Atlanta Motor Lines

National Labor Relations Board - Board Decisions

Sep 21, 1992

308 N.L.R.B. 909 (N.L.R.B. 1992)

909
308 NLRB No. 126
ATLANTA MOTOR LINES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
2 We are substituting a new notice to more fully conform to the
Order.
Atlanta Motor Lines, Inc. and Teamsters Local 728.
Case 10–CA–25244
September 21, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On December 27, 1991, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Atlanta Motor Lines, Inc.,
Conley, Georgia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order, ex-
cept that the attached notice is substituted for that of
the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell union stewards in the presence of
employees that the union recommendation of employ-
ees for promotion constitutes a ‘‘kiss of death,’’ and
that employees with strong union ties will not be hired.
WE WILL NOT interrogate employees about any
union recommendation for their promotion, or about
their relationship with the Union.
WE WILL NOT tell employees that we will not hire
anybody sympathetic to the Union, or that it would be
best for employees with such sympathies to find jobs
elsewhere.
WE WILL NOT discourage membership in Teamsters
Local 728, or any other labor organization, by refusing
to promote employees or accord them regular status
because of their union activities or sympathies, and WE
WILL NOT discriminate against them in any other man-
ner.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
WE WILL offer Jerry Haney, Derol Braddy, and
Wayne Hume employment as regular full-time employ-
ees in their former type of work, and make them
whole, with interest, for the discrimination against
them.
ATLANTA MOTOR LINES, INC.
Victor McLemore, Esq., for the General Counsel.
Walter O. Lambeth, Esq. and Victor J. Maya, Esq. (Elarbee,
Thompson & Trapnell), of Atlanta, Georgia, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on April 2, 1991, by Teamsters Local 728
(the Union), and complaint issued on May 16, 1991. It al-
leges that Atlanta Motor Lines, Inc. (Respondent, or the
Company), in November and December 1990, and January
1991, engaged in various acts violative of its employees’
rights under Section 8(a)(1) of the National Labor Relations
Act (the Act), to wit, interrogation of employees concerning
their union activities, and threats that Respondent would not
hire individuals who engaged in union activities. The com-
plaint further alleges that, on about November 12, 1990, Re-
spondent refused to hire casual employees Jerry Haney,
Wayne Hume, and Derol Braddy as regular, full-time em-
ployees, because of their union activities. Finally, the com-
plaint alleges that the aforesaid casual employees would not
have been laid off on January 21, 1991, if the Company had
hired them as full-time employees in November, and, accord-
ingly, that its backpay liability extends beyond the layoff
date.
This case was heard before me in Atlanta, Georgia, on
June 25 and 26, 1991. Thereafter, the General Counsel and
Respondent filed briefs. On the entire record, including my
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 R. Exh. 8.
2 The record indicates that the votes of the casual employees were
not counted by the Union.
3 The excerpt from the transcript quoted above, from L. 19 on p.
23, is a nonsequitur, since if casual employees were like transient
employees it is unlikely that Riddle would have advocated their vot-
ing in union elections, nor is it likely that he would even have raised
the subject if he had not opposed Haney’s voting. It is possible that
the word ‘‘not’’ was inadvertently omitted between the words
‘‘should’’ and ‘‘be’’ in L. 19. However, since Riddle denied telling
Haney that he should not have voted and the complaint does not al-
lege any statements or questions by Riddle as independently viola-
tive of the Act, I refrain from correcting the transcript.
observation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The pleadings establish that Respondent is a Georgia cor-
poration with an office and place of business located at
Conley, Georgia, where it is engaged in the interstate trans-
portation of freight. During the calendar year preceding
issuance of the complaint, a representative period, Respond-
ent received gross revenues in excess of $50,000 for the
transportation of freight from the State of Georgia to points
located outside the State of Georgia. Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(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 ALLEGED UNFAIR LABOR PRACTICES
A. The Collective-Bargaining Agreement and the Status
of Casual Employees
Underlying the facts in this case was the desire of casual
employees to become regular employees. The Company and
the Union were parties to a 3-year collective-bargaining
agreement, executed in October 1988, whereby the Company
recognized the Union as the representative of its city pickup
and delivery drivers, helpers, and dockworkers. The agree-
ment refers to four classifications of employees—probation-
ary, casual, temporary, and regular. A casual employee is one
who is ‘‘not on the regular seniority list and who is not serv-
ing a probationary period.’’ The contract further defines cas-
ual employees as ‘‘supplemental’’—those hired to supple-
ment a particular shift and who are to be terminated at the
end of the shift—and ‘‘replacement’’ casuals—those hired to
replace employees who are absent for various reasons.1
Executive Vice President Ed J. Copenhaver described cas-
ual employees somewhat differently. Although they are not
guaranteed a certain amount of work, some in fact work a
regular 40-hour week, and are expected to report at the regu-
lar starting time. Others are called when needed. A ‘‘part-
time casual’’ is an employee with another job, and who
works less than 8 hours daily or 40 hours weekly.
Copenhaver testified that the three alleged discriminatees
were ‘‘full-time’’ casuals.
B. The Union’s Election of a Steward and the
Company’s Reaction
The Union conducted an election for a steward on July 31,
1990. One of the candidates was Ronald Brooks, and another
was Clyde Dockins. Alleged discriminatee Jerry Haney was
a casual employee, employed as a dockworker, who favored
Brooks. Haney testified that Brooks was sympathetic to the
desire of casual employees to acquire regular status.
The election was conducted in a company break room, and
the three alleged discriminatees voted. Haney testified that
several of the city drivers, who were regular employees, ob-
jected to votes being cast by casual employees. An exchange
of words took place, in particular between Haney and a driv-
er named James Dyer. Haney agreed that he and Dyer
‘‘raised their voices,’’ but denied that there was anything
‘‘disruptive’’ about the incident. Haney simply voted and
walked out.2 Dyer did not testify.
Alleged discriminatee Derol Braddy was also a casual em-
ployee employed as a dockworker. He affirmed that the city
drivers objected to voting by the casual employees, and that
city driver Roger Murdoch, a union steward at the time, told
him that he did not think the Company would hire Braddy
as a full-time employee if Braddy voted in the election.
Nonetheless, Braddy voted. Murdoch did not testify.
Alleged discriminatee Wayne Hume, a casual employee,
also voted, but did not recall any objections from full-time
employees.
Dockins was one of the stewards elected in July, while
Brooks was not selected at that time. However, Dockins re-
signed for personal reasons about 2 months later, and Brooks
succeeded him.
Haney testified that he had a conversation in his trailer
with Terminal Manager Morris Riddle about a month after
the election. According to Haney, he talked with all the su-
pervisors about becoming a regular employee, and made this
request to Riddle during the conversation. Riddle told him to
work hard, have a good attitude, and do what his supervisors
told him to do. Riddle left the trailer, and then returned and
said: ‘‘Jerry, I’ve been meaning to ask you about this con-
frontation that you had in the break room with those other
employees during the steward election.’’ Haney told Riddle
that the city drivers were ‘‘harassing’’ him about voting, that
‘‘a few words were exchanged,’’ and that was the extent of
it.
Haney averred that Riddle left, and then returned a second
time. ‘‘Jerry,’’ he said, ‘‘I’ve been thinking about what you
just told me and I just wanted to know, did you really ever
give it any thought what management thought about you vot-
ing in the election?’’
Haney responded that he didn’t think that the Company
was concerned about whether he voted. According to the
transcript, Riddle replied: ‘‘Well, I want to give you my
opinion. I feel that casual employees are somewhat like tran-
sient employees and they should be voting on issues that af-
fect regular employees.’’3
Riddle testified that he heard about Haney’s being in-
volved in a ‘‘loud and abusive argument with drivers’’ in the
break room, and that this had caused a ‘‘disruption of oper-
ations.’’ He investigated the matter the ‘‘next day,’’ and
talked with Dyer. Riddle also agreed that he talked with
Haney about the matter, but his testimony is not explicit as
to when this conversation took place. He denied telling
Haney that he was like a transient employee, that he should
911ATLANTA MOTOR LINES
4 The pleadings establish that Poole was a supervisor during the
period of his employment. I conclude that he was also an agent of
Respondent.
5 Poole had been laid off or dismissed prior to his testimony, and
the Company points to this as evidence of bias. However, Poole af-
firmed that he had already obtained another job and was prepared
to resign. He was a believable witness.
6 The complaint alleges that the statements Poole made to Brooks
on November 10, 1990, and to Haney in January 1991, constituted
unfair labor practices.
7 The pleadings establish that Shoup was a supervisor, and I con-
clude that he was also an agent of Respondent.
not be voting in union elections, or that the city drivers were
upset over this fact. However, Riddle agreed that he told
Haney that he did not want any more ‘‘disturbances at the
terminal.’’
Haney’s uncontradicted testimony about the voting shows
that only words were exchanged by employees. Since the
complaint does not allege that any of Riddle’s statements
were independently violative of the Act, I consider it unnec-
essary to resolve the conflicts in the testimonies of Haney
and Riddle. However, it is undisputed that they did have a
conversation about the incident in the break room, and that
Riddle considered it to be a ‘‘disruption of operations.’’ It
is unlikely that there could have been any such disruption
during a union election in the break room. Accordingly, the
incident is significant only as it throws light on other evi-
dence in the case.
C. Haney’s, Hume’s, and Braddy’s Attempts to be
Appointed Regular Employees—Alleged Unlawful
Statements of Supervisors William Poole and
Harold Shoup
1. The attempts to attain regular status
Haney had been employed as a casual employee since July
1989. He testified that he was working a ‘‘regular schedule’’
and, about a year later, asked all the supervisors whether he
could be appointed to regular status. They replied that he had
to work hard, have good attendance, possess a good attitude,
and do what he was told. Derol Braddy had been employed
as a casual employee since June 1989, and asked several su-
pervisors to recommend him for appointment as a regular
employee. Wayne Hume was employed as a casual employee
for several months, and had conversations with Terminal
Manager Riddle about promotion to regular status. According
to Hume’s uncontradicted testimony, Riddle told him, after
about 5 months of employment, that the supervisors liked
him, that the Company was about to make some casuals reg-
ular employees, and that Hume would be one of the next
ones appointed.
Clyde Dockins worked with Haney, Hume, and Braddy on
the night shift, and called them ‘‘good employees.’’ Other
supervisors gave Dockins the same opinion. Prior to his res-
ignation as steward in about September 1990, Dockins heard
that the Company was going to hire regular employees. He
recommended to Terminal Manager Riddle that the Company
hire the three alleged discriminatees, and two others. Riddle
replied that he did not have anybody that was ‘‘qualified.’’
2. Alleged unlawful statements of Supervisor Poole
As indicated, Ronald Brooks became a union steward
about 2 months after the July 1990 election, following
Dockins’ resignation. Brooks testified that, on November 9,
he wrote a note to Copenhaver recommending Haney, Hume,
and Braddy for advancement to regular status. Copenhaver
acknowledged receipt of this recommendation.
Brooks testified that he had a conversation with Supervisor
William Poole4 on November 10, in which he recounted
what he had done. According to Brooks, Poole replied that
Brooks had given the employees the ‘‘kiss of death.’’ Brooks
asked the reason, and Poole replied: ‘‘Because they [the em-
ployees] had shown strong union ties and wanted to vote—
wanted to be part of the Union. I guarantee you they would
probably never be hired because of that.’’ Poole corroborated
Brooks’ account of the conversation, adding that the steward
was viewed as a ‘‘trouble maker,’’ and that Haney, Hume,
and Braddy were considered to be associated with him.
Braddy testified that he overheard this conversation, and
heard Poole tell Brooks that because the latter had rec-
ommended Braddy, the Company would probably not hire
him—he was ‘‘too close(ly) aligned to the Union.’’
Poole also averred that Hume and Braddy were both good
employees, although the latter had to be corrected on occa-
sion, and that Haney was an ‘‘excellent’’ employee. When
the Company was laying off employees a short time later,
Poole asked Terminal Manager Riddle why Haney was being
laid off. Riddle replied that Haney had a dispute with one
of the drivers over the Union in the break room.
Alleged discriminatee Haney testified without contradic-
tion that he had several conversations with Poole. In January
1991, after several casual employees had been promoted to
regular status, Poole told him that he was sorry that Haney
had not been ‘‘put on,’’ that Haney was a good worker and
deserved to be made a regular employee, but that every time
Poole brought up Haney’s name with Riddle ‘‘this confronta-
tion thing with the city drivers kept coming up.’’ The Com-
pany would not put on anybody they felt was sympathetic to
the Union, and the best thing for Haney to do was to find
a job elsewhere. I accept Haney’s averments of his conversa-
tion with Poole as truthful testimony.
Wayne Hume testified without contradiction that Poole
told him that he ‘‘hung around the Union people too much
and that Morris Riddle didn’t want people that was big on
the Union being put on regular.’’ According to Poole, this
was the reason Hume was not made a regular employee. I
credit Hume’s testimony.
Riddle denied telling Poole that Haney, Hume, and Braddy
were not selected for regular status because they supported
the Union. This denial does not directly rebut Poole’s testi-
mony, which I credit.5 I also credit the corroborated evidence
as to Poole’s statements to Brooks.6
3. Alleged unlawful interrogation by Supervisor Shoup
Haney testified that, one evening when he was working,
Harold Shoup7 asked him whether he had requested Brooks
to write the letter to Copenhaver recommending the three al-
leged discriminatees for regular employment. Shoup denied
asking this question.
Haney was a more truthful witness than Shoup. The latter
gave perfunctory denials to questions about other conversa-
tions, including one attributed to him by Clyde Dockins, a
company employee at the time of his own testimony and a
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Haney did not specify the date of the conversation. The com-
plaint alleges that it occurred on December 12, 1990. I infer that the
conversation took place subsequent to Brooks’ letter to Copenhaver
in November, which was the subject of Shoup’s inquiry, and prior
to Haney’s layoff in January, i.e., in about December 1990.
9 G.C. Exhs. 7–9.
10 G.C. Exhs. 10, 11.
11 G.C. Exh. 12.
12 G.C. Exh. 13.
13 G.C. Exh. 20.
14 G.C. Exh. 16.
15 G.C. Exh. 15.
16 G.C. Exh. 14.
17 G.C. Exh. 17.
18 G.C. Exh. 18.
19 G.C. Exh. 19.
20 Testimonies of Jerry Haney, Clyde Dockins, and Executive Vice
President Copenhaver; R. Exh. 6.
trustworthy witness. I credit Haney’s testimony that Shoup
asked the question attributed to him.8
D. The Selection of Regular Employees
1. The selection process
Executive Vice President Copenhaver asserted that em-
ployees are selected for regular status as a result of a poll
of the supervisors. There are six supervisors of the dock-
workers and four supervisors of the drivers, but only the
dock supervisors are polled on the promotion of dock-
workers. This includes Terminal Manager Riddle. The factors
to be considered are attendance, attitude, productivity, and
work habits. Supervisors are given lists of all the casual em-
ployees, and, on receiving their selection of the top three em-
ployees, Copenhaver gives a score to each employee based
on his rating by a particular supervisor, and determines the
employee’s comparative overall rating. Copenhaver does not
keep a record of the tally sheets.
Copenhaver contended that he did not veto or alter the re-
sults of the poll. However, Union Steward Brooks testified
that supervisors had informed him that their recommenda-
tions were not always taken.
Copenhaver argued that, since dockworkers work an 8-
hour shift and supervisors 10 hours, there is a shift overlap
giving different supervisors an opportunity to observe work-
ers not on their regular shift. However, Dock Supervisor
Donald Russell testified that Haney, Hume, and Braddy
worked only 30 minutes to an hour for him on a shift
changeover, and that he voted only for employees that
worked a full 8-hour shift directly under him—he had greater
opportunity to observe them. Dock Supervisor Harold Shoup
testified that he did not rate Haney, Hume, or Braddy and
knew nothing about their performance, attitudes, or attend-
ance.
2. The appointment of regular employees in 1990—the
comparative qualifications of Haney, Hume,
and Braddy
a. The selected employees
Michael Day was made a regular employee on August 13,
1990, about 2 weeks after the Union’s steward election. In
1989, he received a ‘‘friendly warning’’ for unsatisfactory
work performance, a written warning for excessive absence
or lateness, and another for improper unloading. Further vio-
lations would result in a 2-day suspension and a final letter
of warning.9 In January 1990, he received a written warning
for unsatisfactory work performance, and another such warn-
ing a month later for leaving freight on the dock, causing a
shortage.10 Next, Day was the subject of a page-long memo
to management from Supervisor Harry Kimball. The latter
recited a dispute with Day over whether he had been author-
ized to take a day off the following weekend, and Day’s ar-
gument that he should be made a regular employee. Kimball
told Day that the discussion was over, and added in his
memo that Day should be terminated if he did not show up
on the day he had requested to be off.11 Jerry Haney testified
without contradiction that Day was fired, and then hired back
as a regular employee. There is no documentary evidence of
a discharge of Day. The testimonial evidence is that he was
promoted on August 13, 1990, but a ‘‘payroll change slip’’
indicates that it was November 30, 1990.12
Copenhaver and Riddle were both asked whether Day was
the best casual employee. Copenhaver responded merely that
he received the most votes from the supervisors. Although
Riddle, as terminal manager, was entitled to participate in the
voting, he testified that he did not recall rating Day. None-
theless, he asserted that Day was the ‘‘best’’ employee at the
time. Supervisor Harry Kimball, the author of the memo
about Day noted above, denied that he recommended Day for
full-time employee. None of the other supervisors mentioned
Day.
Another casual employee promoted to regular status in late
1990 was Albert Haney. Haney received a ‘‘friendly re-
minder’’ in October 1990 for counting freight incorrectly.13
Wayne Hume testified without contradiction that he worked
with Albert Haney, that the latter could not read a freight
bill, and asked Hume for assistance in ‘‘matching up’’ the
bills. The supervisors knew this, according to Hume. Hume
also testified that Supervisor Kimball told him that Albert
Haney was made a regular employee because he was not
closely associated with the Union. Kimball denied making
the latter statement. Hume was a more reliable witness, and
I credit his testimony.
James Brock filed an employment application in August
1990,14 was thereafter employed, and received a ‘‘friendly
reminder’’ the following month for excessive absence or
lateness.15 In November 1990, Brock was issued a ‘‘written
warning’’ for the same offense.16 He was thereafter added to
the seniority list and given a raise.17
David Chelsey was given a ‘‘friendly warning’’ in Sep-
tember 1990 for misloading freight and told that ‘‘corrective
action’’ would be taken absent improvement.18 In December
he was added to the seniority list and given a raise.19
Gary Tester, Walter Parks, James Puckett, and David
Lapsky, received appointments as regular employees.20 There
is no evidence of the qualifications of these employees ex-
cept management’s contention that those appointed to regular
status received more supervisory votes than the alleged
discriminatees. Jerry Haney testified that Tester, Chelsey,
Puckett, and Albert Haney had less seniority than he, him-
self, had. This apparently would also apply to Brock.
Copenhaver asserted that length of service was not a factor
in promotion to regular status.
913ATLANTA MOTOR LINES
21 R. Exhs. 1–3.
22 In addition to Dockins’ status as a current employee, his testi-
mony is supported by other evidence. Air Products & Chemicals,
263 NLRB 341 fn. 1 (1982).
23 R. Exhs. 4, 5.
24 R. Exhs. 6, 7.
25 Supra at fn. 22.
26 Ibid.
27 R. Exhs. 12, 13. The General Counsel does not argue that the
layoffs were unlawful. Rather, he contends, the alleged
discriminatees would not have been laid off but for Respondent’s
unlawful refusal to give them regular status in November 1990—
and, accordingly, that their backpay periods continue beyond the lay-
off dates.
28 R. Exh. 15.
b. The qualifications of Jerry Haney, Hume,
and Braddy
As set forth above, Executive Vice President Copenhaver
did not keep tally sheets of the supervisory voting. He stated
that there was no writing in existence which showed the
rankings of casual employees for full-time employment.
Copenhaver contended that he could not recall whether the
alleged discriminatees received votes in the top three of any
of the rankings.
Jerry Haney was employed in July 1989. In April 1990,
he received a written warning for improper checking of
freight, another in July for failure to change a placard on a
truck, and, in October, a ‘‘friendly reminder’’ for failure to
load out a complete shipment.21 As indicated, Supervisor
Poole testified that Haney was an ‘‘excellent’’ employee, and
recommended him for regular status. Dockins, who worked
with Haney, called him a ‘‘good’’ employee and stated that
other supervisors had the same opinion. At the hearing, Su-
pervisors Russell and Shoup knew little or nothing about
Haney’s performance as an employee. Supervisor Kimball’s
pretrial affidavit noted that he was a good employee.
Dockins was a current employee at the time of the hearing,
a circumstance which adds credibility to his testimony be-
cause it is unlikely that he would be fabricating.22 I conclude
that other supervisors did tell Dockins that Haney was a
good employee.
As set forth above, Derol Braddy was employed as a cas-
ual employee in June 1989. He received two written warn-
ings prior to Steward Brooks’ letter in November 1990, rec-
ommending him for regular status—one in August 1989 for
failure to submit a bill to the rating department, and another
in February 1990 for puncturing the roof of a trailer with a
forklift.23 Subsequent to Respondent’s allegedly unlawful re-
fusal to give him regular status in November 1990, Braddy
received two written warnings for improper counting and
handling of freight.24
At the hearing, Supervisors Russell and Shoup testified ad-
versely about Braddy’s ability as compared to other employ-
ees, but admitted that they did not rate him or knew little
about him. Supervisor Poole affirmed that Braddy had a
‘‘bad attitude’’ in about November 1990, but that this im-
proved ‘‘somewhere after Christmas,’’ and that Poole told
Braddy he appreciated the improvement. He characterized
Braddy as a ‘‘good’’ employee.
Kimball testified that he rated Braddy among the top three
candidates, but affirmed that he had a conversation with him
in late 1990 in which the employee said that it was all right
that he had not been selected, and that he was going to sell
drugs. There is no such accusation in Kimball’s pretrial affi-
davit. Braddy denied making these statements, and I credit
his denial. Other supervisors told Dockins that Braddy was
a good employee.25
Wayne Hume had been employed as a casual dockworker
for about 9 months prior to his layoff in January 1991. There
is no evidence that he received any warning or ‘‘friendly re-
minder’’ during his period of employment. Nonetheless, Su-
pervisors Russell and Shoup testified that other employees
were better qualified for regular status.
Hume affirmed that in about September or October 1990,
he asked Supervisor Kimball for advancement to regular sta-
tus. The supervisor replied, according to Hume, that he
would like to do so, but that Terminal Manager Riddle
would probably terminate Kimball in that event. Kimball de-
nied making this statement. I credit Hume. Kimball admitted
ranking Hume among the top three candidates. As set forth
above, Hume testified without contradiction that Riddle told
him that the supervisors liked him, and that he would be
given regular status. Other supervisors told Dockins that
Hume was a good employee.26
E. The January Layoffs
Respondent laid off the alleged discriminatees on January
21, 1991, assertedly because of a decline in business. It sub-
mitted income statements for the 3-month period ending Feb-
ruary 1991. The December statement shows a decline in op-
erating income of about $200,000 compared to the same
month the prior year, but an overall increase of more than
$300,000 in 1991 as compared to the prior year. The figures
for January 1991 are also lower than those for the same pe-
riod the prior year, but the reduction is less than $100,000.27
Respondent submitted a list of individuals laid off after
November 1, 1990. The alleged discriminatees were the only
ones laid off in January 1991.28 As set forth above, Haney,
Hume, and Braddy were full-time casuals. Executive Vice
President Copenhaver testified that only the names of casual
employees appear on the list. I therefore conclude that Re-
spondent did not lay off any employees with regular status.
Copenhaver acknowledged that the Company hired
Deware Henderson on January 14, 1991, about a week before
the layoffs of Haney, Hume, and Braddy. The Company con-
tended that Henderson was hired as a city driver, because he
had a chauffeur’s license. However, Copenhaver conceded
that Henderson was employed as a dockworker until March
1991. Dockins testified that Henderson was made a regular
employee as a city driver after being a casual dockworker for
about a month.
F. The Recall of Casual Employees
1. Summary of the evidence
Dockins testified that freight became heavy on about Feb-
ruary 11, 1991, and that he had a conversation with Super-
visor Kimball about recall of Haney, Hume, and Braddy.
Dockins stated that Kimball acknowledged that there was a
need for help and said he would call in the morning shift for
overtime work. Dockins then asked: ‘‘Why don’t you call the
guys that’s on layoff? Or are they fired?’’ Kimball asserted
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 Julian Latimer.
30 G.C. Exh. 3.
31 Supra at fn. 22.
32 Although the Company submitted a list of laid-off employees
and another list of newly hired employees, neither list indicates the
recall of employees. G.C. Exh. 6; R. Exh. 15.
33 Kurz-Kasch, Inc., 286 NLRB 1343 fn. 1 (1987), revd. on other
grounds 865 F.2d 757 (6th Cir. 1989); Sorenson Lighted Controls,
286 NLRB 969, 976–977 (1987).
that they were ‘‘on call,’’ whereupon Dockins advised him
that the Company could save overtime by calling them back.
Kimball replied that Riddle had instructed him not to recall
these individuals.
‘‘They was three of your best workers,’’ Dockins stated.
‘‘I know that,’’ Kimball replied, whereupon Dockins said
that it looked like the Company was trying to ‘‘hire the sorry
ones [and] get rid of the good ones.’’ ‘‘It looks that way.’’
Kimball replied.
Dockins affirmed that he had conversations with two more
supervisors at about the same time. Russell told Dockins that
he thought Riddle was trying to close the business down, be-
cause he laid off three of his best employees. In addition, ac-
cording to Dockins, he told Supervisor Harold Shoup to re-
call the alleged discriminatees, and the latter replied that he
would ‘‘give anything’’ if he could do so.
Kimball denied telling Dockins that he was prohibited
from calling back the three alleged discriminatees. Instead,
he averred, he told Dockins that he could not recall any cas-
uals. Russell and Shoup gave similar testimony.
There is conflicting evidence on how many casual employ-
ees were recalled. Copenhaver asserted that only one29 was
brought back. Kimball testified that work was ‘‘extremely
heavy’’ in April, and that the Company was ‘‘behind.’’ He
attempted to call in casuals, but the only one who responded
was Hume, who worked 1 day. Dockins testified that
‘‘some’’ of the casuals were recalled.
In April 1991, the Company placed an ad for dockworkers
in the classified section of a newspaper.30 Copenhaver testi-
fied that the ad was necessary because the Company was
then negotiating with the Union for a renewal of the contract,
and the Company needed ‘‘available employees in case it
was necessary to continue to operate.’’
2. Factual analysis
On the basis of Dockins’ unrebutted testimony that freight
was heavy in about mid-February; that Kimball acknowl-
edged a need for help; Kimball’s own testimony that work
was extremely heavy in April; and the fact that the Company
placed an ad for dockworkers in April, I conclude that the
Company did need employees of this nature in February and
April 1991. It would have been contrary to the Company’s
business interests not to ship freight on hand. In addition,
Dockins was a current employee at the time of his testimony,
which enhances his trustworthiness.31 Accordingly, I credit
his testimony that some casuals were recalled to work, and
reject the supervisors’ assertions that they were not allowed
to recall any casual employees.32
I further credit Dockins’ testimony that Shoup told him he
would give anything if he could recall Haney, Hume, and
Braddy, that Russell told Dockins he thought Terminal Man-
ager Riddle was trying to close the business down by laying
off his three best employees, and that Kimball said he had
been instructed not to recall them.
Hume was recalled for 1 day in April, essentially because
no other casual employee was willing to work.
G. Legal Analysis and Conclusions
1. The alleged violations of Section 8(a)(1)
The evidence establishes that the Company viewed the al-
leged discriminatees as closely aligned with a union steward
(Ronald Brooks) whom it considered to be a ‘‘trouble
maker.’’ In early November 1990, the steward wrote a letter
to the Company recommending the three alleged
discriminatees for appointment to regular status. The evi-
dence also establishes that a supervisor (William Poole) at
about the same time had a conversation with the steward,
overheard by one of the alleged discriminatees. In this con-
versation the supervisor stated that the steward had given the
alleged discriminatees the ‘‘kiss of death’’ by his letter of
recommendation. They were viewed as having strong union
ties, and probably would never be hired for this reason.
The same supervisor (Poole) told an alleged discriminatee
(Jerry Haney) in January 1991 that the Company would not
hire him because it felt he was sympathetic to the Union, and
that it would be best for him to find a job elsewhere.
These statements were coercive under established Board
law, and I find that Respondent thereby violated Section
8(a)(1) of the Act.
The complaint also alleges unlawful interrogation, and the
evidence establishes that another supervisor (Harold Shoup),
in about December 1990, asked one of the alleged
discriminatees (Jerry Haney) whether he had requested the
union steward to write the letter of recommendation. The
issue is whether, under all the circumstances, the interroga-
tion reasonably tended to restrain, coerce, or interfere with
rights guaranteed by the Act. Rossmore House, 269 NLRB
1176 (1984), enfd. sub nom. Hotel & Restaurant Employees
v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In Rossmore House,
which concerned a union adherent, the Board quoted with
approval the language of the Seventh Circuit Court of Ap-
peals: ‘‘To fall within the ambit of Section 8(a)(1), either the
words themselves or the context in which they are used must
suggest an element of coercion or interference.’’ Midwest
Stock Exchange v. NLRB, 635 F.2d 1255, 1267 (7th Cir.
1980). The same standard is also applied to employees who
are not known union adherents. Sunnyvale Medical Clinic,
277 NLRB 1217 (1985).
Prior to Supervisor Shoup’s question to Haney in Decem-
ber, Supervisor Poole had already made the unlawful state-
ments cited above in connection with the letter of rec-
ommendation. Shoup’s question attempted to ascertain
Haney’s relationship with his union steward and the extent
to which he was involved with the ‘‘kiss of death’’ letter.
There was no assurance from Shoup that Haney would be
fairly considered for regular status despite Poole’s state-
ments. I conclude that the natural tendency of such a ques-
tion was to coerce Haney with respect to the exercise of his
statutory rights, and that the inquiry was violative of Section
8(a)(1).33
915ATLANTA MOTOR LINES
34 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
35 Poole’s similar statement to Haney in January 1991, and to
Wayne Hume; and statements of Supervisors Kimball, Russell, and
Shoup showed company animus against the alleged discriminatees.
36 Donald Russell and Harold Shoup.
2. The alleged discrimination
The Board has approved of the following criteria for estab-
lishing a prima facie case of a discriminatory refusal to hire:
Essentially, the elements of a discriminatory refusal to
hire case are the employment application by each al-
leged discriminatee, the refusal to hire each, a showing
that each was or might be expected to be a union sup-
porter or sympathizer, and further showings that the
employer knew or suspected such sympathy or support,
maintained an animus against it, and refused to hire the
applicant because of such animus. Big E’s Foodland,
Inc., 242 NLRB 963, 968 (1979).
More recently, the Board applied the Wright Line34 stand-
ard to a refusal-to-hire case, and concluded that, once the
General Counsel has established that protected conduct was
a ‘‘motivating factor’’ in the employer’s decision, the burden
shifts to the employer to demonstrate that the same action
would have taken place notwithstanding the protected con-
duct. Fluor Daniel, Inc., 304 NLRB 970 (1991).
The record establishes a strong prima facie case. The
Company viewed the alleged discriminatees as closely
aligned to a union steward considered to be a troublemaker,
and Supervisor Poole told the steward in November 1990
that they were not put on regular status because of the stew-
ard’s recommendation for such action and the Company’s be-
lief that they had strong union ties. Other supervisory state-
ments and the Company’s refusal to recall the alleged
discriminatees when it needed dockworkers (with one iso-
lated exception) support the prima facie case.35
The alleged discriminatees voted in a union election for a
steward, and a disagreement which one of them had with
other voters over his own right to vote was deemed a ‘‘con-
frontation’’ by the terminal manager and a ‘‘disruption’’ of
operations, despite the absence of any evidence of a business
interest in the election or any disruption. When later super-
visory recommendations of promotion of the alleged
discriminatees were made, the asserted ‘‘confrontation’’ was
brought up by the terminal manager as a reason for failing
to act on the recommendation. This company concern with
the alleged discriminatees’ participation in union activities,
and its failure to recall them (with one isolated exception) at
a time when it needed employees in early 1991, add weight
to the prima facie case.
The Company’s defense is predicated on the asserted fail-
ure of the supervisors to select Haney, Braddy, or Hume for
regular status. This argument is not persuasive. The evidence
does not indicate that the selection process was fair and im-
partial. Although dock supervisors were supposed to rate all
casual employees, including those on other shifts, two of the
supervisors36 admitted that they did not know the qualifica-
tions of the alleged discriminatees, and did not rate them. Al-
though Executive Vice President Copenhaver contended that
he did not ‘‘veto’’ the votes of the supervisors, Steward
Brooks testified that supervisors told him their recommenda-
tions were not always determinative. Finally, there is no doc-
umentary evidence of the voting process, no tally sheets or
memoranda—simply the testimony of company witnesses. In-
deed, the record does not even indicate how many such al-
leged votes were conducted, or the dates.
The results of the asserted voting cast further doubt on the
Company’s defense. Although Haney had received three
warnings or reminders scattered over more than a year of
employment, Supervisor Poole rated him an ‘‘excellent’’ em-
ployee, and other supervisors told Dockins that he was a
‘‘good’’ employee. Kimball testified at the hearing that oth-
ers were better, but he previously admitted to Dockins that
Haney was one of his three best workers. Russell and Shoup
gave adverse opinions, but admitted that they did not know
Haney’s qualifications.
Braddy had four warnings over a period of employment
extending more than a year. Poole rated him a ‘‘good’’ em-
ployee after an improvement in attitude, while other super-
visors gave Dockins the same opinion. Kimball in fact rated
Braddy among the top three candidates. Although Russell
and Shoup had different opinions, they did not know
Braddy’s qualifications.
Finally, Wayne Hume’s employment record was the only
one in this case which did not indicate any warnings or re-
minders. Riddle told him after about 5 months of employ-
ment that the supervisors liked him and that he would be one
of the next casuals selected for regular status. Kimball rated
Hume among the top three candidates, and supervisors gave
favorable opinions about Hume to Dockins. Russell’s and
Shoup’s adverse comments have little probative weight for
the reasons given above.
The records of some of the selected employees are in stark
contrast to those of the alleged discriminatees. Michael Day
received six warnings and was the subject of a supervisory
memo suggesting termination. Nonetheless, he was given
regular status. Of five supervisory witnesses, not one admit-
ted voting for him. Albert Haney could not read a freight bill
and was given a reminder for failing to count freight accu-
rately, yet was accorded regular status—in the opinion of Su-
pervisor Kimball, because he was not closely associated with
the Union. Other employees with less seniority than the al-
leged discriminatees, and warnings after brief periods of em-
ployment, were made regular employees. The record of other
selected employees is unknown.
The pretextual nature of Respondent’s defense is further
shown by the fact that it hired an employee in January 1991,
about a week before it laid off Haney, Braddy, and Hume.
Although Respondent asserted that it hired the new employee
as a driver, it utilized him for about 2 months in the same
type of work in which Haney, Braddy, and Hume were en-
gaged.
Because of this inconsistency, the deficiencies in the selec-
tion process, and the fact that it did not result in selection
of the best applicants, I reject the Company’s defense. Ac-
cordingly, the General Counsel’s prima facie case is not re-
butted. I therefore find that, by refusing to grant Jerry Haney,
Derol Braddy, and Wayne Hume regular full-time status on
November 12, 1990, because of their union sympathies or
because the Company suspected this to be the case, Respond-
ent thereby discriminated against them in violation of Section
8(a)(3) and (1) of the Act.
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 G.C. Br. at 1, 10.
38 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
39 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
In accordance with my findings above, I make the follow-
ing
CONCLUSIONS OF LAW
1. Atlanta Motor Lines, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Teamsters Local 728 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
(a) Telling a union steward in a conversation overheard by
an employee that the steward had given three employees the
‘‘kiss of death’’ by recommending them for promotion to
regular status, that these employees were viewed as having
strong union ties, and probably would never be hired for this
reason;
(b) Asking an employee whether he had requested the
union steward to prepare the above-described letter of rec-
ommendation; and
(c) Telling an employee that the Company would not hire
him because he was sympathetic to the Union, and that it
would be best for him to find a job elsewhere.
4. Respondent violated Section 8(a)(3) and (1) of the Act
on November 12, 1990, by failing to promote casual employ-
ees Jerry Haney, Derol Braddy, and Wayne Hume to regular
full-time employee status because of their union activities
and sympathies, or because the Company suspected such ac-
tivities and sympathies.
5. Respondent laid off various casual employees in late
1990 and early 1991, and laid off the above-named employ-
ees on January 21, 1991, but did not lay off any employees
with regular status.
6. The unfair labor practices described in paragraphs 3 and
4 above constitute unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom, and to take certain af-
firmative action designed to effectuate the purposes of the
Act.
As indicated, the complaint alleges that ‘‘but for’’ Re-
spondent’s unfair labor practices, the discriminatees would
not have been laid off on January 21, 1991, and, accordingly
that backpay liability continues after that date. In his brief,
the General Counsel makes a similar argument.37
I have concluded that Respondent did not lay off any regu-
lar employees in late 1990 and early 1991. Accordingly, it
is unlikely that the discriminatees would have been laid off
if they had achieved this status. Although the complaint does
not allege that their layoffs were unlawful, nor do I make
any such finding, the events subsequent to the unlawful re-
fusal to hire relate back to that unfair labor practice, and
show that Respondent’s animus against the employees con-
tinued.
A mere continuation of backpay after the layoff date, as
suggested by the General Counsel, without allowing Re-
spondent any opportunity to terminate it, would be without
precedent. It would also be anomalous to conclude that the
discriminatees would never have been laid off absent the un-
lawful refusal to promote them, but to allow them no remedy
other than indefinite backpay. Recall of the discriminatees
from their layoff status would not automatically terminate
backpay absent a specific provision for same, and would still
leave the employees in a casual employee status.
Accordingly, I shall recommend that Respondent be or-
dered to offer employment as regular full-time employees to
the discriminatees in their former type of work, or if such
work no longer exists, in substantially equivalent work, dis-
missing if necessary any employee hired to do the work for-
merly engaged in by the discriminatees.
I shall further recommend that Respondent be ordered to
make each of the discriminatees whole by paying him a sum
of money equal to the amount he would have earned, less
net interim earnings, from the date of Respondent’s unlawful
refusal to accord him regular status (November 12, 1990),
through the date of layoff (January 21, 1991), until Respond-
ent’s offer to employ him as described above. Such earnings
shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).38
I shall also recommend the posting of notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended39
ORDER
The Respondent, Atlanta Motor Line, Inc., Conley, Geor-
gia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling union stewards in the presence of employees
that a union recommendation of employees for promotion to
regular status constitutes a ‘‘kiss of death,’’ and that employ-
ees with strong union ties will not be hired.
(b) Interrogating employees about any union recommenda-
tion for their promotion, or about their relationship with the
Union.
(c) Telling employees that the Respondent will not hire
anybody sympathetic to the Union, and that it would be best
for individuals with such sympathies to find jobs elsewhere.
(d) Discouraging membership in Teamsters Local 728, or
any other labor organization, by refusing to promote employ-
ees or accord them regular status because of their union ac-
tivities or sympathies, or other protected concerted activities,
or by discriminating against them in any other manner with
respect to their hire, tenure of employment, or terms and
conditions of work.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
917ATLANTA MOTOR LINES
40 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jerry Haney, Derol Braddy, and Wayne Hume
employment as regular full-time employees in their former
type of work, or, if such work no longer exists, substantially
equivalent work, dismissing if necessary any employee hired
to do such work, and make each of them whole for any loss
of earnings he may have suffered because of Respondent’s
discrimination against him, in the manner described in the
remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its place of business at Conley, Georgia, copies
of the attached notice marked ‘‘Appendix.’’40 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 10, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.