West Motor Freight of Pennsylvania

National Labor Relations Board - Board Decisions

Jul 21, 2000

331 N.L.R.B. 831 (N.L.R.B. 2000)

WEST MOTOR FREIGHT OF PENNSYLVANIA 831
West Motor Freight of Pennsylvania and Interna-
tional Brotherhood of Teamsters, Local 391,
AFL–CIO. Case 11–CA–18365
July 21, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On April 27, 2000, Administrative Law Judge Howard
I. Grossman issued the attached decision. The General
Counsel filed exceptions and the Respondent filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, West Motor Freight of Penn-
sylvania, Greensboro, North Carolina, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

Lisa Shearin, Esq., for the General Counsel.
Jonathan P. Sturgill, Esq. and Ray Blankenship, Esq. (R. T.
Blankenship & Associates), for the Respondent.
Randy Conrad, Organizer, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
original charge was filed on June 7, 1999,1 and amended
charges on September 28, October 13, and November 5, by
International Brotherhood of Teamsters, Local 391, AFL–CIO
(the Union). A complaint issued on September 9, and an
amended complaint on November 19, alleging that West Motor
Freight of Pennsylvania (Respondent or the Company) violated
Section 8(a)(1) of the Act by interrogating employees about
their union and/or protected activities, by giving them the im-
pression that their union and/or protected concerted activities
were under surveillance, and by threatening them with loss of
employment in order to discourage their union and/or protected
concerted activities. The complaint also alleges that Respon-
dent violated Section 8(a)(3) of the Act by discharging em-
ployee Daniel Morehead because he joined, or supported the
Union and in order to discourage similar activity by other em-
ployees.
A hearing on these matters was conducted before me in
Winston Salem, North Carolina, on January 19 and 20, 2000.
Thereafter, the General Counsel and Respondent filed briefs.
Subsequently, Respondent submitted a reply to the General
Counsel’s brief, and the General Counsel submitted a motion
to reject the reply brief. I have not considered the latter two
documents, as there is no provision in the Board’s Rules for the
filing of reply briefs at this stage in the proceeding. Based on
all the evidence of record, including my observation of the
demeanor of the witnesses, I make the following

1 In his conclusions of law, the judge referred to the Union as the
Pipeliners Local Union No. 798 rather than the International Brother-
hood of Teamsters, Local 391, AFL–CIO. We correct this inadvertent
error.
1 All dates are in 1999 unless otherwise stated.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Pennsylvania corporation with a facility lo-
cated at Greensboro, North Carolina, where it is engaged in
regional truck hauling. During the 12 months preceding issu-
ance of the complaint, Respondent derived gross annual reve-
nue at its Greensboro, North Carolina facility, in excess of
$210,000, and performed services valued in excess of $50,000
for employers located outside the State of North Carolina.
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE COMPANY’S OPERATIONS
The Company has a terminal in Greensboro, North Carolina,
and makes deliveries of merchandise for its customers. Prior to
about October 1998, its principal customer was K-Mart. In
about October 1998 it acquired another major customer, Inter-
national Paper, and the area of its deliveries became larger. The
two customers provided about 90 percent of its business. Prior
to the acquisition of International Paper, the business was run
by Division Manager Daniel Apple and Supervisor Sharon
Johnson from a small office about 15 by 20 feet in size. With
the increased business, Supervisor John Beckwith was added.
The assignment of drivers to particular trips was informal, most
of it on the telephone. According to former driver James Red-
dick, drivers were dispatched one load at a time, even though a
trip may have had multiple stops. Thus, after the first stop, the
driver called and received instructions for his next stop. After
his last stop, he called and received his order for the following
day. Daniel Morehead corroborated this testimony.
The Company’s witnesses testified that its principal custom-
ers were very concerned that deliveries be on time. However,
Reddick testified that K-Mart was frequently not ready with a
load at its distribution center at the scheduled time for depar-
ture. This would cause the driver to be late in departing from
the K-Mart facility, and cause him to be late on the subsequent
deliveries to the stores. Reddick asserted that the Company did
not know whether a K-Mart load was ready, and did not know
whether a late delivery to the store was caused by K-Mart’s or
the driver’s lateness unless the driver called and informed the
Company. Reddick speculated that the Company could derive
this information from a notation placed on the shipping docu-
ment by the guard at the K-Mart distribution center. However,
on examination of a memorandum evidencing issuance of a bill
of lading, Reddick was unable to find any such notation, nor
could I.2
Former driver George Enoch testified that he would some-
times have to wait 2 or 3 hours at the distribution center for his
load. He has waited as much as 4 hours, only to be told by K-
Mart that they canceled the shipment. When he arrived late at
the K-Mart stores, the receiving employees were upset, and
occasionally had gone home. Enoch would then have to get the
2 GC Exh. 2.
331 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
store manager to help unload the freight. Enoch stated that he
knew the travel time to each stop. Accordingly, when K-Mart
was late with a shipment, Enoch asked the distribution center
personnel to call the stores and tell them when he would arrive.
According to Enoch, more than half the K-Mart stores said they
received no such message. Division Manager Apple acknowl-
edged at the hearing that K-Mart loads sometimes came out
late.
Enoch also testified that he made deliveries to First State
Packaging in Salisbury, Maryland, from International Paper in
Georgetown, South Carolina, once or twice a week. The ship-
ments always originated in Georgetown. No delivery time was
ever specified, and Enoch made the deliveries at any hour of
the day or night. Receiving personnel were always available.
Most of the time, the load was a “drop and hook” shipment. If
the merchandise was not needed immediately, Enoch simply
parked the loaded trailer, and “hooked” onto an empty one.
III. DRIVER COMPLAINTS, THE UNION CAMPAIGN,
AND DANIEL MOREHEAD
The drivers met one another at K-Mart’s Greensboro distri-
bution center and at various stops. They complained about the
increased driving time since Respondent’s acquisition of the
International Paper account, and inadequate compensation.
They were generally compensated by payment of a percentage
of the Company’s fee for each shipment. Thus, for long trips
the driver was making smaller amounts for each hour of driv-
ing. They were not compensated for “dead-heading,” i.e., haul-
ing an empty trailer. Nor did they get paid for the time spent
waiting at the distribution center for a load. Reddick and
Morehead testified that they complained about these matters to
Division Manager Apple. In early 1999, Apple distributed a
memo to drivers acknowledging that the Company was “ex-
periencing a great amount of turmoil within its driver fleet,”
and soliciting an expression of concerns from individual driv-
ers.3
Daniel Morehead started driving for the Company in May
1998. In addition to the complaints of other drivers, listed
above, Morehead had his own. He believed that he was being
unfairly deprived of a “safety award” because of an accident for
which he was not responsible. Although he received a citation
for an unsafe lane change, this was reversed by the state court.
Despite this fact, division manager Apple told Morehead,
“West is finding you guilty.”
Morehead testified that, on April 23, he told Supervisor
Sharon Johnson that he was “pissed off” at being denied the
safety award. She told him to take some time off, and he did
so. Later in April, Johnson told him that K-Mart was going to
be working 7 days a week. Morehead responded that he was
about to become a grandfather, that he did not mind working 6
days a week, but that 1 day a week was going to be “for his
grandbaby.” Apple later explained to Morehead that, if he
worked 7 days, he was still going to get 2 days off. Morehead
replied that this was acceptable, and did not refuse any assign-
ment. Johnson, however, contended that Morehead “cursed”
her for a half hour to 45 minutes, and said that he was not going
to work weekends. Morehead denied that he cursed anybody,
and, as indicated, did not refuse any assignments. Respondent
did not issue any warnings or reprimands for the alleged curs-
ing, although Johnson herself had authority to discipline em-

3 GC Exh. 4.
ployees, and reported the asserted cursing to Apple. The lat-
ter’s response, “in passing” according to his testimony was to
ask Morehead whether “everything was O.K.,” although Apple
also contended that there was “more to it than that.”
On April 28, Morehead called the Union, and the next day
spoke to organizer Randy Conrad. Morehead explained the
drivers’ concerns, and it was decided to hold a meeting on May
8 at Morehead’s house. Conrad advised Morehead to keep a
“tight lip” on the matter. This meeting took place, with a total
of 3 employees, including Morehead, together with Conrad. It
was decided to schedule another meeting for May 16.
Division Manager Apple testified that Morehead was an ac-
ceptable employee until about December 1998. From that
point, “everything just started heading downhill steadily and
fast.” In late January or early February, Apple asserted, he told
Morehead that he was “falling down” and was “late all the
time.” He thereafter had two or three more conversations of
this nature with Morehead, but could not specify the dates,
except for May 10. Apple testified twice about this asserted
conversation. On January 19, 2000, called by the General
Counsel, he testified that on May 10 he told Morehead that he
had made late deliveries, and that he made comments about
Morehead’s attitude. He told Morehead that he was “hurting
everybody,” and that he would have “to go” if he did not im-
prove. In his pretrial affidavit, Apple refers to a conversation
which he had with Morehead on May 10.4
Supervisor Sharon Johnson also testified on January 19,
2000. She described the 15-by-20 foot office in which she
worked. It had three desks; Apple, Beckwith, and Johnson
occupied these desks and communicated constantly together.
Johnson testified that on May 8 she instructed Morehead to
come into the office on May 10, and that he did so. She as-
serted that she overheard Apple discussing “late deliveries”
with Morehead. Johnson also testified that on an unspecified
occasion, she spoke to Morehead about being late. There is no
reference to this in her pretrial affidavit prepared for the Board,
nor one which she prepared for the Company.
Morehead was the last witness for the day on January 19,
2000. He testified that he made deliveries on May 10, and
denied going into the office on that date. The General Counsel
introduced Morehead’s daily log for May 10, showing that he
made four deliveries in three cities on that date.5 Morehead
denied coming into the office and speaking with Apple about
anything on May 10, and denied speaking with Apple or John-
son about late deliveries until the day he was terminated, May
18.
On the next day of hearing, January 20, 2000, Respondent
called Apple and showed him Morehead’s daily log for May
10. Apple testified that this document showed that Morehead
was not in the office on May 10, 1998, and, accordingly, that
his own affidavit “incorrectly stated the date.” The conversa-
tion actually took place the following day, May 11, according
to Apple.
Sharon Johnson also testified for a second time on this sub-
ject on January 20. She asserted that the dates were “messed
up,” and that the conversation with Morehead took place on
May 11. John Beckwith submitted an affidavit to the Board
with an attached statement he had given to the Company. In
the latter document, he asserts that Morehead came into the
4 GC Exh. 33.
5 GC Exh. 22.
WEST MOTOR FREIGHT OF PENNSYLVANIA 833
office on May 10.6 At the hearing on January 20, 2000,
Beckwith stated that the May 10 day was inaccurate, and that
the conversation took place on May 11. He also testified that
he talked with Respondent’s attorneys on January 19–20, and
that it was on the latter date that he discovered the error in his
statement. On redirect examination by Respondent’s counsel,
the record reads as follows:

Q. Today, did I not inform you of the incorrect date of
the 10th as being a Monday and it having been problem-
atic?
A. Yes.
Q. And we discussed that?
A. Yes, we did.

Beckwith also testified that he did not know that Apple and
Johnson had given May 10 as the date Morehead was called
into the office. Apple and Johnson denied knowing that their
colleagues had given similar testimony.7
Morehead denied speaking with anybody from the Company
about late deliveries until May 18, the date that he was termi-
nated.
Respondent also attempted to establish that Morehead in fact
had been late. It submitted a series of documents, each entitled
“Cover Bill,” evidencing shipments on various dates to various
locations by Morehead, with the latter’s signature, at various
times as early as 4 a.m.8 On cross-examination, Morehead
stated that he was late on most of these trips, either on pickup
or delivery. Morehead’s meaning is shown by the following
portions of the transcript:

Q. The exhibit 4/15/99, was that late delivery rather
than pick up?
A. That was late delivery.
Q. Why were you late delivering it?
A. Because it was picked up late.
Q. So you picked it up late, too?
A. It was late coming out.

Division Manager Apple was shown a “cover bill” with a
driver’s signature and time, and surmised that the time indi-
cated by the driver’s signature was the time “he signed out of
the guardhouse.” This leaves unanswered the question of
whether the driver had to wait to get the shipment. Division
Manager Apple was also shown a “cover sheet” without any
driver signature, and said that it was impossible to determine
pickup or delivery time.9

6 R. Exh. 12.
7 A sequestration order was in effect during the hearing. Neither
Apple, Johnson, nor Beckwith was present when either of the other two
was testifying. The General Counsel contends that it is improbable that
all three of these witnesses would have independently come to the
conclusion that their original testimony was inaccurate, and that May
11 was the date of the conversation with Morehead. Accordingly, the
General Counsel argues, the sequestration order must have been vio-
lated by disclosure of the testimony of other witnesses, citing National
Football League, 309 NLRB 78, 129–131 (1992). GC Br. at 24.
8 R. Exh. 8.
9 Apple testified that the shipping order prepared by K-Mart is a
multipage document. The “cover bill” identifies the specific stops “and
then there is detailed stops specific information” (sic). Accordingly,
the General Counsel argues, R. Exh. 8 is not a complete document.
Moreover, it was not provided in response to the General Counsel’s
subpoena for “a complete copy of the K-Mart Bills of lading from
January 1, 1999 to June 1, 1999.” Rather, Respondent presented the
IV. RESPONDENT’S SAFETY MEETING AND THE
SECOND UNION MEETING
The Company held a safety meeting at a restaurant on the
evening of May 16, at which it presented safety awards to sev-
eral drivers. A company representative showed an accident
report, which listed Morehead with two accidents. After read-
ing it, he threw a copy on the table, and Apple told him not to
get “upset.” George Enoch testified that the drivers complained
of driving many miles without getting paid for them, while
Morehead testified that other drivers complained of low pay,
“deadhead miles, and absence of “layover pay.”
Sharon Johnson agreed on cross-examination that she knew
the drivers in the spring of 1999 were unhappy about working
conditions, pay, long hours, and waiting time. She also agreed
that, at the safety meeting, Morehead wanted to talk about pay,
and said that the Company did not care about its drivers. John-
son asserted that she could not remember any other drivers
complaining about working conditions. She felt that More-
head’s statements were “disruptive,” and were “disturbing” to
other drivers.
Rodney Patterson was asked on cross-examination whether
Morehead was “disruptive” at the meeting. He replied that
Morehead sounded “upset.” Asked whether Morehead
“cussed,” Patterson answered that he “might have said a pro-
fane word.” George Enoch was asked similar questions on
cross-examination, and denied that Morehead was “disruptive”
or that he interrupted anybody.
As related above, a second union meeting had been planned
for May 16. After the safety meeting, Morehead spoke to the
drivers in the restaurant parking lot. He said that there was
going to be a meeting at his house that night, that the union
representative was going to be there, and that the complaints
should be made to him. Four drivers including Morehead,
Rodney Patterson, and Union Representative Conrad attended
this meeting. Two others, Clarence Cheek and a driver named
Demetrius, planned to attend and were following the other
drivers, but “just turned off,” and did not attend. At More-
head’s house, all the employees present signed union authoriza-
tion cards, and discussed their various complaints against the
Company. They decided to try to get other drivers to sign au-
thorization cards.
V. MOREHEAD’S LAST ASSIGNMENT AND DIS-
CHARGE
Morehead testified that Apple gave him an assignment dur-
ing the safety meeting. He was told that he was to take a load
to Salisbury, Maryland, “in the morning.” Morehead inter-
preted this order (correctly) to mean that he was to take the load
on the next day, Monday. He also testified that he told the
Company representatives that he would leave at 2 a.m., in order
to avoid the heavy belt-line traffic around Washington into
Baltimore. However, Apple testified that he told Morehead the
load had to be delivered by 8 a.m. in Salisbury, and that More-
head responded that he would leave Greensboro by 2 a.m. Su-

document in support of its contention that Morehead was “late” on
pickups and deliveries. Because of its failure to comply with the sub-
poena, the General Counsel argues, it may not do so, citing Bannon
Mills, 146 NLRB 611 (1964). See also American Art Industries, 166
NLRB 943, 952 (1967), enfd. 415 F.2d 1223 (5th Cir. 1969), cert.
denied 397 U.S. 990 (1970) The General Counsel further argues that
all supporting testimony should be stricken, citing Packaging Tech-
niques, Inc., 317 NLRB 1251, 1253 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
pervisor Beckwith testified that he told Morehead the load had
to be in Salisbury by 8 a.m., and had to be picked up by 2 a.m.
Since Morehead’s version of the assignment did not include
any mandatory arrival time in Salisbury, he decided to spend
Sunday night with his mother, and picked up the load at 8 a.m.
In response to the General Counsel’s questions, Supervisor
Sharon Johnson testified that driver Clarence Cheek told her on
the morning of May 18 that there had been a “big thing” at
Morehead’s house.
Rodney Patterson testified that he called John Beckwith for
his assignment at about 10 a.m. on the morning after the safety
meeting, May 18. Instead of giving it to him, Beckwith put him
on hold, and Sharon Johnson came onto the line. She asked
Patterson, “How was the meeting?” Patterson stated that he
thought Johnson meant the safety meeting, and replied that the
food was all right, and that he appreciated the safety award.
Johnson then stated that she heard Morehead had held a meet-
ing. Patterson responded that he did not know what Johnson
was talking about. She replied, “Well, I know you’re smarter
than that.” Beckwith then got back on the line and gave Patter-
son his assignment.
Johnson testified further in response to Respondent’s ques-
tions. Cheek had asked her whether she attended the “get-
together” at Morehead’s house, and she replied that she had not
been invited to “the party.” Morehead had parties to which
Johnson had previously been invited, and she replied to Cheek
that she did not go on this occasion. Johnson denied that either
she or Cheek made any reference to a union meeting. Cheek,
who was employed by Respondent at the time of the hearing
according to Johnson, did not testify.
These conversations took place on the morning of May 18,
as Morehead was proceeding toward Salisbury. He called the
office at about 3 p.m., and told Beckwith that he had about an
hour to go. Beckwith told him that he had to pick up a K-Mart
load in Greensboro the next morning at 4 a.m. Morehead re-
plied that he had to take his 8-hour break after delivering the
load in Salisbury, and that there was no way he could get back
to Greensboro by 4 a.m.10 Beckwith replied, “Do the best you
can.” Morehead testified without contradiction that this was
the first time he had heard of the K-Mart assignment. He deliv-
ered the Salisbury load,11 “hooked” to an empty, and went to
sleep in the back of the cab.
Morehead awoke at about 1 a.m., and started back for
Greensboro. He called the office on the way, and asked
Beckwith whether he should pick up the K-Mart load.
Beckwith replied affirmatively. However, as Morehead ap-
proached the K-Mart gate, a communication device in the truck
called a “Quailcom”12 went off, and a message told Morehead
to drop his empty at K-Mart, and then return to the office with-
out picking up the K-Mart load.13 Morehead verified this mes-
sage by phone, and returned to the office. Apple, Johnson, and
Beckwith were present. Apple said that he heard that More-
head had a meeting at his house. Morehead replied that he “had

10 As explained by Apple and other witnesses, drivers were required
to stop driving for 8 consecutive hours after 10 hours of driving.
11 The load was delivered in Salisbury at “17:45” (5:45 p.m.). The
bill of lading was signed without any notation that it was late. GC Exh.
10.
12 The “Quailcom” was described as a device in the truck which
tracked the vehicle with the use of satellites, and gave its location.
13 Apple agreed that the K-Mart load was probably not picked up un-
til the following day, May 19.
a few guys over.” Apple responded that Morehead had no au-
thority to call any meetings, that Apple ran the Company, that
he called meetings when he got ready, and that Morehead was
terminated. The latter then cleaned out his truck and returned
with the keys. “Why are you really firing me?” he asked Ap-
ple. “You was late on some K-Mart delivery,” Apple replied.
Morehead denied this, and said that K-Mart did not have the
loads ready and that he was going to the Board. Sharon John-
son replied that he had better be right, because the Company
had the records for every time that he was late. Morehead’s
testimony concerning the exit interview is uncontradicted.
Apple testified that there was no written reprimand in More-
head’s personnel file, nor any complaint from a customer, de-
spite the fact that Respondent did put such material in em-
ployee personnel files.14
VI. FACTUAL AND LEGAL CONCLUSIONS
The General Counsel has the burden of establishing a prima
facie case that is sufficient to support an inference that pro-
tected conduct was a motivating factor in an employer’s deci-
sion to discipline an employee. Once this is established, the
burden shifts to the Respondent to demonstrate that the disci-
pline would have been administered even in the absence of the
protected conduct. The General Counsel must supply persua-
sive evidence that the employer acted because of antiunion
animus.15
There is no doubt that drivers were dissatisfied with what
they considered to be inadequate compensation for driving, for
“dead-heading,” for long hours and absence from home, and for
waiting for orders at the distribution center. Apple’s 1999
memo citing “turmoil” among the drivers corroborates this
testimony. In that memo, Apple solicited expressions of driver
concerns, and I credit the testimony of Reddick and Morehead
that they voiced such complaints to Apple. These actions by
Reddick and Morehead constituted protected, concerted activ-
ity. I make the same finding with respect to the meeting on
May 8 of Morehead with other drivers and Union Agent Con-
rad at Morehead’s house.
I credit Sharon Johnson’s admission that Morehead wanted
to talk about pay at the May 16 safety meeting, and asserted
that the Company did not care about its drivers. I credit More-
head’s testimony that other drivers voiced their complaints at
the safety meeting. Morehead was corroborated by George
Enoch, who had a truthful demeanor and no discernible bias.
This testimony has more probative weight than Sharon John-
son’s assertion that she could not remember whether other driv-
ers voiced complaints, and I credit Morehead’s and Enoch’s
testimony. I further conclude that the drivers’ complaints made
at the safety meeting constituted protected, concerted activity,
and I make the same conclusion about the meeting of drivers in
the restaurant parking lot after the safety meeting, and the sub-
sequent second union meeting that evening at Morehead’s
house.
The crucial factual issue is whether Respondent knew or
suspected that a union movement had begun and that More-
head was its leading proponent. I credit Morehead’s uncontra-
dicted testimony that he told employees in the restaurant park-
ing lot after the safety meeting that there was going to be a
14 GC Exhs. 27 and 28.
15 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (9th Cir.
1981), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); and Manno Electric, 321 NLRB 278 fn. 12 (l996).
WEST MOTOR FREIGHT OF PENNSYLVANIA 835
meeting at his house, and that a union agent would be present.
Morehead further affirmed without contradiction that Clarence
Cheek and another employee planned to attend the meeting and
were following the other drivers, but “turned off” and did not
attend.
The next morning, May 18, Clarence Cheek called Johnson
and said that there had been a “big thing” at Morehead’s house.
Johnson denied that this event was referred to as a union meet-
ing. At about 10 a.m. on the same morning, Rodney Patterson
called Beckwith for his assignment that day. Instead of giving
it to him, Beckwith turned the phone over to Johnson, who
asked Patterson, “How was the meeting?” Patterson interpreted
this question as a reference to the safety meeting, and replied
accordingly. Johnson responded that she heard that Morehead
had held a meeting. When Patterson replied that he did not
know what Johnson was talking about, she stated: “Well, I
know that you’re smarter than that.” The complaint alleges that
Johnson’s statements constituted unlawful interrogation.16
Patterson’s call on the morning of May 18 was to Beckwith,
for the purpose of obtaining his assignment. Respondent has
supplied no reason for the fact that, before giving Patterson his
assignment, Beckwith transferred the call to Johnson. Johnson
began with the ambiguous question, “How was the meeting?”
When Patterson interpreted this as an inquiry about the Safety
Meeting, Johnson clarified her question. She heard that More-
head had held a meeting. This statement shows that Cheek’s
call to Johnson about the “big thing” at Morehead’s was prior
to Patterson’s 10 a.m. call to Beckwith. Patterson’s answer,
that he did not know what Johnson was talking about, was
clearly an evasion, and may reasonably be attributed to appre-
hension at the question. Johnson’s response—“I know you’re
smarter than that”—shows her disbelief of Patterson’s answer,
and demonstrated to Patterson that Johnson knew about a meet-
ing at Morehead’s house, wanted to know whether Patterson
had attended, and disapproved of Patterson’s attempt to avoid a
direct answer.
The Board has held that the test of the illegality of interroga-
tion is whether, under all the circumstances, it reasonably tends
to interfere with, restrain, or coerce employees in the exercise
of their rights. Rossmore House, 269 NLRB 1176 (1984). The
Board stated that some of the factors to be considered are the
background, the nature of the information sought, the identity
of the questioner, the place and method of interrogation, and
cited Bourne v. NLRB, 322 F.2d 47 (2d Cir. 1964). In that case,
the court listed the foregoing factors and added others, includ-
ing whether a valid purpose for interrogation was communi-
cated to the employee, and whether the employee was given
assurances that no reprisals would be forthcoming.
Johnson was a supervisor who had previously discharged
employees. Her inquiry was out of context with Patterson’s
attempt to get his assignment for the day. She gave no assur-
ance to Patterson that attendance at Morehead’s house would be
free of reprisals. Although Johnson contended that she meant a
“party,” and that she had previously attended social gatherings
at Morehead’s, her “party” explanation is window dressing—
she asked Patterson about the “meeting,” not the “party.” Al-
though her interrogation began ambiguously, she made her
meaning clear to Patterson. The Board has held that a similarly
“cryptic” inquiry constituted unlawful interrogation. Contem-

16 GC Exh. 1(q), par. 8(a).
porary Guidance Services, 291 NLRB 50, 66-67 (1988). I
make the same finding here.
A definitive conclusion on whether Respondent had knowl-
edge of, or suspected, that the meeting at Morehead’s house
concerned a union might be found in Cheek’s version of his
conversation with Johnson. However, Cheek did not testify.
May an adverse inference be based on this fact? Wigmore
states that “[t]he failure to bring before the tribunal some . . .
witness, when either the party himself or his opponent claims
that the facts would thereby be elucidated, serves to indicate, as
the most natural inference, that the party fears to do so; and this
fear is some evidence that the . . . witness, if brought, would
have exposed facts unfavorable to the party.”17 Wigmore states
four elements necessary to justify an adverse inference. These
elements are: (1) It would have been “natural” for the party to
produce the witness if the facts known by him had been favor-
able to the party who failed to produce him; (2) the inference is
not proper if the witness is so prejudiced against the party that
the latter could not expect to obtain unbiased testimony from
him; (3) the inference is not allowable when the witness is
equally available to both parties; and (4) the party himself fails
to testify.18 With respect to the third element, Wigmore states
that there has been no disposition to enforce it strictly,19 and
cites the following language from the Fifth Circuit Court of
Appeals:

[T]he availability of a witness is not to be determined from
his mere physical presence at trial or his accessibility for
the service of a subpoena upon him. On the contrary, his
availability may well depend, among other things, upon
his relationship to one or the other of the parties, and the
nature of the testimony that he might be expected to give
in the light of his previous statements or declarations about
the facts of the case.20

I conclude that Cheek was not “equally available” to the Gen-
eral Counsel. The Board and the courts have made adverse
inferences upon a party’s failure to call a witness.21 I further
conclude that Cheek’s failure to testify justifies an adverse
inference that, had he done so, his testimony would have been
contrary to Johnson’s testimony that the conversation she had
with Cheek on the morning of May 18 did not include a refer-
ence to the meeting at Morehead’s house as a union meeting.
On the afternoon of the same day, May 18, Morehead’s as-
signment to go to the K-Mart distribution center and pick up a
load was cancelled, and he was directed to return to Respon-
dent’s office. The first thing said to him by Apple was, “I
heard you had a meeting.” When Morehead replied that he had
“a few guys over,” Apple replied that Morehead had no author-
ity to call meetings, that he, Apple, ran the Company and called
meetings when he was ready, and that Morehead was termi-
nated. The complaint alleges, inter alia, that Apple’s statement
that he heard Morehead had a meeting constituted unlawful
interrogation.22 Apple’s further statements that he ran the
17 Wigmore on Evidence in Trials at Common Law, Chadbourn revi-
sion, vol. 2, sec. 285, p. 192.
18 Ibid secs. 286–289.
19 Ibid sec. 288.
20 McClanahan v. U.S., 230 F.2d 919, 926 (5th Cir. 1956). Accord:
similar cases cited by Wigmore, ibid.
21 American Chain Link Fence Co., 255 NLRB 692, 696, (1981), and
cases cited there.
22 GC Exh. 1(q), par. 8(a).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
Company and called meetings were meaningless, since he
could not possibly have meant that Morehead was attempting to
assume control of the Company. Nor could Apple have been
asking about something as innocuous as a social gathering. I
conclude that he was asking whether Morehead held a meeting
of employees involving the complaints of the latter and, possi-
bly, a union. I find that this constituted unlawful interrogation
violative of Section 8(a)(1).
It was not until Morehead gave his truck keys to Apple, after
he had been terminated, that Apple came up with a different
reason for the termination. Asked by Morehead why he was
“really” fired, Apple replied that Morehead was late on “some”
K-Mart delivery. The pretextual nature of this answer is appar-
ent from the fact that it was the meeting at Morehead’s house,
not the alleged lateness of a delivery, which Apple gave simul-
taneously with his discharge of Morehead. Respondent’s ef-
forts to establish late deliveries as a reason for the discharge are
in glaring contrast to the blunt facts of the discharge—
Morehead was fired after he admitted he had a “few guys” over
at his house.
The most unbelievable aspect of Respondent’s efforts is its
attempt to prove that it warned Morehead about lateness on
May 10. Its witnesses affirmed this date in their pretrial affida-
vits. When Morehead’s driver’s log showed that this was im-
possible, all three of Respondent’s witnesses stated that they
had made identical mistakes in their affidavits. Beckwith ad-
mitted that he discovered the error in his affidavit on the day he
testified, and that he discussed the error with Respondent’s
attorney subsequent to Apple’s and Johnson’s testimony on the
preceding day. The evidence is sufficient to show that Respon-
dent violated the sequestration rule, and that the probative
weight of the testimony of Respondent’s witnessed is dimin-
ished.23
I reject Apple’s testimony that he warned Morehead about
late deliveries on prior occasions—Apple could not supply any
dates except the fabricated meeting on May 10, nor could he
provide any written warnings or complaints from customers.
Respondent’s effort to prove Morehead’s “late” deliveries from
bills of lading was not persuasive, since the record, including
Morehead’s and Apple’s testimony shows that it was impossi-
ble to determine how long a driver had to wait at the K-Mart
distribution center before getting his load, and that any delay at
the distribution center made all the deliveries to the stores
late.24
Respondent introduced a document which Apple described
as “a list of drivers that are no longer with West Motor
Freight.”25 The list is printed and purports to show former
drivers from February 4, 1997, through January 3, 2000. In the
right hand column of the list are hand written notes purporting
to show the reason for the employees’ departures. Four of
these, including Morehead, list lateness. Apple testified that he
discharged all the employees so listed. Respondent offered no
reason for the fact that part of the document is printed, while
the part listing the reason for the discharges is handwritten. I
consider this document to be of dubious value in the absence of

23 See fn. 7, supra.
24 I agree with the General Counsel that Respondent did not comply
with the General Counsel’s subpoenas in that it supplied cover bills
rather than the complete bills of lading. Supra, fn. 9. I find it unneces-
sary to strike Respondent’s evidence on this issue as the record shows
that it is not reliable.
25 R. Exh. 9.
any explanation for the handwritten portion. In any event, it
has little probative weight without independent evidence that
Morehead in fact had been late. The evidence does not warrant
any such conclusion.
I do not credit Respondent’s assertions that Morehead was
told on May 17 to leave for Salisbury at 2 a.m. Once again, this
was not given by Apple as the reason for Morehead’s termina-
tion. Instead, I credit Morehead’s testimony that he stated at
the time of the assignment that he would leave at 2 a.m, but that
no arrival time was specified by Respondent. He delivered the
load in Salisbury without incident. George Enoch, who made
deliveries to Salisbury twice weekly, testified that no delivery
times were ever specified, and that receiving personnel were
available at every hour. Morehead was not told at the time of
the assignment that he would have to be back in Greensboro at
4 a.m. the day following the delivery in Salisbury. Beckwith
informed him of this when Morehead called an hour away from
Salisbury. When Morehead said that he could not make it back
by 4 a.m. because the driving rules required him to take a rest
period, Beckwith merely told him to do the best he could. In
any event, all of Respondent’s evidence on lateness is an elabo-
rate afterthought.
Respondent also argues that Morehead was discharged be-
cause he was “disruptive” at the safety meeting, and “disturb-
ing” to other drivers. This argument is based on Johnson’s
testimony. Its weakness is shown by the fact that it was not
stated to Morehead by Apple at the time of the termination.
Moreover Patterson testified that Morehead was merely “up-
set” at the safety meeting, although he “might have said a pro-
fane word.” Enoch denied that Morehead was “disruptive” or
that he interrupted anybody. This argument is also pretextual.
I conclude that Respondent knew or suspected that its
employees were engaged in union activities, and that Morehead
was a leading proponent of this movement. Thus, it knew by
Apple’s admission that its employees were dissatisfied and in
“turmoil” over their concerns. On the basis of Johnson’s testi-
mony about the telephone call from Clarence Cheek, it knew
that there had been a meeting at Morehead’s house on the eve-
ning of Respondent’s safety meeting. Johnson’s interruption
of Patterson’s call to Beckwith for his assignment, and her in-
terrogation of Patterson, show that she suspected that the meet-
ing was one that involved more than social activities. It is im-
probable that she would have interrupted Patterson’s business
call to Beckwith to inquire about a party, which, she contended,
was the reason for her inquiry. It is similarly improbable that
Apple would have discharged Morehead because he had a so-
cial event at his house. Johnson’s interrogation of Patterson
about the meeting, and Apple’s question to Morehead about the
same subject demonstrate Respondent’s suspicion that it was a
union meeting, and also establish Respondent’s animus against
such activity. The Company’s submission of pretextual reasons
for Morehead’s discharge supports an inference that its real
reason was something different. The Board has held that “it is
well settled that knowledge of the employee’s protected activity
need not be established directly, but may rest on circumstantial
evidence from which a reasonable inference of knowledge may
be drawn.” Hospital San Pablo, Inc., 327 NLRB 300 (1998).
The Board elucidated some of the circumstantial evidence in a
later case. “We may infer knowledge based on such circum-
stantial evidence as the timing of the alleged discriminatory
actions; the Respondent’s general knowledge of its employees’
union activities, and the pretextual reasons given for the ad-
WEST MOTOR FREIGHT OF PENNSYLVANIA 837
verse personnel actions.” North Atlantic Medical Services, 329
NLRB 85 (1999). In a case where the employer discharged
employees 9 days after the advent of the union movement, the
Court of Appeals for the Second Circuit deemed “the stun-
ningly obvious timing of the layoffs,” together with the other
evidence, to be sufficient to warrant an inference of discrimina-
tory motivation. NLRB v. Novelty Products Co., 424 F.2d 748,
750 (2d Cir. 1970). In the case at bar, the alleged discriminatee
was discharged split seconds after he told the employer that he
had “a few guys” over at his house. I conclude that Respondent
discharged him on May 18, 1999, because he assisted the Un-
ion and engaged in concerted activities, and in order to dis-
courage employees from engaging in concerted activities, thus
violating Section 8(a)(3) and (1) of the Act.
In accordance with my conclusions above, I make the fol-
lowing.
CONCLUSIONS OF LAW
1. Respondent, West Motor Freight of Pennsylvania, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Pipeliners Local Union No. 798 is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a) (1) of the Act by coer-
cively interrogating its employees concerning their union
activities.

4. Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Daniel Morehead on May 18, 1999, because he
assisted the Union and engaged in protected, concerted activi-
ties.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent engaged in certain un-
fair labor practices, it is recommended that it be ordered to
cease and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully discharged
Daniel Morehead on May 18, 1999, I shall recommend that
Respondent be required to offer him immediate reinstatement
to his former position, dismissing if necessary any employee
hired to fill his position, or, if such position does not exist, to a
substantially equivalent position, and to make him whole for
any loss of earnings he may have suffered by reason of Re-
spondent’s unlawful conduct by paying him a sum of money
equal to the amount he would have earned from the time of his
discharge to the date of an offer of reinstatement, less net earn-
ings during such period, to be computed in the manner estab-
lished by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987)26 I shall recommend that Re-
spondent be required to remove from its records all references
to its unlawful discharge of Morehead, and inform him in writ-
ing that this has been done, and that these actions will not form
the basis of any future discipline of him.

26 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the
effective date of the amendment) shall be computed as in Florida Steel
Corp., 281 NLRB 651 (1977).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended27
ORDER
The Respondent, West Motor Freight of Pennsylvania,
Greensboro, North Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union ac-
tivities or sympathies.
(b) Discharging or otherwise disciplining employees because
of their union activities or sympathies.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
by Section 8(a) (1) of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Daniel
Morehead reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Daniel
Morehead, and within 3 days thereafter, notify him in writing
that this has been done and that the discharge will not be used
against him in any way.
(d) Make Daniel Morehead whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of the
decision.
(e) Within 14 days after service by the Region, post at its fa-
cility in Greensboro, North Carolina, copies of the attached
notice marked “Appendix.”28 Copies of the notice, on forms
provided by the Regional Director for Region 11,after being
signed by Respondent’s representative, shall be posted by Re-
spondent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, Respondent has gone out of
business or closed the facility involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondent at any time since May 18, 1999.
27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
28 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
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 ordered 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 protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT coercively interrogate our employees about
their union activities or sympathies.
WE WILL NOT discharge employees or otherwise discrimi-
nate against them because of their union activities or sympa-
thies.
WE WILL NOT in any like or similar manner interfere with,
restrain, or coerce our employees in the exercise of their rights
under Section 7 of the Act.
WE WILL, within 14 days from the Board’s Order, offer
Daniel Morehead full reinstatement to his former job, or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights and privi-
leges.
WE WILL make whole Daniel Morehead for any loss of
earnings and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charge of Daniel Morehead, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that
the discharge will not be used against him in any way.

WEST MOTOR FREIGHT OF
PENNSYLVANIA