American Transfer, Inc.

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1425 (N.L.R.B. 1988)

AMERICAN TRANSFER 1425
American Transfer, Inc. and Robert Dickey. Case
17-CA-13467-2
May 31, 1988
DECISION ANID ORDER
BY CHAIRMAN STEPHENS, AND MEMBERS
BABSON AND CRACRAFT
On December 18, 1987, Administrative Law
Judge Richard J. Boyce issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed limited
cross-exceptions and a brief as well as an answer-
ing brief to tbe Respondent's exceptions.
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
conclusions and to adopt the recommended Order'
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, American Transfer, Inc., Kansas City,
Kansas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
"(a) Offer Robert Dickey immediate employment
as a straight-truck driver or, if that position does
not exist, to a substantially equivalent position,
without prejudice to his seniority or any other
rights and privileges; and make him whole for any
loss of earnings and benefits suffered as a result of
the Respondent's unlawful failure to hire him on
June 12, 1987.9"
2. Substitute the attached notice for that of the
administrative law judge.
1 The recommended judge's Order directs that the backpay period
shall commence from the date on which it is determined, at the compli-
ance stage of the proceeding, when Robert Dickey would have been
hired but for the Respondent's wrongdoing Unlike the judge, we shall
direct that backpay be computed as of June 12, 1987, the date of the vio-
lation, because the Respondent has failed to meet its burden to demon-
strate that it would not have hired Dickey on that date even m the ab-
sence of his protected conduct Wright Line, 251 NLRB 1083 (1980).
The General Counsel's request for a visnatorial clause is denied in the
absence of any evidence indicating the likelihood that the Respondent
will attempt to evade compliance. Cherokee Marine Terminal, 287 NLRB
1080 (1988).
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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to hire, nor will we other-
wise discriminate against, an employee because that
employee has testified on behalf of another em-
ployee in a state employment compensation hear-
ing.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Robert Dickey immediate em-
ployment as a straight-truck driver or, if that posi-
tion does not exist, to a substantially equivalent po-
sition, without prejudice to his seniority or any
other rights and privileges; and WE WILL make him
whole, with interest, for any loss of earnings and
benefits suffered as a result of our unlawful failure
to hire him on June 12, 1987.
AMERICAN TRANSFER, INC.
Stanley D. Williams, Esq., for the General Counsel.
John P. Bennett, Esq. (Cloon & Bennett), of Overland
Park, Kansas, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This
matter was tried in Kansas City, Kansas, , on 6 October
1987. 1 The complaint, based on a charge filed by Robert
Dickey, issued on 30 July 1987 and alleges that Ameri-
can Transfer, Inc. (Respondent) "failed and refused to
hire Dickey as an employee" about 12 June 1987 because
he had "testified on behalf of an employee at a state un-
employment compensation hearing," thereby violating
1 This manner of setting forth dates comports with the wishes of the
Board.
288 NLRB No. 152
1426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) of the National Labor Relations Act
(Act).2
I. JURISDICTION
Respondent, with a facility in Kansas City, Kansas, is
engaged in the interstate hauling of freight by truck. The
complaint alleges, the answer admits, and I conclude that
it "functions as an essential link . . . in interstate com-
merce," and thus is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
II. TEE ALLEGED MISCONDUCT
A. Facts
Respondent began operating out of its Kansas City fa-
cility on 1 June 1987, supplanting the similarly named
American Transport, Inc. (AT!). Those managing the fa-
cility at that time consisted, in order of rank, of Carter
Wilcoxson, Donald Purkapile, and Kenneth Staggs. The
three previously had managed the facility on behalf of
AT!, although Purkapile's and Wilcoxson's roles appar-
ently were reversed. Staggs was dispatcher before and
after.3
Dickey was employed by ATI as the driver of a
straight-truck from 22 September 1986 through its last
day, 28 May 1987. 4 He was the only one of 11 or so
ATI drivers not certified by the United States Depart-
ment of Transportation to drive tractor-trailers. His ac-
tivities consequently were mainly intracity, whereas the
others often drove between cities, being away overnight.
On Dickey' s last day with ATI, he had separate con-
versations with Wilcoxson, Purkapile, and Staggs about
his driving a straight-truck for Respondent. Wilcoxson
replied that, while Dickey's growth prospects with Re-
spondent would be well served by his becoming tractor-
trailer qualified, he did not "see any problem" with his
being hired to drive a straight-truck as soon as business
warranted. 6 Purkapile and Staggs likewise said that they
2 Sec. 8 (a)(1) makes It an "unfair labor practice" for an employer "to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7" Sec 7 states m relevant part: "Employees shall
have the right to self-orgamzabon, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall also have the
right to refrain from any or all such activities"
3 Profesing to be "without knowledge and information sufficient to
form a belief as to the truth of the allegations" to that effect in the com-
plaint, Respondent denies in its answer that Wilcoxson and Purkapde
were supervisors and agents at relevant times. The weight of evidence
establishes beyond doubt that they, and Staggs, possessed at least some of
the requisite inchcia of authority I conclude, therefore, that each was a
statutory supervisor at relevant times.
4 Except for a period of layoff from mid-April to mid-May.
5 Dickey is credited that, although the subject of tractor-trailer qualifi-
cation arose in the conversation with Wilcoxson, it was not posed as an
impediment to hire. Purkapile testified that he overheard a conversation
between Dickey and Wilcoxson on Respondent's "first day of operations"
in which Wilcoxson "basically discussed the fact that [Dickey] would
have to become tractor-trader qualified." I find, despite the discrepancy
in date, that Dickey and Purkapile were testifying to the same conversa-
tion; and, to the extent that they differ in substance, that Dickey's rendi-
tion—persuasively detailed and accompanied by convincing demeanor—is
more credible than Purkapde's fleeting and conclusionary account. Wil-
coxson did not testify.
saw no problem, adding that Respondent probably
would need about 3 weeks in which to develop enough
business to enable the move. Neither Purkapile nor
Staggs said anything about Dickey's lack of tractor-trail-
er qualification.
On 1 June, while at the facility in hopes of getting his
last AT! paycheck, Dickey again spoke with Staggs.
Staggs iterated that he could not "see any reason for
[Dickey] not to be able to come back as a straight-truck
driver," noting that he had been "prompt" and "on
time" while driving for ATI. Again, the matter of trac-
tor-trailer qualification did not come up.
His check not being ready on the 1 June, Dickey re-
turned on 2 June. He spoke briefly with Purkapile this
time, who repeated that he could "not foresee any prob-
lems" with Respondent's hiring Dickey, but that perhaps
3 weeks would be needed for business to develop to that
point. He did not mention Dickey's lack of tractor-trailer
qualification.
On 5 June, the Kansas Department of Human Re-
sources, Division of Employment Security, held a hear-
ing involving a claim by a former employee, one Jones,
against ATI. Dickey, testifying on behalf of Jones, as-
serted that ATI had required its drivers to operate ille-
gally, and altered trip logs to conceal the fact. Staggs,
representing AT!, arrived late and missed Dickey's recit-
al. The referee summarized it for him, however, and in-
vited him to respond.
On 8 June, Dickey called Staggs, asking if "the com-
pany was going strong enough for [him] to return to
work." Staggs answered that Respondent was not yet
"busy enough."
The referee's decision, sustaining Jones' claim and re-
flecting that Dickey and one other had appeared as wit-
nesses for him,6 issued on 11 June.
Dickey called Staggs again on 12 June—the day after
the referee's decision. Staggs turned the phone over to
Purkapile, who told Dickey that the job "outlook" was
"not good." This exchange followed:
Dickey: "Meaning?"
Purkapile: "Meaning you done the company
wrong."
Dickey: "How would I do the company wrong?"
Purkapile: "You know what I'm talking about."
Dickey: "I don't feel that I done the company
wrong, beings that neither one of us work for it
[ATI] anymore . . . . All I did was go and tell the
truth of what was happening."
Purkapile: "[You] could have reworded your tes-
timony."
Dickey: "I was under oath; I was told to tell the
truth and that's what I did."
Purkapile: "Jones should not have won his case."
6 ATI had demoted Jones from dispatcher to driver in December 1986,
whereon he quit. The referee concluded that the demotion was unwar-
ranted, that Jones consequently was justified in quitting, and that he
therefore was not disqualified from receiving benefits under the Kansas
Employment Security Law. The referee ordered that ATI's "experience
rating account" be "charged."
,
AMERICAN TRANSFER 1427
Dickey: "Who are you to judge Mr. Jones, when
you didn't eves know him?"7
Purkapile rejoined that he had "looked over" Jones'
file and, from what he oould see, Jones "had walked off
the job and he didn't deserve" a favorable referee's deci-
sion. Dickey countered, "Well, it's none of your business
to judge him." Purkapile struck back that Dickey had "a
bad attitude," to which Dickey stated, "Well, how come
I didn't have a bad attitude when I worked for you?"
Purkapile persisted, "You just have a bad attitude."
Dickey, his temper admittedly "high," brought the en-
counter to an end by exclaiming, "I hope your fucking
boat sinks."
That was the last Dickey heard from Respondent.
Purkapile and Staggs both testified that, while they
participated in the process, 'Wilcoxson made the final
hiring decisions for Respondent. Purkapile, who left Re-
spondent in July 1987, testified that all drivers hired by
Respondent were tractor-trailer qualified. He did not
more specifically address Respondent's failure to hire
Dickey. Staggs, testifying generally, averred that Re-
spondent requires all its drivers to be tractor-trailer
qualified, the implication being that that is why Dickey
was not hired. As earlier noted, Wilcoxson, reportedly
no longer with Respondent, did not testify.
Jerry Peters, who came to Respondent as executive
vice president in July 1987, echoed Stagg's testimony
that Respondent does not hire drivers lacking tractor-
trailer certification.
Respondent carried over about one-half of ATI's driv-
ers at the outset; and, as the need grew in the next few
weeks, hired all but perhaps two of the remainder.
B. Conclusion
To summarize, Wilcoxson, Purkapile, and Stagg& un-
equivocally and recurrently indicated to Dickey before
the 5 June employment security hearing that Respondent
would hire him as a straight-truckdriver as soon as busi-
ness permitted—estimated to be in about 3 weeks. And
Staggs intimated nothing to the contrary when Dickey
called him on 8 June.
The climate changed abruptly, however, after the ref-
eree issued his decision against ATI on 11 June. Thus,
when Dickey spoke with Purkapile on 12 June, Purka-
pile said that the job "outlook" was "not good"; and,
pressed for reasons, explained that Dickey had "done the
company wrong," that Dickey "could have reworded
[his] testimony to do ATI less damage, and that Jones
"should not have won his case."
This brief summation leaves no doubt that Respondent
initially intended to hire Dickey, even if not tractor-trail-
er qualified; and that it discarded that intention only be-
cause he testified on Jones' behalf in a way contributing,
in Respondent's view, to the referee's unwelcome deci-
sion.
The law is clear that an employee's testimony in aid of
another's claim in an unemployment compensation hear-
ing is a concerted activity pi otected by Section 7 of the
Act. S & R Sundries, 272 NLRB 1352, 1357 (1984); Su-
Purkapile joined ATI after Jones had left the payroll.
preme Optical Co., 235 NLRB 1432, 1433 (1978). I con-
clude, therefore, that Respondent violated Section 8(a)(1)
as alleged by discarding its intention and &c• failing to
hire Dickey because he so testified.
CONCLUSION OF LAW
By failing to hire Robert Dickey as a straight-truck
driver because he had testified in a state employment se-
curity hearing, Respondent violated Section 8(a)(1) of
the Act.
On these findings of fact and conclusion of law and on
the entire record, I issue the following recotrunended9
ORDER
The Respondent, American Transfer, Inc., Kansas
City, Kansas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to hire or otherwise discriminating against
an employee because that employee testified on behalf of
another employee in a state employment compensation
hearing.
(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 affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Robert Dickey immediate employment as
a straight-truck driver or, if that position does not exist,
in a substantially equivalent position, without prejudice
to his seniority or any other rights and privileges; and
make him whole for any loss of earnings and benefits suf-
fered as a result of Respondent's unlawful failure to hire
him in 1986.9
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Kansas City, Kansas facility copies of
the attached notice marked "Appendix." 1 ° Copies of the
8 All outstanding motions inconsistent with this recommended Order
are denied 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 m Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes.
9 Backpay shall be computed as set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons for the Re-
tarded, 233 NLRB 1173 (1987). Under New Horizons, interest is computed
at the "short-term federal rate" for the underpayment of taxes as set out
in the 1986 amendment to 26 U.S.0 § 6621. Interest accrued before 1
January 1987 (the effective date of the amendment) shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977). I leave to the compliance
stage the determination of when Dickey would have been hired but for
Respondent's wrongdoing In that regard, "the backpay claimant should
receive the benefit of any doubt rather than. . the wrongdoer responsi-
ble for the existence of any uncertainty." United Aircraft Corp., 204
NLRB 1068, (1973).
10 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relataons Board."
1428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for
Region 17, 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.
(d) Notify the Regional Director in writing within 20
days from -the date of this Order what steps the Re-
spondent has taken to comply.