Conley Trucking

National Labor Relations Board - Administrative Judge Opinions

Sep 26, 2006

09-CA-042437 (N.L.R.B. Sep. 26, 2006)

JD–73–06
Portsmouth, OH

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

DELMAS CONLEY d/b/a
CONLEY TRUCKING,

and Cases 9–CA–42437
9–CA–42562
GENERAL TRUCK DRIVERS AND HELPERS
UNION LOCAL #92, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS.

Jonathan D. Duffey, Esq.
of Cincinnati, Ohio, for the General Counsel
R. Alan Lemons, Esq.
of Portsmouth, Ohio, for the Respondent

DECISION

STATEMENT OF THE CASE

DAVID I. GOLDMAN, Administrative Law Judge. The Board’s General Counsel issued a
consolidated complaint in this matter on February 23, 2006, against Delmas Conley d/b/a
Conley Trucking (the Respondent). The consolidated complaint was based on charges filed
November 4, 2005, by the General Truck Drivers and Helpers Union Local #92, International
Brotherhood of Teamsters (the Teamsters or the Union) in Case 9-CA-42437, amended
December 7, 2005, and charges filed on January 11, 2006, in Case 9-CA-42562. An
amendment to the consolidated complaint was dated April 11, 2006. Respondent filed an
answer to the consolidated complaint and an answer to the amendment denying that it violated
the Act in any manner.

This matter was tried before me in New Boston, Ohio, on April 26 and 27, 2006. The
record was held open until May 26, 2006, so that the parties could review additional records.
Counsel for the General Counsel and counsel for Respondent filed briefs in support of their
positions on June 30, 2006. On the entire record, including my observation of the demeanor of
the witnesses and other indicia of credibility, and after considering the briefs filed by the parties,
I make the following findings of fact, conclusions of law, and recommendations.1

1General Counsel’s unopposed post-trial motion to withdraw complaint paragraphs 5(e), (f),
and (g) is hereby granted. In addition, General Counsel’s motion to correct errors in the
transcript is unopposed and hereby granted. I add that the record transcript and exhibits bear
erroneous captions and erroneously indicate in the heading that the case is before the United
States Department of Labor. On my own motion the transcript is amended to reflect the correct
caption and heading set forth above.

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FINDINGS OF FACT

I. Jurisdiction

Respondent, a sole proprietorship, is engaged in the hauling of various materials from its
facility in Portsmouth, Ohio, where it annually performs services valued in excess of $50,000 for
customers outside the State of Ohio. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent
also admits and I also find that the Union is a labor organization within the meaning of Section
2(5) of the Act.

II. Unfair Labor Practices

a. Background

Delmas Conley owns Conley Trucking and employs approximately 45 to 50 employees
including 35 truckdrivers who haul and deliver gravel, sand, salt, and stone in dump trucks for
customers within an approximately 100-mile radius of Portsmouth, Ohio. Delmas’ sons, R.J.
and Rodney Conley, are actively involved in running the operation. A son-in-law, Rodney
Holden, works in the office and writes payroll checks, takes orders from customers, and
performs other personnel and administrative tasks. Delmas, RJ, Rodney Conley, and Rodney
Holden are admitted agents of Respondent.

The Teamsters conducted some leafleting of the Conley facility in June or July 2005,2
and ultimately filed a representation petition on October 31. Conley Trucking opposed
unionization and distributed leaflets and a mailing to employees explaining bargaining and
permanent replacement prerogatives of employers and asking employees not to support the
Teamsters. (R. Exhs. 7–9). A representation election was never conducted. In November, the
Teamsters announced to supporters at a meeting that they were abandoning the petition due to
a lack of support among employees.

On Friday, October 28, Respondent fired truckdriver Timothy Gilbert. Gilbert had
attended a union meeting—his first—on the previous Sunday, October 23. On Thursday,
October 27, Gilbert had told a supervisor, and later left a phone message indicating that he
would not be at work the next morning because he needed to care for his ill wife. Friday
afternoon when he and his daughter came by the office to pick up his paycheck he found a
termination notice in the pay envelope.

The Government alleges that as part of the campaign against the Union, and after the
fact at an annual employee meeting held December 23, Delmas and R.J. Conley made a
number of unlawful threats and statements violative of Section 8(a)(1) of the Act. General
Counsel also alleges that Gilbert was unlawfully discharged in retaliation for his union activity
and to discourage such activity among the employees, in violation of Section 8(a) (1) and (3).

In support of its case, General Counsel called Delmas and R.J. Conley as witnesses
pursuant to Federal Rule of Evidence (FRE) 611(c). They denied most of the allegations but
made a few admissions as discussed below. General Counsel also called Tim Gilbert, but his
testimony was limited: he went to a union meeting on a Sunday and was discharged without
2All dates are in 2005 unless otherwise indicated.

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warning the following Friday. He knows he was discharged after he went to a union meeting but
he could not personally further add to General Counsel’s theory of the case.

The main witness for General Counsel—or at least the individual anticipated to be the
main witness—was Jeremy Thompson, a truckdriver who works for Conley Trucking.
Thompson had supplied counsel for the General Counsel with two sworn pretrial affidavits (GC
Exhs. 17, 18) that provided ample support for the issuance of the complaint in this case.
However, at trial, Thompson recanted his affidavits. Because Thompson’s testimony and the
appropriate evidentiary use of his affidavits have important implications for this case, at the
outset I consider his testimony and the evidentiary significance of his affidavits.

b. The Testimony and Affidavits of Jeremy Thompson

As mentioned, prior to the trial in this case, Thompson gave two sworn affidavits to the
Board’s Regional Office that laid out in detail, with exculpatory statements alongside
incriminating testimony, an account of Respondent’s statements and actions regarding the
possibility of the facility’s unionization. However, at trial, Thompson denied every material
factual assertion in his affidavits that could possibly harm Respondent’s legal position or cast
Respondent in a bad light. These denials were not convincing. Over the course of his
testimony Thompson rejected the claims in his affidavit by declaring repeatedly, and often
inconsistently regarding the same incident, that he could not remember the incident described in
his affidavit, that the incident did not happen, that the incident happened but the statements
attributed to Respondent’s agents in the affidavit were made by the Union or by truckdrivers
whose names he could not recall. He testified that he did not tell the Board agent taking his
affidavits the statements in his affidavits; he testified that he could not remember making the
statements, and he testified that he did make the statements but he lied and made the
statements because he was angry at the Union’s failure to organize the employees. He also
testified that he may or may not have made the statements, but he couldn’t remember because
he was intoxicated and/or under the influence of prescription narcotics at the time he gave the
affidavits, and he claimed that he exaggerated in his affidavits because of the narcotics and
alcohol. Thompson testified that he could not remember how many affidavits he had provided
to the Board. He first denied meeting with the Conley’s about the upcoming trial but then
admitted that he met with R.J. Conley prior to the trial. He also met with the R.J. and Delmas
Conley and Respondent’s counsel and discussed the contents of the affidavits he provided to
the Board, an event confirmed by the Conleys and by Respondent’s counsel. At this meeting,
Respondent’s counsel took his own statement from Thompson, with R.J. Conley present, on
April 24, two days before the trial.3 Although he admitted to signing, initialing in various places
and reading “parts” of his affidavits, according to Thompson, when his wife read the statements
to him, he understood for the first time what was in the statements. He did not say when she
read them to him but they enabled him to have a clear recollection of their contents when he
met with the Conley’s and their counsel two days before the trial during he which he disclosed to
them the contents of the affidavits. A few days later, at trial, his recall of the contents of the
affidavits became very unreliable and uncertain.

As to testimony on events that did not involve statements probative of Respondent’s
involvement in antiunion activities Thompson’s memory was reasonable, but when asked about
anything that could possibly implicate Respondent, his memory left him and he answered with a
3That document was offered for identification, described, and used to refresh Thompson’s
memory (Tr. 253-254, 263), and copies distributed to the parties, but once Thompson testified
that he could not read Respondent chose not to introduce it into evidence.

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litany of vague and often inconsistent claims that he didn’t say it, couldn’t remember, said it but
had lied, etc. His demeanor brightened only when Respondent’s counsel examined him, at
which time his recall improved dramatically, and he crisply and firmly denied (without resorting
to claims of loss of memory) every allegation that Respondent’s counsel led him through. (See
Tr. 255-257).

Except when questioned by Respondent counsel, Thompson gave his testimony in a
robotic, mechanistic monotone, hunched over the witness table, answering questions without
motion, looking neither right nor left, staring ahead. He refused to even glance at his affidavit
and declared that he was illiterate and could not read the affidavits. What stood out in my mind
was the lack of effort to even pretend that that he believed his own testimony. The impression
created was that Thompson came to the trial with an ugly job to do, and he did it, but he did it
coldly, without conviction or feeling, and without an effort to pretend that he was doing anything
other than getting through an ordeal that for reasons unknown he had decided he had to
undertake. It was a sad spectacle. One cannot help but wonder about the pressures that could
prompt such a display. His testimony is not credited.4

Convinced, as I am, that Thompson’s testimony at the hearing was thoroughly untruthful,
I must consider whether, as urged by General Counsel, to rely upon his pretrial affidavits as
substantive evidence. At the hearing, Thompson’s affidavits were placed in evidence (GC Exhs.
17 and 18), for purposes of impeachment without objection from Respondent. However,
Respondent objected to the use of the affidavits as substantive evidence and I reserved ruling
and asked the parties to brief the issue.

A review of Board precedent demonstrates that there is, in fact, no doubt that I have
authority to accept the affidavits as substantive evidence and to credit their assertions over
testimony presented at the hearing. Santa Maria El Mirador, 340 NLRB 715, 721 (2003); Bay
Refrigeration Corp., 322 NLRB 1045, 1049-1053 (1997); Planned Building Services, 318 NLRB
1049, 1057 (1995); Be-Low Stores, 318 NLRB 1 (1995), enfd. in relevant part 126 F.3d 268 (4th
Cir. 1997); Fun Connection and Juice Time, 302 NLRB 740, 748 (1991); Alvin J. Bart and Co.,
236 NLRB 242 (1978), enf. denied on other grounds 598 F.2d 1267 (2nd Cir. 1979); Snaider
Syrup Corp., 220 NLRB 238 fn. 1 (1975); Starlite Mfg. Co., 172 NLRB 68, 72 (1968).5

Generally, the Board has held that hearsay evidence is admissible if "'rationally
probative in force and if corroborated by something more than the slightest amount of other
evidence.'" Dauman Pallet, Inc., 314 NLRB 185, 186 (1994), quoting RJR Communications,
Inc., 248 NLRB 920, 921 (1980). In Alvin J. Bart and Co, supra, the Board specifically
considered in some depth and rejected the proposition that substantive admission of pretrial
affidavits must be denied on grounds of hearsay. In Alvin J. Bart and Co., the Board pointed out
that “we would be reluctant to adopt a rule [as urged by the respondent and the dissenting
Board member] which mechanically excludes evidence, regardless of its intrinsic reliability,
because it is technically hearsay. Administrative agencies ordinarily do not invoke a technical
rule of exclusion but admit hearsay evidence and give it such weight as its inherent qualities
justifies.” 236 NLRB at 242. In this regard the Board cited to Section 10(b) of the Act, which
4I note that Thompson’s demeanor and testimony were such that I am sure that even in the
absence of his prior inconsistent statements his testimony would not be credited.
5See also Salem Leasing Corp., 271 NLRB 86, 88-90 (1984). Although the Board in Salem
Leasing adopted the judge’s conclusions without relying (as the judge had) on the credited
statement in the witness’s pretrial affidavit, Judge Bernard Ries’ thoughtful discussion of the
issue is instructive.

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provides that Board proceedings are to hew to the Federal Rules of Evidence (FRE) “so far as
practicable.” The Board reviewed this equivocal language in light of Senator Taft’s
supplementary analysis of the 1947 legislation that added Section 10(b) to the Wagner Act.
Senator Taft explained that “the phrase ‘so far as practicable’ in Section 10(b) ‘gives to the trial
examiner considerable discretion as to how closely he will apply the rules of evidence.’ . . . and,
accordingly, it has been generally recognized that the Board is not bound to follow the strict
rules of evidence applicable in the Federal Courts.” Alvin J. Bart and Co., supra, quoting, 93
Cong. Rec. 7002 (1947); reprinted in the Legislative History of the National Labor Relations Act
II at 1560 (1947) (Board’s emphasis). The Board in Alvin J. Bart and Co. went on to suggest
that sworn pretrial affidavits may fall within the exception to the hearsay rule found in FRE
801(d)(1)(A) where the witness appears in court and is subject to cross-examination about his
pretrial statement.6 In this regard the Board noted the “modern trend” toward viewing prior
inconsistent statements as substantive evidence and not as hearsay, and the “intermediate”
view adopted in the then recent 1975 adoption of the FRE that excluded from the definition of
hearsay certain sworn prior inconsistent statements such as depositions. As the Board in Alvin
J. Bart and Co., supra at 243 explained,

[i]f sworn statements to the Board agent are regarded as depositions, they are
not hearsay under the Federal Rules. And there is good reason to treat them as
such because there is no requirement under the Federal Rules that the prior
statement embodied in a deposition be subject to cross-examination when made.
If the sworn statements are not deemed to be depositions, the distinction is
indeed a fine one entitled to little consideration in an administrative proceeding
where there is discretion to receive in evidence and rely on hearsay as
ubstantive evidence. s
In other words, according to the Board in Alvin J. Bart and Co, even assuming that a
pretrial affidavit does not, strictly speaking, fit within FRE 801(d)(1)(A), it is close enough for a
regime that follows the FRE “so far as practical” that they should not be rigidly excluded from
consideration as substantive evidence.

I would add that, while mindful that Board proceedings are to follow the FRE “so far as
practical,” in my view federal labor policy concerns would render decidedly impractical
adherence to an evidentiary rule that precluded the administrative law judge from having
discretion to substantively consider these pretrial affidavits.

One of the chief concerns that motivated the modern trend to allow the substantive use
of some prior witness statements, as reflected in FRE 801(d), was concern about witness
intimidation—i.e., witnesses who could be intimidated or were otherwise vulnerable to pressure
with the result that their prior statements were a more reliable guide to the fact finder than their
testimony in the courtroom. According to the Congressional subcommittee considering
enactment of the rules of evidence proposed by the Supreme Court, support for the Supreme
Court’s proposal to permit an even broader substantive use of prior inconsistent statements
than Congress ultimately adopted in the FRE was “based largely on the need to counteract the
effect of witness intimidation.” H.R. Comm. Print at 26–27 (June 28, 1973), included in the
Hearings on Proposed Rules of Evidence before the H.R. Subcomm. on Criminal Justice of the
6Rule 801(d)(1)(A) provides that a prior statement of a witness is not hearsay if,
The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A) inconsistent with the
declarant's testimony, and was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition . . . .

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Comm. on the Judiciary, 93rd Cong. (1973) at 170-171, reprinted in 1974 U.S.C.C.A.N. 7075,
7086-7087. The Notes of the Advisory Committee reviewing the rules of evidence proposed by
the Supreme Court opined that the Court’s proposed Rule 801(d)(1)(A) "’provides a party with
desirable protection against the 'turncoat' witness who changes his story on the stand and
deprives the party calling him of evidence essential to his case’" (quoting with approval the
California Law Revision Comments to Cal. Evid. Code § 1235, which permits substantive use of
prior inconsistent statements). See also Sen. Rept. 93–1277 at 16 (October 18, 1974),
reprinted in 1974 U.S.C.C.A.N. 7051, 7062 (with amendments to FRE 801 a “realistic method is
provided for dealing with the turncoat witness who changes his story on the stand”).

This problem of witness intimidation has long been a particular concern for the Board
and has shaped Board practice and policy. Indeed, it is precisely the concern with the potential
for “witness intimidation” and the "peculiar character of labor litigation” in which “the witnesses
are especially likely to be inhibited by fear of the employer's or—in some cases—the union's
capacity for reprisal and harassment," that undergirded the Supreme Court’s holding in NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214 (1978) (internal quotations omitted). In Robbins Tire
the Court recognized that the Board’s concern over the potential for witness intimidation in
Board litigation made it critical to avoid pretrial discovery in Board proceedings and the Court
held that Exemption 7(A) of the Freedom of Information Act (FOIA)—the exemption from
disclosure of investigatory records that would “interfere with enforcement proceedings”—barred
the effort of an employer to use FOIA obtain pretrial affidavits before a witness testifies:

The most obvious risk of "interference" with enforcement proceedings in
this context is that employers or, in some cases, unions will coerce or intimidate
employees and others who have given statements, in an effort to make them
change their testimony or not testify at all. This special danger flowing from
prehearing discovery in NLRB proceedings has been recognized by the courts
for many years . . . .

The danger of witness intimidation is particularly acute with respect to
current employees -- whether rank and file, supervisory, or managerial -- over
whom the employer, by virtue of the employment relationship, may exercise
intense leverage. Not only can the employer fire the employee, but job
assignments can be switched, hours can be adjusted, wage and salary increases
held up, and other more subtle forms of influence exerted. A union can often
exercise similar authority over its members and officers. As the lower courts
have recognized, due to the "peculiar character of labor litigation[,] the witnesses
are especially likely to be inhibited by fear of the employer's or -- in some cases -
- the union's capacity for reprisal and harassment." Roger J. Au & Son, Inc. v.
NLRB, 538 F.2d 80, 83 (3rd Cir. 1976). Accord, NLRB v. Hardeman Garment
Corp., 557 F.2d 559 (6th Cir. 1977). While the risk of intimidation (at least from
employers) may be somewhat diminished with regard to statements that are
favorable to the employer, those known to have already given favorable
statements are then subject to pressure to give even more favorable testimony.

Furthermore, both employees and nonemployees may be reluctant to
give statements to NLRB investigators at all, absent assurances that unless
called to testify in a hearing, their statements will be exempt from disclosure until
the unfair labor practice charge has been adjudicated. Such reluctance may flow
less from a witness' desire to maintain complete confidentiality -- the concern of
Exemption 7(D) -- than from an all too familiar unwillingness to "get too involved"
unless absolutely necessary. Since the vast majority of the Board's unfair labor

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practice proceedings are resolved short of hearing, without any need to disclose
witness statements, those currently giving statements to Board investigators can
have some assurance that in most instances their statements will not be made
public (at least until after the investigation and any adjudication is complete).
The possibility that a FOIA-induced change in the Board's prehearing discovery
rules will have a chilling effect on the Board's sources cannot be ignored.

In short, prehearing disclosure of witnesses' statements would involve the
kind of harm that Congress believed would constitute an "interference" with
NLRB enforcement proceedings: that of giving a party litigant earlier and greater
access to the Board's case than he would otherwise have. As the lower courts
have noted, even without intimidation or harassment a suspected violator with
advance access to the Board's case could "'construct defenses which would
permit violations to go unremedied.'" New England Medical Center Hosp. v.
NLRB, 548 F.2d 377 (1st Cir. 1976), quoting Title Guarantee Co. v. NLRB, 534
F.2d at 491.7

The Supreme Court in Robbins Tire could not have taken more seriously the concern
that intimidated employee witnesses might skew or undermine completely the effective
administration of federal labor policy. Accordingly, the Court endorsed the Board’s effort to
shape its trial practice and procedures to address the problem posed by the potential for witness
intimidation. As pointed out in Robbins Tire, in Board litigation the concern is real that, even in
the absence of employer misconduct, an employee fearing the inherent power of the employer
will take it into his own hands to color or recant his testimony, especially when faced with the
prospect of actually testifying, which, as the Supreme Court recognized, the employee may
have reasonably considered an unlikely eventuality. Thus, the concern with witness intimidation
that prompted the modern movement toward permitting the substantive use of some prior
inconsistent statements in federal court is even more acute in the arena of Board litigation. It is
precisely because of the “peculiar character of labor litigation” with its reliance on witnesses
“especially likely to be inhibited by fear” that, as a matter of effectuating federal labor policy,
administrative law judges should have the discretion to consider sworn pretrial affidavits as
substantive evidence. For when a witness testifies in marked contradiction to his pretrial
statement, and particularly where in the opinion of the administrative law judge that testimony
reeks of untruthfulness, and further, where, as here, the employer has met with and discussed
the contents of the employee’s pretrial statements with the employee, the ability of the judge to
consider substantively the witnesses pretrial statements becomes an important tool in the
search for truth and an antidote to the threat to Board enforcement proceedings posed by
witness intimidation.8

7434 U.S. at 239-241 (footnotes omitted) (court’s bracketing).
8I note that Respondent counsel’s pretrial meeting with Thompson, in which they discussed
the contents of Thompson’s Board affidavits (Tr. 252), was violative of the Act under Johnnie’s
Poultry Co., 146 NLRB 770, 775 (1964). In that case, the Board held that “interrogation
concerning statements or affidavits given to a Board agent” is “outside the ambit of privilege”
available to employers who, with appropriate safeguards, may interview employees to prepare
for an unfair labor practice trial. This issue was not alleged in the complaint or otherwise
advanced by General Counsel. Accordingly, I decline to find a violation, however it is a further
factor undermining the credibility of Thompson’s testimony and the recantation of his affidavits.

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In this instance, the circumstances convince me that Thompson’s sworn affidavits should
be considered for the truth of the matters asserted therein. As discussed below, I do not credit
the affidavits in their entirety. But it would be a mistake to confuse admissibility with sufficiency
of the evidence and exclude the affidavits on such grounds. To admit the affidavits as
substantive evidence does not mean that they must be credited over all (or any) other evidence.
But, part of his incredible testimony—in many ways its essence—was Thompson’s entirely
unconvincing account of why his affidavits were false. None of his lamentations bore the
slightest indicia of trustworthiness. On the other hand, he admits he gave the affidavits, swore
to them and signed his name and even initialed significant corrections. Each affidavit concludes
just prior to signature:

I have read this statement consisting of [the applicable number of ] pages,
including this page, I fully understand its contents, and I declare under penalty of
perjury that the foregoing statement is true and correct to the best of my
knowledge and belief.

Also of significance is the fact that the affidavits are not tendentious documents and
even contain assertions that paint the Conley’s in a positive light in certain instances. In sum,
though out-of-court statements, the affidavits on their face suffer from none of the affirmative
lack of credibility exhibited by Thompson’s in-court statements. Based on my observation of
Thompson at the hearing, his demeanor convinces me of the very opposite of the design of his
testimony: it convinces me that his affidavits are more trustworthy than his testimony at the
hearing, and that his testimony at the trial, in fact, was part of an effort to avoid the impact on
Respondent that he knew would result if he repeated the statements in his affidavits at trial and
was believed. Although Thompson attributed the insight to Gilbert, I think Thompson also
understood “that I couldn’t change my statements or he [Gilbert] would lose.” (Tr. 264). Indeed,
there is a very real sense in which Thompson’s completely incredible testimony and
untrustworthy demeanor at the hearing, including his testimony as to the invalidity of the
affidavits, helps to bolster the credibility of the affidavits.9

In this case, the Board’s policy permitting the use of pretrial affidavits as substantive
evidence in lieu of false and contrary testimony is appropriately invoked.

9“[T]he the demeanor of a witness ‘. . . may satisfy the tribunal, not only that the witness'
testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has
a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to
give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the
truth of what he denies.’" NLRB v. Walton Mfg., 369 U.S. 404, 408 (1962) (quoting, Dyer v.
MacDougall, 201 F.2d 265, 269 (2d. Cir. 1952)). Judge Learned Hand authored the opinion in
Dyer v. MacDougall, as he did the opinion in DiCarlo v. U.S., 6 F.2d 364, 368 (2d. Cir. 1925),
cert. denied 268 U.S. 706 (1925), in which he explained that a jury may be convinced by a
witness’ testimony that the testimony is false and earlier inconsistent statements true:

The possibility that the jury may accept as the truth the earlier statements in
preference to those made upon the stand is indeed real, but we find no difficulty
in it. If, from all that the jury see of the witness, they conclude that what he says
now is not the truth, but what he said before, they are none the less deciding
from what they see and hear of that person and in court. There is no mythical
necessity that the case must be decided only in accordance with the truth of
words uttered under oath in court.

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c. Use of the Affidavits and Some General Observations on Credibility

Accepting Thompson’s affidavits as substantive evidence is not tantamount to crediting
the claims in the affidavits over all other evidence. Rather, accepting the affidavits as
substantive evidence means that the assertions in the affidavits must be considered with and
against the record evidence as a whole, including, in many cases, the denial of the allegations
by witnesses aligned with Conley Trucking. This is a more difficult task than in the traditional
case where two witnesses give conflicting live testimony on an issue. However, it is one that I
must assume because, as discussed supra, to ignore the pretrial statements would be
inconsistent with the policies of the Act and would not serve the search for truth to which this
tribunal is committed. At the same time, I recognize that Thompson’s commitment to not
testifying truthfully—and his testimony really amounted to that—limited the ability to
meaningfully exam him regarding the allegations in the affidavits (or anything else). In these
unique circumstances this is an instance where I conclude that the typical procedure of viewing
conflicting evidence and crediting one witness or another is not entirely satisfactory. In National
Telephone Directory, Corp., 319 NLRB 420, 422 (1995), the Board confronted a somewhat
similar problem when for policy reasons it refused to permit cross-examination of a witness
regarding certain union organizational activities. In a holding that is instructive for the situation
we face here, the Board explained,

We recognize, however, that our ruling leaves open the remote possibility that
the General Counsel's evidence could consist primarily of testimony immune
from cross-examination. In such rare circumstances, it could be appropriate—in
resolving issues of credibility—to forego the traditional credibility analysis and
afford less weight to the immune testimony in determining whether a
preponderance of evidence supports the General Counsel's allegations. Such an
analysis would decrease the likelihood that the immune testimony would
constitute the sole basis for finding that a preponderance of evidence supports
the General Counsel's allegations.

Although the circumstances are somewhat different—here the “immunity” from cross
examination is a product of the witness’ recalcitrance not an evidentiary privilege--in this case
as in National Telephone, supra, the parties confronts a situation where General Counsel’s
evidence (the witness statements) is insulated from effective cross-examination. The fact that in
this case the disadvantage to Respondent stems from the unbelievability of a witness seemingly
committed to advancing Respondent’s interests is ironic, but beside the point. Consistent with
the Board’s approach in National Telephone Directory I will “afford less weight” to the pretrial
affidavits “in determining whether a preponderance of the evidence supports the General
Counsel’s allegations.” Where an allegation in the complaint is supported solely by a statement
in Thompson’s affidavit, and the record is devoid of any corroboration that supports the
likelihood of the truth of the statement, then I have determined that allegation fails due to a lack
of sufficient evidence, without regard to credibility resolutions. See, National Telephone
Directory, Corp., supra, citing Blue Flash Express, 109 NLRB 591, 592 (1954) (“When, as in this
case, the Trial Examiner is not persuaded by the testimony of the General Counsel's witnesses
that threats and promises were made to them by the Respondent, the General Counsel has
failed to meet that burden of proof”). Where there is some form of corroboration then I will
consider whether to credit or discredit the various competing testimony as is the traditional
practice. Although the extra “burden” this places on the General Counsel may not be warranted
in every case where pretrial statements are considered substantively, in this case I believe that

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it provides an important brake on the use of Thompson’s pretrial statements as a sole source of
support for a finding of a violation of the Act by Respondent.10

Generally speaking, Thompson’s affidavits describe numerous statements by R.J. and
Delmas Conley that General Counsel alleges to be unlawful. The affidavits paint a picture of an
employer actively (and often unlawfully) opposing the union campaign, something the Conley’s
deny. With the exception of the allegations admitted to by Respondent (discussed below), the
general theme of R.J. and Delmas Conley in their testimony was to deny all wrongdoing alleged.
They denied knowing about the union campaign prior to learning on October 28 from radio
broadcasts that the Teamsters were seeking to organize the facility. They denied making most
of the comments alleged by General Counsel to be unlawful. They denied any unlawful motive
for terminating Gilbert. I found R.J and Delmas Conley to be reasonably straightforward in
their demeanor. Yet notwithstanding this, there was vagueness to their testimony in many
instances, and some telling contradictions that lead me not to believe all of their testimony.11

Finally, I found Gilbert generally to be a credible witness. He did not exaggerate what he
knew, he did not attempt to deny or minimize the mishaps and misconduct that marked his
tenure at Conley Trucking. He did not exhibit bias by attempting to impugn others. I think he
testified honestly and in general, I have credited his testimony.12

10It is also an approach consistent with the Board’s willingness admit hearsay evidence that
is otherwise corroborated and probative. Dauman Pallet, Inc., 314 NLRB at 186.
11R.J. Conley claimed that Conley Trucking did not “fight” the Union and that it was the
employees’ choice whether they chose a union. Indeed, Thompson’s affidavits quoted Delmas
stating this (and Thompson testified to this as well; it was one of the few items from the affidavit
that Thompson recalled and affirmed). Yet, the record shows that the Conleys did “fight” the
Union. Respondent distributed antiunion literature that was fairly pointed in explaining the
Employer’s right to permanently replace during an economic strike and other legal realities. Of
course, the literature and antiunion campaign is not alleged to be unlawful, and, if properly
conducted within the bounds of the law it is an employer’s prerogative to “fight” unionization.
But the Conley’s worked hard at the hearing to strike a pose of indifference, or at least
nonchalance, towards the union drive that is not borne out by the record. It is also notable that
while Delmas Conley testified that he learned about the Union’s presence for the first time on
October 28, R.J. testified that he told his father about the union leaflets in the parking lot in June
or July. Finally, while Delmas testified that he did not mention the Union at all when he
addressed the assembled employees on December 23, R.J. confirmed that he did, in several
comments that are alleged to be unlawful. In sum, R.J. and Delmas went to some lengths on
the witness stand to conceal and falsely deny their opposition to the Union, and the lack of
candor bears on their credibility.
12I specifically discredit, for the same reasons I discredited Thompson generally, the
suggestion in Thompson’s testimony that Gilbert attempted to influence him to provide favorable
testimony, something that Thompson denied until Respondent’s counsel was able to “refresh”
his recollection with the statement that counsel took from Thompson when Thompson met with
management about this case. I also do not credit—for the truth of the matter asserted—Delmas
Conley’s testimony that in the weeks before trial, Thompson told Conley that Gilbert had offered
Thompson money to “help him out” at the trial. Thompson, who seemed willing to say almost
anything to help Respondent, did not testify to this. Whether or not Thompson told Conley this, I
find that Gilbert did not say it.

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d. Discussion and Analysis

1. The independent 8(a)(1) violations
Section 7 of the Act grants employees, among other rights, “the right to self-organization,
to form, join, or assist labor organizations.” 29 U.S.C. § 157. Pursuant to Section 8(a)(1) of the
Act, it is “an unfair labor practice for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1). In this case, the
General Counsel alleges that Respondent committed a number of independent violations of the
Act, as set forth in the complaint at paragraphs 5(a)—(d) and 6(a)—(f). I consider each in turn.
A. Paragraphs 5(a)-(d)
In paragraphs 5(a)-(d), the Government alleges that a variety of conduct by R.J. Conley
violated the Act.

i. Paragraph 5(a)

The Government alleges that R.J. Conley unlawfully “created the impression of
surveillance of employees’ union activity by telling employees that he heard that certain
employees were trying to bring in a union.”

As discussed, supra, Gilbert testified that he attended two union meetings, one before
and one after he was fired. The first was a union meeting at a Wendy’s restaurant in Lucasville
on Sunday, October 28, that was also attended by employees Delabar, Thunderdance, Carver,
Rosenogle, and Thompson. Thompson also testified about this union meeting. It was his
second, the first having been held some weeks earlier and attended by himself, Thunderdance,
Carver, and Rosenogle.

In support of this allegation of the complaint, General Counsel relies on the statement in
Thompson’s November 16 sworn affidavit (GC Exh. 18), in which Thompson stated:

the following Wednesday, I was at the office at Conley. There were 3 or 4 other
drivers standing around that I don’t normally talk to. I don’t know their names. It
was about 4:30 or 5:00 p.m. R.J. Conley came over. We talked about everyday
business. Conley then said “I heard something today.” I said, “what’s that?” He
said, “I heard you, Tim Gilbert, and Steve Del[a]bar were trying to get a union in
here.” I said Del[a]bar and Gilbert had nothing to do with it. That was the end of
the conversation.

R.J. Conley denied ever having told any employees that he heard they were trying to
bring a union in.

In this instance, Thompson’s statements are buttressed by the specific corroboration of
this aspect of Thompson’s statement provided by Teamster organizer Rick Kepler. Kepler
testified that Jeremy Thompson had been his “key contact” in the failed effort to organize
Respondent. With regard to this allegation of the complaint, Kepler quoted Thompson telling
him specifically what R.J. had said to him. According to Kepler, Thompson told him that R.J.
Conley approached Thompson and identified Thompson, Delabar, and Gilbert as being involved
in the Union. As to this exchange, Kepler testified to what Thompson told him:

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[H]e said it was R.J. He goes we know—here are his [Thompson’s] words to me
during the conversation. “We know it was you Jeremy and Delabar and Gilbert
who started this thing.”

Kepler testified that “this was before Gilbert was fired,” something he was sure of
because Thompson immediately called Kepler when Gilbert was fired, to which Kepler
responded, “[T]hey got the wrong guy,” as Gilbert was not part of the organizing team but had
merely attended a union meeting.

I credit Kepler’s testimony that Thompson contemporaneously told him about this
incident. His account is specific, and similar to the account of the incident in Thompson’s
November 16 affidavit. Throughout his testimony, I found Kepler a very credible witness, both in
demeanor and in his tendency not to overstate his testimony and not to hesitate to offer
testimony that aided the other side. I think his very specific corroboration of this incident was
credible.13

Kepler’s testimony adds weight to Thompson’s statement. It demonstrates that prior to
any litigation, prior to any affidavits, this incident was reported by Thompson in a manner
consistent with his subsequent statement. I credit Thompson’s statement on this point over R.J.
Conley’s denial. As noted, supra, the Conley’s claims that they did not “fight” the union drive
were plainly false and lend an air of doubt to R.J. Conley’s pronouncements at trial of total
ignorance about the presence of the Union, even after he admitted he knew that union leaflets
were distributed in the parking lot in June or July. I find that R.J. Conley told Thompson that he
heard that Gilbert, Thompson and Delabar were trying to bring a union to Conley Trucking.

The Board considers employer conduct that creates an impression of surveillance to be
a violation of Section 8(a)(1) of the Act. Employees should not have to fear that “members of
management are peering over their shoulders, taking note of who is involved in union activities,
and in what particular ways.” Fred’k Wallace & Son, Inc., 331 NLRB 914 (2000). In Sam’s
Club, 342 NLRB 620 (2004), the Board held that,

The test for whether an employer unlawfully creates an impression of
surveillance is whether under the circumstances, the employee reasonably could
conclude from the statement in question that his protected activities are being
monitored. The Board does not require that an employer’s words to an employee
reveal on their face that the employer acquired its knowledge of the employee’s
activities by unlawful means.14

13Respondent objected to all of Kepler’s testimony, but I overruled the objections. Contrary
to Respondent’s objections, his testimony was not hearsay, as it was not offered or considered
for the truth of the matter asserted. Under the circumstances of this case, however, Kepler’s
testimony plays an important role in providing for impeachment of Thompson’s testimony and
corroboration of certain statements in his affidavits such as that discussed in the text here.
Respondent also objected to Kepler’s testimony on grounds that he had not been sequestered.
However, at the commencement of the hearing I permitted him to remain in the hearing room as
Charging Party’s representative. See Greyhound Lines, Inc., 319 NLRB 554 (1995). See also
FRE 615. In assessing Kepler’s credibility, I have, of course, considered the fact that he was
present for other witnesses’ testimony (as was R.J. Conley, the representative of Respondent).
14342 NLRB at 620, citing Mountaineer Steel, Inc., 326 NLRB 787 (1998).

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In Sam’s Club, supra, a supervisor was found to have created an impression of
surveillance when he told an employee that he had heard the employee was circulating a
petition about wages. The Board held that such a statement “leads reasonably to the
conclusion that the Respondent has been monitoring [the employee’s] activities.” 342 NLRB at
620–621. In drawing this conclusion, the Board relied upon the fact that the employee had not
circulated the petition openly and the supervisor did not reveal the manner in which he had
learned the information about the employee’s activities. In this instance, Thompson reasonably
could conclude from Conley’s statement—that Conley had heard that Gilbert, Delabar, and
Thompson “were trying to get a union in here”—that the employees’ protected activities were
being monitored. Conley did not explain how he had learned this information and certainly,
nothing in his statement or conduct suggested that the information was lawfully acquired.15 To
the contrary, by communicating not only his knowledge of the existence of the union drive but
also by listing the specific employees (he believed to be) leading the campaign, Conley added
to the impression that he was keeping tabs on the details of the employees’ protected activity.16
Of course, it would not be (and, in fact, was not) lost on Thompson that each employee
identified by Conley had been at the union meeting held three days earlier. Thus, whether or
not Conley was correct about who was spearheading the union drive, his comment
demonstrated enough familiarity with the employees’ actual and recent protected activities to
add substantially to an impression of monitoring. As in Sam’s Club, supra, it is significant that at
the time of Conley’s comment the union organizing campaign and Thompson’s (not to mention
Gilbert’s) role in it was not in the open. Indeed, the Conley’s deny having any knowledge of the
union campaign at this time, something I do not believe, but a contention that is premised on the
fact that the campaign was not in the open. Thus, Conley’s detailed comment was not based on
information readily available to the employer, adding further to the impression of monitoring. In
this regard, a distinction can be drawn here from the circumstances prevailing in SKD Jonesville
Division L.P., 340 NLRB 101 (2003), where a manager’s comment to an open union supporter
that he had “heard that the employees wanted you to organize a union,” was held not to have
created an impression of surveillance. Unlike the instant case, the comment in SKD was
addressed to an open union supporter, did not evince knowledge regarding the identity of
campaign supporters, and was not timed in a way that suggested knowledge of a recent union
meeting. On the other hand, Conley’s comment demonstrated detailed knowledge of union
activity never openly disclosed. Conley created the impression of surveillance and therefore
violated Section. 8(a)(1) of the Act.17
Continued
15Classic Sofa, Inc., 346 NLRB No. 25, slip op. at 3, fn. 10 and surrounding text (2006).
16Donaldson Bros. Ready-Mix, Inc., 341 NLRB 958, 963 (2004) (specifically identifying union
leaders including employee to whom the comment was addressed “gave [the employee]
reasonable grounds to believe that management knew [the employee] and others were union
organizers and that it had a source of information regarding the employees’ union activities”);
Royal Manor Convalescent Hospital, 322 NLRB 354, 362 (1996) (“[t]he Board has long held
that, when, in comments to its employees, an employer specifically names other employees as
having started a union movement or as being among the union leaders, the employer unlawfully
creates the impression, in the minds of its employees, that he has been engaged in
surveillance of his employees' union activities”), enfd. mem. 1998 U.S. App.. LEXIS 3204;
Jordan Marsh Stores Corp., 317 NLRB 460, 465 (1995) (manager's statement that he knew
there were 12 to 15 employees at the Union meeting unlawfully created impression of
surveillance).
17In assessing whether Thompson reasonably could conclude from Conley’s statement that
the employees’ activities were being monitored it is irrelevant that, according to Kepler,
Thompson suspected that “it was Delabar who got scared and went and told the bosses who
was at the meeting.” It is not surprising that Conley’s comments operated to create suspicion

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_________________________
ii. Paragraph 5(b)

In paragraph 5(b) of the complaint, the Government alleges that in early November, R.J.
Conley told employees that Respondent could sell its trucks if employees chose to unionize.

Conley denies ever making such a comment to employees. Thompson’s affidavit, sworn
to on November 16, describes the incident as follows:

About one week to 1.5 weeks after Gilbert was fired, I was at the shop. About 4
or 5 other drivers were there. Roger Rosenogle was there. Dave Jordan, a
mechanic was there. The others I am not sure of. It was after work at 5 or 5:30
p.m. R.J. Conley told us he couldn't talk about it but he can legally say that he
can sell his trucks if he so chooses. He said he can't afford to pay the big wage
that the Union promising us. He said his company didn't generate that kind of
money. He said that if they could get a Union in there and it would benefit the
guys, they would gladly do it but they couldn't afford it. I think R.J. started talking
after one of the employees asked him about it. He said if we wanted a Union it
would be our choice and we could vote on it and he didn't have any say in it. We
didn't reply to this.

In this case, corroboration of Thompson’s statement is vague. Kepler described that
when he talked with Thompson he heard that “they were talking about threatening to shut the
place down if the Union comes in; they would sell the trucks if the Union come in . . . if they find
out who started this Union or who’s involved with the Union, they’re not going to be working at
Conley any more.” When asked whether Thompson specified who made these statements,
Kepler suggested that “Jeremy mostly said that it was R.J. who was on, his words, a rampage to
find out what was going on, who started it, and most of the threats.” The difficulty with this is
that, regardless of whether individual comments by R.J. Conley violated the Act as alleged, and
should not have been made, Thompson’s account of the incident, and indeed, both his
affidavits, do not square with a picture of R.J. Conley on “a rampage.” There is, in fact, no claim
in Thompson’s affidavit that R.J. Conley threatened to shut down the facility if the Union came
in, or threatened that “if they find out who started this Union or who’s involved with the Union,
they’re not going to be working at Conley any more.” In addition Kepler, who was a very
credible witness, described the threats he was hearing about from Thompson as “[t]he basic
threats I usually hear during an organizing drive” and pointed out that he “probably, at that time,
I had like six other organizing campaigns going on.” In other words, Kepler’s recollection of the
details of what Thompson told him on this score was not distinct in his memory from the
complaints of employer threats he was hearing from organizers involved in the six other
campaigns Kepler was overseeing at the time.

Absent corroboration or any other evidence supporting the specific incident described in
Thompson’s statement, I am unwilling to credit the statement in Thompson’s affidavit. I note
among the ranks of union supporters. It is also irrelevant that Thompson apparently believed
that the first union meeting was, in fact, monitored by a member of the Conley family (GC Exh.
18 at 4, lines 8–16). The issue is not the subjective belief of an employee regarding the
employer’s surveillance activity, rather, an objective test of whether the employee reasonably
could conclude from the statement in question that protected activities are being monitored.
Michigan Road Maintenance Co., 344 NLRB No. 77 fn. 4 (2005) (employee’s subjective belief
that employer is surveilling union activity is not a basis for concluding that employee reasonably
could have drawn that conclusion based on employer’s statement).

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that none of the other participants in this conversation named in Thompson’s statement testified.
Given the parameters on the substantive use of Thompson’s affidavits, discussed supra, my
primary finding is that evidence in support of the allegation is simply insufficient for me to
conclude that General Counsel has proven the allegation by a preponderance of the evidence.
However, if I were to make credibility findings on the facts relating to this allegation I would
credit R.J. Conley’s denial that this specific statement was made. I recommend dismissal of this
allegation of the complaint.18

iii. Paragraph 5(c)

In paragraph 5(c) of the complaint, General Counsel alleges that in early November, R.J.
Conley told employees that if they chose to unionize, Conley would change its method of pay
resulting in a pay decrease.

The evidence for this allegation is found in Thompson’s November 16 affidavit. There he
stated: “I recall that R.J. said we would make $7-8 per hour if the Union came in because they
went in the hole last year with fuel costs being high.” R.J. Conley denies this, and testified that
he never said that he would change the pay or decrease the pay received by truckdrivers (who
are not paid on an hourly basis). There is no corroboration in Kepler’s testimony (or any other
evidence) in support of this allegation. As the truckdrivers have never been paid on an hourly
basis, it is an odd threat to make.

My primary finding is that evidence in support of the allegation is insufficient for me to
conclude that General Counsel has proven the allegation by a preponderance of the evidence.
However, if I were to make credibility findings on the facts relating to this allegation I would
credit R.J. Conley’s denial that he made this statement. I recommend that this allegation of the
complaint be dismissed.

iv. Paragraph 5(d)

In paragraph 5(d) of the complaint, General Counsel alleges that on or about November
3, R.J. Conley told employees that if they selected union representation they would be at zero
and would start at that point.

The evidence to support this allegation is found in the testimony of R.J. Conley. He
testified that around mid-November he was fueling a truck when employee Ata Thunderdance
pulled in behind him. Conley did not recall which of them initiated conversation,19 but at some
point Thunderdance told Conley he wanted to know what the union could do for him. Conley
agreed that he told Thunderdance that in negotiations with the Union “we start from zero and
have to bargain everything.” Conley also said that “you have to bargain everything” and that
18The fact that I am willing to credit some of Thompson’s statements, and some of Conley’s
testimony, but not all, is not unusual. It is long settled that "[i]t is no reason to refuse to accept
everything a witness says, because you don't believe all of it, nothing is more common in all
kinds of judicial decisions than to believe some and not all." NLRB v. Universal Camera Corp.,
179 F.2d 749, 753 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951); Daikichi Sushi,
335 NLRB 622, 622 (2001).
19Under questioning by counsel for General Counsel, Conley testified that he could not
remember who initiated this conversation. Later, under leading questioning from Respondent’s
counsel, Conley suggested that Thunderdance had been the one to initiate the conversation
about the Union. I do not credit the latter explanation.

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“Delmas Conley has the final say.” R.J. Conley admitted that he made these some statements
to other employees too.20

As the Board explained in Federated Logistics and Operations, 340 NLRB 255, 255
(2003), enfd. in relevant part, 400 F.2d. 920 (D.C. Cir. 2005):

It is well settled that employer statements to employees during an organizing
campaign that bargaining will start from "zero" or from "scratch" are "dangerous
phrase[s]" which carry within them "the seed of a threat that the employer will
become punitively intransigent in the event the union wins the election."
Economy Fire & Casualty Co., 264 NLRB 16, 21 (1982), quoting Coach and
Equipment Sales Corp., 228 NLRB 440 (1977). Although such statements are
not per se unlawful, the Board will examine them, in context, to determine
whether they "effectively threaten employees with the loss of existing benefits
and leave them with the impression that what they may ultimately receive
depends in large measure upon what the Union can induce the employer to
restore," or—conversely—whether they indicate that any "reduction in wages or
benefits will occur only as a result of the normal give and take of collective
bargaining." Plastronics, Inc., 233 NLRB 155, 156 (1977). See also Capitol EMI
Music, 311 NLRB 997, 1007-1008 (1993), enfd. 23 F.3d 399 (4th Cir. 1994).

In this case, contextualizing and appended to Conley’s admitted comment that “we start
from zero” is the added notice “and we have to bargain everything.” The Board-recognized
“danger” in the bare statement that the parties start at “zero” is thus intensified as it suggests
that “everything” begins at “zero.” It adds to the “impression that what they may ultimately
receive depends in large measure upon what the Union can induce the employer to restore.” Of
course, the unlawful threat is still implicit—a claim can be made that what Conley meant was
nothing more than a promise to bargain all issues with no preconceptions—but, as the Board
explained in Federated, supra at 256 fn. 4, “[i]n our view, ‘start from zero’ means what it says,
and the Respondent's employees could reasonably assume as much.” If you “start from zero”
and “have to bargain everything” it would only be reasonable to assume that the outcome of
bargaining “depends in large measure upon what the Union can induce the employer to
restore.” Notably, Conley’s comments contained no explanation of the give-and-take of
bargaining. To the contrary, Conley added the statement that “Delmas Conley has the final
say,” a concept of his authority and the process of bargaining inconsistent with the “normal give
and take of collective bargaining.” See, Economy Fire & Casualty Co., 264 NLRB 16, 21 (1982)
(comment that bargaining would “start from zero” unlawful, in part, because comments also
made that in bargaining benefits would be taken away “except those the Company's president
decided to let them have”). Conley’s comments did not include an explanation of the overall
give-and-take of bargaining. Respondent points out (R. Br. at 11) that the “start at zero”
comments were “tempered” by the written literature distributed by Respondent, which, in one
instance (R. Exh. 9) explained that “[w]ages and benefits may be improved or reduced in the
20At trial, Conley also testified that he began his conversation with Thunderdance by saying
“[Y]ou'll have your negotiator and we'll have our negotiator and we'll start bargaining for a
contract.” General Counsel contends on brief that this portion of Conley’s statement should not
be credited, as it was not mentioned in his pretrial affidavit account of this incident. I do think
the newfound recollection is suspicious, and represents an effort to broaden and contextualize
in Respondent’s favor the comments that followed. I do not credit it. But I note that, even if it
were part of the conversation, it would not change my findings with regard to this allegation.

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process of bargaining.” Although agreeing that “the Board must consider the impact of
particular employer statements in the context of surrounding circumstances, including the
employer’s other statements,” in Federated, supra, the Board rejected the contention that other
lawful statements or literature that fail to repudiate the coercive statements can “cure” the
violation. The Board recognized that,

we must also consider the coercive impact, flagged by the Supreme Court in
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969), that a particular
employer statement can have even when it is arguably mitigated by other
employer statements made at different times or places. An employee might
reasonably be influenced more by a coercive statement than by a different
noncoercive statement, in order to avoid any adverse consequences.

Federated, supra at 256. In this case, the unlawful statements were made personally by R.J.
Conley to employees. He is one of the top ranking management officials at this family owned
and operated business (testimony indicated that Delmas was “stepping back” from active
involvement in operations). The coercive impact of these statements cannot be undone by
subsequent posted literature or mailings that do not mention the coercive statements but are
simply a generic form of employer campaign literature. I find that in context Conley’s
statements about “start[ing] from zero” in bargaining violate Section 8(a)(1) of the Act as alleged
in the complaint, except that the correct date on which the violation is occurred is mid-
November.21
B. Paragraphs 6(a)—(f)
In paragraphs 6(a)—(f) of the complaint General Counsel alleges various threats by
Delmas Conley. The threats are all very similar, the chief difference being the time when they
are alleged to have occurred. Paragraphs 6(a), (d), (e) and (f) are alleged to have occurred
between October 25 and early November. Paragraphs 6(b) and (c) concern statements alleged
to have been made on December 23 at an annual pre-Christmas meeting of all employees
conducted by Conley.
i. Paragraphs 6(a), (d), (e), and (f)
In paragraph 6(a) of the complaint General Counsel alleges that on or about October 25,
Delmas Conley told employees that he could sell the trucks or the business and/or close in case
of unionization. In paragraphs 6(d), (e), and (f), General Counsel alleges that in late October or
early November, Conley told an employee that he would close his business in case of
unionization, that employees would lose their jobs unless they halted their efforts to unionize,
and that if employees chose to unionize, Respondent would decrease employees’ pay.
21Respondent also defends Conley’s remarks on grounds that there is no evidence that
“these statements were delivered in anger, or were loud or threatening in any manner” and that
[t]here was no testimony that anyone understood them, or interpreted them, as a threat.” (R. Br.
at 7). However, in determining the coerciveness of a remark, the Board applies an objective
standard of whether the remark reasonably tends to interfere with the free exercise of employee
rights. The Board does not consider either the motivation behind the remark or its actual effect.
Miller Electric Pump & Plumbing, 334 NLRB 824, 825 (2001); Joy Recovery Technology Corp.,
320 NLRB 356, 365 (1995), enfd. 134 F3d. 1307 (7th Cir. 1998). Thus, evidence of the
subjective reaction of employees to Conley’s remark is irrelevant. That he did not raise his
voice or speak loudly does not mitigate the coercive message, as discussed, supra.

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The evidence for these allegations is found in Thompson’s April 13 affidavit. Thompson
states:
About late October or early November 2005, I was loading my work truck
at the dock when Delmas Conley approached me. It was about 8:30 or 9:00 a.m.
No one else was present, but Dan Conley was getting loaded in the general area.
Conley told me that he wanted to have an “off the record” conversation about the
Union. I told him that it would be off the record. Delmas asked me if I had a tape
recorder on me and I opened my coat to show him that I did not. Delmas said
that he would fight the Union and would shut the company down. He said that if
we stopped right now, no one would lose their jobs, but if it didn’t stop right now,
we would all lose our jobs. Delmas said that he would shut the company down if
we unionized. He said he would use scab labor. Delmas said that
Thunderdance was retarded and that he tried to play the minority card with them,
but it didn’t work. Delmas said that the Union was good years ago, but was not
worth a fuck now. Delmas said that he could fire anyone he wanted and that he
owned the company and could do anything he wanted anytime and that no one
short of the President of the United States could tell him otherwise. Delmas said
that if the Union won, he would bargain us down to minimum wage and lock us
out and use scab labor. Delmas said that the Union had hurt Conley and had set
him back 10 years. I did not previously tell the Board agent about this statement
because I had assured Delmas our conversation would be off the record.
In his testimony, Delmas Conley offered no testimony on this specific conversation.
More generally, he did deny ever saying that he would sell his trucks. He denied ever telling
employees that they would lose their jobs unless they halted their efforts to unionize. He denied
ever telling employees that if they choose to unionize he would decrease their pay. He denied
ever asking any employee to have an off-the-record conversation.
On the one hand, Conley’s general denials are undercut by the fact that—with regard to
other incidents discussed below—the denials are contradicted by R.J. Conley (see infra). This
leads me to question the credibility of Delmas Conley’s testimony. However, Rick Kepler, who
was in touch with Thompson “the entire time” that the Union was seeking to organize Conley
Trucking did not corroborate this aspect of Thompson’s testimony. In fact, according to Kepler
(who, as discussed, supra, I found highly credible), Thompson identified R.J. Conley as the
chief antagonist of the Union. Kepler testified that Thompson also identified Delmas Conley as
being involved in making threats, but Kepler seemed to indicate that much of what Thompson
knew about Delmas’ antiunion conduct came from “the parking lot,” presumably things that
Thompson heard from other drivers. However, Thompson’s statement is clear that only
Thompson and Delmas were present for the incident alleged in paragraphs 6(a), (d), (e), and (f).

Of course, the lack of corroboration by Kepler may simply reflect the fact that Thompson
honored Conley’s request that the conversation be off the record and, in addition to not
reporting the incident to the Board for nearly five months, also did not tell Kepler.

But, given the lack of any corroboration for this incident, at a time that Thompson was in
regular communication with Kepler, and given the limited weight I am willing to ascribe to
uncorroborated portions of Thompson’s statement, I find the evidence insufficient to support a
finding of a violation for these allegations. See National Telephone Directory, supra, citing Blue

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Flash Express, supra. On that basis, I recommend dismissal of this allegation of the
complaint.22

ii. Paragraphs 6(b) and (c)

The Government alleges that on or about December 23, Delmas Conley invited union
supporters to leave their employment with Conley Trucking (paragraph 6(b)) and threatened to
sell and/or close the business in the case of unionization (paragraph 6(c)).

These comments are alleged to have been made during an employee meeting that
Delmas Conley led for the drivers. The meeting was held on the morning of December 23 at the
truck shop. This was at least a month after the Teamsters had met with supporters in
November and informed them that the Union was abandoning the organizing effort. However,
Conley Trucking obviously was unaware of this for some period of time and was still mailing
literature to employees opposing unionization as late as December 6.

Conley held these meetings once or twice a year. The winter meeting was usually held
just before Christmas and Christmas gifts and hams were handed out. This year’s meeting,
coming as it did on the heels of the failed union drive, had a querulous tone to it.23
R.J. Conley admitted that at the meeting Delmas Conley stated, “[T]hat he wanted to
stay non-Union and that he would not like outside people telling him how to run his business.”
In his affidavit, Thompson recalled a similar comment, stating that at the meeting Delmas
Conley complained that “a few drivers had tried to bring in an outside group but it didn’t work.”
According to Thompson’s statement, Conley stated that “he built the company and that no
outside source would run it.” 24
In regard to complaint allegation paragraph 6(b), R.J. Conley admitted that Delmas
Conley stated, “[T]hat if employees want to work for a Union trucking company that he preferred
that they go work somewhere else rather than Unionize his facility.” Thompson’s statement
22Had there been some corroboration of this testimony, through Kepler’s testimony or
otherwise, I would be inclined to credit Thompson’s statement. Delmas Conley’s denials of the
conduct alleged in this incident were the products of leading questioning, and, as mentioned,
his general credibility is undercut by the fact that R.J. Conley contradicted Delmas’ testimonial
denials of other allegations. Thompson’s statement is plausible as is the explanation that he
initially failed to inform the Board about the conversation because of the promise extracted by
Delmas Conley to keep the conversation “off the record.”
23In his affidavit, Thompson drew a picture of Delmas Conley as a man still feeling the insult,
but also vindication from the failure of the recent union drive. The meeting provided a platform
for Conley to threaten employees over a variety of work-related issues. Seasonal cheer was
decidedly absent, and Conley closed the meeting by saying “that Rodney Holden had our
Christmas hams and that if we didn’t want them, he would give them to his dogs.”
24I find that Delmas Conley made these statements. Conley testified that he could not
remember whether or not he mentioned anything about outsiders running the Company. He
testified that he “could of” and “I’m not saying that I didn’t,” but “if I said something like that it
was probably taken in the wrong context.” I credit R.J. Conley’s testimony on this point over
Delmas Conley’s equivocation, and find support for R.J. Conley’s admissions in Thompson’s
very similar account, which is also credited. General Counsel does not allege that Respondent
violated the Act with these comments.

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quotes Delmas Conley as saying that “if you want a company to run, go get your own.” I find
that Delmas Conley made these statements,25 and that they violated the Act. The invitation to
employees “to go work somewhere else” if they “want[ed] to work for a Union trucking company”
was clearly a response to the Section 7 activities of employees and as such unlawfully coercive
and an implicit threat of termination. Chinese Daily News, 346 NLRB No. 81, slip op. at 1, 14
(2006) (violation of 8(a)(1) to tell employee to resign if she was not happy with her job);
McDaniel Ford, Inc., 322 NLRB 956, 956 fn. 1 and 962 (1997) (“It is well settled that an
employer's invitation to an employee to quit in response to their exercise of protected concerted
activity is coercive, because it conveys to employees that support for their union or engaging in
other concerted activities and their continued employment are not compatible, and implicitly
threaten discharge of the employees involved.”).

In support of complaint allegation paragraph 6(c), General Counsel points to Delmas
Conley’s statements at the December 23 meeting, admitted to by R.J. Conley, that “if the
employees wanted more control over [the] business that they could buy and drive their own
truck rather than Unionize his facility and added that he would sell them a truck and would, in
fact, sell them his entire business.” Delmas Conley essentially admitted to the same. I find that
Delmas Conley made these statements, and that they are violative of the Act. This was not a
business offer. Conley was telling employees that in retaliation for their desire to unionize he
was willing to radically alter the employer-employee relationship. Reasonably, what the
employees heard is that their employer was suggesting he would end the employer-employee
relationship should they unionize. The threat of reprisal for union activity in the comment is
manifest and violative of Section 8(a)(1).

2. The 8(a)(1) and (3) allegation

A. Facts

i. Gilbert’s termination

Gilbert worked as a truckdriver for Conley Trucking from July 4, 2004 to October 28,
2005. On Friday, October 28, two days after R.J. Conley told Thompson that he knew that
Thompson, Delabar, and Gilbert were at a union meeting, Gilbert was terminated.

On Thursday October 27, Gilbert’s daughter called him at work and told him his wife had
been brought to the hospital emergency room and may have had a stroke. Gilbert finished up
his work and at about 4 p.m. went to the office and told Rodney Holden that “he needed to tell
R.J. I may not be in tomorrow because my wife, they thought she had a stroke.” Holden said he
would tell R.J. Conley. Gilbert then left and went to the hospital.26
Continued
25For his part, Delmas Conley admitted that at the meeting he said that if people didn’t want
to work at his Company he had no problem with that. I think that this is very much akin to the
comments attributed to him by R.J. Conley and Thompson, but I think Delmas is trying to make
the comment somewhat more palatable than what was actually said. I credit R.J. Conley’s
account and Thompson’s. I discredit Delmas Conley’s later testimony, in which he
unequivocally denied inviting union supporters to leave his employ.
26Gilbert testified credibly, and specifically, that when he had this discussion “Rodney
Holden was coming out of the back office talking to Mike Wyatt . . . [r]ight at the doorway coming
out of the second office, towards the front office, right there in the doorway.” Holden denied the
conversation in response to a single question posed by counsel:

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_________________________
Continued
Later that evening Gilbert’s wife was discharged from the hospital with instructions to go
to her family doctor in the morning. That evening, Gilbert telephoned work and left a message
on the answering machine of Conley Trucking’s office assistant, Tyleah Mullins, stating that he
would not be in the following morning because he had to take his wife to the doctor. Gilbert had
used this method in the past to call off work, and according to Holden it was a method routinely
used.

The following morning Gilbert took his wife to the family doctor who advised that she
needed to return to the emergency room immediately. Gilbert took his wife there and she was
admitted. Between 2 and 3 p.m. Gilbert left the hospital and, accompanied by his daughter,
went to Conley Trucking to pick up his paycheck. Gilbert waited in the car and his daughter
went to pick up his pay envelope but she did not find it in his mailbox (each driver had a box or
cubby to receive pay and other items). Gilbert then saw Holden exit the office waiving a pay
envelope, and Holden approached the car and handed Gilbert the envelope. Holden asked
“[H]ow the wife was doing and I told him they thought she had a stroke. And he said, I hope
she gets better.” That was all that was said and Gilbert and his daughter proceeded to leave
and began exiting the parking lot. As they were leaving Gilbert’s daughter opened the envelope
and inside they found not just his pay check but a termination notice and “settlement statement.”
Gilbert was “shocked” as no one from Conley Trucking had warned him that he would be
discharged or spoke to him about it.27

R.J. and Delmas Conley testified that the decision to terminate Gilbert was made the
morning of October 28. R.J. testified that when he arrived at work a little after 8 a.m., Delmas
Conley and office assistant Mullins were already at work. Mullins told R.J. that there was a
message from Gilbert saying that his wife was sick and that he would not be at work.28
Q. Now I'm going to draw your attention to the day before his termination,
which would be October 27th, 2005. On that date did Tim Gilbert tell you that he
may not be in, that his wife may have had a stroke, meaning he may not be in the
following day because his wife may have had a stroke?
A. No.
This was the only testimony offered by Holden on this subject. When the sum of the testimony
is a witness’s one-word denial it can leave the impression that the witness cannot be trusted to
answer open-ended questions about the subject. That was the impression I had here.
Completely unaddressed by Holden’s testimony is whether he and Gilbert talked at all on
October 27, and if so what they discussed. I credit Gilbert’s specific recollection and
explanation of the conversation with Holden. See Mercedes Benz of Orlando Park, 333 NLRB
1017, 1035 (2001) (“it is settled that general or ‘blanket’ denials by witnesses are insufficient to
refute specific and detailed testimony advanced by the opposing sides’ witnesses”), enfd. 309
F.3d 452 (7th Cir. 2002).
27Holden testified that Gilbert received his pay and termination papers “as all the drivers do,”
by retrieving it from his mailbox. That is an implicit rebuttal of Gilbert’s testimony, but Holden
was not asked and did not specifically deny or rebut speaking with Gilbert, asking about his
wife, or handing Gilbert his pay envelope. I credit Gilbert’s specific account of the incident,
which was not addressed by Holden.
28Conley testified that Mullins did not say anything to him about Gilbert’s wife going to the
hospital or having a stroke, only that Gilbert had left a message that he would be absent
because his wife was sick. Conley did not listen to the message and testified that he had “no
idea” that Gilbert’s wife was hospitalized when he terminated Gilbert. I doubt this. That Mullins
and Holden knew about Gilbert’s wife can be discerned, not only from Gilbert’s credited
testimony but from the attendance calendar that Respondent maintained for each employee.

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_________________________
When Delmas Conley came over from the truck shop, R.J. and Delmas made the
decision to terminate Gilbert. The explanation at trial offered by R.J. was “we’ve had some
trouble with Tim Gilbert” and he alluded to an “extensive list of problems” that he alleged
contributed to the decision. Based on his testimony as a whole, it is clear that these problems
included generally his attendance and his missed loads (i.e., deliveries), and several specific
incidents involving accidents, missing a mandatory day of work, shirking work, and a drinking
incident. Delmas Conley explained that he and R.J. talked about Gilbert that morning and
“decided we probably should let him go.” Conley testified that there were “a lot of different
reasons”:

There were several reasons. One of them was I was just afraid of the boy. He
had a lot of accidents, he didn't pay attention, I was afraid he was going to kill
somebody. He didn't show up for work on time, he didn't get his loads, very
undependable, and we just thought—or I thought enough was enough.

When Rodney Holden arrived at work at 9 a.m., R.J. instructed him to write up the
termination paper and figure out the back wages owed to Gilbert. Under “Reason For
Termination,” the termination notice for Gilbert listed only “Absenteeism/Tardiness.” Other
options on the form listed as possible reasons for termination (performance, job change,
violation of policies/procedures, personal, other) were not marked. Under the employee
evaluation grid listed on the termination notice there are nine performance factors that can be
marked. Gilbert’s termination notice only marked two, attendance and dependability, and in
each Gilbert was rated unsatisfactory. Other factors such as initiative, cooperation, job
knowledge, job productivity, and work safety were not marked. (GC Exh. 15). All of the other
termination notices entered into the record were more thoroughly completed. (See GC Exhs. 9,
10, 12, 22).

R.J. instructed Holden to sign R.J.’s name to the termination notice. In all of the other
termination notices entered into the record, Rodney Holden signed them using his own name.
R.J. Conley testified that he had Holden sign his name on Gilbert’s because “I terminated
Gilbert.” According to R.J., the other termination notices involved employees who quit or “self
terminated,” i.e., were terminated after abandoning the job.29

The attendance calendar for Gilbert (GC Exh. 6) indicated “Wife in Hospital” in the “Notes”
section on page 2. The calendar for October 28 was marked “FM” which, according to the key
on GC Exh. 6 stands for Family Medical Leave. According to the testimony, Rodney Holden
usually filled out the attendance calendar daily for each employee and he filled it out based on
“call off” messages like the one left by Gilbert. Holden and Mullins (who was characterized by
Conley as a “very thorough” employee and received the phone message from Gilbert) knew that
Gilbert’s wife was in the hospital. It is hard to believe they would not inform Conley of this,
particularly when they learned that Conley planned to terminate Gilbert. Terminations were
exceedingly rare events but drivers calling off work without adverse consequence, for all
manner of serious and unserious reasons, was common. I note further that Thompson knew
about Gilbert’s wife that day, suggesting that the information was widely known.
29In fact, the termination notice for the one other employee terminated (as opposed to “self-
terminating), Robert Whitley, was signed in Holden’s name (GC Exh. 22).

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ii. Gilbert’s work record; other employees

From November 1, 2004, to January 1, 2006, the employees let go from Conley Trucking
were Gilbert, Roger Rosenogle, Jonathan Bellomy, Terry Bell, and Robert Whitley. Although
there were termination reports for each of these employees, Rosenogle, Bell, and Bellomy
actually quit or “self-terminated” because they stopped coming to work. Rosenogle and Bellomy
were rehired. Thus, with the exception of Gilbert, the only employee involuntarily discharged
during this period was Whitley, who was discharged November 16 for “wrecking trucks.”

At the hearing, Respondent devoted significant effort to showing, successfully I think,
that Gilbert was a poor employee. Respondent complained about the following:

● Absences. Gilbert had a significant number of absences. However, others had more
absences than Gilbert. Respondent’s absentee policy permitted seven unpaid sick or personal
days per year. After use of those days, any days missed were to be deducted from the paid
vacation days to which an employee was entitled after 12 months of work (R. Exh. 2). In
practice, the Conley’s could and did approve additional absences for employees, for reasons
from illness of a family member to attending children’s sporting events. According to the
attendance calendar, Gilbert was off for 16 days in 2005 for a combination of personal or sick
days, family illness or family medical leave, medical appointment, or unexcused absence. Four
of these 16 were unexcused absences. (GC Exh. 6). By contrast, Bellomy had 36 absences
(most of which were unexcused) by June 3 (see GC Exh. 7A) at which time he was considered
to have self-terminated for excessive absences, but then he was immediately rehired and had at
least 20 more absences (most unexcused) for the rest of 2005 before he stopped coming to
work and was terminated in January 2006 for absenteeism (GC Exh. 10). Bell was hired April
26 and 19 absences are recorded on the attendance calendar for 2005. (GC Exh. 7B). Bell
was not discharged but quit without notice in February 2006 (GC Exh. 12). Employee Charles
Floyd missed 31 days of work in 2005. (GC Exh. 7D). Joseph Stanley was rehired (previous
work records are not in the record) in August 2005. He missed 24 days of work in 2005. (GC
Exh. 7F). James Wollard missed 19 days in 2005. (GC Exh. 7G). Respondent developed a
letter (GC Exh. 8) that was sent to certain employees in an effort to get them “to do a little
better” with absences. Gilbert never received such a letter or any other discipline related to his
attendance.30

● Missed loads. Gilbert had an unusually high number of missed “loads,” i.e., missed
deliveries. Counsel for the General Counsel stipulated that (revised) Respondent’s Exhibit 3
correctly lists the missed loads for employee. That document indicates that Gilbert had 69
missed loads, the most of any employee, for the period November 2004 through December
2005. This document was not relied upon (or in existence) when Gilbert was discharged, but
was created for litigation. Gilbert was never disciplined for missed loads at any time. R.J.
Conley had no specific recollection of ever talking to Gilbert about missed loads but believed he
did, but only “because I talk to every one of my drivers about missed loads.” Jeremy
30Based on a document created by Respondent for litigation (GC Exh. 5), it argues that
Gilbert did not show up for work on 7 days more than the 16 (plus 1 day for discipline for the
incident March 9, discussed infra) marked on the attendance calendar. It is hard to know which
is accurate, but Respondent concedes that if Gilbert’s attendance calendar understates his days
off, then the calendars kept for other drivers understates theirs as well. This would be
consistent with GC Exh. 20, which Respondent created for litigation and which lists higher
numbers of absences for each employee discussed in the text than is reflected on their
attendance calendar.

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Thompson, who did not have as many missed loads as Gilbert, but had the second most (R.
Exh. 3; lists 66 missed loads, just 3 less than Gilbert) was never talked to by anyone regarding
missed loads.

In addition, at trial, Respondent focused on several incidents within the year before Gilbert’s
termination that Respondent contends contributed to the decision to terminate Gilbert.

● Intoxication incident. The night of March 9, Gilbert and some other Conley Trucking
employees ended up in the Conley parking lot drinking. Gilbert fell asleep there in his car. He
was scheduled to work in the morning but Gilbert was still intoxicated and, as he testified, “I
knew I was in no shape to drive.” Another employee, James Wollard called R.J. Conley and
told him about the incident and Conley went to the parking lot and found Gilbert there. Gilbert
told him that “he had a bad night.” Conley told Gilbert to “go home and sleep it off.” Gilbert was
called to the office given a warning notice signed by Rodney Holden regarding the incident.
(GC Exh. 3). There was no repeat of the incident, or any incidents related to alcohol.31

● Jackknifed truck. Another incident cited by Respondent occurred July 11 when
Gilbert “jackknifed” a Conley truck.32 Gilbert testified that he crested a hill and when he saw a
wreck at the bottom he “panicked and slammed the brakes.” R.J. Conley believed that Gilbert
was traveling too fast. The sheriff’s department was on the scene (for the initial accident) and
witnessed this incident. Gilbert was not cited. Gilbert testified that when he returned to work he
told Rod Conley about it, and Conley “went over and looked at the truck and grinned and kind of
laughed a little bit and said you bent it up pretty good.” Rod Conley did not testify and Gilbert’s
testimony on this point is uncontradicted. Gilbert testified that R.J. Conley did not talk with him
about the incident and denied that anyone complained about the cost of repairs. In conflict with
this, R.J. Conley testified that he gave Gilbert “a talking to” about this incident, but no written
warning or other discipline. Conley testified that it cost about $1000 repair the truck.33

● Backed his truck in to a coemployee’s truck. R.J. Conley also testified that in
September 2005, Gilbert backed his truck into a truck driven by employee Delabar and ruined
the canvas tarp on the truck. Conley did not discipline Gilbert for this incident.34

31There was a minor discrepancy in the testimony regarding the aftermath of this incident.
Gilbert testified that he called R.J. Conley, they talked about the incident, and Conley told him to
return to work the next day. Conley testified that Gilbert was called to the office the next
morning and they discussed the matter then. Gilbert also maintains (in uncontradicted
testimony) that although the warning notice indicates it was signed March 10, the day after the
incident, in fact Gilbert did not come into the office and sign the warning for several days after
the incident. In any case, there is no dispute that the incident happened and no dispute that the
only discipline was Conley’s oral warning and the written warning signed by Holden.
32R.J. Conley described “jackknifing” as when the truck and trailer it pulls are no longer
aligned but come together side-by-side like the closing of a pocket knife.
33In later testimony, Conley estimated that the cost was $2000 to $3000 to repair the truck.
However, the latter testimony is inconsistent with his pretrial affidavit, in which he gave the
$1000 figure for the cost of the repair, and I credit the former testimony.
34Conley claimed he gave Gilbert “a talking to” about this incident, and claimed that repair of
the tarp cost over $1000. However, Respondent failed to supply any records substantiating this
repair (claiming they keep none for repairs done in house) and Gilbert denied that he was ever
talked to about the incident. I credit Gilbert’s account.

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● Backed his truck into another co-employee’s truck. R.J. Conley also testified that, in
an incident for which no time period was provided, Gilbert backed into the truck of driver Charlie
Floyd. Gilbert did not report this incident and Conley says he learned of it from Floyd a few
days later. Conley presumed that Gilbert did not mention it because he “probably just thought it
wasn’t a big deal.” Conley testified that he later talked to Gilbert about the incident but did not
discipline him. Although Conley testified at trial that the accident with Floyd contributed to his
decision to terminate Gilbert, he did not mention this incident in his sworn affidavit taken during
the investigation of the case. Gilbert denied any knowledge of this incident. Given
Respondent’s vagueness about when this incident occurred, Gilbert’s denial, the failure to
mention it in pretrial affidavits when listing reasons for the discharge, and the lack of
ubstantiation of the incident, I find that it did not happen. s
● Missing a mandatory day of work. R.J. Conley also contended that one of the
reasons for Gilbert’s termination was his alleged failure to work on Saturday, October 22, a day
that Delmas Conley declared to be a mandatory workday.35 However, I find that Gilbert did
attend work that day, and that R.J. Conley’s claim that he did not is unfounded. According to
Gilbert, in testimony not disputed by R.J. Conley, Gilbert had asked R.J. Conley in advance for
the day off so that he could cut firewood for the coming winter. Gilbert’s testimony that R.J.
approved the day off was undisputed by Conley. However, R.J. Conley then left for vacation in
Mexico, leaving the operation in his father’s hands. After R.J. left, Delmas Conley posted a
notice declaring Saturday to be a mandatory workday and stating that “if you missed that
Saturday don’t bother coming in Monday.” Although not happy it, Gilbert testified that he came
to work on Saturday despite his prior discussion with R.J. Conley. Although at one point in his
testimony R.J. Conley testified that he was told by Gilbert that he was absent that day because
he had to cut firewood, his later testimony undercuts this claim. When asked whether or not
Gilbert missed the mandatory Saturday, R.J. Conley stated that “I thought he did but I wasn't
here.” I find that he doesn’t know whether or not Gilbert was present that day. The attendance
calendar does not reflect an absence for Gilbert that day. Finally, no other witness, including
Delmas Conley or Rodney Holden (who were there that Saturday) addressed the issue of
whether Gilbert attended work on the mandatory Saturday.

● Shirking work. Finally, in his testimony, R.J. Conley related an incident approximately
1 week before Gilbert’s termination in which a friend who owned a parts store told Conley that
two Conley trucks had been sitting by the side of the road for at least 2-½ hours. A car accident
on their route delayed traffic and Conley assumed that rather than deliver their loads through
the traffic and return home late that evening, Gilbert and Delabar decided to skip out on the
loads. Conley gave them “a talking to” but no discipline when they returned.

B. Discussion

Section 8(a)(3) of the Act provides, in relevant part, that it is “an unfair labor practice for
an employer by discrimination in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. §
158(a)(3). As any conduct found to be a violation of Section 8(a)(3) would also discourage
35There was conflicting testimony of whether the mandatory Saturday in question was
October 15 (Tr. 78) or the following week, the 22nd, which was the period R.J. Conley was
away in Mexico (Tr. 279). R.J. Conley seemed sure that the mandatory Saturday, called by
Delmas after R.J. departed on vacation, occurred during his vacation. Further, the absentee
calendar (GC Exh. 6) lists Gilbert as off work sick for Friday October 13, 14, 15, and 17. In view
of these factors, I find that the Saturday in question was October 22.

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employees' Section 7 rights, any violation of Section 8(a)(3) is also a derivative violation of
Section 8(a)(1) of the Act. Chinese Daily News, 346 NLRB No. 81, slip op. at 28 (2006).

The Government contends that Timothy Gilbert was discharged in violation of Section
8(a)(1) and (3) of the Act by Respondent because of his activity in support of the Union, namely
his attendance at a union meeting on October 23 which Respondent learned about and for
which Respondent retaliated. Respondent denies any unlawful motive for Gilbert’s discharge.
Respondent contends that Gilbert was a poor employee, and that with his absence from work
on October 28, “[e]nough was enough,” and Conley Trucking decided to discharge Gilbert.

The Supreme Court-approved analysis in 8(a)(1) and (3) cases turning on employer
motivation was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management. Corp., 462
U.S. 393, 395 (1983) (approving Wright-Line analysis). In Wright Line the Board determined
that the General Counsel carries the burden of persuading by a preponderance of the evidence
that the employee’s protected conduct was a motivating factor (in whole or in part) for the
employer’s adverse employment action.

Proof of such discriminatory motivation can be based on direct evidence or can be
inferred from circumstantial evidence based on the record as a whole. Robert Orr/Sysco Food
Services, 343 NLRB No. 123, slip op. at 2 (2004), enfd mem. 179 LRRM (BNA) 2954 (6th Cir.
2006); Embassy Vacation Resorts, 340 NLRB 846, 848 (2003).36 This includes proof that the
employer’s reasons for the adverse personnel action were pretextual. Rood Trucking Co., 342
NLRB 895, 897–898 (2004), citing Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C.
Cir. 1995) ("When the employer presents a legitimate basis for its actions which the factfinder
concludes is pretextual . . . . the factfinder may not only properly infer that there is some other
motive, but that the motive is one that the employer desires to conceal—an unlawful motive
. . . .") (internal quotations omitted)).

Where the General Counsel makes an initial showing under Wright Line, the burden
shifts to the Respondent to establish that it would have taken the same action even in the
absence of union activities. Williamette Industries, 341 NLRB 560, 563 (2004); Wright Line,
supra. For the employer to meet its Wright Line burden, it is not sufficient for the employer
simply to produce a legitimate basis for the action in question. It must “persuade” by a
preponderance of the evidence that it would have taken the same action in the absence of
protected conduct.37
36“To support an inference of unlawful motivation, the Board looks to such factors as
inconsistencies between the proffered reasons for the discipline and other actions of the
employer, disparate treatment of certain employees compared to other employees with similar
work records or offenses, deviations from past practice, and proximity in time of the discipline to
the union activity.” Robert Orr/Sysco Food Services, supra.
37NLRB v. Transportation Mgmt., 462 U.S. 393, 395 (1983) (rejecting employer’s claim that
its burden is met by demonstration of a legitimate basis for the discharge); Carpenter
Technology Corp., 346 NLRB No. 73, slip op. at 8 (2006) (The issue is, thus, not simply whether
the employer ‘could have’ disciplined the employee, but whether it ‘would have’ done so,
regardless of his union activities). Weldun International, 321 NLRB 733 (1996) (“The employer
cannot carry this burden merely by showing that it also had a legitimate reason for the action,
but must 'persuade' that the action would have taken place absent protected conduct by a
preponderance of the evidence") (internal quotation omitted), enfd. in relevant part, 165 F.3d 28
(6th Cir. 1998).

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Of significance here, however, when evaluation of the General Counsel’s initial case, or
Respondent’s defense, includes a finding of pretext, this “defeats any attempt by the
Respondent to show that it would have discharged the discriminate[e]s absent their union
activities.” Rood Trucking Co., supra at 898; La Gloria Oil and Gas Co., 337 NLRB 1120, 1124
(2002). “This is because where ‘the evidence establishes that the reasons given for the
Respondent's action are pretextual––that is, either false or not in fact relied upon––the
Respondent fails by definition to show that it would have taken the same action for those
reasons, absent the protected conduct, and thus there is no need to perform the second part of
the Wright Line analysis.’” Rood Trucking, supra, citing, Golden State Foods Corp., 340 NLRB
382, 385 (2003).

Turning to General Counsel’s initial burden, to carry this burden the General Counsel
must show “’(1) that the employee was engaged in protected activity, (2) that the employer was
aware of the activity, and (3) that the activity was a substantial or motivating reason for the
employer’s action.’” Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC Holdings,
Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enfg. 314 NLRB 1169 (1994)).

In this case, there is no question that Gilbert engaged in protected activity by attending
the union meeting. Second, Respondent was aware of Gilbert’s protected activity. It is clear
that R.J. Conley knew because, as I have found, he unlawfully told Thompson he knew on
Wednesday October 26—three days after the union meeting and two days before Gilbert’s
discharge. Conley told Thompson, “I heard something today.” [Thompson] said, “[W]hat’s
that?” He said, “I heard you, Tim Gilbert, and Steve Del[a]bar were trying to get a union in
here.” Moreover, even in the absence of this direct evidence of knowledge, the suspicious
timing of Gilbert’s discharge only two days later is a factor that will give rise to an inference of an
employer's knowledge of an employee's union activity. La Gloria Oil and Gas Co., supra at
1123 (“the timing of the discharge in relation to [the supervisor’s] learning of the activity supports
a finding that [the supervisor] knew of the activity and knew who had been involved”); see also
Metro Networks, Inc., 336 NLRB 63 (2001) (Board can infer knowledge from the timing of the
discharge); Medtech Security, Inc., 329 NLRB 926, 929–930 (1999).

There is also evidence that Gilbert’s union activity motivated Respondent to discharge
him. Most significant is that Gilbert was terminated five days after attending the union meeting
and just two days after Conley told Thompson that he learned about Gilbert’s protected activity.
The Board has long recognized that in discrimination cases "the timing of the [employer's
conduct] is strongly indicative of animus.” Electronic Data Systems, 305 NLRB 219, 220 (1991),
enfd. in relevant part, 985 F.2d. 801 (5th Cir. 1993); La Gloria Oil and Gas Co., supra at 1124;
Yellow Transportation Inc., 343 NLRB No. 9, slip op. at 6 (2004); Structural Composites
Industries., 304 NLRB 729, 729 (1991). Moreover, Respondent’s animus towards unionization
is supported by Conley’s unlawful statement to Thompson, which gave the impression that
Respondent was watching the union activity. Finally, Respondent’s animus is also
demonstrated by Delmas Conley’s subsequent unlawful threats and comments at the employee
meeting where, in an angry speech attacking employees he declared that “he wanted to stay
non-Union and that he would not like outside people telling him how to run his business” and
essentially claimed victory, stating that “a few drivers had tried to bring in an outside group but it
didn’t work.” In that meeting he also announced that “if employees want to work for a Union
trucking company that he preferred that they go work somewhere else rather than Unionize his
facility.” Particularly in this context of animus, the timing of Gilbert’s discharge is highly
suspicious because it could not help but send a message to employees in accord with that

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pronounced by Delmas Conley on December 23: employees who wanted to work for a union
trucking company should work elsewhere.38

Without more, the record easily supports the finding that General Counsel has proven
that unlawful motivation was a substantial factor in the discharge. But there is more, as
Respondent’s explanation for Gilbert’s discharge is suspect. The odor of pretext cannot be
washed from Respondent’s defense.

In evaluating whether Gilbert’s protected activity was a substantial or motivating reason
for Conley Trucking’s discharge of him, the anomaly of the discharge stands out. It was after
all, with the exception of employees who “self-terminated” for ceasing to attend work at all, the
first and at the time only discharge of an employee for which there is any record evidence.
What motivated this anomaly? At trial, Respondent reached back into Gilbert’s employment
history and asserted that months of absences, accidents, poor performance, and the drinking
incident all came together to render his calling off of work to be with his ill wife on October 28
the proverbial final straw. In other circumstances, this would not be an inconceivable defense,
but here it is not credible. Indeed, the litany of Gilbert’s failures as an employee more
prominently raises the question of why his consistently poor performance, of so little apparent
consequence or concern to the employer––only the drinking incident seven months prior was
even of the subject of a written warning, the rest did not even warrant a remark in his personnel
file––suddenly, on October 28, when combined with a standard practice for Gilbert and others to
call in and let the employer know that he would not be at work that day, roused management to
terminate him. The obvious explanation is that it was retaliation for Gilbert’s attendance at a
union meeting five days earlier, which R.J. Conley let Thompson know he knew about two days
earlier. Of course, Respondent denies it knew about Gilbert’s attendance, but I do not believe
that and have found that it did. That leaves coincidence as the potential lawful explanation for
the timing of the discharge, but I do not believe that either, because Respondent’s proffered
explanation for the discharge is not trustworthy.

First of all, the nonchalance with which Respondent claims to have decided upon and
carried out the (then) unprecedented act of discharging an employee is not the most important
factor in my evaluation, but it is striking. Putting aside the employees who “self-terminated” by
failing return to work, the record evidence reveals not one other employee who had been
discharged from employment as of October 2005. There is a noticeable vagueness in the
testimony of Delmas and R.J. Conley regarding what they discussed when they abruptly
decided to discharge Gilbert the morning of October 28, ostensibly for calling off work. There is
no hint that they were angry or had been thinking in the past of discharging Gilbert. They just
fired him for calling off work, a practice that the attendance calendars of other employees show
was quite common at Conley Trucking.

Even more suspicious, while Respondent claimed at trial that Gilbert’s poor performance
in just about every conceivable category of employee performance contributed to the decision to
38Notably, the fact “[t]hat Respondent did not discipline all employees who attended the
union organizing meeting does not alter the findings made herein. A discriminatory motive,
otherwise established, is not disproved by an employer's proof that it did not take similar actions
against all union adherents." Master Security Services, 270 NLRB 543, 552 (1984); NLRB v.
W.C. Nasors Co., 196 F.2d 272 (5th Cir. 1952), cert. denied 344 U.S. 865. In fact, it is not
surprising that an ill-motivated employer would choose a marginal employee to discharge. It is
not only easier to defend, but costs the employer less while allowing a warning of the risks of
union activity to be sent to remaining employees.

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discharge him, that is not the explanation that Respondent gave at the time of the discharge. At
the time of the discharge, as explained in the termination notice, the “Reason For Termination”
given on Gilbert’s termination notice listed only “Absenteeism/Tardiness.” Other options on the
forms, advanced at trial by Respondent as contributing to Gilbert’s discharge (performance, job
change, violation of policies/procedures, personal, other) were not marked. The employee
evaluation grid listed on the termination notice only addresses two of the nine listed
performance factors, attendance and dependability, and in each Gilbert is rated unsatisfactory.
Other factors such as initiative, cooperation, job knowledge, job productivity, and work safety
were not marked. (GC Exh. 15). No explanation for the disparity between the reasons given for
Gilbert’s discharge at the time of his discharge and the growing list of contributing factors that
blossomed at trial was proffered. By itself, the shifting explanations for the discharge add to the
General Counsel’s case and undermine Respondent’s defense under well-settled Board
precedent. Atlantic Limousine, 316 NLRB 822, 823 (1995).39

Had Respondent terminated Gilbert, as reflected in the termination report, simply for
absenteeism, it would have had the virtue of being consistent with Respondent’s demonstrated
apathy towards other aspects of Gilbert’s performance for months before the discharge. But it
would have had the vice (in addition to being inconsistent with Respondent’s position at trial) of
being a particularly unconvincing explanation of Respondent’s decision to take action against
Gilbert. As discussed supra, numerous other employees had absenteeism records worse than
Gilbert’s and yet they were not discharged. See, supra. Absenteeism was rife among
employees. Indeed, Gilbert was not even among the employees to receive the attendance
warning letter developed by Respondent to encourage employees prone to absenteeism “to do
a little better.” (GC Exh. 8).

Attendance was not a plausible reason for Gilbert’s discharge. That is why as part of the
investigation and in preparation for trial in this case Respondent culled its managers’ memory
for incidents and shortcomings that could offer a post hoc and legitimate rationale for Gilbert’s
discharge. In short, Respondent developed a pretext. See La Gloria Oil and Gas Co., supra at
1124 (“in light of the fact that this prior conduct did not even result in the giving of a disciplinary
memo, we find that these prior incidents were suddenly dredged up to mask a discriminatory
intent”). And even these incidents are suspect. As discussed, supra, I do not accept the claim
that Gilbert did not work the mandatory Saturday. That R.J. Conley would claim that this was a
basis for Gilbert’s discharge when the evidence showed that he actually did not know whether
Gilbert worked that day speaks volumes about the validity of Respondent’s explanation for the
discharge offered at trial. I also do not accept that Gilbert had a truck accident with an
employee named Floyd, or if he did that it had anything to do with Gilbert’s discharge. It is true
that Gilbert missed more loads than any other employee, but Respondent did not have
documentation developed at the time of Gilbert’s discharge to know this with any precision. I
recognize that Respondent’s managers would have a good feel for which employees miss a lot
of loads and no doubt were aware of Gilbert’s failings in that regard. But I don’t see how they
could readily distinguish Gilbert in this regard from, for instance, Thompson, who in fact missed
39Notably, the notices of other employees who had “self-terminated” were thoroughly filled
out with each item in the “employee evaluation” addressed. (See, e.g., GC Exhs. 9, 10 and 12).
In addition the termination notice of the one employee terminated for cause after Gilbert, Robert
Whitley (GC Exh. 22), is far more indepthly filled out than Gilbert’s, again, with each item on the
evaluation filled out. Thus, the brevity of comments on Gilbert’s termination form is itself an
unexplained departure from Respondent’s practice when terminating employees.

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only three less loads than Gilbert. As far as the record reveals, Thompson was never
disciplined or threatened with discharge due to missed loads and neither was Gilbert.

What we are left with is that Gilbert was not a stellar employee, who, with his drinking
incident, two driving mishaps, poor (but not as bad as many others) attendance, and an
abysmal record of missed loads worked steadily without incident until the employer learned (and
unlawful discussed with Thompson) that Gilbert was involved with union activities. Only then
was he fired, ostensibly for absenteeism, later expanded to encompass any and all other
shortcomings, real or invented for litigation. The Act protects both stellar and poor employees,
and those in between, from unlawfully motivated discharge. The salient truth is that Gilbert’s
many failings as an employee did not endanger his job until the employer discovered Gilbert’s
union activity. Then he was quickly fired on specious grounds.

I find that Respondent’s stated reasons at the hearing for discharging Gilbert are
pretextual and an attempt to disguise the fact that antiunion animus was the true motivation for
the discharge. This conclusion not only adds further weight to General Counsel’s case but
pretermits the “need to perform the second part of the Wright Line analysis.’” Rood Trucking,
supra. Respondent’s discharge of Gilbert violated the Act as alleged.

CONCLUSIONS OF LAW

1. Respondent Delmas Conley d/b/a Conley Trucking is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.

2. Charging Party General Truck Drivers and Helpers Union Local #92, International
Brotherhood of Teamsters 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 creating the impression of
surveillance of employees’ union activity.

4. Respondent violated Section 8(a)(1) of the Act by threatening employees that
bargaining with the Union would start from zero.

5. Respondent violated Section 8(a)(1) of the Act by inviting union supporters to leave
their employment with Conley Trucking.

6. Respondent violated Section 8(a)(1) of the Act by threatening employees that it would
end the employer-employee relationship by selling employees the trucks and business if they
chose union representation.

7. Respondent violated Section 8(a)(1) and (3) of the Act by discharging employee
Timothy Gilbert because he engaged in activities in support of union representation and to
discourage other employees from engaging in these and other protected activities.

8. The unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.

REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

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The Respondent, having unlawfully discharged employee Timothy Gilbert as of October
28, 2005, must offer Gilbert reinstatement to the position he occupied prior to the suspension, or
to an equivalent position, should the prior position not exist, without prejudice to his seniority or
any other rights or privileges previously enjoyed. Respondent shall make Gilbert whole for any
loss of earnings and other benefits, computed on a quarterly basis from the date of his
discharge to the date of a proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). Respondent shall remove from its files,
including Timothy Gilbert’s personnel file, any reference to his discharge, and shall thereafter
notify Gilbert in writing that this has been done and that the discharge will not be used against
him in any way.

Respondent shall post an appropriate informational notice, as described in the Appendix,
attached. This notice shall be posted in Respondent’s facility or wherever the notices to
employees are regularly posted for 60 days without anything covering it up or defacing its
contents. When the notice is issued to Respondent, it shall sign it or otherwise notify Region 9
of the Board what action it will take with respect to this decision.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended40

ORDER

The Respondent, Delmas Conley d/b/a Conley Trucking, Portsmouth, Ohio, its officers,
agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any employee because of
that employee’s membership in or activities on behalf of the General Truck Drivers and Helpers
Union Local #92, International Brotherhood of Teamsters or any other labor organization.

(b) Creating the impression of surveillance of employees’ union activity.

(c) Threatening employees that bargaining with the Union would start from zero.

(d) Inviting union supporters to leave their employment with Respondent.

(e) Threatening employees that it would end the employer-employee relationship
by selling employees the trucks and business if they chose union representation.

(f) In like and related manner interfering with, restraining, 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:

40If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(a) Within 14 days from the date of this Order, offer Timothy Gilbert 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 or privileges previously enjoyed.

(b) Make employee Timothy Gilbert whole with interest, in the manner set forth in
the remedy section of this Decision and Order for any loss of earnings or other benefits resulting
from his discharge.

(c) Within 14 days from the date of this Order, remove from its files, including
Timothy Gilbert’s personnel file, any reference to his discharge, and three days thereafter notify
Timothy Gilbert in writing that this has been done and that the suspension and discharge will not
be used against him in any way.

(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
.
(e) Within 14 days after service by the Region, post at its facility in Portsmouth,
Ohio, copies of the attached notice marked “Appendix.”41 Copies of the notice, on forms
provided by the Regional Director for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent 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. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the 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 October 26, 2005.

(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 the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C., September 26, 2006.

____________________
David I. Goldman
Administrative Law Judge
41If 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.”
JD–73–06
Portsmouth, OH
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 Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
General Truck Drivers and Helpers Union Local #92, International Brotherhood of Teamsters or
any other union.

WE WILL NOT create the impression that we are engaging in surveillance of your union
activities.

WE WILL NOT threaten employees that bargaining with the Union would start from zero.

WE WILL NOT invite union supporters to leave their employment with Conley Trucking.

WE WILL NOT tell employees that if they unionize we will end the employer-employee
relationship by selling employees our trucks and business.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the National Labor Relations Act.

WE WILL within 14 days from the date of this Order, offer Timothy Gilbert 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 or privileges previously enjoyed.

WE WILL make Timothy Gilbert whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest.

JD–73–06
Portsmouth, OH
WE WILL within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Timothy Gilbert, 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.

DELMAS CONLEY d/b/a CONLEY TRUCKING
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.

550 Main Street, Federal Office Building, Room 3003
Cincinnati, Ohio 45202-3271
Hours: 8:30 a.m. to 5 p.m.
513-684-3686.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 513-684-3663.