Transportation Services

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 415 (N.L.R.B. 1984)

TRANSPORTATION SERVICES
Transportation Manpower Services of Ohio, Inc. and
Michael O'Boyle. Cases 27-CA-7692 and 27-
CA-7762
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 December 1983 Administrative Law
Judge Frederick C. Herzog issued the attached de-
cision. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed a brief
in opposition.
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 exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Transporta-
tion Manpower Services of Ohio, Inc., Denver,
Colorado, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In sec. III, C, of his decision the judge stated that there does not "seem
to be any plausible explanation for [Supervisor] Dudek's claim, in the
course of the telephone conversation with [alleged discriminatee]
O'Boyle several days after each of them had been discharged by Re-
spondent, that he never passed any knowledge he had of O'Boyle's union
activities on to his superiors in Boston." However, earlier in his decision
the judge specifically found that O'Boyle admitted that Dudek claimed
not to have passed such knowledge on to anybody else within the Re-
spondent's organization and it is clear from the judge's decision that he in
fact found that the Respondent's officials in Boston did not have actual
knowledge of O'Boyle's union activities at the time the determination
was made to discharge him.
2 No exceptions were filed to the judge's conclusion that the Respond-
ent violated Sec. 8(aXI) of the Act by asking an employee to find out
about the union activities of fellow employees and to report back about
them.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. I
heard this case in trial at Denver, Colorado, on Septem-
ber 16 and 17, 1982. Based on charges filed by Michael
O'Boyle between January 18 and March 15, 1982, against
270 NLRB No. 78
Transportation Manpower Services of Ohio, Inc. (Re-
spondent) the Regional Director for Region 27 of the
National Labor Relations Board issued a complaint, sub-
sequently amended and consolidated, alleging in sub-
stance that Respondent violated Section 8(a)(1) of the
Act by various means during the last quarter of 1981,
and that Respondent violated Section 8(a)(3) of the Act
by discharging its employees, O'Boyle and Clarence R.
Blakeley Jr., in early 1982. Additionally it was alleged
that Respondent's discharge of Blakeley was violative of
Section 8(a)(4) of the Act. Respondent generally denies
the allegations of wrongdoing.
All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Based on
the entire record, from my observation of the demeanor
of the witnesses, and having considered the posthearing
briefs of the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
Respondent is an Ohio corporation maintaining an
office and place of business at Denver, Colorado, where
it is engaged in the business of interstate transporation of
automobile parts for Chrysler Corporation, It annually
provides services to Chrysler valued in excess of $50,000,
transporting parts directly to points and places outside
the State of Colorado.
Accordingly, as Respondent admits, I find that Re-
spondent is now, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The International Association of Machinists & Aero-
space Workers, District Lodge, AFL-CIO, is, and at all
times material herein has been, as admitted by Respond-
ent, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's home office is in Dedham, Massachu-
setts. t However, since March 30, 1981, it has contracted
to deliver automobile and truck parts from Chrysler's
depot in Denver, Colorado, to Chrysler's dealerships in
Colorado, Wyoming, Utah, and parts of New Mexico,
Nebraska, and Texas.
Respondent's predecessor in performing these deliv-
eries was D.P.D., a division of the Ryder Corporation.
Ryder's 10 drivers had been organized and represented
by Transportation, Technical Warehouse, Industrial and
Service Employees Union, a/w D.2. MEBA-AMO,
AFL-CIO. One of Ryder's five drivers stationed in
Denver was O'Boyle. Three of Ryder's drivers were sta-
tioned in Salt Lake City, and two in Albuquerque. Brief-
' At various points in the record the home office or officials based
there are generally referred to as "Boston."
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly described, Ryder's operations consisted of six routes
out of Denver. Chrysler employees loaded trailers at the
depot and Ryder's drivers then drove Ryder tractors to
various delivery points. Chrysler furnished the drivers
with delivery papers and keys to dealerships, so that de-
liveries could be made after regular working hours.
Denver drivers drove their rigs to transfer points and ex-
changed them for empty ones in or near Eagle, Colora-
do, and Laramie, Wyoming, as well as near Trinidad,
Colorado, at Raton Pass.
When Respondent succeeded in securing the contract
with Chrysler to perform the work previously done by
Ryder the operation's broad outlines appear to have
changed very little, though it did station 6, rather than 5,
drivers in Denver. 2
B. O'Boyle's Case
O'Boyle was among the five Ryder drivers hired by
Respondent. 3
O'Boyle was hired by Respondent by an official
named Robert Mann, 4 who interviewed him and, so
O'Boyle claims, promised that his pay would be conso-
nant with that which he had received as a driver for
Ryder. Respondent conceded that O'Boyle had been
highly recommended by Ryder's manager, and that
O'Boyle showed a definite desire for the job. Indeed, due
to O'Boyle's experience, he was hired at a pay rate
greater than the other drivers, and received greater
fringe benefits, such as length of vacation. O'Boyle stated
that the interviewer gave him to understand that Re-
spondent was opposed to its employees forming a union
and asked him his sentiments on the subject. O'Boyle re-
sponded that his sentiments were against having a
union. 5
Respondent's interviewer Mann was not called as a
witness to refute any of the statements. However, there
is no allegation by the General Counsel that Respondent
violated the Act in March or April 1981, and I see no
point in discussing this further, as it appears that these or
similar actions were discussed and remedied in the case
decided by Judge Kennedy, referred to earlier herein.6
2 The recital of Ryder's operations, set forth above, is gleaned from
the briefs filed by the parties, in addition to the decision of Administra-
tive Law Judge Harold Kennedy dated August 9, 1982, to which no ex-
ceptions were filed. (See JD-SF-192-82.)
3 Judge Kennedy also found that Respondent discriminatorily refused
to hire two former Ryder drivers, pursuant to its "fixed plan or design"
to avoid hiring more than 50 percent of the drivers who had worked for
Ryder, so as to avoid having to deal with the union which represented
Ryder's drivers.
4 While Respondent had a supervisor in its Denver office, the record is
clear that much authority, including personnel matters such as terminat-
ing an employee, was reserved to officials in its home office.
b Another former employee, Bob Holland, testified that when he was
interviewed for his position with Respondent on March 28, 1981, the
interviewer asked his opinion of unions, and he responded that he did not
care one way or the other, to which Respondent's interviewer rejoined
that the Respondent was seeking employees who were not prounion. Ap-
parently whatever Holland had to say was sufficient for Respondent's
purposes, as he was thereafter hired.
6 I find no evidence to support, and the General Counsel appears to
have abandoned. the allegations of par. V(a) of the complaint to the
effect that Respondent's supervisor Dudek sometime during early Octo-
ber 1981 told employees that the terminal would be closed and moved if
a union came in. Accordingly, this allegation must be dismissed.
As O'Boyle's employment with Respondent pro-
gressed into the summer of 1981 problems began to de-
velop. In O'Boyle's view Respondent was failing to live
up to its promise to pay him properly. According to Re-
spondent, O'Boyle was showing himself to be something
less than the superior driver and employee it had count-
ed on when it made the decision to hire him. The result-
ant bad feelings was evidently compounded when
O'Boyle began a series of phone calls directly to Boston,
speaking to a whole array of Respondent's officials, con-
cerning problems he was encountering and his perceived
unfair treatment at the hands of Respondent.
Respondent's unhappiness over his performance was
conveyed to O'Boyle by means of its June 5, 1981 "60-
day evaluation" in which he was told, among other
things, that "I look for a DRASTIC AND IMMEDI-
ATE IMPROVEMENT. We both know that your abili-
ties far exceed your performance thus far, and I, for one,
want to see exactly how good you are." Among the rea-
sons cited in the evaluation for his poor appraisal was
the "dropping" of a trailer and alleged poor gas mileage.
O'Boyle claimed that he called Boston and succeeded in
defending himself against the charges. Respondent's
records however indicate that O'Boyle was beginning to
be thought of as an expensive personnel mistake by Re-
spondent.
In July 1981 O'Boyle's work was given a 90-day
review. In that review his overall rating was that of an
average employee. It was noted, however, that, while he
seemed "warm, sociable and friendly," his "personality
was satisfactory for the job," and he was exhibiting suffi-
cient courtesy to others, he nonetheless "occasionally
'blows up' under pressure and is easily irritated." The
narrative comment was that "Mike thinks he knows
more than anybody else. Talks too much. Likes to fool
with trucks." It was acknowledged that O'Boyle knew
all the routes.
Before this last mentioned appraisal actually reached
him, O'Boyle once more called Boston, this time speak-
ing directly to Respondent's senior vice president Bruno.
According to Bruno's credited testimony O'Boyle's ini-
tial tone of complaint was rebuffed and thereafter, in the
same conversation, O'Boyle's approach changed to one
of hope and assurance that no more complaints would be
received.
Following the issuance of the 90-day review all Re-
spondent's drivers except O'Boyle were given raises. On
September 9, 1981, so he testified, O'Boyle had a truck
breakdown near Scottsbluff, Nebraska. As a result he
was paid a lesser wage then he thought he was entitled
to. Though he called Boston, he failed to convince Re-
spondent of the justice of his cause.
O'Boyle claimed that it was soon thereafter that he
began promoting unionism with others among Respond-
ent's work force, eventually speaking to each and every
one of them by mid-January 1982. His theme was that
they should get a union in order and to compel Respond-
ent to live up to its prior agreements. Additionally, he
recalled that sometime in December or January 1982 he
contacted a union and succeeded in securing and distrib-
uting authorization cards among other employees.
416
TRANSPORTATION SERVICES
The Union's business agent corroborated O'Boyle's
testimony in part. He was unable to recall the initial date
that he was contacted by O'Boyle, though he placed the
event no earlier than "the first part of January 1982." He
also recalled that several telephone conversations led to
meetings on January 14 and/or 16, 1982, at which time
O'Boyle was supplied with authorization cards to be
used in securing a showing of interest from fellow em-
ployees.
Thus, it is unclear whether or not O'Boyle actually
performed concrete actions in support of the Union
before the date he was fired, January 15, 1982. Even
O'Boyle admitted that after he "sounded out" his fellow
drivers he distributed the authorization cards by going
down to Respondent's premises as soon as he got them, a
couple of days after he was fired.
The General Counsel attempted to corroborate
O'Boyle's testimony concerning his union activities by
the testimony of Bob Holland, who stated that O'Boyle
first began talking to him about the cause of unionization
in June 1981, months before O'Boyle stated that he
began talking about unionism. Holland would have it
that he talked on numerous occasions with O'Boyle up
until Holland was discharged on January 6, 1982, and
that their conversation culminated in O'Boyle asking him
if he would sign a union card should he be provided
with one. Holland estimated that they discussed this sub-
ject some 30 or 40 times. Indeed, its seems evident that
the General Counsel seeks to prove both that Respond-
ent had knowledge of O'Boyle's activities and that it un-
lawfully interrogated Holland regarding such activities
through Holland's testimony to the effect that on numer-
ous occasions Dudek asked him questions concerning the
drivers, and specifically about O'Boyle and union activi-
ties.
It is clear that few of the conversations referred to
above are encompassed by the pleadings. It is equally
clear that no party was successful in securing the testi-
mony of Dudek, who was discharged by Respondent
shortly after O'Boyle was discharged. Since Respondent,
in its brief, admits that it violated Section 8(a)(1) of the
Act to the extent that the record shows that Dudek in-
terrogated employees regarding their own or others'
union activities it must be found that, whatever the date,
Respondent did engage in violative conduct.7
In November O'Boyle was making a delivery at Per-
kins Chrysler Plymouth. For some reason O'Boyle's
equipment and the building evidently became entangled,
causing slight damage to the building and, perhaps, to a
lock or gate as well. In any event O'Boyle apparently
chose to telephone the owner of the business at his home
in the early evening, rather than Respondent's office.
Complaints ensued in succeeding days from both the
owner of the business and from Chrysler, expressing
some displeasure with O'Boyle's alleged mishandling of
the equipment and disturbance of the business' owner at
I It should be noted that I find the General Counsel's attempt to secure
corroboration from Blakeley that Dudek frequently inquired about
O'Boyle's union activities, and reported on the same to Boston, as inad-
equate. Blakeley's testimony in this was afflicted with the same defects in
demeanor which has caused me to discredit Blakeley in other respects
herein.
home. Respondent claimed it was required to buy a new
lock and chain for the Chrysler dealership to replace
some damaged parts.
Respondent claims that shortly thereafter O'Boyle en-
gaged in another act of misconduct, i.e., complaining
loudly in front of Chrysler employees about Respond-
ent's equipment and maintenance procedures while at the
Chrysler facility. Whatever the cause Respondent claims
that representatives of Chrysler called it and questioned
whether or not they were performing adequate mainte-
nance work on their trucks, the question being based on
O'Boyle's alleged outburst. Nonetheless, in early Decem-
ber Dudek evaluated O'Boyle's performance as definitely
above average, while still noting weak points of trying to
take too many things into his own hands and irritating
other drivers. Dudek commented that O'Boyle's major
problem was that he "just plain talks too much."
Around December 22, O'Boyle once again phoned
Boston with a complaint. By Respondent's version
O'Boyle was upset about counting the Christmas holiday
against his vacation time. Respondent contended that
O'Boyle spoke to a man named Bill Ricardo during this
conversation and referred to Respondent as a scummy
company, run by scummy people. Allegedly he went fur-
ther, indicating that he did an excellent job and that he
was the cause for Respondent's securing the contract
with Chrysler, but insinuating that he could do some-
thing to cause it to lose that contract. However, the fact
of the occurrence of this alleged tirade by O'Boyle was
not supported by evidence from Ricardo, but only by
Bruno's notes on what Ricardo reported about the con-
versation. Nonetheless it appears clear that a conversa-
tion bearing at least facial resemblance to that reported
by Ricardo did occur about December 22. For O'Boyle
admitted on cross-examination that he may have argued
with Ricardo about that date, that he was upset during
that phone conversation, and that he may have claimed
he had been doing a good job and was partly responsible
for keeping Respondent's contract with the Chrysler cor-
poration. However, he denied that he ever used the
word "scummy" or that he threatened to jeopardize the
contractual relationship between Respondent and Chrys-
ler.
Thus, events led to the fateful day of January 12, 1982,
when O'Boyle again called Ricardo. According to Re-
spondent it was this call, taken together with his call to
Ricardo in December, and taking into account all of the
various strengths and weaknesses evidenced by the mat-
ters set forth previously herein, which led directly to
O'Boyle's discharge on January 15, 1982.
Robert Norton, Respondent's vice president of oper-
ations, testified that Ricardo reported to him concerning
his phone conversation with O'Boyle in December, in-
cluding the fact that O'Boyle had made veiled threats
about his performance and cooperation in the future. Ac-
cording to Norton, Ricardo also said that O'Boyle
claimed he was responsible for much of Respondent's
contract with Chrysler and that he could "fix that." At
no time, however, was there any mention of O'Boyle
being involved in union activities. Norton denied that he
was aware of such activity.
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bruno also claimed to have received a report from Ri-
cardo regarding a call from O'Boyle, in which O'Boyle
complained regarding his vacation schedule and insinuat-
ing that he might not work so hard in the future, all the
while making vitriolic remarks about Respondent and its
officials.
Thus, when O'Boyle phoned Ricardo on January 12,
1982, it seems unsurprising, from Respondent's point of
view, that Ricardo should have motioned for Norton,
who happened to be present with him at the time the call
was received, to get on the line and listen. According to
Norton he did so, but not before first contacting Bruno
and asking him also to get on the line. Both Norton and
Bruno claimed they got on the line without O'Boyle
knowing it and that neither of them said a word while
listening to the conversation between O'Boyle and Ricar-
do. Ricardo was not called, nor was his absence ex-
plained. However, as reported by Norton, O'Boyle was
talking loudly about his vacation and holiday pay, com-
plaining about a number of items so rapidly that Ricardo
had no chance to respond. Norton stated that O'Boyle
became abusive and threatened not to cooperate in the
future by, for example, failing to take his tool kit with
him while on the road. Norton also recalled that
O'Boyle referred to Respondent and to each of its man-
agers as "scummy," and "scummy assholes." He said that
O'Boyle referred to the fact that he had keys to Chrys-
ler's customers, indicating that O'Boyle was making
veiled threats to do some harm in the places of business
of those customers unless his demands were met. He also
stated that O'Boyle claimed that he could and would
ruin Respondent's contract with Chrysler. He claimed
that O'Boyle threatened to allow the tractors used in Re-
spondent's business to run out of oil. As Norton recount-
ed the conversation it was filled with obscenities with re-
ferrence to the corporation and management officials.
Bruno testified that he began listening to the conversa-
tion referred to above by Norton after Norton "buzzed"
him and indicated for him that he should pick up the
line. He said that O'Boyle had specifically referred to
him as a "scummy asshole," that perhaps he would fail
to check the level of engine oil and allow the tractors to
be damaged thereby, and that O'Boyle made veiled
threats regarding Chrysler's customers to which he had
keys.
At the conclusion of the conversation, according to
Norton and Bruno, Respondent determined to discharge
O'Boyle. According to Bruno, O'Boyle was fired be-
cause of the abuse he heaped on the Company by his
swearing, insulting management, and threatening to pos-
sibly damage the Company's equipment. Norton, while
acting pursuant to Bruno's orders, nonetheless had a
slightly different list of reasons why O'Boyle was fired.
Norton would have taken into account not only the
phone calls of January 12 and December 22 to Ricardo,
including their alleged threats and insults, but also other
factors, such as, that O'Boyle was no more than an aver-
age employee, that his attendance was not the very best,
and the alleged destruction and complaints caused by
O'Boyle which resulted in complaints to Respondent
from Chrysler.
Both Norton and Bruno denied that O'Boyle's union
activity played any part in the decision to terminate him,
or that they even knew of such activities. They claim, in-
stead, that Dudek had never passed such knowlege to
them, if in fact Dudek was aware of it.
O'Boyle admitted to a number of conversations with
various members of Respondent's management through-
out late 1981 and into January 1982. He seemed quite
unsure, however, as to who he had spoken to. Whoever
it was, he denied that he used profanity, or that he
became abusive on the phone. He denied threatening to
damage company equipment or to, in effect, lay down on
the job. He specifically denied that he made any personal
attacks on management personnel.
On Friday, January 15, 1982, pursuant to instructions
he had received from Boston, Dudek fired O'Boyle.
O'Boyle stated that he asked Dudek why he was being
fired and Dudek responded that Norton had called and
told of O'Boyle's threats to do damage or break into a
dealership. At that O'Boyle claimed to Dudek that he
was being fired for unionism and that he did not make
the mistakes attributed to him. Thereafter, in order to
secure his last paycheck, O'Boyle called Norton and was
allegedly told that the reason why he was discharged
was that Respondent did not like the way he had talked
to Management Officials Fisher and Ricardo. Once more
O'Boyle claimed he was being discharged because of
union activities, which Norton denied. Dudek was not
called by either party to testify about this matter. Thus,
as previously noted, the General Counsel's evidence of
Dudek's violation of Section 8(a)(1) stands unrebutted.
Additionally, however, there is a question with respect
to whether or not Dudek had knowledge of O'Boyle's
union activities and whether or not he passed it on to
upper management or chose to keep it to himself. And,
finally, a question is raised as to whether or not Dudek
could shed any light on the motivations underlying
O'Boyle's discharge.
Each of the parties and their counsel had telephone
contacts with Dudek shortly preceding the trial. Dudek
himself was discharged within several days after O'Boyle
was discharged. And only a few days preceding
O'Boyle's discharge he had spoken privately with
O'Boyle about the possibility of his securing Respond-
ent's contract with Chrysler and cutting Respondent out
of the scene. O'Boyle recalled, while recounting Dudek's
recitation of his hopes or plans, that Dudek stated that
his greatest difficulty would be in managing to avoid be-
coming entangled with the Union.
Nonetheless, both parties admitted in their briefs that
because of the circumstances surrounding Dudek's dis-
charge, and the efforts of each side to secure his testimo-
ny, no adverse inference is to be drawn against either
party because of either side's failure to produce him as a
witness.
It remains a fact that even O'Boyle admits that Dudek
denied that any union activity had played a part in
O'Boyle's termination at the time he was asked about it
during the termination interview. Moreover, O'Boyle ad-
mitted that he telephoned Dudek several days later, at a
time when both had been discharged. O'Boyle asked
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TRANSPORTATION SERVICES
Dudek if he had been aware of union activities, and,
though he claimed Dudek admitted that he had known
about them, he also admitted that Dudek claimed not to
have passed such knowledge on to anybody else within
Respondent's organization. As noted earlier herein,
Blakeley's testimony was not credible, including that
here Dudek supposedly asked Blakeley who was pushing
the Union, whether it was O'Brien, and whether or not
Blakeley would agree to find out and report back.
Both Bruno and Dudek testified to the effect that they
had been surprised by Dudek's report via telephone fol-
lowing O'Boyle's discharge regarding O'Boyle's claim
that the real reason behind his discharge was his union
activities. Dudek was therefore asked to submit a further
report. Dudek's report indicated that he responded to
O'Boyle's claim during the termination interview by pro-
fessing ignorance of what O'Boyle was talking about, to
which O'Boyle responded that "maybe you don't [know
of my union activities], but that goddamn scum company
does."
C. Conclusions Regarding O'Boyle's Discharge
This case appears to turn almost wholly on the credi-
bility accorded the various witnesses. The resolution of
credibility questions is particularly difficult in this in-
stance, however, because, judging by their demeanor, the
majority of witnesses in this case are simply not to be be-
lieved.
O'Boyle was glib, even expansive and personable at
times. But no one watching his efforts to magnify, his air
of superiority, his readiness to blame others for even
trivial allegations of misconduct laid at his doorstep, and
his general evasiveness and arrogance while testifying
could be left with anything other than feelings of queasi-
ness in attempting to sift out the truth from his verbose
answers.
Holland was little, if any, better. He was probably
angry at Respondent, and biased against it, perhaps based
on the fact that he too was discharged by Respondent.
He was obviously all too willing to insert characteriza-
tions and opinions into his testimony, as he assumed the
role of one of the adversaries in this case. He repeatedly
sought to demonstrate his cleverness; in my opinion he
demonstrated instead his bias and his unwillingness to re-
frain from argument or evasion.
Clarence Blakeley seemed somewhat more truthful
than either O'Boyle or Holland, but he too was guilty of
evasiness and rambling, hiding in the smokescreen of a
"good ole boy" and playing for sympathy. His bitterness
over not being selected as the manager to succeed
Dudek was palpable, and appeared to me to account for
his inability to testify credibly or accurately.
On Respondent's side of the table matters were only
slightly better.
John Cobb, the interim manager who followed Dudek,
had no testimony concerning O'Boyle's case. From Re-
spondent's standpoint that is regrettable, for I found him
highly credible. He seemed honest and earnest as he tes-
tified and I have no reason to doubt his accuracy.
Norton far surpassed the General Counsel's witnesses
in his demeanor. But it remains a fact that he was guilty
of fabrication, as was shown during his cross-examina-
tion. It was demonstrated that he lied during the course
of sworn testimony at an unemployment compensation
hearing concerning O'Boyle's discharge. I find it some-
what implausible that he would claim that he knew noth-
ing of O'Boyle's union activities but, on being advised
that O'Boyle was claiming that he had been engaged in
such activities, he failed to do anything to ascertain the
accuracy of O'Boyle's assertions. Unlike the General
Counsel I would not find that his failure to list additional
reasons why O'Boyle was thought to warrant discharge
in the affidavit he provided the General Counsel in the
course of the investigation of this case to be indicative of
an effort to fabricate; rather, it seems to me more likely
that Norton was simply something less than complete.
Nevetheless, it cannot be adequately explained why he
would so directly and falsely, as he admitted he did,
deny under oath to the unemployment compensation
hearing referee that he had been on the phone and had
overheard the fateful conversation between Ricardo and
O'Boyle on January 12. It is possible, as he claims, that
he simply wished to avoid disclosing to O'Boyle that he
had overheard that conversation, inasmuch as he "knew"
that he would not prevail in the unemployment compen-
sation hearing and did not want to provide O'Boyle with
an opportunity to rearrange or fabricate his own testimo-
ny. All that is a possibility, but I see little reason to be-
lieve it. Accordingly, I have determined to credit Nor-
ton's testimony only in instances where it is corroborat-
ed, or seems consistent with facts which are objectively
demonstrated or which are not in dispute.
Bruno was a voluble, assertive, and domineering per-
sonality by my observation. His testimony was replete
with attempts to rationalize and ramble. Nevertheless,
despite my misgivings about his credibility, I found him
a superior witness to any offered by the General Coun-
sel. Accordingly, in areas of conflict, I have determined
to credit him.
Given these credibility resolutions I find O'Boyle's
case lacking in merit.
It cannot be disputed that O'Boyle engaged in union
activities. When they began and just how widespread
they became seems, however, open to question. O'Boyle
claims that he talked to all of the drivers. Yet only
Blakeley and Holland appeared to corroborate his testi-
mony and, as noted earlier, each of these men were
themselves discharged by Respondent and testified in
such fashion as to raise serious doubts about their credi-
bility. So, while I tend to discount much of what
O'Boyle claimed, it cannot be disputed that he did
engage in some union activities, especially after his tele-
phone calls to Boston which emanated from his truck
breakdown in Scottsbluff, Nebraska, on September 9,
1981.
Nor does it seem open to doubt that Respondent har-
bored animus against the Union, or any other labor orga-
nization which might seek to represent its employees.
Both O'Boyle's and Holland's testimony concerning Re-
spondent's expression of animus toward unions during
the course of their separate hiring interviews is largely
undisputed. Thus, notwithstanding their shaky credibil-
ity, I am inclined to give it some weight. Additionally, I
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believe that the events set forth in Judge Kennedy's deci-
sion, bearing so closely on the events in controversy
here, should be found to warrant an inference that Re-
spondent here habored animus against unions. I so con-
clude.
I have substantial doubt as to whether or not the offi-
cials of Respondent responsible for the decision to dis-
charge O'Boyle had knowledge of his union activities
until he had been discharged. Their denials are not, of
course, directly refuted by O'Boyle. As noted earlier, I
have found Bruno to be a somewhat more credible wit-
ness than O'Boyle. Norton's testimony in this respect
seems to be consistent with that of Bruno and, accord-
ingly, worthy of some small credence.
Additionally, the circumstances in this case seem to
me to support the view that Dudek never passed on
whatever knowledge he may have had of O'Boyle's ac-
tivities or sympathies in favor of a union. First of all
Dudek was clearly a disaffected supervisor who, even
according to O'Boyle's account, made plans to subvert
Respondent's contract with Chrysler and take it over for
himself. Additionally even O'Boyle confessed that
Dudek professed surprise, apparently genuine, to
O'Boyle concerning O'Boyle's accusation that he was
being discharged for union activities. Nor does there
seem to be any plausible explanation for Dudek's claim,
in the course of the telephone conversation with O'Boyle
several days after each of them had been discharged by
Respondent, that he never passed any knowledge he had
of O'Boyle's union activities on to his superiors in
Boston. Thus in light of my unwillingness to credit the
apparently fanciful and biased testimony of Holland and
Blakeley on this point, and despite my awareness that the
Board generally imputes the knowledge of a supervisor
to the company employing him,8 I cannot conclude in
this case that the General Counsel has persuaded me that
the Respondent's officials had actual knowledge of
O'Boyle's union activities at the time the determination
was made to discharge him.
Moreover, even if they did have knowledge, it seems
to me that O'Boyle was truly the type of employee who
"led with his chin" in his dealings with his Employer.
Granting, for the purposes of this decision, the General
Counsel's argument that Respondent has sought to mag-
nify and embellish O'Boyle's faults and transgressions, I
must still conclude that in crediting Bruno over O'Boyle
with respect to the events of January 12, 1982, I am led
inescapably to the conclusion that O'Boyle's activities
during that conversation furnished ample just cause for
his discharge. Certainly no employer or employer's offi-
cial is obliged to suffer insults and innuendos and veiled
threats of the sort I have concluded were made by
O'Boyle in the course of that conversation. Given my
impression of Bruno throughout this trial as a man who
would brook little opposition I find myself quite ready to
believe that it was O'Boyle's confrontational style of
problem-solving which led to his discharge, rather than
any union activities he may have engaged in prior to that
time which, it must be remembered, were confined to
discussions with fellow employees and did not rise to the
s See Dr. Phillip Medal, D.D.S., Inc., 267 NLRB 82 (1983).
level of actually securing any authorization cards until
after he had been discharged.
Thus, I conclude and find that O'Boyle was dis-
charged for just cause and not for discriminatory motiva-
tions violative of Section 8(aXl) and (3) of the Act. Ac-
cordingly, this portion of the complaint must be dis-
missed.
D. The Discharge of Clarence Blakeley
Clarence R. Blakeley was a dockman and relief driver
who also worked in the office part time for Respondent
between early April 1981 until March 1982, when he was
fired.
The events immediately proceeding his discharge
when related by Blakeley: He testified that around
March 2, 1982, he overheard Cobb, the interim manager,
and Hensley, the man hired to become the permanent
manager of the Denver office, a position for which
Blakeley had applied. Blakeley was obviously and deeply
disappointed in not receiving the position himself. He
said that he heard them talking on the phone to someone
concerning employee hours. He went on to say that soon
thereafter he asked to speak to Hensley and asked him if
Respondent was going to start cutting hours. Blakeley
claimed that he went on to threaten to go to the NLRB
regarding O'Boyle's complaint if his hours were cut.
Next morning, according to Blakeley, Hensley stated
that he had to let Blakeley go because of his attitude and
refusing to carry loads. Blakeley responded by saying
that it was a trumped up charge. He then left.
Norton denied Blakeley's charge. He claimed, instead,
that Blakeley was discharged because of poor job per-
formance. Elaborating, he spoke of two runs to Raton
Pass to meet with other drivers coming in the opposite
direction from Albuquerque, one of which was canceled
by Blakeley and the other of which was protested, ap-
parently due to weather conditions. Additionally, he
spoke of an alleged unwillingness by Blakeley to cooper-
ate with the drivers whom he met in Raton Pass, in that
Blakeley declined to extend his route some miles past the
normal meeting point in Raton Pass. Finally, Norton jus-
tified Blakeley's discharge by an incident that occurred
between Blakeley and a Chrysler employee on the load-
ing dock on February 24, 1982.
The gist of these alleged offenses is evidently admitted
by the General Counsel. Around February 3, 1982,
Blakeley, fearing the approach of a severe snowstorm,
called the port of entry and claimed to have learned that
it was closed due to the weather. He then elected not to
drive his run to Raton Pass. While there is some question
as to whether or not Cobb acceded to Blakeley's request
that he not be compelled to drive that night out of exas-
peration, or simply because he was presented with a fait
accompli, Cobb, in fact, did agree to Blakeley's handling
of the matter and he did tell Blakeley that he did not
have to drive the run that night.9 Several days later
9 While considerable testimony was taken about whether or not Re-
spondent had a practice, or would have allowed a practice, of drivers'
calling the port of entry to determine weather conditions or to have
checked them from other sources, I am satisfied that Blakeley and
Continued
420
TRANSPORTATION SERVICES
Cobb and Blakeley disagreed as to whether or not Blake-
ley had or should be allowed to effect his own changes
in his work schedule. This came about because Blakeley
occasionally allowed driver Ed Carnavale to drive his
route on Fridays. Cobb called Blakeley at home and told
him that his scheduled route should be run by him, as he
wanted Carnavale to do another driver's route due to the
other driver having been up all night. Blakeley drove the
run without further protest.
Another disagreement arose between Blakely and
Cobb when, according to Cobb, complaints were re-
ceived from the Albuquerque drivers that Blakeley was
not meeting them in a timely fashion or the proper place
due to the fact that they had to wait a long time, in a
very exposed and cold place at the top of the pass. Ap-
parently they were suggesting that Blakeley should
simply extend his route a bit further and drive on to
Raton, New Mexico. Blakeley, on the other hand, insist-
ed that to have done so would have unduly extended his
run and would cause him to violate DOT regulations. O
It seems agreed, however, that the Respondent's main
reason for discharging Blakeley was an incident that oc-
curred on the loading dock at its Denver facility on Feb-
ruary 24, 1982. As conceded by the General Counsel,
Blakeley had a disagreement with a Chrysler employee
about the way she had loaded his truck and, instead of
discussing it with Cobb, he complained directly to
Chrysler management. According to Cobb, he was sum-
moned to the dock by one of Respondent's employees.
There he observed a dispute growing louder and louder
between Blakeley and an employee of Chrysler. The
Chrysler employee was a woman whose job was to load
the truck which Blakeley was about to drive away. Ac-
cording to Cobb, Blakeley was complaining that the
truck was not loaded properly and that it would require
him, due to its improper loading, to unload and reload
the truck several times while he made deliveries. At one
point Blakeley referred to the female Chrysler employee
as a "fat-ass.""' In any event Cobb told Blakeley to go
back to the office, and that, if anything had to be "han-
dled," it should be done through Respondent's manage-
ment and not directly with Chrysler under any circum-
stances. Cobb then went and reviewed the truck's load-
ing with a member of the Chrysler's management and
found everything proper. Cobb apologized to the Chrys-
ler representative, who had simply turned and walked
away from Blakeley when Blakely approached him and
in a loud voice began complaining about the situation.
Cobb recalled the Chrysler representative as being upset
to the point that he said that "I don't have to put up
with this kind of shit." Cobb also quoted another man-
agement representative of Chrysler saying basically the
same thing about 10 minutes later. Still later, the next
O'Boyle, and perhaps others, did so from time to time on their own.
There is, however, no evidence of other runs being canceled due to
weather conditions.
10 Bruno testified that the route could have been driven without vio-
lating DOT regulations. Perhaps that is so, but certainly not without vio-
lating speed limits.
11 Blakeley's denial that he referred to this employee as a "fat-ass" was
equivocal. When asked if he had so referred to her, he responded, "No, I
don't believe I did. I don't use that type of language."
morning, Chrysler's depot management is reported by
Cobb to have decreed that they did not want any of Re-
spondent's employees. Rather, they were simply to deliv-
er the freight on schedule and, failing that, it would be
Chrysler's position that Respondent was not upholding
its end of the contract and Chrysler would get somebody
else to do it. Cobb recounted that Chrysler's depot man-
ager threatened, if the conduct of the sort that had oc-
curred the day before continued, he would see that the
contract was voided and that he would make very sure
that "Detroit" was aware of its position on the matter.
Accordingly, Cobb composed and delivered to Blake-
ley a lengthy memorandum in the nature of a reprimand.
It read as follows, in pertinent part: "I am greatly upset
over many aspects of this incident. One is the fact that
you made your feelings well known in front of Chrysler
employees and management instead of discussing it first
with me. While I was doing my evening load check, you
went directly to Mr. Ashton to discuss the matter."
Meanwhile, Chrysler's depot manager had elected to
go directly by phone to Bruno in Boston about the
matter. According to Bruno, Chrysler's depot manager,
was "livid," even "venomous," in discussing this matter
over the phone. Additionally, Bruno testified that he re-
ceived a telephone call from another Chrysler official
who had inquired as to why he could not "control his
people." Still later Bruno received a call from "Detroit,"
from Chrysler's official in charge of awarding contracts.
While this man did not tell Bruno that Blakeley was to
be fired, Bruno recalled that he did say "if you have an-
other incident over there, you are probably going to lose
the contract."
Several days later, Bruno went to Denver and, togeth-
er with other officials of Respondent, met with several
officials of Chrysler. Their primary point of discussion
was to agree on precisely how their employees would
interact with one another.
On March 2, 1982, Cobb was on the telephone speak-
ing to Ricardo in Boston. He was accompanied by Hens-
ley, who was to be the new manager in Denver. Cobb
overheard Blakeley remark that if his hours were cut he
was going to the Labor Board.' 2
Cobb denied that Blakeley's remark played any part in
the decision to terminate Blakeley, and would have it
that he did not even realize that Blakeley was referring
to the NLRB, as opposed to the Wage and Hour Divi-
sion of the Department of Labor.
Bruno testified that a joint decision was made among
management officials in Boston to fire Blakeley right
after the incident on the dock between Blakeley and the
female employee of Chrysler, and receipt of the tele-
phone calls from Chrysler's management. Bruno ac-
knowledged that he was in Denver on February 26, and
that he even spent some time with Blakeley, yet failed to
mention Blakeley's jeopardy to him. Bruno claimed that
the failure was due to the fact that he was in Denver in
order to conduct other business and that he had a tight
schedule which involved further travel plans.
II Evidently, Blakeley's concern was aroused when, just prior to this
incident, Cobb had questioned him about why Blakeley's usual scheduled
hours per week had risen from 20 to 26.
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conclusions Regarding Blakeley's Discharge
As in O'Boyle's case, I conclude that Blakeley's dis-
charge has not been adequately demonstrated to have
been unlawful. My primary basis for the conclusion is
the credibility resolution previously set forth herein.
Obviously Blakeley furnished just cause for Respond-
ent's discharge of him, if he, in fact, was guilty of the
incident with the female Chrysler employee on the load-
ing dock and thereby caused Respondent's management
to have reason to become apprehensive over the contin-
ued state of their contractual relationship with Chrysler.
I find that Blakeley did refer to Chrysler's employee as a
"fat-ass," and that he did loudly complain to or berate
Chrysler's management.
Under these circumstances, whether Chrysler's man-
agement overreacted seems scarcely the point. For it is
plausible to believe that they might, and did, advise
Bruno in the fashion described by Bruno. I do not find
the delay between Cobb's memorandum and the imple-
mentation of Bruno's decision to terminate to be so great
as to warrant an inference that the termination was in-
stead caused by Blakeley's intervening remark threaten-
ing to go to the Labor Board. Instead, for the reasons
stated earlier, I credit Cobb, and conclude that despite
Blakeley's remark on March 2, 1982, he was not thereby
shielded from discharge on the following day.
Accordingly, I conclude that that portion of the com-
plaint alleging that Respondent violated the Act in dis-
charging Blakeley should be dismissed.
CONCLUSIONS OF LAW
1. Respondent Transportation Manpower Services of
Ohio, Inc. is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
interrogating an employee about his own, and others',
activities on behalf of the Union, and by asking the em-
ployee to find out about the union activities of fellow
employees and to report back about them.
4. Respondent has not violated the Act in any respect
other than as found above.
5. The above unfair labor practices have an effect
upon commerce as defined in the Act.
THE REMEDY
Having found Respondent has engaged in unfair labor
practices it shall be recommended that it be ordered to
cease and desist therefrom.
On the basis of the foregoing findings of facts and con-
clusions of law and on the entire record, I issue the fol-
lowing recommended '
13 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, Transportation Manpower Services,
Inc., Denver, Colorado, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their own and
others' activities on behalf of a union, or asking employ-
ees to find out about the union activities of fellow em-
ployees and report on them to Respondent.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following action designed to effectuate the
purposes of the Act.
(a) Post at its facilities at Denver, Colorado, copies of
the attached notice marked "Appendix."14 Copies of the
notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT do anything which interferes with these
rights. More specifically, WE WILL NOT interrogate em-
ployees concerning their own or other employees' union
activities, NOR WILL WE ask employees to find out about
422
TRANSPORTATION SERVICES
the union activities of other employees and report them
to us.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of any rights
guaranteed by the Act.
TRANSPORTATION MANPOWER SERVICES
OF OHIO, INC.
423