The Lewis Grocer Co.

National Labor Relations Board - Board Decisions

Nov 18, 1986

282 N.L.R.B. 166 (N.L.R.B. 1986)

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Lewis Grocer Company and Robert Skelton and
Alton J. Rodgers and Luther L. Taylor. Cases
26-CA-11139, 26-CA-11149, and 26-CA-
11165
18 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 17 March 1986 Administrative Law Judge
William N. Cates issued the attached decision.
Charging Party Robert Skelton filed a letter ex-
cepting to the decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the letter and has decided to
affirm the judge's rulings, findings,' and conclu-
sions and to adopt the recommended Order.
'ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
July and is based on charges, which were filed by vari-
ous individual Charging Parties.
The original charge in Case 26-CA-11139 was filed by
Robert Skelton, an individual, on 30 May, and amended
on 9 July. The original charge in Case 26-CA-11149 was
filed by Alton J. Rodgers, an individual, on 4 June, and
amended on 12 September. The original charge in Case
26-CA-11165 was filed by Luther L. Taylor, an individ-
ual, on 20 June, and amended on 12 September. An
amendment to the complaint issued on 13 September.
The complaint was further amended at the trial. In the
complaint it is alleged that The Lewis Grocer Company
(Company or Respondent) violated Section 8(a)(1), (3),
and (4) of the National Labor Relations Act. Specifical-
ly, the case involves the following: the Company's ques-
tioning one employee about the Union; its issuing disci-
plinary warnings to its employees Rodgers, Skelton,
Taylor, Doug Jones, and Booker Williams (B. Williams);
its issuing a 3-day suspension to employee Johnny Dodd;
and its discharging Skelton. I find for Respondent on all
issues and recommend the complaint be dismissed.
All parties were given full opportunity to participate
and introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally, and to file briefs.
Briefs, which have been carefully considered, were filed
by the General Counsel and Respondent.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
i Charging Party Skelton has excepted to some of the judge's credibil-
ity findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings.
We also find totally without ment Charging Party Skelton's allegations
of bias and prejudice on the part of the judge. On our full consideration
of the record and the decision, we perceive no evidence that the judge
prejudged the case, made prejudicial rulings, or demonstrated a bias
against any party in his analysis or discussion of the evidence. We further
reject as totally without merit the Charging Party's contention that it was
prejudiced by the alleged failure of the General Counsel to conduct an
adequate investigation and/or to adequately present the case before the
judge
Bruce Buchanan, Esq., for the General Counsel.
Charles A. Adams, Esq., of New Orleans, Louisiana, and
G. Truett Roberts Jr., Esq ., of Indianola, Mississippi,
for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This
matter was heard at Greenville, Mississippi, on 7, 8, and
9 October 1985.1 The hearing was held pursuant to an
order consolidating cases, consolidated complaint, and
notice of hearing issued by the Regional Director for
Region 26 of the National Labor Relations Board on 9
' All dates are 1985 unless otherwise indicated.
FINDINGS OF FACT
1. JURSIDICTION
Respondent is a corporation with an office and place
of business located at Indianola, Mississippi, where it is
engaged in the wholesale distribution of grocery prod-
ucts. During the year preceding issuance of the com-
plaint, Respondent sold and shipped from its Indianola,
Mississippi facility products, goods, and materials valued
in excess of $50,000 directly to points outside the State
of Mississippi. The complaint alleges, Respondent by its
answer admits, and I find it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 891 is, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Brief Background2
Respondent distributes grocery products by truck from
its Indianola , Mississippi warehouse to various States
2 This brief background is not intended to be all inclusive, but rather,
is for the purpose of setting forth at one place in this decision certain
Continued
282 NLRB No. 19
LEWIS GROCER CO.
across the South . It employs approximately 175 driver,
along with 45 shop employees , dispatchers , billing clerks,
and supervisory personnel . Respondent has a fleet of ap-
proximately 120 trucks , 115 of which are equipped with
computer terminals . Respondent 's trucking operation is
governed by United States Department of Transportation
(DOT) regulations.
Driver Skelton first contacted the Union in 1983 to re-
quest assistance in organizing Respondent 's drivers.
Thereafter , in January 1984, certain drivers formed "The
Lewis ' Employees Achievement for Better Government
Committee ."3 The stated purpose of the committee was
to represent employees before Respondent . It would
appear the committee later became the organizing arm
for the Union in its 1984 campaign at Respondent. The
Union filed a representation petition in Case 26-RC-6676
on 4 May 1984 . On 18 May 1984 it notified the Company
in writing that 10-named drivers formed the Union's or-
ganizing committee .4 A hearing on the representation pe-
tition was held on 23 and 24 May 1984 in Greenwood,
Mississippi . Pursuant to a Decision and Direction of
Election , an election was held on 29 June 1984 in which
the Union lost.
Employee Skelton filed an unfair labor practice charge
against Respondent on 9 January in Case 26-CA-10983,
which pertained to a disciplinary warning he had re-
ceived in October 1984 . Skelton 's charge was consolidat-
ed for trial with an unfair labor practice charge previous-
ly filed by employee Carl Williams in Case 26-CA-
10867-2.5 Skelton's and Williams' consolidated cases
were set for trial on 16 January (1 week after Skelton
filed his charge); however, on that date and prior to the
trial actually commencing , the parties reached a non-
Board settlement of the cases.
From January through April, DOT audited Respond-
ent's compliance with its rules and regulations and found
it had committed approximately 500 DOT violations. In
April, Respondent reached a settlement with DOT on
the violations . As a part of the settlement , Respondent
was fined and agreed to bring its operations into compli-
ance with DOT regulations . A part of the settlement in-
volved Respondent agreeing to, among other things,
hiring additional personnel to ensure its compliance with
DOT requirements . DOT "assured" Respondent that
future violations would result in a $1000 fine per viola-
tion . At some point prior to the commencement of this
trial , Respondent was notified by DOT that it continued
to have an unsatisfactory ' rating regarding' compliance
with DOT rules and regulations.
pertinent and material background facts. All background information has
been carefully considered and certain portions will be referred to else-
where in this decision.
3 As reflected on a notice posted at the Company on 15 January 1984,
the drivers initially involved with the committee were Lewis Douglas,
Ike Donald, Joe Fant, Skelton, and Taylor.
4 The 10 drivers were Carl Williams, Taylor, Lewis Douglas, Joe
Fant, Ike Donald, Homer Taylor, Skelton, James Lewis, James Modley,
and Glen Modley
5 It is not clear on this record when the charge involving Williams was
filed, however, I note it was some 116 charges prior to the charge in-
volving Skelton.
167
Driver Skelton again contacted the Union in 1985 and
the first union meeting in that year was held on 19
May.6
It is undisputed that Sanitation Supervisor William
Moudy and Supervisor Darvin Welch knew, at least 2
days before the 419 May union meeting, that it would
take place.7
B. Interrogation of Rodgers
It is alleged at paragraph 7 of the complaint that about
19 May Respondent acting through Supervisor Welch in-
terrogated Rodgers about his union activities.
Following the Union's first 1985 organizational meet-
ing' held on Sunday, 19' May, Rodgers went directly to
the Company's warehouse." After Rodgers obtained the
necessary paperwork for the delivery he was about to
make, he went to the breakrgom for coffee. In the break-
room he spoke with Supervisor Welch in Supervisor
Barrett Dickerson's presence. It is not disputed that
Welch and Rodgers were longtime friends who had at-
tended secondary school together. Rodgers testified
Welch asked him how the union meeting went. Rodgers
told Welch it went great. Rodgers asserts Welch asked
him how many showed up for the meeting, and he told
him approximately 10, that it was their first meeting, and
it was mostly just for organizers. Welch acknowledged
he asked Rodgers how the union meeting went but
stated Rodgers told him that feeding the employees ham
and cheese this year would not win them over. 'Welch'
testified he realized at that point that Rodgers was seri-
ous so he backed off and began asking him about previ-
ous dairy runs and how his truck was loaded for his de-
livery that day. Rodgers acknowledges that after he fin-
ished getting a cup of coffee, the three of them talked
and laughed about other things including how his truck
was loaded. After that discussion, all agreed the conver-
sation ended.
The only conflict between Welch's and Rodgers' testi-
mony regarding their conversation is whether 'Welch
asked Rodgers how many employees attended the union
meeting. Although Welch's testimony was very brief, he
impressed me as a truthful witness. His testimony had a
ring of truth about it and as such I credit his version of
the conversation.
The Board's test for evaluating whether any particular
interrogation violates the Act is set forth in Rossmore
House, 269 NLRB 1176 (1984). The test is whether under
all' the circumstances the -interrogation reasonably tends
to,restrain, coerce, or interfere with rights guaranteed by
the Act. The Board pointed to some areas of inquiry that
might be considered in applying the Rossmore House
guidelines but warned the factors were not to be me-
chanically applied. The Rossmore House factors were: the
background involved; the nature 'of the information
B It is undisputed that Skelton and Rodgers were among those in at-
tendance at the May unionmeeting.
7 Moudy found a note in the employee's bathroom about 17 May that
announced the union meeting for 19 May
& The union meeting was held in Greenwood, Mississippi, and as noted
earlier in this decision, Respondent's facility is located at Indianola, Mis-
sissippi.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought; the identity of the questioner; and the place and
method of interrogation. Applying the Rossmore House
test, I find the circumstances surrounding Welch's ques-
tioning of Rodgers to be devoid of the elements of coer-
cion necessary for finding a violation of the Act.9
First, Rodgers was a known union supporter.' ° Welch
had been told in 1984 that Rodgers supported the Union.
Second, there is no showing that Welch took or threat-
ened to take any adverse action against Rodgers or any
other employee based on the employee's support for the
Union. As is discussed elsewhere in this decision, Rod-
gers, after this conversation with Welch, had disciplinary
action taken against him but it was, taken by a different
supervisor and Welch credibly testified he did not men-
tion the conversation he had with Rodgers to any other
supervisor. Third, the one question Welch did ask was a
very general nonthreatening question-he simply asked
how the union meeting went. Fourth, the conversation
took place in the breakroom where these two longtime
friends and former schoolmates continued to laugh and
talk about other job-related matters. As the Board noted
in Sunnyvale Medical Clinic, supra, this was the lawful
casual type questioning that, under the circumstances,
might be expected to occur between a supervisor and an
employee who had been longtime friends that grew up
and worked together. Accordingly, I recommend that
the allegation of interrogation set forth in paragraph 7 of
the complaint be dismissed.
C. Disciplinary Warnings Given Rodgers, Jones, and
B. Williams
It is alleged that about 30 May Respondent issued a
disciplinary warning to Rodgers in violation of Section
8(a)(1), (3), and,(4) of the Act. The 8(a)(4) allegation is
based on the contention that Rodgers gave a statement
to the Board and appeared at a Board hearing to testi-
fy.''
Respondent has had written guidelines for its drivers
regarding overnight expense allowances at least since 18
July 1984.12 In its July guidelines, Respondent author-
ized expense money for its drivers whenever any trip re-
quired them to be away from the warehouse in excess of
15-1/2 hours. Respondent pointed out to its drivers in its
memorandum that overnight expense money was intend-
ed to help offset the personal expenses of its drivers and
it was not to he considered as additional money for
9 The General Counsel conceded in his posttrial brief that if Welch's
testimony was credited, no violation of the Act would have been estab-
lished.
10 The same Rossmore House test would apply even if Rodgers' union
sentiments had not been known to the Company See Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985), and Page Avjet, Inc, 278 NLRB 444
(1986)
11 It is the contention of the General Counsel that Respondent issued
employees Jones and B . Williams disciplinary warnings on 11 June in
order to cover up the alleged discriminatory warning it gave Rodgers
Accordingly, the General Counsel alleged at par. 11 of the complaint
that the disciplinary warnings given Jones and B. Williams were given in
violation of Sec 8(a)(3) of the Act
12 I am persuaded Respondent provided a copy of its July memoran-
dum to Rodgers notwithstanding his testimony that he did not receive a
copy of that particular memorandum.
making a trip.13 Respondent issued additional guidelines
on 24 October 1984 regarding overnight expense allow-
ances. 14 In its October memorandum, Respondent in-
formed its drivers it had made arrangements with certain
motels in most of the areas where deliveries were made
and the drivers could use those motels if they chose to
do so. Any driver choosing to utilize a motel arranged
for by the Company would have to return $14 of the $24
of expense money received from the Company for that
trip. Respondent placed its drivers on notice in the Octo-
ber memorandum that a "Failure to comply with these
instructions will subject you to disciplinary action."
On 8 January Respondent issued its drivers yet an-
other memorandum on overnight expense allowances.
The new guidelines were to be effective on and after 11
January . 15 In its January memorandum , Respondent,
among other things, notified its drivers the Company
would no longer provide for company arranged motels,
that each driver would have to pay for his own room
from the $35 overnight expense allowance the Company
was at that time authorizing.16 Respondent also asked its
drivers to take certain measures to reduce costs to the
Company such as to stop idling the tractor motors, to
strive for better miles per gallon in their driving, to get
proper rest, and to return to the warehouse on comple-
tion of their runs and rest periods.
It is undisputed the Company's policy was that if a
driver was scheduled for a trip that would take in excess
of 15 hours, he was authorized $35 overnight expense
money. If the driver was scheduled in excess of 30 hours,
he was authorized to receive $70 advance overnight ex-
pense money.'' It is undisputed that runs do not always
take the length of time they are scheduled to take.'8
Stops or drops may be added or deleted from a run thus
affecting the time needed to complete the trip.
Respondent's president, Dudley Burwell, explained to
the drivers in January that expense money was given for
legitimate business reasons, and on those occasions when
the expense money was not utilized, the Company ex-
pected the drivers to return it to the Company.' 9
13 I have throughout this decision used the terms trip, run, and delivery
interchangeably and intend for them to have the same meaning, namely,
making a delivery of grocery products and returning with various items
needed for distribution to the grocery stores Respondent serves.
14 Rodgers acknowledged he received a copy of the October memo-
randum.
15 All three memoranda to the drivers were signed by Director of
Transportation Don Williams.
16 In order to receive the $35-overnight expense allowance, the drivers
had to sign for the money on a company expense voucher (G.C. Exh
12).
17 According to the Company, the $35-expense money represented an
evening and morning meal and a motel bill.
18 Trip lengths are calculated at the Company by computer based on
stops, running distance , and other related factors.
19 For a number of reasons , I credit Williams' testimony that Burwell
spoke with the drivers about overnight expense money It had long been
the policy of the Company that if expense money was not used, it was to
be returned to the Company The Company had informed its drivers that
expense money was not to be considered as additional compensation for
making a run . Respondent's memorandum of 8 January regarding over-
time expense allowances reflects that Burwell wrote a letter to each
driver concerning overnight expense allowances. As such, I am persuad-
ed Burwell spoke with the drivers about expense money notwithstanding
Continued
LEWIS GROCER CO.
On 28 May, Rodgers was scheduled to make a trip
from the warehouse to Forrest City and Osceola, Arkan-
sas, and return. The trip sheet reflected it would take 17
hours to make the trip. Before making this trip, Rodgers
received $35 in overnight expense money. Rodgers com-
pleted the trip in 15 hours and when he turned in his pa-
perwork (backhaul slips and logbook sheets) generated
by the trip, Dispatcher Eston Cummings mentioned to
Rodgers that he had not been out overnight. Rodgers
told Cummings that was correct, that he, had been able
to return without , staying overnight. Cummings told
Rodgers, "Well, you are going to have to turn your
[overnight expense] money back in." Rodgers told Cum-
mings, "Well, I will be glad to turn mine back in when
everybody else that doesn't use theirs turns theirs back
in. Don't make an example out of me." Cummings told
Rodgers he would have to make note of it and inform
Director of Transportation Williams about it. Rodgers
told Cummings to do whatever he had to do. Cummings
then wrote a note to Williams about the matter and
asked Rodgers to sign it. Rodgers refused to do so.
Thereafter, Director of Transportation Williams was
informed by Dispatcher Cummings that Rodgers had not
returned his overnight expense money. After Rodgers
made another trip for the Company he was told to see
Director of Transportation Williams. At their meeting,
Williams told Rodgers he ' would have to return the
unused expense money that he obtained on 28 May. Wil-
liams then explained,to Rodgers that expense money was
for a legitimate reason-to cover personal expenses-and
when it was not used for expenses, the Company expect-
ed the drivers to return it. Rodgers told Williams he
would be glad to do so when everyone else that did not
use their expense money turned it in. Williams told Rod-
gers no one else was doing that type thing, that others
were staying out on their runs and properly utilizing
their authorized overnight expense money. Rodgers told
Williams he knew for a fact that was not so. Williams
asked Rodgers to name someone and Rodgers gave Wil-
liams the name of driver B. Williams. Director of Trans-
portation Williams told Rodgers he was not aware of
any situation involving driver B, Williams not returning
unused overnight expense money. Rodgers told Director
of Transportation Williams to get driver B. Williams' trip
sheets. He did so and Rodgers showed him where B.
Williams had obtained overnight expense money without
utilizing or returning it. Williams told Rodgers he would
investigate the situation. Williams also told Rodgers he
was going to, write him up for insubordination. Rodgers
told Williams to do whatever he had to do. Williams
prepared a written warning for Rodgers, however, Rod-
gers refused to sign it.20
Rodgers' testimony that he could not recall Burwell ever explaining ex-
pense policies at any drivers' meetings. I am further persuaded Burwell
did so because it has been convincingly established that expense money
was a matter ,of great concern to the Company
CO Rodgers' warning dated 28 May was checked in two categories re-
lating to the reasons for the action taken, namely, (a) insubordination and
(b) unsatisfactory performance-neglecting responsibilities and duties and
failing to follow instructions . The following "description of circum-
stances" was given on the warning.
Driver went out on an overnight run that was given $35 overnight
money & returned to warehouse within 15 hours [Tr 3131] & re-
169
Director of Transportation Williams found out about
the incident involving B. Williams from Rodgers and
also from Director of Warehousing and Transportation
Tom Patterson, who told him he had been informed con-
fidentially that drivers B. Williams and Jones had violat-
ed the 15-hour overnight expense money guidelines. Wil-
liams investigated the situation and on I1 June issued dis-
ciplinary warnings to B. Williams and Jones.21
The General Counsel contends all the reasons (which
will hereinafter be discussed) advanced by Respondent
for disciplining Rodgers were pretextual and the General
Counsel asserts the real reason Rodgers was given a dis-
ciplinary warning was his union activities and his partici-
pation in a Board investigation along with his appearance
at a scheduled Board proceeding. The General Counsel
further contends the warnings given B. Williams and
Jones were given in violation of the Act because they
were issued in order ' to cover up the discriminatory
warning given Rodgers.22
Respondent contends Rodgers wrongfully and deliber-
ately withheld overnight expense money and was ac-
cordingly disciplined.
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 400-403 (1983), the Board set forth a
test of causation to be applied in cases involving actions
based on "dual" motives, one of which is permissible and
one of which is unlawful. Under that test, the General
Counsel is first required to establish a prima facie case
sufficient to support the inference that protected conduct
was a "motivating factor" in the employer's decision. If
this is established, then the burden shifts to the employer
to demonstrate that it had a legitimate, permissible
reason for its actions such that the disciplinary action
would have taken place even in the absence of the pro-
tected conduct.
I am persuaded the General Counsel has met her
burden of establishing a prima facie case with respect to
the discipline given Rodgers. I base my conclusion on
Rodgers' union activities, the Company's knowledge of
those activities, and the timing of the discipline taken
against him.23 Rodgers' support for the Union was clear-
fused to turn in the 35 dollars. Alton [Rodgers] was instructed to
return the $35 everytime the run doesn't require 15 hours as per Mr.
Burwell 's instructions in driver meeting. [G. C. Exh 13,.]
21 Williams' and Jones' warnings both were checked in the category of
unsatisfactory performance-failure to follow instructions--as the reason
for the action taken against them The following "description of circum-
stances" was written on the warnings.
Was advised to return overnight money when he didn't stay over-
night Doug Jones [G.C. Exh. 15], Booker Williams 10 C. Exh. 14],
was advised to always turn in money when he doesn' t have to stay
overnight
22 The General Counsel readily acknowledges that if there is no find-
ing of a violation with respect to the warning given Rodgers, then there
could be no violation of the Act with respect to the warnings given B.
Williams and Jones
21 I note the absence of any independent evidence of animus; however,
the Board in Kenco Plastics Co, 260 NLRB 1420 (1982), held that inde-
pendent evidence of animus was relevant but not an essential element of
proof in finding a prohibited motive for disciplinary action.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly known by Respondent. Supervisor Welch asked Rod-
gers on 19 May about,the union meeting he had attended
that day. Ten days after that inquiry, Rodgers was disci-
plined. Additionally, Respondent, through Director of
Transportation Williams, was aware in October 1984 that
Rodgers had been involved in a Board investigation and
Williams knew Rodgers had been present ,at a Board trial
that was scheduled to be heard in January because he
was there and saw Rodgers in the courtroom.
I am, for the following reasons, persuaded Respondent
rebutted the General Counsel's prima facie case with re-
spect to the disciplinary warning given Rodgers. Con-
trary to the contentions of the General Counsel, I find
Rodgers did in fact conduct himself in an insubordinate
manner. He refused outright Dispatcher Cummings' re-
quest that he return his unused expense money. The
General Counsel argues Rodgers could not have been in-
subordinate to Cummings because Cummings was not a
supervisor within the meaning of the Act. However, I
find Cummings had been placed in' a position of responsi-
bility sufficient for Respondent to consider an employee
insubordinate if the employee disregarded the instruc-
tions of its dispatcher particularly where, as here, the dis-
patcher was attempting to enforce the Company's writ-
ten guidelines on overnight expense money. Rodgers
was, in my opinion, also insubordinate when he told Di-
rector of Transportation Williams that he would return
his expense money when everyone else did. The fact that
Williams later agreed to allow Rodgers to reimburse the
Company by deducting the money from his next author-
ized overnight expense allowance does not negate Rod-
gers' insubordinate conduct toward Williams.24
Rodgers was not only insubordinate, but he did, as
stated in his disciplinary warning, fail to follow company
instructions in that he failed to return his unused over-
night expense money. Respondent had for an extended
period of time advised its employees that expense money
was not to be considered as an additional payment for
making a trip but was to be 'utilized for the legitimate
purpose of covering overnight expenses and when such
expenses were not incurred, the expense money was to
be returned to the Company. Respondent, had warned its
employees that a failure to follow these instructions
would, and did, result in disciplinary action. 'Respondent
issued a warning to employee Joe Holloway on 28 No-
vember 1984 for failing to return to the Company certain
overnight expense money. In approximately October
1984, Respondent disciplined employee Carl Williams for
falsifying his DOT log records in order to receive addi-
tional overnight expense money. The General Counsel
also argues that other drivers such as Starnes, Taylor,
Ernie Skelton, and Louis Douglas each made trips in less
than 15 hours and did not return their overnight expense
24 The General Counsel appears to contend Rodgers was treated dif-
ferently from others such as Larry Starnes. Starnes testified he returned
from a trip in less than 15 hours and was asked to return his unused ex-
pense money. Starnes told Assistant Director of Transportation Johnny
Spurlock to just withhold the money from his next authorized overnight
expense fund . Starnes was allowed to repay the money from his next
overnight expense fund and was not given a warning . There is, however,
no showing that Starnes was ever asked for, and then refused, to return
unused overnight expense money.
money and were not disciplined. There is, however, no
showing management was ever aware of any such inci-
dents. Furthermore each testified they were never asked
for and then refused to return their unused overnight ex-
pense money.
I am fully persuaded Respondent has demonstrated it
would have disciplined Rodgers even in the absence of
any protected conduct on his part. Accordingly, I rec-
ommend that the 8(a)(1) and (3) complaint allegations re-
lated to the disciplinary warning given Rodgers on 28
May be dismissed. Likewise, I am persuaded it cannot be
inferred that Rodgers' participation in a Board investiga-
tion in October 1984 and his appearance at a trial (that
never took place because of a settlement) in January was
in any way a motivating factor in Respondent's decision
in May to discipline him. Accordingly, I recommend
that the 8(a)(4) complaint allegations related to Rodgers
be dismissed.25
D. The Warning Given to and the Discharge of
Skelton
It is alleged at paragraphs 9 and 10 of the complaint
that Respondent issued disciplinary warnings 'to Skelton
on 21 and 29 May, and also discharged him on that latter
date in violation of Section 8(a)(1), (3), and (4) of the
Act.
At the time of his disciplinary warnings and discharge,
Skelton had been driving a truck for Respondent for ap-
proximately 13 years. He worked under the supervision
of Director of Transportation Williams.
As is noted elsewhere in this decision, Skelton was the
employee that initially contacted the Union in 1983 and
he also helped to form an employee committee that
served as a springboard for the Union's 1984 organizing
campaign at Respondent. Respondent was notified in
writing that Skelton was a member of the Union's 1984
organizing committee. Skelton was the employee that
again contacted the Union in 1985 about organizing Re-
spondent's drivers. Further, as is also reflected elsewhere
in this decision, Skelton filed an unfair labor practice
charge against Respondent in January and in connection
therewith gave an affidavit to the Board. Skelton ap-
peared at the scheduled 16 January Board trial of his and
a fellow employee's charges against Respondent, howev-
er, the consolidated matter was settled out of court in a
non-Board agreement. As a part of that non-Board settle-
ment, a disciplinary warning dated 1 October 1984 was
removed from Skelton's personnel, file.
25,Inasmuch as I have found the discipline given Rodgers was not un-
lawfully motivated, I shall, in agreement with the General Counsel, rec-
ommend that the 8(a)(1) and (3) allegations related to B Williams and
Jones be dismissed. The discipline given B Williams and Jones on 11
June grew out of an investigation that was initiated in part by Rodgers
and was in keeping with Respondent's written and oral guidelines regard-
ing unused overnight expense money
LEWIS GROCER CO.,
DOT Coordinator John Smith2S. ,credibly testified27
that in reviewing Skelton's logbook entries for 5 and 6
May, he observed Skelton reflected he had been in the
sleeper berth for a number of hours on that trip. The
tractor unit Skelton drove did not have a sleeper berth.
Smith made a logbook note to Skelton, which read,
"You are in violation of Section 395.8GXI of DOT regu-
lations. See me on this. John Smith." (R. Exh. 12.)
Within a few days thereafter, Smith spoke to Skelton
about his having logged sleeper berth time when he did
not have a sleeper berth on his unit. Smith told Skelton
to log such time on the top "off duty" line of his logs.
Skelton told Smith he had been making logbook entries
for 30 years and knew how to log.28 '
Smith testified that thereafter, about 19 May, he re-
ceived a memorandum (R. Exh. 23) from Night Dis-
patcher Eugene Jefferies,29 which reflected Skelton had
again made entries on 'the sleeper berth line of his trip
logs.30 Smith testified he gave Skelton a written warning
on 21 May because he had previously warned him about
making, sleeper berth log entries when he drove a unit
that did not have a sleeper berth. Smith explained to
Skelton that his actions were in violation of DOT rules
and regulations. According to Smith, Skelton did not say
anything.3 t Skelton refused to sign the 21 May warning
Smith gave him.32 Smith testified he had not given any
other disciplinary warnings to any employees for logging
time in the sleeper berth. He stated he had, however,
issued a counseling to employee Jerry Gates on 19 April
for logging time in the sleeper berth. Smith testified he
counseled Gates instead of giving him a disciplinary
warning because two memoranda had just issued on 15
26 At the time of the trial, Smith had been Respondent's DOT coordi-
nator for approximately 6 months. Smith was relieved of all duties except
DOT coordinator as a part of Respondent's settlement with DOT. Prior
to being DOT coordinator, he had served as safety director
27 Smith was not only a forthright and candid witness but contempora-
neous documents supported his testimony. When Smith testified in Re-
spondent's case-in-chief, he was not cross-examined.
28 Skelton denied that Smith, prior to 21 May, ever spoke to him
about logging in the sleeper berth. I found Skelton to be far less than a
credible witness and as such I do not credit his testimony when it con-
flicts with that of other witnesses. Portions of Skelton's trial testimony
conflicted with statements contained in his pretrial Board affidavit Skel-
ton's testimony was sometimes confusing and he displayed selective
recall. At one point during cross-examination, he became so upset and
angry that a break had to be taken in the proceedings I am convinced
Skelton became upset and angry because conflicts were being pointed out
between his trial testimony and his trip logs Skelton acknowledged he
made incorrect entries on his trip logs and it appears Skelton would
resort to giving incorrect testimony whenever he perceived it would be
in his best interest to do so.
29 Dispatchers are nonsupervisory unit employees.
30 Skelton stated Jeffenes raised the matter of his logging on the sleep-
er berth line and wanted him to change his logs. Skelton testified he told
Jefferies he would take the matter up with Smith.
31 Skelton asserts Smith wanted him to change his log entries from
"sleeper berth" to "off duty " He testified he told Smith he would not
make the changes nor would he get a new logsheet and reflect it as "off
duty" because it would be "altering" his logs and- that would be "Sin vio-
lation of DOT regulations " Skelton stated he told Smith he would log it
the way Smith wanted it the next time, "that [Smith] was right, it should
be logged off duty " Skelton asserts he was, however, actually sleeping,
sometimes at a store or alongside the road , when he entered time in the
sleeper berth on his logs
32 The warning reflects it was given because Skelton failed to follow
instructions in that he logged time in the sleeper berth rather than as off
duty.
171
April, to all drivers, spelling out what was expected of
them in making logbook entries and in bringing Re-
spondent into compliance with DOT rules and regula-
tions. The two memoranda, both from Director of Trans-
portation Williams pertained to "DOT hours of service"
and "DOT compliance" (R. Exhs. 8 and 9). The memo-
randa addressed to all drivers and dispatchers were as
follows:
We were audited by D.O.T. on 2-14-85, and
were found to be in violation on numerous ac-
counts, primarily hours of service.
We will discuss our compliance with the D.O:T.
office in Atlanta on 4-18-85.
Management has installed several procedures to
bring the Lewis Grocer Company Driver force in
compliance.
Effective by 4-18-85, every driver will be ex-
pected to recap his logs. Every driver will also be
expected to be in full compliance with all hours of
service requirements . Ten (10) and fifteen (15) hour
requirements, sixty (60) hours in seven (7) days re-
quirement, DVCR requirements , and all D.O.T. re-
quirements.
Effective 4-18-85, every driver is expected to
keep up with his hours. When assigned or advised
to work, you are to advise the dispatcher of your
available hours, and you are,not to accept an assign-
ment that will cause you and the Company to be' in
violation. Your failure to comply will result in disci-
plinary action as any violations will cause the Com-
pany extreme hardships. [R. Exh. 8.]
In a recent conversation with Mr. Laird of the
Jackson D.O.T. office, the following was discussed
and OK'd.
1.) Our previous instructions concerning hours on
duty within a twenty-four (24) hour period is
correct. The requirement is that you must have
eight (8) hours off duty before driving if you
have driven ten (10) hours or been on duty fif-
teen (15) hours or more.
2.) A Driver can only log on the top line a total
of one (1) hour for meals or eight (8) hours off
duty time. However, the Dispatcher can place a
man off duty for a specific length of time at any
time by relieving the Driver of all responsibility
for the equipment and allowing the Driver to do
whatever he desires.
For this to happen, the Dispatcher must talk to
the Driver at the time he is relieved of duty and
assign him a specific time to report back on duty.
(During this time a Driver can't be expected to be
ready for work or perform any company functions).
For a Driver to be relieved of duty I want the Dis-
patcher to log in the dispatcher log book the fol-
lowing information.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1.) Time and date. Driver name and location,
reason for placing off- duty, and time to report
back on duty.
2.) You are, to complete the following informa-
tion and place original in 'John Smith box and
copy to go to driver upon returning to ware-
house to be attached to his log.
Any infraction or violation of the hours of serv-
ice is to be explained on the log, however Lewis in-
tends to comply with all D.O.T. rules and regula-
tions. [R. Exh. 9.]
Director of Transportation Williams testified he issued
the above memoranda following the January through
April DOT audit of Respondent 's operations . 33 Williams
stated Respondent took various other actions to help
bring it into compliance with DOT rules and regulations.
Williams, for example, stated Respondent placed Smith
in charge of coordinating, DOT requirements and pur-
chased a computer log recap program so the Company
could have a daily recap of the status of its drivers.34
Williams testified he looked over the recaps" to see if
Respondent was in compliance with certain DOT re-
quirements such as 10-hour driving, 15-hour duty, and 60
hours of work in a 7-day period.
Williams stated that while scrutinizing the log recaps
for 14, 15, and 16 May, he noticed that Skelton had
worked in excess of 60 hours in a 7-day period in viola-
tion of DOT, as well as company rules and regulations.
Williams called Skelton in and gave him a written warn-
ing on 21 May for violating DOT regulations. Skelton
told Williams he had been driving and logging for 30
years and had never had a problem until Williams came
to work at Respondent. Skelton also told Williams he
knew how to make logbook entries. Williams instructed
Skelton to recap his logs and to study the DOT
manual36 so he would not continue to violate DOT reg-
ulations because "another violation of DOT rules could
result in discipline up to and including discharge." (R.
Exh. 13.) 37 Williams also told Skelton that he and DOT
33 Williams had issued an earlier memorandum on 27 February regard-
ing "Drivers Log Policies" (R Exh. 7).
34 Williams stated the computers that were installed in the trucks were
originally bought to enhance the transportation dispatching system; how-
ever, they were used primarily to ensure the Company was in compliance
with DOT rules and regulations.
35 Williams stated DOT Coordinator Smith and Director of Warehous-
ing and Transportation Patterson also reviewed , at random, certain logs
to see if Respondent was in compliance with DOT requirements Wil-
liams stated Respondent's President , Burwell, was also provided a copy
of the log recaps each Monday and Friday so that he might check on the
Company's compliance with DOT requirements '
3s Williams gave Skelton a copy of the "Federal Motor Carrier Safety
Regulations of the U S Department of Transportation (Parts 390-399)."
Skelton acknowledged in writing he had received a copy of the manual
and he agreed to familiarize himself with it and to comply with the regu-
lations outlined therein
37 Skelton acknowledged he was given a written warning on 21 May
for exceeding 60 hours of work in a 7-day period in violation of DOT
regulations He, also acknowledged receipt, on that same date, of a copy
of the DOT manual The General Counsel stated at trial and in his post-
trial brief that there was no contention that Respondent violated the Act
when Director of Transportation Williams gave Skelton a warning on 21
May
Coordinator Smith were there to help him and if he did
not understand anything about the rules and regulations,
they would ' sit down and explain them to him.
The General Counsel contends Respondent violated
Section 8(a)(1), (3), and (4) of the Act when DOT Coor-
dinator Smith gave Skelton a warning on 21 May for
logging time in the "sleeper berth" instead of "off duty."
The General Counsel bases her contention on the follow-
ing: (1) Skelton was an active union supporter; (2) no
other employee had up to that time been disciplined for
logging time in the sleeper berth even though Skelton
and another employee; Watts, had allegedly been doing
so for years; (3) the timing of the warning that came
right after renewed union activity; and (4) employee
Gates was only counseled instead of warned for the same
rule infraction that Skelton committed.
Respondent urges the warning given by Smith on 21
May was fully justified in that Skelton had previously
been warned about the same rule infraction and had
knowingly continued to violate DOT regulations.
I am persuaded the, General Counsel has established
sufficient evidence to support the inference that protect-
ed conduct was a motivating factor in Respondent's deci-
sion to issue a warning to Skelton on 21 May. Skelton
was a longtime supporter of the Union and his support
for the Union was well known to Respondent. Skelton
was given a warning 2 days after the Union renewed its
organizing efforts at Respondent. Skelton was the indi-
vidual who initially sought out the Union and later (in
1985) sought to have the Union renew its efforts at Re-
spondent. Skelton had previously (9 January) filed an
unfair labor practice charge against Respondent. Al-
though that case was settled, it was not settled before
Skelton appeared, at the designated court facility on the
assigned trial date (16 January) ready to testify. Various
management officials were present at that scheduled trial.
All the above factors persuade me the General Counsel
has established a prima facie case.38
As the General Counsel has established a prima facie
case of unlawful motivation, the burden shifts to Re-
spondent to demonstrate it would have warned Skelton
on 21 May even in the absence of his protected conduct.
For the following reasons, I find Respondent has clearly
demonstrated it would have taken the action it did even
in the absence of Skelton's protected conduct. Skelton's
discipline was not as new or different as the General
Counsel would imply. - DOT Coordinator Smith had
counseled employee Gates for making logbook entries on
the sleeper berth line prior to the advent of the Union's
1985 campaign at the Company. Thus demonstrating the
Company had commenced to correct this particular, type
DOT rule infraction prior to the Union' s most recent
campaign . Furthermore, Smith' s explanation for giving
Gates a counseling39 instead of a warning is logical and
credible. It is very apparent that Respondent did not do
well in its DOT audit that took place from January to
April, and as such , it issued new or at least more careful-
ly detailed guidelines with respect to logbook entries
38 See fn. 23
39 It appears "counselings" are a part of the Company's progressive
disciplinary procedures
LEWIS GROCER CO.
with a view toward precluding further DOT violations,
which if they occurred were going to be costly to Re-
spondent. These new or more carefully detailed guide-
lines issued on 15 April and Gates' infraction occurred
on 19 April. Therefore, I find Smith's explanation that he
counseled rather than warned Gates to be reasonable. On
the other hand, Skelton had previously been placed on
notice that his logbook entries regarding sleeper berth
time were in violation of DOT regulations, nonetheless,
he continued to make such logbook entries. Skelton did
not make the entries in ignorance of DOT requirements
because he stated he knew he was legally supposed to
log on the "off duty" line when he took a break in a
conventional nonsleeper-type tractor unit such as the one
he drove. The evidence is quite convincing Skelton had
little, if any, regard for DOT regulations because he re-
ceived two warnings (the second one for driving in
excess of 60 hours in 7 days) on 21 May for DOT viola-
tions and the General Counsel does not contend Re-
spondent violated the Act in any manner by giving Skel-
ton the second warning on 21 May. The General Coun-
sel's contention Skelton was treated differently from
other employees because "both Skelton and Jack Watts
... had logged this way for a number of years" does
not withstand close scrutiny. Driver Watts testified he
logged off time on the sleeper berth line from approxi-
mately 1978 until 1981 but had after that time, logged off
time on the off-duty line. Watts testified that even during
part of the time that he logged on the sleeper berth line,
he was actually driving a sleeper berth equipped truck.
Watts testified he had not logged any time on the sleeper
berth line since Williams became director of transporta-
tion at Respondent.
In summary, I conclude that Respondent, after being
audited by DOT, made an increased effort to eliminate
rule infractions and, in doing so, counseled or warned
drivers about items such as ' incorrect sleeper berth log
entries. Respondent first verbally warned,Skelton about
his logbook infractions and then issued him a written
warning after he knowingly continued to violate DOT
requirements regarding sleeper berth entries. I am fully
,persuaded Respondent would' have given Skelton the 21
May warning in issue even if 'he had not engaged in any
protected 'activities or filed an unfair labor practice
charge agaGinst Respondent. Accordingly, I recommend
that the ' allegations that Respondent violated Section
8(a)(1), (3), and (4) of the Act by issuing Skelton a writ-
ten warning on 21 May be. dismissed.
Director of Transportation Williams testified that ap-
proximately 1 week after he issued Skelton a' warning for
violating DOT requirements,' he received a memorandum
from Night Dispatcher Jefferies that pertained to Skel-
ton.40 As a result of the memorandum, Williams ob-
40 Jefferies ' memorandum dated 28 May reflects Skelton "checked in"
with Jefferies on a return trip but in doing so left his "paperwork" for
Jefferies on the counter and walked away The memorandum also reflects
dispatcher Jefferies, after noticing Skelton had not entered a route
number on his logs, tried to get Skelton to come back and do so Skelton
would not (R. Exh . 16) I place no reliance on Skelton's testimony that
he could not recall Jefferies saying anything to him about his logs on 28
May.
173
tamed, Skelton's trip logs for the period of 22 to 27 May
and immediately noticed Skelton had not been timely
turning in his logs . 41 Williams stated he noted-there
were no route numbers on the logs as required by DOT
regulations, Section 395.8(o).42 Williams said he also
noted Skelton had gone to the "off duty" line on his logs
on four occasions on 24 May without calling in to the
dispatcher for permission to do so.43 Williams said he
noticed Skelton had not reflected any unloading time at
two stops (Bald Knob and Vilonia, Arkansas) on 24
May.44 Williams further noticed Skelton had been on
duty and continued to drive after 15 hours without
taking an 8-consecutive hour break . 45 Finally, Williams
41 Skelton acknowledged he could have turned in some of the logs in
question earlier than he did, but stated he did not do so because Assistant
Director of Transportation Spurlock had told him to keep the logs and
turn them all in at once Spurlock denied telling Skelton to hold his logs
and turn them in at- one time. I credit Spurlock's denial because I find it
unbelievable that the assistant director of transportation would tell Skel-
ton, or any other employee, such as Rodgers, to hold their logs is viola-
tion of DOT requirements particularly when Respondent had just in-
curred 500 DOT violations and was making every effort to correct the
situation.
42 Williams stated Jefferies was attempting to have Skelton add the
route numbers to his logs when he turned them in so Respondent would
not be in violation of DOT requirements
43 Skelton acknowledged he did not call in to request permission to go
off, duty. He stated he had never been required to do so in the past. Skel-
ton denied ever receiving Williams' memorandum dated 15 April cap-
tioned "DOT Compliance." He stated he believed he read a part of Wil-
liams' other 15 April memorandum captioned "DOT Hours of Service,"
however, he said he did not read the second paragraph that dealt with
contacting the dispatcher for permission to go off duty except for meals
and 8-hour breaks. At trial Skelton claimed he did not know about
having to contact the dispatcher simply to go off duty, Howevei, when
confronted with his pretrial Board affidavit dated 18 June, he acknowl-
edged he had read the memorandum and further acknowledged he had
stated the following in his pretrial Board affidavit.
I have just been shown another letter by the, Board dated April 15,
1985, signed by Don [Williams] I have seen and read this letter
before. I believe that it was in my box. This letter concerns calling in
and not logging on the top line without permission. I feel Like' this
letter is wrong because ' if' I stop by the side of the road and go to
sleep in the truck for a couple of hours I dbn't feel that I should
have to call in to the dispatcher . I just felt that the April 15
letter was wrong and I did not feel that I should have to call in to
get permission from the dispatcher because I wanted to go off duty.
When I am driving I feel that I should have some say so about what
I am doing. Even after the April 15 letter I did not ever' call in and
get permission to go off duty I feel that Williams is using the DOT
rules'as a way to get rid of me and other drivers who are supporting
the union . . . I feel that is kid stuff and idiotic for a' driver to have
to call in before going off duty -'... [R. Exh. 10.]
Skelton testified he did not agree with the call in procedure and did not
follow it.
44 Skelton acknowledged he had not reflected the time he spent un-
loading his truck at those two locations as "on duty time'." Skelton also
acknowledged he had not logged the time he spent switching a trailer on
24 May in Little Rock, Arkansas, as "on duty time," but rather logged it
as "off duty time." Skelton admitted he never at any time sought permis-
sion to go to "off duty" status.
4s DOT regulations state a driver must have 8 hours off-duty before
driving again if the driver has driven for 10 hours or has been on duty 15
or more hours (R. Exh. 9) Skelton stated that to his knowledge the 8-
hour break did not have to be taken at one time. I am persuaded Skelton
knew the DOT requirements and was specifically aware that the 8-hour
break had to be 8 consecutive hours I am so persuaded because Skelton
stated he knew DOT requirements and he had signed for a copy of the
DOT manual when he was disciplined by Williams on 21 May foi DOT
rule infractions
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also noted Skelton had been on duty for 24 hours on 27
May without taking the DOT required 8-consecutive-
hour break.
Williams testified that after he reviewed Skelton's logs
he discussed his violations with President Burwell, Di-
rector of Warehousing and Transportation Patterson, and
Director of Personnel Gaston. A decision was made by
them to terminate Skelton and Williams stated he pre-
pared a termination notice for Skelton because:
[He] had already received his final warning for
DOT violations and was told at that time that the
Company could not accept any more violations
from him in reference to DOT because of the agree-
ment [the Comany] had . . . with DOT. [Tr. 574.]
The termination notice reflected Skelton was discharged
for violating DOT rules and regulations. The notice in
part reflected,
On 5-27-85 you turned logs in for 5-22, 5-23, 5-24,
5-25, 5-26 & 5-27-85 in violation of DOT & com-
pany rules. On 5-23-85 you left without turning in
your log for 5-22-85. On 5-24-85 you logged on
the top line off duty 4 times in violation of DOT
regulations . On 5-24-85 you continued to drive
after being on duty 15 hours. You continued to
work and drive up to 19 hours on duty on 5-25-85.
You came back on duty @ midnight with only 7
hours off duty and started to drive in violation of
DOT rules and requirements . Your flagrant disre-
gard for DOT rules and regulations can cause irrep-
arable damage to Lewis Grocer Company's ability
to operate.
Skelton testified Williams called him at his home on 29
May and told him he wanted to see him in his office.
Skelton stated he had an idea what Williams wanted to
see him about.
Williams testified he and Director of Personnel Gaston
met with Skelton and discussed with him the reasons for
his discharge . Skelton did not say much during the meet-
ing but did refuse to,turn over his company identification
card , credit card, and locker keys even though he was
asked to do so.
The General Counsel urges that all the reasons given
by Respondent for the discharge of Skelton were pretex-
tual and that the real reason he was discharged was his
protected activities . The General Counsel acknowledges
Skelton violated the Company 's rule about calling in to
obtain permission to go off duty , but asserts DOT Coor-
dinator Smith did not tell Skelton he had to call in to get
permission to go off duty when he warned him on 21
May. He also contends others violated the call-in rule
and were not disciplined. The General Counsel asserts
Respondent must have known Skelton logged off-duty
time without permission because he had done so for
years. The General Counsel also contends Skelton was
the first employee disciplined for failing to call in for
permission to go off duty thus demonstrating Respondent
was unlawfully motivated in disciplining him for that of-
fense. The General Counsel argues that although Skelton
"clearly" violated DOT regulations when he drove in
excess of 15 hours without an 8-hour break that he was
treated differently in that others did likewise and were
not disciplined. The General Counsel asserts Respond-
ent's contention that it had to crack down on DOT vio-
lations after it was audited is without merit . In this
regard, the General Counsel contends Respondent has
condoned, and continues to condone, DOT violations.
The General Counsel argues that Respondent 's disciplin-
ing of Skelton for not timely turning in his logs is pretex-
tual because Skelton had been told by Assistant Director
of Transportation Spurlock not to submit his logs timely.
The General Counsel further argues that Respondent,
after the fact, seized on Skelton's failure to put route
numbers on his logs in order to discipline him and in so
urging the General Counsel `points to the fact that Wil-
liams did not list that as a reason for Skelton 's discharge
on his discharge notice. Finally, the General Counsel
contends the fact that Skelton falsified his logs on 24
May by logging as "off duty" time that he was actually
working (unloading groceries and switching trailers)
cannot be considered a valid basis for disciplining him
because Williams had told Skelton to log portions of his
unloading time as "off duty time."
Respondent contends Skelton had been previously
warned and that he continued to knowingly and deliber-
ately violate company rules and DOT regulations and as
such was discharged . Respondent asserts Skelton actually
committed each rule infraction he was accused of not-
withstanding the fact he was fully aware of all proce-
dures regarding drivers' logs, hours of service, and DOT
requirements. Respondent further contends other drivers
were disciplined for violating company rules and urges
there is no showing that it was aware of any driver vio-
lating DOT requirements without being disciplined. Re-
spondent asserts the evidence clearly demonstrates that
Skelton's discharge was for nondiscriminatory reasons
and urges that the complaint allegations related to Skel-
ton's discharge be dismissed.
1 find the General Counsel has met the Wright Line,
supra, burden of establishing a prima facie case with re-
spect to the discharge of Skelton. I do so for the same
reasons I outlined relating ' to the warnings he was given
on 21 May.
I find Respondent has demonstrated its reasons for dis-
charging Skelton were not pretextual and that it would
have discharged him even in the absence of any protect-
ed conduct on his part. A careful examination of the
General Counsel 's contentions show they are without
merit . First, the fact that Smith may not have mentioned
to Skelton that he had to call in and obtain permission to
go off duty is of no great moment because it is without
question that Skelton knew he had to do so. Skelton ac-
knowledged he was aware of that requirement but stated
he thought it was "kid stuff," "idiotic," and "wrong."
Skelton did not agree with the procedure of having to
call in to go off duty and as such he did not do so even
after he had read Director of Transportation Williams'
15 April memorandum directing that he do so. Personal
feelings that company rules or DOT regulations are "kid
stuff' and "idiotic" does not relieve an employee of the
obligation to follow such regulations . Second , although
LEWIS GROCER CO. 175
the General Counsel was able to establish from subpoe-
naed documents 31 instances in which drivers had gone
off duty without any indication they sought or obtained
permission to do so, he was unable to show that manage-
ment was aware of any of these instances. Although the
dispatchers are, as ' the General Counsel suggests, re-
quired to check the logs, they are not supervisors within
the meaning of Section 2(11) of the Act. There is evi-
dence to indicate that in those instances when Respond-
ent knew of rule infractions related to logging off duty it
took action. Respondent, for example, issued a counsel-
ing to driver James Lewis on 2 April and to driver Rich-
ard Taylor on 4 April for off duty logging violations.
These actions obviously took place before Skelton was
disciplined. The record also discloses that after Skelton
was discharged, Respondent issued counselings to six
drivers, three of whom had gone off duty without call-
ing in prior to Skelton's discharge, and the other three
were counseled for infractions that occurred after he was
discharged.46 During July, August, and September Re-
spondent issued five warnings to employees for going off
duty without calling in for permission to do so. The evi-
dence establishes that Respondent disciplined, in some
manner, all drivers that it was aware of that violated its
call-in rule regarding going off duty. The evidence is ir-
refutable that Skelton knew of the requirement to call in
before going off duty and that he willfully and deliber-
ately did not do so. The fact that some employees only
received a counseling for the same offense Skelton com-
mitted does not, in my, opinion, establish disparate treat-
ment because there is no showing that any of the other
employees had already been given a final warning at the
time they were counseled about logging off duty without
permission. The fallacy in the General Counsel's conten-
tion that Skelton was unlawfully singled out because he
was the first driver to be disciplined for failing to call in
for permission to go off duty is demonstrated by the fact
employees had only been required to do so since April.
The requirement came about as a result of the settlement
agreement Respondent reached with DOT. Therefore,
no history of prior warnings for that type offense existed.
Additionally, logging off duty without permission was
not the only DOT rule infraction for which Skelton was
discharged.
The General Counsel has failed in her effort to estab-
lish that Skelton was treated in a disparate manner re-
garding his being disciplined for working more than 15
hours without taking a required 8-consecutive-hour
break. Respondent issued 15 counselings to drivers for
violating the 15-hour requirement prior to the date it dis-
ciplined Skelton. It issued two other drivers warnings for
violating the 15-hour rule on the same day (29 May) that
it issued Skelton his warning. Respondent has issued at
least 11 warnings to drivers for violating the 15-hour
rule since it discharged Skelton. The evidence is over-
whelming that Respondent has, since it was audited in
46 Respondent explained that certain instances of rule infractions were
brought to its attention by the, Board during the Board's investigation of
the instant case, and that, also as a result of the Board's investigation,
some warnings were changed to counselings so that all employees would
be treated the same.
April, consistently taken action against any known viola-
tors of the DOT 15-hour rule.47
The General Counsel's contention that Respondent
condones DOT violations is without merit and warrants
little discussion. It is clear Respondent has been, and
continues to be, deeply concerned about DOT violations.
Respondent has taken various actions designed to reduce
or eliminate DOT violations. It'has hired new personnel
as well as reassigned others in order to help bring the
Company into compliance with DOT requirements. The
Company fully understands that if it continues to violate
DOT regulations it is going to be fined $1000 per viola-
tion.
The General Counsel's contention that Skelton did not
have to-turn his logbooks in timely because he had been
told not to do so is refuted by the credited testimony of
Assistant Director of Transportation Spurlock. The Gen-
eral Counsel's contention that Skelton could falsify his
logs, as he admittedly did on 24 May, because he had
been told he could log in that manner is totally unbeliev-
able.48
I find no merit in the General Counsel's contention
that Respondent added, as an afterthought, to its reasons
for discharging Skelton that he had not listed route num-
bers on his logs. It was Skelton's failure to place route
numbers on his logs that brought'about the scrutiny of
his paperwork,' which in turn lead to his discharge.
In light of the above, I am persuaded Respondent has
demonstrated it would have discharged Skelton for his
DOT rule violations, which violations occurred after he
had been given a final warning, notwithstanding any pro-
tected conduct on his part. Accordingly, I recommend
that the 8(a)(1), (3), and (4) allegations relating to Skel-
ton's discharge be dismissed.
E. The Disciplinary Warnings Given Taylor
It is alleged, at paragraph 12 of the complaint, that Re-
spondent about 24 May and 19, July, in violation of Sec-
tion 8(a)(1), (3), and (4) of the Act, issued disciplinary
warnings, to employee Taylor because of his union and
concerted activities and because he gave a statement to
the Board and appeared at a Board hearing to testify.
Respondent commenced to install computers in its
trucks in approximately mid-1984. As is noted elsewhere
in this decision, the computers were initially installed to
enhance Respondent's transportation dispatching system;
however, they were later used primarily to assist Re-
spondent in its efforts to comply with DOT regulations.
Director of Transportation Williams held a meeting with
the drivers and instructed them in the use of the comput-
ers.49 Williams explained that various items of informa-
44 The fact the General Counsel established that between 26 April and
31 May three drivers drove in excess of the 15-hour limit and were not
disciplined does not establish a showing of disparate treatment because
there is no indication Respondent knew of the three drivers' actions. As
Williams testified , he as well as others in management checked the logs,
but their checks did not involve a total examination of all logs.
48 1 simply do not believe the director of transportation for a company
with as many DOT violations as this one would tell a driver to falsify his
logs particularly, when the director was under orders from the president
of the Company to correct all DOT violations.
49 Taylor acknowledged he attended such a meeting with Williams
and other drivers
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion would be entered in the computers such as the driv-
er's identification code, stops, state line crossings, and
when a truck is returned to the warehouse.50
When each truck is returned to the warehouse, it is,
while at the entrance gate, connected to the Company's
central computer and the information from the incoming
truck is retrieved at that time.
On 14 December 1984 Director of Transportation Wil-
liams issued a memorandum to all drivers captioned,
"Tractor Computer Instructions."51 The memorandum
explained in some detail how to utilize the computer and
it further divided computer input requirements into
weekly divisions with certain functions to be completed
the first week and so on thereafter until the drivers
became familiar with operating the computer terminals in
the trucks. One of the subject matters covered in the
memorandum pertained to accidents. That portion is as
follows:
Accident Reporting:
After an Accident and before the vehicle is
moved or started.
(a) Press MODE
(b) Wait 3 seconds and PRESS 911
(c) Press the ENTRY KEY [G.C. Exh. 9]
When mode 911 is entered in the truck's computer, it
records the last 30 seconds of the vehicle's movement
second by second. For the computer to record that par-
ticular information, mode 911 must be entered after the
accident but before the vehicle is started or moved.
One of the Company's drivers, Robert Martin, had an
accident in April while transporting a forklift from one
of the Company's warehouses to another. Management
believed Martin had been operating his vehicle in a reck-
less and speeding manner . However, it could not prove
that, because mode 911 had not been entered in the com-
puter by the driver involved. Director of Transportation
Williams reevaluated the instructions he had given the
drivers regarding mode 911 and determined he had only
informed the drivers about how and when to enter that
particular mode but he had not made it a mandatory re-
quirement . Therefore, on 12 April, Williams issued an-
other memorandum to all drivers as well as shop person-
nel on the subject of accidents and the use of mode 911.
The memorandum stated:52
Effective immediately is a COMPANY POLICY
that "MODE 911 "be executed after any and all ac-
cidents before the tractor is moved.
(a) Press Mode
(b) Immediately Press 911
so Even if a driver did not make any entry in the computer , it auto-
matically recorded the vehicle's speed as well as all starts and stops
51 Taylor acknowledged receipt of this memorandum.
52 Although Taylor testified he could not remember receiving this 12
April memorandum , I am persuaded he in fact did receive it The memo-
randum was addressed to all drivers and there is no evidence to indicate
it was not in fact distributed to all drivers . In fact, there is evidence that
others did receive the memorandum . I have addressed Taylor's overall
credibility elsewhere in this decision.
(c) Press the Entry Key
The driver is to perform this function before leav-
ing the cab if possible. The shop is to perform this
when they handle an accident before moving the
tractor regardless if the driver has already done so.
The shop when handling the authorization to tow
or move a wreck is to instruct the wrecker service
to perform this function. [G.C. Exh. 7.]
As has been alluded to elsewhere in this decision, Direc-
tor of Transportation Williams issued yet another memo-
randum on 22 April regarding accidents (G.C. Exh. 24)
in which he set forth the Company's "new" policy con-
cerning accidents.S2 A point system for chargeable acci-
dents was outlined in detail in the new policy memoran-
dum.54
Taylor, a truckdriver for Respondent for 15 years, is
and was at all times material supervised by Director of
Transportation Williams. Taylor was one of five employ-
ees listed on a notice posted at the warehouse in January
1984 regarding "The Lewis Employees Achievement for
Better Government Committee." As is noted elsewhere
in this decision, that committee later became the spring-
board for the Union's 1984 organizing drive at Respond-
ent. Taylor served as a union inplant committee member
in the 1984 campaign. Pursuant to a subpoena, he attend-
ed a representation hearing held in 1984 and served as an
observer for the Union at the Board election held in
June 1984. Taylor was, pursuant to a subpoena, present
at the scheduled unfair labor practice trial in January in-
volving Respondent.55 Taylor showed his subpoena to
Assistant Director of Transportation Spurlock prior to
the scheduled January trial.
It is undisputed that in March Taylor was involved in
an incident while driving for the Company in LaFitte,
Louisiana.56 Taylor acknowledged that in attempting to
turn his tractor-trailer around, he became stuck in a
woman's yard and had to have a wrecker free his unit
from the yard. Taylor testified he was not given a warn-
ing for that incident because it was not a chargeable ac-
cident.57 However, he acknowledged the incident result-
ed from negligence on his part. When Taylor told Wil-
liams about the incident, he told him he had been asleep
behind a store and when he commenced to drive he was
still sleepy and made a wrong turn causing ' him to be
headed in the wrong direction and when he realized that
53 The newly announced policy reflects it had been studied by both
management and the Driver Safety Committee.
54 Director of Personnel Gaston credibly testified he was involved in
the warnings given to employees for various infractions of company
rules . Gaston stated the Company changed from issuing drivers a charge-
able letter, if they were involved in an accident, to a warning notice
based on the new point system and he stated the Company made that
change in April to coincide with the new point system for' chargeable ac-
cidents
ss As noted elsewhere in this decision, that Board case was settled.
Several management officials were present in the courtroom on the
morning of the scheduled trial.
,96 At one place in the record, the location of the incident is reflected
as Lafayette, Louisiana For the purposes of this case, I find it is unneces-
sary to determine which city the incident actually took place in
57 Accidents are reviewed by the Driver Safety Committee (described
elsewhere in this decision) to determine if they are chargeable
LEWIS GROCER CO.
fact, he attempted to turn around and it was at that time
that his vehicle became stuck in the woman's yard.58
On 22 May, while on Texas' Highway 29 in route
south from Shreveport, Louisiana, to Palestine, Texas,
Taylor was involved in a one vehicle accident. The high-
way where the accident occurred is straight, four-laned,
marked, and blacktopped. The accident occurred at ap-
proximately 10:58 a.m., on a clear day. Taylor was driv-
ing in the outside lane when he "bumped"59 the shoul-
der of the road. Taylor drove along the shoulder of the
road for approximately 140 feet trying to bring the vehi-
cle back onto the highway. One of the truck's wheels hit
a "soft"6° spot and Taylor lost control of the vehicle. It
went down an embankment toward some trees. The
truck missed the trees but struck a Panola Electric Coop
Power pole and clipped it off. The vehicle then proceed-
ed back up the hill, crossed the four-lane highway, and
came to rest partially in the highway on the outside lane
of the northbound traffic.61 When Taylor got out' of his
vehicle, he stated he was "a little woozy" and his legs
were bruised but he directed traffic around the south-
bound lanes because they were covered with fallen elec-
trical wires. According to Taylor, the grass along the
highway and down the embankment was on fire as a
result of the downed electrical wires. Taylor testified he
had not fallen asleep at the time of the accident.
Taylor did not at any time enter mode 911 in the
truck's computer. Taylor stated he did not do so because
he did not have time nor did it occur to him to do so.
Taylor also stated the Texas highway patrol person had
him sit in the patrol car for a while after he arrived at
the accident scene. The patrol person had a wrecker dis-
patched and moved the Company's truck out of the
58 Taylor denied telling Williams anything about the March Louisiana
incident I do not credit Taylor's denial. At any place when Taylor's tes-
tirpony is contradicted by that of other witnesses , I have rejected his tes-
timony . Taylor made far too many unbelievable statements for any reli-
ance to be placed on his testimony . For example, he stated he had no
recollection about whether Williams had asked hurt about why he had
the accident in May in Texas. I am fully persuaded that an experienced
transportation director such as Williams would have asked Taylor why
he had the accident and I am persuaded 'Taylor misspoke the truth when
he said he did not recall Williams asking him that question . Taylor's testi-
mony, that when Williams talked to him about the Texas accident that he
just said he was going to write him up for failing to use mode 911, with-
out first discussing it with him , is likewise unbelievable . I find unusual
and unbelievable Taylor's testimony that the investigating Texas highway
patrol person told him he was going to give him a traffic citation but was
going to mail it to him. I likewise find it very suspicious that Taylor
could 'never produce a copy of that citation even though he was asked
several times to do so. Without a copy of the citation ; one can only spec-
ulate about what may have been written thereon. Taylor's denial that he
was not alert at the time of the Texas accident is not supported by the
report of the accident made by the Texas highway patrol person inas-
much as the patrol person wrote that in his opinion "driver fatigue" was
a contributing factor to the accident Taylor's testimony that he thought
he had to enter mode 911 within 3 seconds of the accident is contrary to
the oral and 'written instructions that had been given to all drivers. All
the above reasons, as well as my observation of Taylor as he testified,
convinces me that his testimony is not reliable
5' Taylor testified he had no idea what caused him to "bump" the side
of the road.
80 According to Taylor, the soft spot had been caused by an earlier
ram shower.
51 Taylor estimated his speed at the tune of the start of the accident at
55 miles per hour.
177
highway.62 Approximately $5500 in damages resulted
from the accident.
Taylor returned to Respondent's warehouse on 24
May and met with DOT Coordinator/Safety Director
Smith. Taylor told Smith about the accident and Smith
prepared a company vehicle accident report.
After Taylor met with Smith, he then met that same
day with Director of Transportation Williams.
Williams credibly testified that' before he spoke to
Taylor, he had the computer checked in Taylor's truck
because it was his policy to check for mode 911 informa-
tion63 after an "extraordina"ry" or "unusual" accident.
Williams learned Taylor had not entered mode 911 in the
computer after his accident.
Williams met with Taylor about the Texas accident
and Taylor attempted to describe it for him.64 Williams
prepared a drawing of the scene of the accident from
Taylor's description of it.65 Williams asked Taylor what
caused him to have the accident. Taylor was reluctant to
answer that question so Williams repeated it several
times. Taylor's only response was to look at Williams
and ask why he was questioning him about the accident.
Williams also asked Taylor why he had not entered
mode 911 in his computer. Taylor told Williams he could
not do so because the Texas highway patrol person in-
vestigating the accident made him wait in the patrol
car.63 Williams asked Taylor if he 'had gotten a traffic
citation. Taylor told him he had but the patrol person
was going to mail it to him. Williams told Taylor that
was a "rather unique and different" way for a patrol
person to issue a traffic citation and asked Taylor, to
bring the citation in when he received it. Taylor never at
any time produced the traffic citation.
Williams issued Taylor a written warning for failing to
follow instructions, "failed to punch accident reporting
code on computer as instructed." Taylor read but re-
fused to sign the disciplinary warning.
On 20 June Taylor filed his unfair labor practice
charge (Case 26-CA-11165) that was consolidated with
the other charges that form the' basis for the complaint,
The Driver Safety Committee determined that Tay-
lor's accident in Texas was a chargeable one and he was
assessed six points pursuant to Respondent's point
system. On 19 July Safety Supervisor James Hudgins
showed Taylor a "Constructive Advice Action" docu-
ment that reflected he had been assessed six accident-re-
lated points. Taylor testified he did not know the docu-
ment was a "warning." On cross-examination , Taylor
stated the word "warning", was not checked on the con-
62 Taylor stated he did not notify the Company to have them contact
a wrecker service because the patrol person would not allow the vehicle
to remain in the highway
8S As is noted elsewhere , if mode 911 is entered in the truck computer
after an accident but before the vehicle is started or moved, it will reflect
the last 30 seconds of the vehicle's movement second by, second.
64 Williams impressed me-as a truthful witness . I credit his account of
his meeting with Taylor. For the reasons previously indicated, I do not
credit Taylor's testimony.
es Taylor's description to Williams essentially followed what has been
set forth earlier in this decision and will not be repeated ,here.
ss Williams stated Taylor did not mention that he had directed traffic
for a while at the scene of the accident
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
structive advice action document when Hudgins showed
it to him.67
The General Counsel contends the warnings given
Taylor on 24 May and 19 July were given to punish him
for his activities on behalf of the Union and because he
participated in a Board investigation. In support of these
contentions, the General Counsel claims Taylor's acci-
dent occurred only 3 days after the Union began its 1985
campaign and asserts the only thing "unusual", about his
accident was that the Union had begun its new campaign
and Respondent knew Taylor would be a union organiz-
er. Additionally, the General Counsel contends Taylor
was given the first warning ever for failing to enter
mode 911 in his truck notwithstanding the fact that many
drivers had had accidents and many did not use their
computers at all. The General Counsel also asserts there
were 26 chargeable accidents between 12 April and 27
August and none of the drivers involved were charged
with a failure to enter mode 911 in their truck's comput-
ers: From these contentions, the General Counsel asserts
that Taylor, a union supporter, was issued warnings for
the same type rule infraction that other drivers had com-
mitted without being warned. The General Counsel
claims the computers were only important to Respondent
when they could be used to discipline union supporters.
The General Counsel also asserts Taylor was the first
employee to be given a warning for accumulating points
based on his driving record. She acknowledges nine
other employees were given warnings on the same day
as Taylor and for the same type offense but she contends
the other warnings were given in order for the Company
to be able to further discipline Taylor.68
Respondent contends the situation involving Taylor
was simply that he had an accident and failed to follow
the mandatory company policy of entering mode 911 in
his truck-mounted computer and was accordingly disci-
plined. Respondent contends Taylor's accident was de-
termined to be a chargeable one by the Driver Safety
Committee and that in accordance with company policy
he was issued a warning setting forth the number of
points,he had been assessed for his chargeable accident.
Respondent contends there is no showing that it treated
Taylor in a disparate manner and as such it urges that
the allegations relating to Taylor be dismissed.
It is clear that Taylor was extensively involved in the
Union's 1984, campaign. He attended a representation
hearing and served as an observer for the, Union at the
Board-conducted election in June of that year. It is un-
disputed that he was present along with management of-
ficials at a scheduled Board trial in January. Taylor at-
tended the first of the Union's latest organizing meetings
that was held on 19 May. It is undisputed Respondent
knew beforehand that the 19 May union meeting would
67 I do not credit Taylor's testimony that the word "warning" was not
checked on the document when he saw it. The document reflects, and
Taylor acknowledges, he was assessed six points for the Texas accident.
That type of document is normally used for warnings, suspensions, or dis-
charge actions. I simply do not believe any management official (or
anyone else for that matter) added a checkmark by the word "warning"
after it had been shown to Taylor.
68 Although the General Counsel makes such a contention, she does
not assert that Respondent acted unlawfully in issuing the nine other
warnings.
take place. Five days after the first union meeting of
1985, Taylor was disciplined. I am persuaded "the Gener-
al Counsel has met her burden of establishing a prima
facie showing sufficient to support the inference that
protected conduct was a motivating factor in the Com-
pany's decision to discipline Taylor. The Company knew
of Taylor's earlier involvement with the Union and even
knew when the first organizing meeting took place. The
Company was well aware that Taylor had been a strong
supporter of the Union in the -warehouse and as such it
could reasonably expect that he would again be involved
in the Union's latest campaign. Although there is no in-
dependent evidence of animus in the instant case, the
Board has held in Kenco Plastics Co., supra, that inde-
pendent evidence of animus is relevant but not an essen-
tial element of proof in finding a prohibited motive for
disciplinary action. I am also persuaded Respondent met
its burden of demonstrating that Taylor would have re-
ceived the warnings he did even in the absence of any
protected conduct on his part. First, I note the 24 May
warning given Taylor was contemporaneous with the
rule infraction he committed. The Company had a clear
policy known to all drivers that it was mandatory that
mode 911 be entered in the truck's computer after an ac-
cident but before the vehicle was started or moved.
Taylor did not follow that mandatory company policy.
Taylor never at any time stated he did not, understand
what was required of him with respect to making com-
puter, entries in the event of an accident. Contrary to the
contention of -the General Counsel, no unlawful motive
can be drawn from the fact that Williams did not make a
computer check. to see if mode 911 had been entered
when, Taylor had his March accident in Louisiana but
did do so when Taylor had his May accident in Texas.
The requirement to enter mode 911 was not made man-
datory, until 12 April. To assert, as the General Counsel
does, that the only thing that was "unusual" about Tay-
lor's May accident was the advent of the Union is to
ignore the fact that the May accident in Texas happened
on a clear day on a straight stretch of road without an
apparent reason and caused in excess of $5000 in dam-
ages. But for driver negligence, such an accident would
not have occurred. Therefore, I am persuaded Respond-
ent was justified in considering Taylor's May accident to
be "unusual" or to have occurred under "extraordinary"
circumstances. Accordingly, Director of Transportation
Williams was justified in seeking information from the
computer on the cause of the accident and an unlawful
motive may not be inferred from the fact that he
checked on Taylor to the extent of seeing if' he had en-
tered mode 911 in the computer after the accident. The
General Counsel contends the fact that many drivers did
not use their computers and many had accidents demon-
strates that Taylor was singled out for discipline because
of his union activities. The General Counsel's conten-
tions in this regard are without merit. Although several
drivers (Louis Douglas, Efton'Oller,'Jack Watts, Larry
Starnes, Ernie Skelton, and Johnny L. Dodd) 'testified
they did not use'their computers, the evidence indicates
their computers would have reflected their starts, stops,
and idle time without any input from them. Even if a
LEWIS GROCER CO. 179
driver did not normally use the computer in his truck,
there is no showing that he would refuse to enter mode
911 after an accident. The General Counsel points out
that between 12 April and 27 August, there were 26
chargeable accidents among the drivers and none of
them were warned about failing to enter mode 911 in
their truck computers. The General Counsel concedes,
however, that there is no showing that any of these 26
drivers failed to enter mode 911 in their computers. The
General Counsel requests that I infer they did not enter
mode 911 because some of the drivers did not regularly
use their computers. It would be nothing more than mere
unfounded speculation for me to make such an inference,
and I specifically decline to do so. The General Coun-
sel's argument that Respondent seemed to only use the
truck computers to discipline union organizers, such as
Taylor, is not borne out by the record. I am fully per-
suaded the computers were initially installed to enhance
dispatching and were later utilized in an attempt to bring
the Company into compliance with DOT requirements
so as to prevent it from any further adverse actions by
DOT. Respondent followed its established point system
procedure when it gave Taylor the warning it did on 19
July in which it advised him of the number of points he
had been assessed by the Driver 'Safety Committee for
his May accident in Texas. Taylor knew of the point
system and his accident was determined to be a "charge-
able" accident by a' majority vote of the Driver Safety
Committee. A majority of the members of the Driver
Safety Committee are rank-and-file drivers. Nine other
drivers received warnings on the same day (19 July) as
Taylor in which they were apprised of the number of
points they had been assessed for their chargeable acci-
dents. The General Counsel contends these other nine
warnings were given simply to enable Respondent to fur-
ther discipline Taylor. I am unpersuaded.69 There is no
showing that Taylor or anyone else was disciplined for
any reason other than having been involved in a charge-
able accident. It appears Respondent gave one employee,
Jimmy Johnson, a warning on 10 June in which it ad-
vised him his accident had been determined to be a
chargeable one, assessed him 10 points, and suspended
him for 3 days (G.C. Exh. 29(a)).70 Thus, Respondent
had warned a driver on the new "Constructive Advice
Action" form and utilized the new point system prior to
Taylor being issued his points under the new system. Al,
though the record discloses that two- drivers (James
Curtis and Eddie Chandler) had chargeable accidents
prior to 22 May and four (Frank Caldwell, Theo Wilson,
Robert Thomas, and Frank Thomas) had, chargeable ac-
cidents after that date and were not disciplined,' I am not
persuaded these unexplained incidents establish that Tay-
lor's 19 July warning was somehow unlawfully mOtivat-
69 I note the General Counsel did not allege in her complaint, nor did
she move to amend the complaint at trial to include any allegations relat-
ed to these other warnings.
70 I would discount this warning and find it was actually issued to
Johnson on 19 July (G C Exh. 29(t)), however, Johnson signed both the
earlier (10 June) and latter (19 July) warnings. I am fully persuaded that
both pertained to the same 7 June accident but I am convinced Johnson
was first notified on 10 June of the assessment of points against him or he
would not have signed that warning notice.
ed: Accordingly, in light of all the above, I recommend
the complaint allegations related to the disciplinary
warnings given-Taylor on 24 May and 19 July be dis-
missed.
F. The Suspension of Dodd? 1
It is alleged at paragraph 13 of the complaint that Re-
spondent about 3 July in violation of Section 8(a)(1) and
(3) of the Act issued a 3-day suspension to employee
Dodd.
Dodd has driven a truck for Respondent in excess of
20 years. At all times material, he worked for Director
of Transportation Williams. Dodd was a member of the
Union's organizing committee at the Company but there
is no showing the Company had any knowledge of that
fact until about 20 July when the Union sent a letter to
the Company requesting that Dodd's and one other em-
ployee's name be placed on the Union's "Inplant Com-
mittee."
On 14 May, Dodd delivered groceries to the Sunflow-
er Grocery Store in Jackson, Tennessee. After leaving
Interstate 45 enroute on a surface street to the store, an
automobile passed Dodd's truck and immediately cut
back in front of him. Dodd swerved and abruptly
stopped his truck. Dodd stated, "I looked over in my
mirror and I saw that my back wheel was up against a
fire plug . The fire plug was standing, so I waited until
traffic got around me so I could back up. I backed up,
pulled off of the fire plug and went on to unload the
truck."' Dodd did not get out of his truck to inspect the
fire hydrant. He asserts he could not have done so from
where his truck was parked. Dodd'did not report the in-
cident because he did not feel there was anything to
report. Dodd compared the incident to bumping a curb
or running over a rock.
Approximately 1 week after the incident, Dodd was in
Nashville, Tennessee, in need of a freight backhaul so he
called the warehouse and `spoke with DOT Coordi-
nator/Safety Director Smith. During their conversation,
Smith asked Dodd if he had knocked over a fire hydrant
in Jackson, Tennessee. Dodd told Smith he had not.
Approximately, 2 weeks after the Jackson, Tennessee
incident, Dodd again telephoned the warehouse and this
time DOT Coordinator/Safety, Director Smith told him
to fill out an accident report when he returned to the
warehouse. Dodd asked why and Smith told him the
Company had received a bill from the city of Jackson,
Tennessee, for damage to a fire hydrant.72 Dodd then
told Smith, "Well, John, I bumped one, but I did not
knock it over." Dodd also told Smith that as far as he
knew, he had not damaged the plug. Smith told Dodd
that maybe someone just wanted the Company to repair
a fireplug.,
Dodd prepared an accident report on the Jackson,
Tennessee incident when he returned to,the warehouse.
71 The facts set forth in this section have been compiled from those
portions of the testimony of Dodd that I have credited and from Wil-
liams' credited testimony
72 The bill for damage from the Jackson Utility Division of the Water
Department of Jackson, Tennessee, was for $1082.38.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dodd stated that about 2 weeks after he filled out the
accident report he began to hear rumors among the driv-
ers that he had been charged with a chargeable accident.
Dodd stated no one from the Driver Safety Committee73
ever informed him they were going to hold a hearing on
his accident.74
Thereafter, Director of Transportation Williams told
Dodd the Driver Safety Committee had determined that
his 14 May accident was a chargeable accident and that
he had failed to report the accident within 48 hours of
the time it occurred. Williams told Dodd the committee
had assessed him 20 points and that he would be given a
14-day suspension. Dodd told Williams he had not had
any accident and therefore there had not been anything
for him to report,75 Williams told Dodd that under the
circumstances and knowing that he had never previously
lied about anything he believed him when he said he did
not know he had damaged the fire hydrant and as such
he would talk to his peers about getting the penalty re-
duced. '
Thereafter on 3 July, Dodd again met with Williams
and Williams told him the Company had decided on a 3-
day instead of 14-day suspension for him.76 Williams
78 The Driver Safety Committee is an established committee at the
Company that has been in existence for a number of years. The commit-
tee is composed of approximately six drivers and two company represent-
atives. Among other things, the comnuttee reviews employee accidents to
determine if they are "chargeable" or "nonchargeable" accidents . If it is
decided that an accident is a chargeable accident, then the involved em-
ployee is assessed a predetermined number of points with a correspond-
ing discipline. According to Dodd, all decisions of the committee are
made by majority vote.
7' Dodd, however, stated the committee did not invite involved dri-
ers to its meetings when it was initially deciding whether a particular ac-
cident was a chargeable or nonchargeable accident . Dodd served on the
Driver Safety Committee for a number of years until he "just stopped"
going to committee meetings. He stopped going about 6 months before
the events herein took place.
75 Dodd acknowledged he had received a copy of Williams' memoran-
dum to all drivers dated 22 April that outlined the Company's point
system for chargeable accidents. Dodd was fully aware that the failure to
report an accident within 48 hours constituted a 20-point safety violation
Williams' memorandum outlined the following discipline based on the
number of chargeable accident points:
12 points-93-day suspension
16 points-97-day suspension
20 points-l4-day suspension
The memorandum reflects that all accidents would be reviewed.
76 Williams spoke with Director of Warehousing Patterson, DOT
Coordinator/Safety Director Smith, Loss Prevention' Director Jump, Di-
rector of Personnel Gaston , and President Burwell about Dodd 's situa-,
tion. Smith and Jump recommended a 2-week suspension . Burwell and
Gaston opposed any reduction in Dodd 's discipline Patterson and Wil-
liams prevailed and the discipline was reduced to 3 days because there
was some feeling the incident had been reported but not according to the
Company's standard reporting procedures . Gaston strongly objected to
the decision to reduce Dodd's 14-d'ay suspension and he put his objec-
tions in writing in a memorandum to Williams Gaston in his memoran-
dum to Williams pointed out that the Company had discharged another
driver for essentially the same thing that Dodd had done Gaston indicat-
ed to Williams that he thought Dodd was receiving special favorable
consideration and he adamantly opposed it.
told Dodd the Company was being investigated by the
Board, that he had to do something77 in order to be con-
sistent, and that he had to treat 'everyone the same and
fairly.78
The General Counsel has failed to establish a prima
facie case' sufficient to support an inference that protect-
ed conduct was a motivating factor in the Company's de-
cision to give Dodd a 3-day suspension. See Wright Line,
supra. First, there is no record evidence that Respondent
had any knowledge of any union activity on Dodd's part
prior to giving him a 3-day suspension. The General
Counsel contends the motivating factor in Respondent's
decision to discipline Dodd was the fact it was being in-
vestigated at that time by the Board for alleged unfair
labor practices. The General Counsel points to Williams'
comment that he had to do something to Dodd in order
to be consistent before the Board. However, when Wil-
liams' comments are viewed in context, it is clear he
simply told Dodd he, would under the circumstances do
what he could to get Dodd's 14-day suspension reduced
but the Company was undergoing an active investigation
by the Board and he, would have to treat everyone the
same and in a fair manner. The evidence in no way sug-
gests the Company would not have disciplined Dodd at
all if there had not been an ongoing Board investigation.
The Company discharged employee Mosby for failing to
report an accident prior to the incident involving Dodd.
The Company continues to discipline employees such as
Triplett and Rankin when they fail to report accidents,
and it continues to reduce the length of time for suspen-
sions, if there are extenuating circumstances. 79 Accord-
ingly, I recommend the complaint allegations related to
Dodd's 3-day suspension be dismissed.
CONCLUSIONS OF LAW
1. The Lewis Grocer Company is an employer en-
gaged, in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local 891 is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
77 Dodd was given a written warning dated 3 July, which carried with
it a 3-day suspension effective 3, 4, and 5 July (G.C. Exh. 11). Dodd has
received two other , warnings since 3 July-one for a logbook violation
and the other for falsifying one of his logs. There is no contention that
the latter two disciplinary actions were unlawfully motivated.
78 The record reflects three other drivers had' accidents and did not
report them. McKinley Mosby had an unreported accident in March
When the Company learned of Mosby's accident, he was terminated. Ed
Triplett failed to report an accident in August , but because of question-
able circumstances , he was only given a 3-day suspension . James Rankin
was also given a 3-day suspension in August for an unreported accident
The evidence reflects he backed into a dock door at a store where he
was making a delivery and was told not to worry about it but the store
later reported the incident to the Company.
79 Contrary to the contention of the General Counsel, Dodd's accident
was more than a "nuisance" and more than just "bumping a curb." The
amount of damages in the Dodd incident , $ 1082.38, defies such an argu-
ment.
LEWIS GROCER CO. 181
On these findings of fact and conclusions of law, and
on the entire record, I issue the following recommend-
ed6D
ORDER
The complaint is dismissed.