give me an excellent recommendation. He showed me
a moving violation report captioned by the State,
showed my ticket on 4/27/89. Thom said there was
nothing he could do about it.
However, the parties, during the stipulation discussion in-
dicated there was mention in the affidavit, of the Union in
85RYDER DISTRIBUTION RESOURCES
the conversation between Nix and Waggoner on the day of
Nix’s discharge.
I credit Nix’s testimony on the basis of the record and my
observation of his demeanor. However, due to the fact that
Nix did not recall that Bracewell mentioned the Union dur-
ing his conversation at the time of Nix’s discharge, I shall
not credit that portion of Nix’s testimony. I do credit Nix as
to his conversation with Waggoner which occurred shortly
after the conversation between Nix and Bracewell.
Malcolm Jones: Jones showed some confusion regarding
various traffic citations he received in 1988 and 1989. The
MVR he was shown at discharge shows a citation of Septem-
ber 5, 1988, and the court as GA0000999. That apparently
refers to a matter in Georgia. However, Jones recalled that
citation occurred in Virginia.
Apparently Jones confused the September 1988 citation
with one he received in August 1989. The August 1989 cita-
tion is not material to these proceedings.
As to these proceedings, it is not material whether the
September 1988 citation occurred in Georgia or, as Jones re-
called, in Virginia. However, his confusion does tend to
show that Jones’ recollection was faulty.
Additionally, the above-mentioned confusion calls into
question Jones’ testimony regarding Respondent’s knowledge
of his September 1988 traffic citation. Jones testified that he
received correspondence from Virginia regarding the fine he
had paid. If, as it now appears, that traffic violation occurred
in 1989, then the record fails to show that Respondent had
prior knowledge of the citation which was omitted from
Jones’ June 8, 1989 ROV.
In view of the above, I do not credit Jones’ testimony to
the effect that he told Respondent about the traffic conviction
which was left off his ROV. In other regards I credit Jones’
testimony on the basis of the record and my observation of
his demeanor.
Gene Ashley: The record shows that Ashley’s cross-exam-
ination was generally consistent with his direct testimony.
Respondent, in its brief, points out that Ashley’s testimony
under cross differed from his direct testimony regarding con-
versations with James Waggoner during the discharge of
Donaldson. On cross, Ashley recalled an additional comment
he made to Waggoner to the effect of, if Waggoner was
going to discharge Donaldson, he would have to take similar
action against 80 percent of his fleet.
Respondent is correct.
Moreover, that comment by Ashley is almost identical to
a comment he recalled Waggoner making during conversa-
tions over the discharge of David Gibson.
Gibson also recalled that Ashley told Waggoner that he
would have to take action against the fleet of drivers similar
to what he was taking against Gibson.
As to comments about taking similar action against the
fleet of drivers or against 80 percent of the fleet, there is a
high likelihood that Ashley was confusing the conversations
involving Donaldson with the ones involving Gibson.
In other regards, the testimony of Ashley is consistent with
the testimony of Donaldson and Gibson.
There was no showing of other inconsistencies between
Ashley’s direct testimony and his cross-examination testi-
mony or with his prehearing affidavits. Ashley did dem-
onstrate strong feelings regarding the issues included in his
testimony and, at times, he was rather hostile in his response
to Respondent’s counsel.
I credit the testimony of Ashley on the basis of the record
and my observation of his demeanor to the extent it does not
conflict with other credited testimony. In that regard, to the
extent there is some conflict between the testimony of Ash-
ley and that of Gibson, I credit Gibson. As to the matter of
the discharge conversation regarding Donaldson, I credit the
testimony of Donaldson.
Lawrence McDonald: McDonald testified that he was the
deciding official in Respondent’s discharge of Donaldson,
Gibson, Nix, and Jones. However, the record revealed that
McDonald simply okayed the decision of James Waggoner to
discharge those employees.
On cross-examination it was revealed that McDonald did
nothing to independently check the circumstances of Re-
spondent’s past practices regarding other inaccurate ROVs.
McDonald admitted that he had submitted two position
statements to the Regional Office of the NLRB regarding this
matter. In the first of those position statements, McDonald
incorrectly stated that Gibson was discharged because he
failed to list five convictions, including two DUI convictions,
on his ROV.
When asked about the discrepancy between his testimony
and his first position statement regarding the discharge of
Gibson, McDonald testified,
One DUI is sufficient. Falsification was sufficient as
was a DUI in my book and that’s what I made my de-
cision on. I didn’t ask if it was one, two, three, four,
five.
McDonald’s cross-examination also revealed that rather
than make the decision to discharge Gibson, he actually
phoned Waggoner and asked him what became of that case.
Waggoner told him that Gibson had been terminated.
That testimony of McDonald was critical as to the overall
discharge issue and especially regarding the matter of dispar-
ity. In that regard McDonald’s above-mentioned testimony
was that the DUI conviction would have been sufficient to
discharge Gibson. However, when confronted with Respond-
ent’s action of only placing a driver named Ed Kelly on pro-
bation, rather than discharge, for a DUI conviction, McDon-
ald testified that he was unfamiliar with that matter. McDon-
ald admitted that there may have been instances of DUI con-
victions other than Kelly, that he was unfamiliar with.
In fact, when asked about other matters, McDonald could
only recall one case, that involving Joseph Sparrow in
Georgetown, Kentucky, where another driver had been dis-
charged because he failed to list traffic violations on his
ROV. McDonald could not recall whether a union campaign
was ongoing at the time of Sparrow’s discharge in George-
town and McDonald could not recall what other matters were
involved in Ryder’s assertion in Sparrow’s discharge letter
that the discharge was based on falsifying his applications
and his ROV.
McDonald demonstrated other areas of poor knowledge re-
garding the discharges alleged in this matter. For example he
testified that he did not know whether Gibson’s DUI convic-
tion was based on off-duty activity in a personal vehicle.
I was not impressed with McDonald’s demeanor. I do
credit certain portions of his testimony as admissions against
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
interest, including his testimony that he decided to discharge
the four alleged discriminatees.
James Waggoner: Waggoner appeared to have difficulty
under cross-examination when he was asked to explain why
other situations involving failure to list traffic citations on
employee ROVs did not result in discipline. In some of those
cases Waggoner indicated the matter was not one he re-
viewed and in others, where he was the acting official, he
demonstrated an inability to recall the facts.
The record showed other cases of employees having DUI
and other traffic convictions. Waggoner explained that in the
case of driver Kelly being convicted of DUI, he acted on
Kelly’s behalf to keep Kelly from being fired because of
Kelly’s past record.
Waggoner did not explain why he did not give similar
consideration to Gibson.
As to an employee named Holloway who had a DUI con-
viction in 1986 but was not disciplined by Respondent,
Waggoner was unfamiliar with the case. He testified that the
matter was handled by a lower level supervisor.
As to a number of other drivers, who had failed to list
traffic convictions on their ROVs, Waggoner explained those
matters were either not handled by him but by a lower level
supervisor, or that he signed the disciplinary action papers
but offered no explanation of why that situation was treated
differently from the instant matters.
Waggoner’s testimony conflicted with that of David Gib-
son, Ernest Donaldson, Malcolm Jones, Wayne Nix, and
Gene Ashley.
In view of the full record and my observation of
Waggoner’s demeanor, I do not credit his testimony to the
extent it conflicts with credited evidence.
Thom Bracewell: Bracewell testified in conflict with some
of the testimony of David Gibson, Gene Ashley, and Wayne
Nix.
Although his testimony was generally reliable, I notice that
Bracewell avoided testimony which conflicted with the pre-
vious testimony of James Waggoner. To that extent and in
other areas where his testimony conflicts with credited evi-
dence, I do not credit Bracewell.
III. FINDINGS
The complaint alleges that Respondent engaged in 8(a)(1)
violations by interrogation, threats of loss of jobs, and creat-
ing the impression of surveillance.
Interrogation
James Waggoner: The General Counsel argues in his brief
that James Waggoner’s comments to David Gibson around
the time the Union started its campaign, and to Malcolm
Jones about 3 weeks before the election, constitute unlawful
interrogation.
As shown above, David Gibson testified about a phone
conversation he had with Distribution Manager Waggoner
when the Union first started up. Gibson testified that it was
before the petition, which was filed on September 12, 1989,
although he could not recall whether it was ‘‘a week, two
weeks or what before,’’
The first time is when the Union was first started up.
I was in Virginia and I called in and Jim Waggoner has
a phone and they said that he wanted to talk to me. I
asked him about what and he said, well, I guess you
heard about the Union? I said, yeah, I heard something
about it once.
Also, as shown above, Malcolm Jones testified about a
conversation about 3 weeks before the election,
During one of my trips I was talking to the dis-
patcher on the phone and after I finished talking to the
dispatcher Jim Waggoner came on the phone and he
was asking me had I heard about the Union. I told him
yeah. . . .
As shown below, James Waggoner coupled his interroga-
tion of employees regarding their knowledge of union activ-
ity, with threats of loss of jobs. Interrogation in such a coer-
cive atmosphere constitutes illegal conduct. Taylor Chair
Co., 292 NLRB 658 (1989).
Threat of Loss of Jobs
James Waggoner: During the phone conversation men-
tioned above under interrogation, the full conversation as re-
called by David Gibson involved matters which the General
Counsel contends constitute a threat of loss of jobs. As
shown above, Gibson testified that it was before the petition,
which was filed on September 12, 1989, although he could
not recall whether it was ‘‘a week, two weeks or what be-
fore,’’
The first time is when the Union was first started up.
I was in Virginia and I called in and Jim Waggoner has
a phone and they said that he wanted to talk to me. I
asked him about what and he said, well, I guess you
heard about the Union? I said, yeah, I heard something
about it once.
I told him that Gene [Ashley] had stopped and intro-
duced the Union to me at the gate as I was leaving,
going home. So he said, well, I guess you know if the
Union gets in we’re out. I said, well, I don’t know
about that.
As shown above earlier in this decision, Gibson also testi-
fied about a second occasion, just before the Union was
voted in, when he had a conversation with Distribution Man-
ager James Waggoner. Gibson was in the office to be dis-
patched along with employees Lett and Mobley,
The time we were talking in his office he said that
AT&T did not want a union trucking company in be-
cause if they go on strike we would have to strike, too.
. . . .
We started off talking about a raise and Jim told us that
we wouldn’t—that we would not get a raise at that
time. Then he told us about a penny that we would get
but we would lose something else some place else.
Then he said, well, you don’t need a raise no way
because you’re trying to get this union. He said all this
is out of my hands now. Then from that to Mobley, and
we all was just talking.
John—So he got up and got some documents or
something and brought back in and showed us where
Ryder doesn’t make the money that we drivers think
they make. He showed us the documents and all and
87RYDER DISTRIBUTION RESOURCES
then we started talking about the different things we
had to pay.
The conversation just went about a lot of different
things but the Union also was involved.
. . . .
Well, he explained to us how that AT&T did not
want a union trucking company in and he was explain-
ing the disadvantages that it would be to AT&T if a
union trucking company got in.
. . . .
Well, the disadvantages about if—if the Union—if
the trucking company get in that is union, AT&T being
union, if they go on strike we would have to strike.
This is the reason that AT&T did no want a trucking
company that is union handling their contract and they
would probably forfeit the contract.
Also, as shown above, Malcolm Jones testified about a
conversation about 3 weeks before the election. That full
conversation as recalled by Jones, included the following,
During one of my trips I was talking to the dis-
patcher on the phone and after I finished talking to the
dispatcher Jim Waggoner came on the phone and he
was asking me had I heard about the Union. I told him
yeah. He said it wouldn’t be a good idea if the Union
came in because if the Union came in AT&T would
cancel their contract with us.
Gene Ashley, who is currently employed by Respondent,
testified about several conversations with James Waggoner.
In the second of those conversations, according to Ashley,
which occurred in early September,
We was sitting there talking about what was going
to happen when the Union come in. He was afraid that
AT&T did not want union drivers in there, that they
had stipulations in their contract that we could not be-
come in the same union they are.
He said what Ryder would just take their trucks out
against the wall, strip the sides off or them, take them
out of service and put them up for sale and Thom and
himself and me and all of us would be out of a job.
There was a third conversation involving Ashley and
Waggoner in September before the election,
Mike Holly was there. We stayed after work and was
talking. [Waggoner] says Ryder is not going to sign a
contract. He says all you’re going to do is put the forty-
two people out of work.
On cross-examination, Gene Ashley testified about a con-
versation with Jim Waggoner in Waggoner’s office before
the election. Ashley went into Waggoner’s office to ask
Waggoner about having Ashley’s truck repaired. Waggoner
brought up the Union during the conversation,
He told me you guys are gonna have to get away
from this union. You’re gonna have to get it decertified.
It’s not gonna do that. I’m gonna lose my job. Thom’s
gonna lose his job. You’re gonna lose your job. We’re
all gonna be out of a job.
The above evidence shows that Respondent through its
distribution manager, James Waggoner, threatened its em-
ployees with loss of jobs if they should select the Union as
their bargaining agent. That conduct is illegal. It constitutes
violations of Section 8(a)(1) of the Act.
Thom Bracewell: The General Counsel stated in his brief
there was no evidence included in the record supporting the
allegations in paragraph 8 of the complaint as to Bracewell.
Those allegations are dismissed.
Creating the Impression of Surveillance
The General Counsel admitted there was no evidence sup-
porting the complaint allegations of creating the impression
of surveillance. Therefore, that allegation is dismissed.
The complaint alleges that Respondent discharged four
employees in violations of the Act: As to David Gibson, the
credited evidence, which is set out above, shows that both
Waggoner and Bracewell knew of Gibson’s prounion activi-
ties.
Gibson was convicted of DUI. That is a serious offense
and I do not intend to minimize the seriousness of that mat-
ter. However, the evidence shows that Respondent did not
normally discharge employees because of DUI convictions.
There was no showing that Respondent discharged anyone
because of a DUI conviction before it discharged Gibson.
As shown below, in two earlier cases of DUI convictions,
two drivers, Kelly and Holloway, were not discharged. In
fact Holloway was not even disciplined.
The law does not permit an employer to regulate the de-
gree of punishment on the grounds of whether an employee
favors or opposes a union. Regardless of the seriousness of
the offense, it is not permissible to treat employees in one
manner when there is no union activity involved, and in a
more strict fashion when a union is involved. That is what
occurred here.
In the case of David Gibson, the evidence shows that Re-
spondent was aware of his prounion feelings. When it was
discovered that Gibson had been convicted of a DUI offense,
Respondent seized on that opportunity to discharge him. In
order to discharge Gibson, Respondent departed from its past
practice of permitting local management to deal with traffic
offenses and inaccurate ROVs. Respondent also departed
from its past practice of being lenient toward traffic offenses,
including DUI, and falsified ROVs.
As shown above, Gibson’s situation came to the attention
of Respondent on December 21, 1989. At that time Gibson
was suspended. The evidence shows that after suspending
Gibson, Respondent learned that three additional employees
had falsified their ROVs. When Respondent decided to go
ahead and discharge Gibson, it also determined that it would
be necessary to cover its tracks and take similar action
against all unit employees with inaccurate ROVs. On that
basis Respondent discharged Donaldson, Nix, and Jones.
Moreover, in addition to evidence showing that Donald-
son, Nix, and Jones, were fired in order to cover Respond-
ent’s tracks, the evidence shown above which is common to
all the dischargees, shows that the General Counsel proved
a violation on other grounds.
Three of the four alleged discriminatees were discharged
on January 3, 1990. However, the first disciplinary action
was awarded to David Gibson around December 21, 1989,
when Gibson was suspended on the grounds that Gibson had
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
failed to include a DUI citation on his ROV. Gibson was dis-
charged, but the actual discharge did not occur until approxi-
mately 2 weeks later.
Gene Ashley, who was acting in the role of union steward,
complained that if Respondent was going to take action
against David Gibson for failing to include all citations on
his ROV, it would be necessary to take actions against oth-
ers. Respondent took action to discharge three others, plus to
discharge Gibson.
In regard to the alleged violative discharges, there are
some issues which are common to all.
As to the question of knowledge, James Waggoner testi-
fied that he was unaware of the union activities of any of
the four alleged discriminatees. In regard to that point, the
question of knowledge depends on credibility determinations.
Moreover, the General Counsel contends that Respondent’s
discharge actions show a decision to change its policy re-
garding the four alleged discriminatees because of the
Union’s success in the election. On the basis of that theory,
Respondent’s knowledge of the alleged discriminatees’ union
activities, is not critical.
One of those issues common to all involves the question
of disparity (i.e., did Respondent treat the alleged
discriminatees in the same manner it treated other employ-
ees?).
In regard to the issue of disparity, one question involves
the issue of Respondent’s normal procedure. In that light it
will be important to compare Respondent’s treatment of em-
ployees Donaldson, Gibson, Nix, and Jones, with its regular
disciplinary procedure.
Gene Ashley testified about Respondent’s disciplinary pro-
cedure:
I’ve been told it and told it and told it. As the first
question I asked when Ryder bought us out, took us
over October 1, ‘86, Jim Waggoner went to Miami to
a seminar and he come back and we asked him what
the procedures were and everything and discipline—
. . . .
We asked him about the disciplinary procedure, if it
would be the same as Sanders (the predecessor em-
ployer), you know. He said, yes, the three warning let-
ters, progressive discipline system would be in effect,
with the exception of drinking on Company equipment,
Company property, fighting on our customer property,
willful destruction of Company or customer property.
He stuck to that line until recently.
. . . .
For the offenses it would be termination, no warning.
He did use it on some of them.
Q. Did he say those were the only offenses that
would result in immediate termination?
A. That is right.
None of the four alleged discriminatees were disciplined in
accord with the system outlined in Ashley’s testimony. All
were discharged without the benefit of earlier disciplinary ac-
tion including three warning letters. There was no effort on
the part of Respondent to use progressive disciplinary meas-
ures. Even in the case of David Gibson, who was first sus-
pended, there was no showing of a progressive discipline
system. Gibson was suspended on Respondent’s assertion
that it was looking into the matter. Subsequently, without
Gibson having the benefit of any intervening action, he was
discharged over the same allegations that led to his suspen-
sion.
Additionally, the following credited testimony shows that
the employees at Respondent’s Norcross facility were told
that the standards would be tightened because they had se-
lected the Union.
Ernest Donaldson testified, as shown above, that on Janu-
ary 3, 1990, he was called into Distribution Manager James
Waggoner’s office and told that he had failed to include his
April 5 speeding ticket on the April 6 ROV. Donaldson was
told that he was being discharged because of that omission.
According to Donaldson he had two conversations with
Waggoner regarding his discharge and the Union before he
left Respondent’s property:
I was told then [by Waggoner], well, I told you
about this Union. I did not reply and went and got my
stuff out of the truck. . . .
I told Mr. Ashley that they had dismissed me. Me [sic]
and him went back upstairs to Mr. Waggoner’s office
and he asked him about my case and—
. . . .
Gene Ashley asked Mr. Waggoner about discharging
me and asked him if he could put me on a paper sus-
pension. [Waggoner] said, y’all asked for this Union.
It’s gonna be by the book now.
Gene Ashley also testified about the above comments by
Waggoner. After Ashley asked Waggoner to put Donaldson
on paper suspension,
[Waggoner] told me, no, it’s not gonna be like that no
more. You guys wanted a union. It’s gonna be different
from now on.
Again, as shown above, David Gibson testified about his
discharge conversations,
I asked [Jim Waggoner in the presence of Thom
Bracewell and Gene Ashley] what was the—what were
their decisions. He said, buddy, I’m gonna have to let
you go. Gene said just like that? He said Jim can’t you
give the guy a warning letter or something? Jim said,
well, it’s out of my hands. He said if the Union weren’t
in, he said, I probably could do something, he said, but
the Union is in.
Gene came back and said, well, if that’s the case
you’re gonna have to let everybody here go. He said,
if that’s what I have to do, that’s what I’ll do. He told
me that Thom Bracewell didn’t have time to make
up—give me a dismissal notice where they had let me
go. He said, well, they’ll send me one in the mail.
Gene Ashley testified that he told Waggoner during the
above meeting,
I told Waggoner if you fire this man for this little
rinky dink thing you’re gonna have to fire eighty per-
cent of your fleet. He said, I hope not but if I do I will.
. . . .
89RYDER DISTRIBUTION RESOURCES
[Waggoner] said you guys wanted a union and this is
what you got and things are going to be done on a dif-
ferent scale than they’ve been done before.
Malcolm Jones testified that on January 3, 1989, he was
told to come in and see Thom Bracewell,
So I went up to the office. He called me in and he
informed me that an employee had been terminated for
not reporting a ticket and some drivers were complain-
ing that if one driver was gonna be terminated for this
then all of them that hadn’t reported their tickets should
be terminated also. He said due to that fact that he was
gonna have to let me go.
William Nix testified that before leaving the terminal fol-
lowing his discharge, he ran into James Waggoner:
I asked Jim what the heck was going on. He said,
I told you guys when you started this union a lot of in-
nocent people is gonna get hurt and this is part of it.
I said, Jim, what’s gonna happen? He said, I don’t
know. He said, before we could sit down and hash this
out but now it’s out of my hands.
As to the question of timing, the record shows the Union
filed its representation petition of September 12, 1989.
An election was held on October 2, 1989.
On October 11, 1989, the Union was certified as represent-
ative of the bargaining unit employees.
On December 21, 1989, Respondent suspended David Gib-
son.
On January 3, 1990, Respondent discharged Donaldson,
Nix, and Jones. On January 4 Respondent discharged Gibson.
From January 9 through May 30, 1990, Respondent nego-
tiated with the Union.
Respondent defended the above through the testimony of
Lawrence McDonald, James Waggoner, and Thom
Bracewell.
McDonald testified that he only followed regulations in
deciding to discharge the four alleged discriminatees.
However, McDonald’s testimony showed that only when
he is asked by a terminal about a particular discharge does
he become involved in that decision. When a terminal is in-
volved in a union campaign, McDonald instructs the terminal
management to advise him before disciplining an employee.
In those instances McDonald applies rigid rules. His testi-
mony in that regard included the following,
I do [have a role in applying DOT regulations spe-
cifically 391] only insofar as if I’m questioned as to
whether or not we should accept, tolerate, excuse an in-
dividual or not comply with the regulations under 391.
My view is fairly rigid on that we can’t do that because
the bigger picture is the jeopardy, the spot checks by
the DOT and the audits and so forth.
The testimony of Lawrence McDonald supports other evi-
dence in the record illustrating that Respondent applied
stricter standards when its employees were involved in union
activity. McDonald testified that when there is a union cam-
paign, he becomes involved in discharge decisions and he
applies a ‘‘fairly rigid’’ standard under the DOT regulations.
McDonald does not independently check as to the terminal’s
past practice. As shown by his testimony, he simply applied
his interpretation of the DOT regs. His testimony was to the
effect that employees were summarily discharged because of
inaccuracies in their ROV, when McDonald was involved in
the decision.
McDonald admitted that even though he interprets the
DOT regulations to require discharge if an employee falsifies
his ROV, the DOT regulations do not include such a rule:
THE COURT: . . . It appears to me that there is no
specific (DOT) rule that drivers who falsify ROV’s will
be discharged or disqualified; am I right?
THE WITNESS: You are right. . . .
Moreover, even the testimony of Respondent’s witnesses
illustrated that the Donaldson, Gibson, Nix, and Jones mat-
ters were handled differently.
Distribution Manager Waggoner was asked about other
problems with drivers.
James Waggoner testified about an earlier situation when
a driver was convicted of DUI—Driver Ed Kelly. Kelly
came to Waggoner about his conviction. Waggoner told
Kelly the DUI was a terminating offense. However,
Waggoner agreed to take the matter up with his boss:
So I went to Mr. Jerry Bauman and I told him, I
said, I’ve got a driver that’s got a DUI. Under Com-
pany policy that is a terminating offense but he wanted
me to come to you and plead his case and what should
we do. He proceeded to ask me questions about the em-
ployee; if he was a good employee; if we had any other
convictions on him; if we had anything that was wrong,
you know, any—what kind of employee he was.
I proceeded to tell him that I never had any problems
out of him. He did his work. He did his job and there
was no problems at all. He said you tell him that we
will keep him on as long as he’s got his drivers license.
I said, well, he does—and I made sure of that. As long
as he’s got his drivers license we will keep him on and
he can drive for us. But if he bats an eye the wrong
way, he’s gone.
Waggoner recalled that he did not tell McDonald about the
case involving Ed Kelly, when he and McDonald were dis-
cussing the discharges of Gibson, Donaldson, Nix, and Jones.
The record showed other cases of employees having DUI
and other traffic convictions. As to an employee named
Holloway who had a DUI conviction in 1986 but was not
disciplined by Respondent, Waggoner was unfamiliar with
the case. He testified that the matter was handled by a lower-
level supervisor. As to a number of other drivers, who had
failed to list traffic convictions on their ROVs, Waggoner
testified that those matters were either not handled by him
but by a lower-level supervisor, or that he signed the dis-
ciplinary action papers but he offered no explanation of why
that situation was treated differently from the instant matters.
I find that even Respondent’s evidence illustrates that it
did not follow its normal routine when it discharged the four
alleged discriminatees. Routinely traffic convictions are han-
dled by distribution supervisors and convictions, even includ-
ing DUI convictions, do not routinely result in discharge.
The record shows that employees Kelly and Holloway were
not discharged even though they were convicted of DUI. In
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the case of Kelly, James Waggoner pleaded Kelly’s case be-
cause of Kelly’s good record. However, Kelly’s record was
not shown to have been better than that of the alleged
discriminatees.
Routinely so-called falsifications of ROVs do not result in
discharge. Those matters are normally handled by the dis-
tribution supervisors. The record illustrated earlier cases of
inaccurate ROVs were handled without discharges.
Both Waggoner and McDonald admitted that it is only
during a union campaign that standard procedure involves
calling on McDonald to make the decision regarding em-
ployee discipline. Waggoner also admitted that he normally
does not become involved in ROV falsifications. However,
in this case, because, according to Waggoner, of the union
campaign, he became involved along with McDonald.
The record showed that because of the involvement of
McDonald and Waggoner, a stricter standard was applied, re-
sulting in the discharge of Donaldson, Gibson, Nix, and
Jones.
The evidence demonstrated that Respondent imposed the
stricter standard because its employees selected the Union as
their bargaining representative and, but for the imposition of
that stricter standard, it would not have discharged its em-
ployees Donaldson, Gibson, Nix, and Jones. I find that the
General Counsel has proved a prima facie case that those
discharges resulted from the employees’ protected union ac-
tivity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Respondent failed to prove that it would have discharged
either Donaldson, Gibson, Nix, or Jones, but for its employ-
ees’ protected union activity. The record illustrated that other
employees were not discharged because they either received
traffic convictions, including in at least two cases DUI con-
victions, or because they failed to include traffic convictions
on their ROV. Taylor Chair Co., 292 NLRB 658 (1989);
Philips Industries, 295 NLRB 717 (1989); D & D Distribu-
tion Co., 277 NLRB 909 fn. 1 (1985); Ann’s Laundry, 276
NLRB 269 (1985); NLRB v. General Warehouse Corp., 643
F.2d 965 (3d Cir. 1981).
In fact the only case in which another employee was
shown to have been discharged for a similar offense, oc-
curred after the discharges in this instance.
As to Ernest Donaldson, on the morning the hearing
opened in this matter, Respondent offered and Donaldson ac-
cepted reinstatement with full seniority. In his opening state-
ment Respondent’s attorney stated that in preparing for this
hearing, Respondent discovered that Donaldson completed
his ROV at a date before his speeding conviction. In view
of that discovery, Respondent offered Donaldson reinstate-
ment with full seniority. Donaldson admitted that he did not
recall telling Respondent at the time of his discharge, that he
had completed the April 6 ROV before his conviction.
James Waggoner admitted that he made a mistake in dis-
charging Donaldson, by looking to the date of Donaldson’s
violation rather than to the date of his conviction. Although
Donaldson’s April 5 speeding violation occurred before Don-
aldson completed his ROV on April 6, Donaldson was not
convicted until after his ROV was completed.
The form Donaldson completed on April 6 includes stand-
ard language directing each driver to list all traffic violation
convictions.
Despite Respondent’s error, the evidence shows, as men-
tioned above, that Donaldson, as well as the other three dis-
chargees, was discharged because of the Respondent’s un-
lawful actions.
The complaint alleges that Respondent engaged in 8(a)(5)
violations by refusing to bargain regarding discharge of bar-
gaining unit employees: The evidence is not in dispute that
Respondent refused to bargain regarding the discharges of
employees Donaldson, Gibson, Jones, and Nix, following re-
quests by the Union. As shown above, Respondent specifi-
cally refused to bargain in that regard at the negotiation ses-
sion on January 9, 1990, and by letter dated January 23,
1990.
At the time of the Union’s requests to bargain over the
discharges, the Union was the certified representative of a
bargaining unit which included all four discharged employ-
ees. Even though the parties had not negotiated to agreement
at that time, the Union was the employees’ exclusive collec-
tive-bargaining agent. Negotiations over termination of em-
ployment constitute a mandatory subject of bargaining.
A grievance about a discharge is clearly a mandatory
subject of bargaining. The Respondent discharged
Chesky on 6 March. On 10 March the Union first asked
the Respondent to meet and discuss the discharge. Ad-
ditional written requests were made on 11 March and
24 March. The Respondent consistently declined these
requests both orally and in writing. It was not until 11
April that the Respondent reversed its position and
agreed to meet concerning Chesky’s termination. Ac-
cordingly, we find that the Respondent’s initial refusal
and resultant delay in bargaining violated Section
8(a)(5). Crestfield Convalescent Home, 287 NLRB 328
(1987).
Here, Respondent never did agree to meet and discuss the
discharges of Donaldson, Gibson, Nix, and Jones. By refus-
ing to negotiate over the discharges Respondent engaged in
conduct violative of Section 8(a)(5) of the Act.
The complaint alleges that the Union requested, and Re-
spondent failed to furnish, information regarding the dis-
charges of bargaining unit employees Malcolm Jones, David
Gibson, and Gene Donaldson: Respondent agreed that it pro-
vided the Union with some, but not all, information re-
quested by the Union regarding the discharges of Donaldson,
Gibson, Jones, and Nix. As shown above Respondent admit-
ted during the hearing that it had not supplied the Union with
every single piece of documentation which the Union
had requested initially and therefore it is incomplete
with response to all the MVR’s and all the ROV’s.
Gene Ashley testified that on January 4, 1990,
I requested their personnel files, a copy of their ROV’s
and MVR’s for the past two years—including ‘89 and
‘88—and information of who they had disciplined and
the type of discipline they received on employees for
the past two years for this such thing.
Ashley signed and delivered the January 4, 1990 letters to
Respondent mentioned above, which request the personnel
91RYDER DISTRIBUTION RESOURCES
files of Malcolm Jones, David Gibson, and Gene Donaldson,
and,
2. The Motor Vehicle Report (MVR) records of all
bargaining unit employees over the past two (2) years.
3. The names of all employees disciplined for
MVR’s within the past two years. Dates and description
of each discipline of those who failed to report traffic
violation convictions within the thirty day time frame.
Ashley testified that Respondent supplied him with some,
but not all, the information he requested. Ashley testified re-
garding the records he requested,
I had asked for all forty-two drivers at the time, or
forty-one, somewhere in that area. They sent me twen-
ty-eight drivers. These fourteen drivers [listed on G.C.
Exh. 21(a)] was [sic] left out.
. . . .
[G.C. Exh.] 21(b) is a letter I gave to you [counsel for
General Counsel] stating that these employees—these
fourteen or so—we had asked for them for both years
1989 and 1988. They had given us 1988 on them and
nothing at all on ‘99—or ‘89 rather. I’m sorry.
. . . .
[G.C. Exh.] 21(c), these ten drivers here, their seniority
dates are along beside of them. This is the list I gave
you to tell you that they give us nothing for 1989.
What they gave us was on the year 1988 but nothing
for 1999. 1989. I’m sorry.
Ashley testified that Respondent did not supply him with
the personnel files which he requested.
Respondent’s manager of labor relations McDonald testi-
fied that he mailed the Union what he believed to be all the
documents which the Union requested and that he discussed
the matter with Joe Finn of the Union. Finn was in Arizona
at the time and not in his office in Norcross, Georgia, where
McDonald had mailed the documents. Although McDonald
subsequently discovered that he had not supplied the Union
with everything they requested, he admittedly has failed to
remedy that oversight.
It is well settled that a union is entitled to discovery-
type disclosure, and a union’s request for information
respecting unit employees is presumptively relevant to
the union’s performance of its duties as the collective-
bargaining representative of the unit. NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1967). The presumption is
rebuttable. However, Respondent has offered no evi-
dence whatsoever to rebutt that presumption. [Accurate
Die Casting Co., 292 NLRB 982, 990 (1989).]
The Union’s request for information relevant to the dis-
charge of bargaining unit employees is presumptively rel-
evant to the Union’s bargaining obligations, especially in
view of the Union’s requests to bargain regarding those dis-
charges. The Respondent offered no evidence to rebut that
presumption. GHR Energy Corp., 294 NLRB 1011 (1989).
CONCLUSIONS OF LAW
1. Ryder Distribution Resources, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Communication Workers of America, Local No. 3263
is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Union has been at times material the exclusive rep-
resentative for the purposes of collective bargaining of the
following employees:
All regular full time drivers employed by the Respond-
ent at its AT&T Account in Norcross, Georgia, but ex-
cluding all professional employees, clerical employees,
dockmen, guards and supervisors as defined in the Act.
4. Respondent, by interrogating its employees about their
union activities, and threatening its employees with loss of
jobs, because of their union activities, violated Section
8(a)(1) of the Act.
5. Respondent, by discharging and refusing to reinstate Er-
nest E. Donaldson, David Gibson, Malcolm Jones, and Wil-
liam D. Nix, violated Section 8(a)(1) and (3) of the Act.
6. Respondent, by refusing to bargain with the Union as
the exclusive collective-bargaining representative of its em-
ployees in the above-described bargaining unit, after the
Union requested bargaining over the discharges of employees
Donaldson, Gibson, Nix, and Jones, violated Section 8(a)(5)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
I shall recommend that Respondent be ordered to meet and
bargain with the Union, as exclusive collective-bargaining
representative of its employees in the above-described collec-
tive-bargaining unit, on request, about, among other things,
the discharges of employees Ernest E. Donaldson, David
Gibson, Malcolm Jones, and William D. Nix.
As I have found that Respondent unlawfully discharged
Ernest E. Donaldson, David Gibson, Malcolm Jones, and
William D. Nix, I shall recommend that Respondent be or-
dered to offer Donaldson, Gibson, Jones, and Nix immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
Respondent must expunge all references to the discharge
of Donaldson, Gibson, Jones, and Nix from their records and
notify them that those records have been expunged and that
their July 14, 1989 discharge will not be used against them.
I shall further recommend that Respondent be ordered to
make Donaldson, Gibson, Jones, and Nix whole for any loss
of earnings they suffered as a result of the discrimination
against them. Backpay shall be computed in the manner de-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under New Horizons, interest is computed at the ‘‘short-term federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest accrued before January 1, 1987 (the effective date of the
amendment), shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
3 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
interest, as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).1
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Ryder Distribution Resources, Inc., Nor-
cross, Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating and threatening its employees with loss of
jobs because of their union activity.
(b) Discharging, refusing to reinstate, and otherwise dis-
criminating against employees because of their union or
other protected concerted activities.
(c) Refusing to bargain with Communications Workers of
America, Local No. 3263, regarding the discharges of em-
ployees Donaldson, Gibson, Nix, and Jones, or by failing to
supply the Union with information requested by the Union
which is relevant to the Union’s bargaining responsibilities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer its employees Donaldson, Gibson, Jones, and Nix
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent jobs
without prejudice to their seniority or other rights or privi-
leges previously enjoyed, and make Donaldson, Gibson,
Jones, and Nix whole for any loss of earnings, plus interest,
suffered because of its illegal action.
(b) Remove from its files any reference to the termination
of Donaldson, Gibson, Jones, and Nix and notify Donaldson,
Gibson, Jones, and Nix in writing that this has been done
and that evidence of their unlawful terminations will not be
used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, and timecards, personnel
records, reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its facility in Norcross, Georgia, copies of the
attached notice.3 Copies of the notice, on forms provided by
the Regional Director for Region 10, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.