Saia Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 2001

334 N.L.R.B. 979 (N.L.R.B. 2001)

SAIA MOTOR FREIGHT, INC. 979
SAIA Motor Freight, Inc. and Teamsters Local Union
886, affiliated with International Brotherhood of
Teamsters, AFL–CIO, CLC. Case 17–CA–20294
August 7, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE,
AND WALSH
On September 11, 2000, Administrative Law Judge
William N. Cates issued the attached bench decision.
The Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and brief and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
discussed below, and to adopt the recommended Order,
except that the attached notice is substituted for that of
the administrative law judge.3
1. The judge found that Dock Foreman Dale Barnhill
was a statutory supervisor within the meaning of Section
2(11) of the Act. The Respondent disputes Barnhill’s
supervisory status and contends that his duties were
merely routine and did not require the exercise of inde-
pendent judgment. We find it unnecessary to pass on the
judge’s finding that Barnhill was a statutory supervisor
because we find, for the following reasons, that the evi-
dence is sufficient to establish that Barnhill was the Re-
spondent’s agent within the meaning of Section 2(13) of
the Act.
It is a long-established policy and practice of the Board
to apply the common law principles of the Agency. Al-
legany Aggregates, Inc., 311 NLRB 1165 (1993). Under
the doctrine of apparent authority, an agency relationship
is established where a principal’s manifestations to a
third party supply a reasonable basis for the third party to
believe that the principal has authorized the alleged agent
to perform the acts in question. Id.; see generally Den-
tech Corp., 294 NLRB 924, 925 (1989). Thus, in deter-
mining whether the actions by individuals towards em-
ployees are attributable to an employer, the test is
whether “under all the circumstances, ‘the employees
would reasonably believe that the employee in question
was reflecting company policy and speaking and acting
for management.’” Waterbed World, 286 NLRB 425,
426–427 (1987), supplemented by 289 NLRB 808
(1988), supplemented by 301 NLRB 589 (1991), enfd.
974 F.2d 1329 (1st Cir. 1992) (quoting Einhorn Enter-
prises, 279 NLRB 576 (1986), enfd. 843 F.2d 1507 (2d
Cir. 1988), cert. denied sub nom. Star Color Plate Ser-
vice, 488 U.S. 828 (1988)); see also Victor’s Cafe 52,
321 NLRB 504, 513 (1996).

1 No exceptions were filed to the judge’s finding that the Respon-
dent, by Vice President of Human Relations Reuben Gegenheimer, did
not violate Sec. 8(a)(1) of the Act by threatening employees with clo-
sure of the facility and with discharge if they selected the Union as their
collective-bargaining representative. Further, no exceptions were filed
to the judge’s finding that the Respondent did not violate Sec. 8(a)(3)
and (1) of the Act by discharging employee Terry Anderson.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall issue a new notice to conform to the Order.
The credited testimony shows that Barnhill assigned
and directed the employees’ work, had authority to grant
time off, took corrective disciplinary action, designated
lunchbreak times, corrected time and attendance records,
conducted employee meetings at which he discussed
work-related matters, and attended supervisory or man-
agement meetings. In addition, the Respondent’s termi-
nal manager, Roger Atchley, told employees that Barn-
hill “was in control of the dock workers” and that if the
employees had any job-related problems they should take
them up with Barnhill.
Under these circumstances, we conclude that the Re-
spondent placed Barnhill in a position where the employ-
ees would reasonably believe that he was speaking and
acting on the Respondent’s behalf. Thus, Barnhill was
vested with apparent authority. Accordingly, we con-
clude that Barnhill is an agent of the Respondent within
the meaning of Section 2(13) of the Act and that his con-
duct is therefore imputable to the Respondent. United
States Service Industries, 319 NLRB 231 fn. 2 (1995),
enfd. 107 F.3d 923 (D.C. Cir. 1997).
2. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by interrogating its employees
concerning their activities and the activities of their co-
workers on behalf of the Union.4 For the reasons set
forth below, we agree with the judge’s finding that the
Respondent interrogated the employees regarding their
union activities in a manner that restrained, coerced, and
interfered with their Section 7 rights guaranteed by the
Act.
The Respondent is engaged in interstate transportation
of freight at its Oklahoma City, Oklahoma facility. It is
undisputed that in the summer of 1999,5 the Union com-
4 The judge also found, and we agree, that the Respondent violated
Sec. 8(a)(1) of Act by creating the impression of surveillance of its
employees’ union activities and threatening them with discharge if they
selected the Union as their exclusive collective-bargaining representa-
tive.
5 All dates are in 1999, unless stated otherwise.
334 NLRB No. 124
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980
menced an organizing campaign at the Respondent’s
facility. Union literature was distributed in the company
parking lot and a union meeting was held at the Skyline
Restaurant, a local trucker hangout, in early or mid-July.
The judge found that once it learned about the Union’s
organizing campaign, the Respondent and its agents co-
ercively questioned the employees about their union ac-
tivities at various times between July 26 and August 4.
Specifically, on July 26, Dock Foreman Barnhill ap-
proached employee David Dubois while he was working
in a trailer and asked, “[W]hat’s this I hear about you
holding a Union meeting at the Skyline Restaurant?”
When Dubois answered that the meeting was just talk,
Barnhill informed Dubois that he knew that employees
Terry Anderson, Darrel Mosley, and Forrest Moore (also
known as Goat) were present at the union meeting.
Barnhill also told Dubois that the Union was going to
cost Dubois his job.
Sometime during the same day, Barnhill also spoke to
employee David Bussey about the Union. While Bussey
was working, Barnhill approached him and after first
stating that he could not ask the question, then inquired
whether anyone had spoken to Bussey about the Union.
He also asked Bussey if anyone had asked him about
going to lunch on Friday. When Bussey asked why
Barnhill wanted to know this information, Barnhill re-
plied that “they’re trying to get the Union in.” The first
week in August, Barnhill again questioned Bussey by
asking him if he had heard any rumors. When Bussey
asked what kind of rumors, Barnhill replied, “[Y]ou
know.”6
On or about August 3 or 4, Barnhill approached em-
ployee Eric Hawkins while he was working and asked
what was going on and if Hawkins had attended a union
meeting. Later that day, Terminal Manager Roger
Atchley also asked Hawkins what was going on. Haw-
kins replied that he had no idea what Atchley was talking
about. Atchley then asked Hawkins if he wanted to talk
and Hawkins again responded that he did not know what
Atchley was referring to.7
Based on credited testimony, the judge determined that
the Respondent’s questioning concerning the employees’
union activities was coercive and constituted interroga-
tion in violation of the Act. The judge also found that
when Barnhill told Dubois that he knew about the union

6 We find it unnecessary to pass on whether this comment consti-
tuted an additional unlawful interrogation because in light of our find-
ing that Barnhill’s other comments violated Sec. 8(a)(1) of the Act,
such a finding would be cumulative and would not affect the Order.
7 We find it unnecessary to pass on whether Atchley’s conduct vio-
lated Sec. 8(a)(1) of the Act. An additional interrogation finding based
on Atchley’s conduct would be cumulative and would not affect the
Order.
meeting and which employees had attended the meeting,
Barnhill created among the employees the impression of
surveillance of their union activities. Further, the judge
found that Barnhill threatened Dubois with discharge
when he stated that the Union was going to cost Dubois
his job.
The Board has held that an employer’s questioning
concerning an employee’s union activity is unlawful
when, under all the circumstances, the interrogation rea-
sonably tends to restrain, coerce, or interfere with the
rights guaranteed the employees under Section 7 of the
Act. Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel & Restaurant Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). In applying the test, the
Board considers the following factors: the background in
which the questioning occurs, the nature of the informa-
tion sought, the identity of the questioner, the place and
method of interrogation, and whether the employee in-
volved was an open and active union supporter. Kell-
wood Co., 299 NLRB 1026 (1990), enfd. mem. 948 F.2d
1297 (11th Cir. 1991).
Applying these factors to Barnhill’s interrogations of
Dubois, Bussey, and Hawkins, we find, in agreement
with the judge, that the interrogations were coercive.
Barnhill, as the Respondent’s agent, approached employ-
ees and interrogated them about their union activities
despite the fact that there was no evidence that the em-
ployees had disclosed their union sympathies at that
time. Barnhill also asked Bussey and Hawkins whether
anyone had spoken to them about the Union and if they
had attended any union meetings. We find that Barn-
hill’s questions were not just a casual inquiry but were a
pointed attempt to ascertain the extent of the employees’
union activities and those of other employees. See, e.g.,
Sea Breeze Health Care Center, 331 NLRB 1131 (2000);
Cumberland Farms, 307 NLRB 1479 (1992), enfd. 984
F.2d 556 (1st Cir. 1993) (“the fact that the interrogators
sought information about other employees and the orga-
nizing effort in general” supports a finding that the inter-
rogation was unlawful).
The interrogation of Dubois was accompanied by an
unlawful threat of reprisal as well as a statement that
created the impression of surveillance. Thus, when Du-
bois confirmed that the union meeting had occurred,
Barnhill immediately stated that the Union was going to
cost Dubois his job. Barnhill also created an impression
of surveillance of the employees’ union activities when
he told Dubois he knew which employees had attended
the meeting. Where an interrogation is accompanied by
a threat of reprisal or other violations of Section 8(a)(1)
of the Act, there is no question as to the coercive effect
SAIA MOTOR FREIGHT, INC. 981
of the inquiry. Parts Depot, Inc., 332 NLRB (2000);
Kellwood, supra at 1027.
We find that the Respondent’s conduct was not an iso-
lated incident. As stated above, Barnhill wasted no time
attempting to elicit information about the Union and the
employees’ union involvement. Employee Dubois was
questioned and threatened with a reprisal by Barnhill on
July 26. Barnhill targeted Bussey and probed him for
information about the Union on the same day. The fol-
lowing week, Barnhill asked Hawkins if he had attended
a union meeting and “what was going on.” We find that
Barnhill’s repeated requests for information without an
explanation to the employees as to the purpose of the
questioning amounted to coercive conduct.
In sum, we conclude that Barnhill’s questioning
clearly contained elements of coercion and interference.
Considering all the circumstances, the questioning, cou-
pled with the threat of reprisal and the impression of sur-
veillance, created a coercive atmosphere that reasonably
tended to interfere with the employees’ statutory rights to
engage in union activity. We find, therefore, in agree-
ment with the judge, that the Respondent engaged in
unlawful interrogation in violation of Section 8(a)(1) of
the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, SAIA Motor Freight, Inc.,
Oklahoma City, Oklahoma, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order, except that the attached notice is substituted for
that of the administrative law judge.
APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT give our employees the impression
their union activities are under surveillance by manage-
ment.
WE WILL NOT coercively interrogate our employees
concerning their activities and the activities of their co-
workers on behalf of Teamsters Local Union 886, affili-
ated with International Brotherhood of Teamsters, AFL–
CIO, CLC, or any other labor organization.
WE WILL NOT threaten you, through our supervisors,
with discharge if you select the Union as your exclusive
collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

SAIA MOTOR FREIGHT, INC.

Mary Taves, Esq., for the General Counsel.
Charles Hollis, Esq., for the Company.
Eddie Landers, Union Representative, for the Union.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is
an interfering with employee rights and a wrongful discharge
case. At the close of a 2-day trial in Oklahoma City, Oklahoma,
on August 16, 2000, and after hearing oral argument by the
Government and company counsel, I issued a Bench Decision
pursuant to Section 102.35(a)(10) of the Board’s Rules and
Regulations setting forth findings of fact and conclusions of
law. This certification of that Bench Decision, along with the
Order which appears below, triggers the time period for filing
an appeal (exceptions) to the National Labor Relations Board
(the Board).
For the reasons (including credibility determinations) stated
by me on the record at the close of the trial, I found SAIA Mo-
tor Freight, Inc. (the Company) violated Section 8(a)(1) of the
National Labor Relations Act (the Act) when in late July and
early August 1999 it interrogated employees concerning their
activities on behalf of the Teamsters Local Union 886, affili-
ated with International Brotherhood of Teamster, AFL–CIO,
CLC (the Union), Westwood Health Care Center, 330 NLRB
935, 936 fn. 6. (2000), created the impression among its em-
ployees it engaged in surveillance of their union activities, Link
Mfg. Co., 281 NLRB 294 (1986), enfd. mem. 840 F.2d 17 (6th
Cir.), cert. denied 488 U.S. 854 (1998); and threatened employ-
ees with discharge if they selected the Union as their exclusive
collective-bargaining representative.
Although I concluded the Government established antiunion
sentiment as a substantial or motivating factor in the Com-
pany’s decision to discharge its employee Terry W. Anderson, I
further concluded the Company would have discharged him
even if he had not engaged in protected activity. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982
cert. denied 455 U.S. 989 (1982); approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
The evidence demonstrated the Company consistently dis-
charged employees who accumulated 12 points under its estab-
lished and published attendance policy. It was undisputed that
prior to the advent of the Union, Anderson had accumulated
eight attendance points pursuant to the Company’s attendance
policy. Anderson had been warned three times in writing about
his attendance problems with the most recent warning being at
his performance evaluation given on or about July 21, 1999.
Anderson admittedly did not show for work or call in on Au-
gust 14, 1999, and was given four attendance points as called
for in the attendance policy. Thereafter, on August 17, 1999,
he was discharged as a result of his accumulating 12 attendance
points.
The Company established it had consistently given four at-
tendance points any time an employee failed to show or call in
for work. The evidence also established all employees on
Anderson’s shift, including Anderson, were required and knew
they were required to report for work on August 14, 1999.
I rejected the Government’s contention Anderson’s dis-
charge was unlawful because it took place 1 day after the Union
demanded the Company recognize it as the employees’ exclu-
sive collective-bargaining representative. The Union also had
earlier demanded recognition by the Company. I dismissed the
complaint allegations related to Anderson’s discharge.
I certify the accuracy of the portion of the transcript, as cor-
rected,1 pages 466 to 494, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSIONS OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act; that it vio-
lated the Act in the particulars and for the reasons stated at trial
and summarized above and that its violations have affected and,
unless permanently enjoined, will continue to affect commerce
within the meaning of Section 2(2) and (6) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
I recommend the Company be ordered, within 14 days after
service by the Region, to post an appropriate notice to employ-
ees, copies of which are attached as “Appendix B” for a period
of 60 consecutive days in order that employees may be apprised
of their rights under the Act and the Company’s obligation to
remedy its unfair labor practices.
On these conclusions of law, and on the entire record, I issue
the following recommended2

1 [Transcript pages have been noted and corrected.] I have corrected
the transcript pages containing my decision and the corrections are as
reflected in attached app. C. [Omitted from publication.]
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER
The Company, SAIA Motor Freight, Inc., Oklahoma City,
Oklahoma, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Interrogating its employees concerning their activities
and the activities of their coworkers on behalf of the Union.
(b) Creating the impression among its employees that their
union activities are under surveillance.
(c) Threatening employees with discharge if they select the
Union as their exclusive collective-bargaining representative
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Regional Director for
Region 17, post at its Oklahoma City, Oklahoma facility copies
of the attached notice marked “Appendix B.”3 Copies of the
notice, on forms provided by the Regional Director for Region
17, after being signed by the Company’s authorized representa-
tive shall be posted by the Company and maintained for 60
consecutive days in conspicuous places, including all places
where notices employees are customarily posted. Reasonable
steps shall be taken 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 Company has
gone out of business or closed the facility involved in these
proceedings, the Company shall duplicate and mail, at its own
expense, a copy of the notice to employees, to all employees
employed by the Company on or at any time since July 26,
1999.
(b) 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
Company has taken to comply.
IT IS FURTHER ORDERED that the complaint be, and is,
dismissed insofar as it alleges violations of the Act not specifi-
cally found.
APPENDIX A
466
B E N C H D E C I S I O N
JUDGE CATES: This is my decision in the matter of SAIA
Motor Freight, Inc., Case 17–CA–20294.
First, I wish to thank the parties for their presentation of the
evidence. Each are a credit to the party and interest they repre-
sent. In reflecting over the trial, I asked few, if any questions,
which is an indication counsel developed the evidence fully and
I thank you for doing so.

Board and all objections to them shall be deemed waived for all pur-
poses.
3 If this order is enforced by a judgment of the United States court of
appeals, the words in the notice reading, “Posted by Order of the Na-
tional Labor Relations Board” shall read: Posted Pursuant to a Judge-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SAIA MOTOR FREIGHT, INC. 983
May I also state that it has been a pleasure being in Okla-
homa City, Oklahoma.
This is an unfair labor practice case prosecuted by the Na-
tional Labor Relations Board’s (hereinafter “Board”), General
Counsel (hereinafter “government”), acting through the Re-
gional Director for Region 17 of the Board following an inves-
tigation by Region 17’s staff.
The Regional Director for Region 17 issued a Complaint and
Notice of Hearing (hereinafter “Complaint”) on February 23,
2000 against SAIA Motor Freight, Inc. (hereinafter “Com-
pany”), based on an unfair labor practice charge filed on Au-
gust 24, 1999 and amended on September 23, 1999 by Team-
ster Local Union 886, affiliated with International Brotherhood
of Teamsters, AFL–CIO, CLC (hereinafter “Union”).
Certain facts in this case are admitted, stipulated, or not in
dispute.
It is admitted the Company is a corporation with an office
467
and place of business located in Oklahoma City, Oklahoma
where it is engaged in the interstate transportation of freight. It
is admitted that during the 12 month period ending August 31,
1999, a representative period, the Company in conducting its
business operations derived gross revenues in excess of
$50,000.00 for the transportation of freight from the State of
Oklahoma directly to points outside the State of Oklahoma.
The evidence establishes, the parties, and I find the Company
is an employer engaged in commerce within the meaning of
Section 2(2)(6) and (7) of the National Labor Relations Act, as
amended (hereinafter “Act”).
The evidence establishes, the parties admit, and I find the
Union is a labor organization within the meaning of Section
2(5) of the Act.
It is alleged in the Complaint the parties admit and I find that
Vice President of Human Resources Reuben Gegenheimer and
terminal manager Roger Atchley are supervisors and agents of
the Company within the meaning of Section 2(11) and 2(13) of
the Act.
It is admitted the Company discharge its employee Terry W.
Anderson (hereinafter “Anderson”) on August 17, 1999.
Specific Complaint allegations that are contested are: that
the Company acting through its representatives at various times
between July 26, 1999 and August 4, 1999 interrogated em-
ployees concerning their activities on behalf of the Union;
468
created the impression the Company was engaging in surveil-
lance of its employees’ activities on behalf of the Union;
threatened employees with closure of the facility and discharge
if they selected the Union as their collective bargaining repre-
sentative.
It is also alleged the Company discharged its employee Terry
W. Anderson on or about August 17, 1999 because he joined
and assisted the Union and engaged in concerted activities
and to discourage employees from engaging in these activi-
ties.
It is alleged the Company’s actions violate Section 8(a)(1)
and (3) of the Act.
The Company denies having violated the Act in any manner
alleged in the Complaint.
This case, as in most cases, requires that I make credibility
resolutions. Stated differently, there are conflicts in the testi-
mony. Some are minor differences, while others are more sub-
stantial.
I’m not unmindful that, when witnesses are recalling the
same events, they will recall them in a slightly different man-
ner, with each believing, and, perhaps, rightfully so, that they
are truly recalling what occurred.
In arriving at my credibility resolutions, I carefully observed
the witnesses as they testified and have utilized such in arriving
at the facts herein.
I have also considered each witness’ testimony in relation
469
to other witnesses’ testimony and in light of the exhibits herein.
If there is any evidence that might seem to contradict the
credited facts or the facts that I rely on, I have not ignored such
evidence, but, rather, have discredited it or rejected it as not
being reliable or trustworthy.
I have considered the entire record in arriving at the facts
herein.
The first issue that I find it necessary to resolve is the issue
of whether dock foreman Dale Barnhill is a supervisor and
agent of the Company within the meaning of the Act.
Let me briefly state what Section 2(11) of the Act says with
respect to what constitutes a supervisor. Section 2(11) of the
Act defines a supervisor as “any individual having authority in
the interest of the employer to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other
employees or responsibly to direct them or to adjust their griev-
ances or to effectively recommend such action if in connection
with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of inde-
pendent judgment.
Section 2(3) of the Act excludes any individual employed as
a supervisor from the definition of employee.
The Company herein, as indicated in the jurisdictional in-
formation, is a freight moving company. The terminal at which
470
I am concerned is the terminal located in Oklahoma City, Okla-
homa.
There is no question but what the terminal is or was at appli-
cable times herein managed by terminal manager Atchley.
Terminal manager Atchley testified the Oklahoma City,
Oklahoma facility employs between 59 and 62 employees.
Terminal manager Atchley contended in his testimony that he
was the only supervisor at the facility, which would make him
supervising a work force of somewhere between 59 and 62
employees.
Employee Anderson testified that terminal manager Atchley
told him and other employees that foreman Barnhill was in
control of the dock workers.
According to Anderson, the dock workers were told that, if
they had any job-related problems, to take them up with fore-
man Barnhill.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984
Anderson testified that foreman Barnhill gave the dock
workers their job assignments and, in doing so, Barnhill told
the dock workers which trucks to load or remove freight from
and that Barnhill moved employees on the dock as needed.
Anderson testified that foreman Barnhill let you know if you
did something wrong work-wise and told you how to correct it.
Anderson testified that foreman Barnhill corrected or
changed, as pertinent, the dock workers’ time and attendance
471
records. Anderson explained that, if an employee clocked in
wrong or was tardy, late, or even early, for that matter, that it
was foreman Barnhill who noted the corrections on the time
cards.
According to Anderson, foreman Barnhill could let dock
workers go home early and that Barnhill had, in fact, on a few
occasions allowed Anderson to go home early.
Anderson testified that Barnhill designated when lunch times
would take place and that lunch times were unpaid for the em-
ployees.
Anderson testified that Barnhill carried keys to the Company
facility and attended meetings that, at least, Anderson perceived
as being supervisory meetings. I believe those meetings were
conducted by terminal manager Atchley and those in atten-
dance were Mr. Barnhill, Mr. May, and, perhaps, a Mr. Hunley
or one other individual.
Anderson testified that Barnhill held employee meetings
with the dock workers where he discussed work-related mat-
ters, such as when freight had been misloaded and about clean-
ing up around the facility.
According to Anderson, Barnhill did not, during the normal
work week, perform a great deal of dock work, but, rather,
stayed in the red house, a shed which was on the loading dock,
where he took care of whatever matters needed be taken care of
with respect to the movement of freight on the dock.
472
It is undisputed that Barnhill is paid 75 cents per hour more
than the dock workers.
Employee Mosley testified that he had been the dock fore-
man prior to Barnhill assuming that position and he discussed
the duties that he, Mosley, had performed and that he believed
and observed that Barnhill, likewise, performed.
Mosley testified that, if there were disciplinary problems
with employees on the dock, that he spoke with them and, if
necessary, took them to the terminal manager’s office.
Mosley testified that he had recommended discipline for em-
ployees and gave a specific example involving a city driver that
had, supposedly, been spending more time at a scuba shop than
he believed was necessary and he recommended that corrective
action be taken by the terminal manager. He gave other exam-
ples of where he had advised terminal manager Atchley of
work infractions or disciplinary concerns that he had.
Barnhill, as well as Mosley, from time to time would make
written comments regarding employee conduct and present
those to terminal manager Atchley. General Counsel Exhibit
11 consisted of four such examples where foreman Barnhill had
made written notations of actions of employees and presented
them to terminal manager Atchley, which documents were then
placed in the personnel file of the concerned employee.
Mosley further testified that he attended management or su-
pervisory meetings with terminal manager Atchley and that
473
Barnhill had done likewise.
Employee Dubois testified that foreman Barnhill would
make work assignments, that he would review the bills, the
trays containing the work, and assign specific employees to
perform specific tasks.
Dubois also testified that Barnhill worked very little, except
when it was absolutely necessary and Dubois also referred to
Barnhill making any corrections that needed be made to the
time and attendance records, as well as time off for sickness or
otherwise.
Employee Hawkins testified that Barnhill directed the work
of those on the dock at the time he was there and that he took
corrective disciplinary action. Hawkins gave an example of
when he had slid a fork lift or in some manner impacted a cus-
tomer’s vehicle.
Employee Bussey testified that Barnhill assigned work and
that there would be as many as 200 to 300 bills per day and that
he moved employees around as necessary to take care of spe-
cific customers and that he designated lunch periods, which
were not compensated.
The question then becomes is Barnhill a supervisor within
the meaning of the Act. In enacting Section 2(11) of the Act,
congress emphasized its intention that only truly supervisory
personnel vested with genuine management prerogatives should
be considered supervisors and not straw bosses, lead men, set
up
474
men, and other minor supervisory employees. Senate Report
No. 105 the 80th congress, first session, 4 (1947).
It is well settled that the burden of proving supervisory status
rests on the party asserting that such status exists. Ohio Ma-
sonic Home 295 NLRB 373 (1989) and Freeman Decorating
Co. 330 NLRB [1143] (2000).
Thus, any lack of evidence in the record is construed against
the party asserting supervisory status. Elmhurst Extended Care
Facilities, Inc. 329 NLRB [535] fn. 8 (1999).
In making determinations regarding supervisory status under
2(11) of the Act, the Board has a duty not to construe the statu-
tory language too broadly, because an individual found to be a
supervisor is denied employee rights protected under the Act.
Section 2(11) is to be read in the disjunctive and the posses-
sion of any one of the authorities listed in that section of the
Act places the employee vested with such authority in the su-
pervisory class. Ohio Power Co. v. NLRB 176 F2d 385, 387
(6th Cir. 1949) cert denied 338 U.S. 899 (1949).
The status of supervisor under the Act is determined by an
individual’s duties, not by his or her job title or classification.
New Fern Restorium, R-e-s-t-o-r-i-u-m, Co. 175 NLRB 142
(1969) and International Longshoremen’s Association, v.
Davis, 476 U. S. 380, 286 n. 13 (1986).
SAIA MOTOR FREIGHT, INC. 985
475
Section 2(11)’s disjunctive listing of supervisory indicia does
not alter the essential conjunctive requirement that a supervisor
must exercise independent judgment in performing the enumer-
ated functions. HS Lordships, 274 NLRB 1167 (1985).
Regardless of the specific kind of supervisory authority at is-
sue, its exercise must involve the use of true independent judg-
ment in the employer’s interest before such exercise of author-
ity becomes that of a supervisor. The exercise of some author-
ity in a merely routine, clerical, perfunctory, or sporadic man-
ner does not elevate an employee to the supervisory ranks. The
test must be the significance of his or her judgment and direc-
tions.
The mere fact that employees complain to a specific em-
ployee about working conditions is not an indicia of supervi-
sory status if there’s no evidence that the employee complained
to was empowered to act on behalf of management in resolving
such complaints.
Neither it is significant that employees report to a specific
person when they’re going to be absent, since the receipt of
such reports in and of itself is no more than a clerical function.
The scheduling of overtime, vacations, and absences may be
a supervisory function if it involves the use of independent
judgment. However, if such tasks are carried out within rela-
tively fixed parameters established by management, then
476
their performance is routine and does not indicate supervisory
status. DICO, D-I-C-O, Tire, Inc., 330 NLRB [1252](2000).
The key then becomes is whether the functions performed by
the individual that it is contended is a supervisor is done with
independent judgment.
I am persuaded for a number of reasons that Barnhill quali-
fies as a Section 2(11) supervisor within the meaning of the
Act.
First, if he does not qualify within the meaning of the Act,
then you have a work force that during portions of the work
shift or shifts is without any on site supervision. Terminal
manager Atchley testified he was not at work during at all times
the facility was operating.
I am persuaded that Barnhill made work assignments more
than were just routine. He determined which trucks were to be
handled in what particular order and he freely moved employ-
ees around as necessary.
Barnhill checked off and corrected time and attendance re-
cords for employees.
The employees were specifically told he was their supervi-
sor.
Barnhill was paid more than the employees that worked on
the dock and he did not during the regular work week perform
other than a limited amount of work himself.
477
Barnhill had the authority to grant time off, allowed employ-
ees to leave early, and designated lunch break times, which
resulted in employees not being paid for the times that he des-
ignated as lunch times.
I am persuaded, though not in a sophisticated fashion, that
Barnhill disciplined, corrected, and directed the employees on
his shift.
I find that Barnhill is a supervisor within the meaning of Sec-
tion 2(11) of the Act.
It is alleged at Paragraph 5(a) of the Complaint that foreman
Barnhill interrogated employees concerning their activities and
the activities of their coworkers on behalf of the Union. It is
alleged that Barnhill did so on or about July 26th, 1999 and at
various times thereafter up until and including August 4, 1999.
Employee Dubois testified that on July the 26th, 1999, while
working in a trailer at the dock, foreman Barnhill asked “what’s
this I hear about you holding a Union meeting at the Skyline
Restaurant?” “I know Goat was there.” Dubois told foreman
Barnhill that, if the Union presented a card to Goat, that Goat
would sign it, as well as he, Dubois, would also sign it. Ac-
cording to Dubois, Barnhill told him it was going to end up
costing you your job.
Employee Hawkins testified that dock foreman Barnhill on
August 3 or 4, 1999 asked him if he had attended a Union
meeting
478
and what was going on. Barnhill even asked Hawkins, accord-
ing to Hawkins, if the workers would get mad at him, Hawkins,
for talking.
Hawkins testified at around the same time that Barnhill
spoke with him terminal manager Atchley asked him what’s
going on. Hawkins replied he had no idea, to which Atchley
responded do you want to talk to me. Hawkins told terminal
manager Atchley he had no idea what he was talking about.
Employee Bussey testified foreman Barnhill spoke with him
on the morning of July the 26th, 1999 while he was stacking
freight. Barnhill told Bussey, according to Bussey, I can’t ask
you this. Then inquired has anyone come to you about the
Union.
On that same date, Barnhill asked Bussey if anyone had
asked him about going to lunch on Friday. Bussey testified he
told Barnhill no, to which Barnhill responded they’re trying to
get the Union in.
Employee Bussey testified foreman Barnhill asked him dur-
ing the first week in August if he had heard any rumors.
Bussey asked what kind of rumors and Barnhill replied you
know.
Foreman Barnhill denied making such comments as attrib-
uted to him by the employees in question. Terminal manager
Atchley likewise denied engaging in the conversations attrib-
uted to him.
I credit the testimony of employees Dubois, Hawkins, and
Bussey as outlined because they testified with specificity and it
appeared to me they were testifying truthfully.
479
I was not impressed with the general denials of foreman
Barnhill.
Thus, I find that foreman Barnhill and terminal manager
Atchley interrogated employees concerning their Union activi-
ties and that Barnhill created among the employees the impres-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986
sion that the Company was engaging in surveillance of the
employees’ Union activities when he told Dubois about what he
had heard about holding a Union meeting at the Skyline Res-
taurant and his reference to who was there, such as Goat. And,
by the way, Goat, the record will reflect, was an older em-
ployee at the Company, who, based on certain testimony pre-
sented in this trial, preferred to be referred to as the old man or
Goat. The individual’s name was Forrest Moore.
I also find that, when foreman Barnhill told Dubois that it
was going to end up costing him his job, that he threatened the
employee with discharge because of his Union activities.
It is alleged at Paragraph 5(c)(i) and (ii) that Vice President
of Human Relations Gegenheimer threatened employees with
closure of the facility and threatened employees with discharge
if they selected the Union as their collective bargaining repre-
sentative.
In that respect, employee Mosley testified that the Vice
President of Human Resources told the employees in a group
meeting that the Company held in early August, 1999 in re-
sponse to the Union organizing drive that the Union wasn’t in
SAIA’s
480
plans and that the Company could not survive being under a
Union. According to employee Mosley, the Vice President of
Human Resources also said that the Company could not afford
the Union and added that, if the employees didn’t sign a Union
card, they would have a future at SAIA.
Employee Hawkins testified that the Vice President of Hu-
man Relations Gegeheimer stated that the Company was 100%
against the Union and that for the employees not to let the
Company be an example to other companies where the Union
would take the employees’ money and the doors to the em-
ployer would be shut.
Employee Anderson testified that Vice President of Human
Resources Gegeheimer told the employees in the group that he
attended that the Union couldn’t do anything for the employees
and that other companies had had to close their doors because
of the Union. Anderson testified the Vice President of Human
relations told the employees that, if the Company got a contract
with the Union, the Company would not be able to survive and
would have to shut their doors.
Employees Bussey, Dubois, and Mosley testified that Gege-
heimer told the employees, if the employees didn’t sign a card,
they had a future with the Company.
Employee Gray testified that Gegeheimer told the employees
in the group that he was in that they didn’t need a Union, and
shouldn’t sign a Union card. Employee Gary testified that an
481
office employee by the name of Ruth asked Gegeheimer if their
jobs were at stake and that Gegeheimer responded yes and told
the office employee that they would have to fight for their jobs.
Vice President of Human Relations Gegeheimer denied mak-
ing any of the comments attributed to him by the employees,
but, rather, presented a prepared text that he testified he fol-
lowed during his presentation to the employees.
In reviewing the prepared text that Gegeheimer asserts he
utilized in giving his presentation to the employees, I am per-
suaded that in reading it the employees who attended the meet-
ing they may well have perceived or understood that Gege-
heimer made the comments they attribute to him.
However, I am persuaded that, based on his testimony and
what’s contained in the document that he testified he utilized,
that he did, in fact, read from the prepared statement. I dis-
credit any testimony to the contrary and that, having read from
that statement, I’m likewise persuaded that in any questions and
answers that took place thereafter in the meetings that Gege-
heimer conducted that he did not go beyond the framework of
what was outlined in his prepared text and did not make the
statements attributed to him by the employees in question. It is
easy to understand how the employees perceived that such was
said, but I am persuaded that a careful reading of the prepared
text does not take itself beyond the permissible
482
speech under 8(c) of the Act that a Company representative
may engage in.
Thus, I shall dismiss Paragraph 5(c) of the Complaint in its
entirety.
It is alleged at Paragraph 6 of the Complaint, and admitted
by the Company, that it discharged its employee Anderson on
August 17, 1999. It is further alleged in Paragraph 6 of the
Complaint that the Company did so because Anderson joined,
assisted, or engaged in Union activities or concerted activities
with other employees and that the Company discharged him in
order to discourage employees from engaging in either union or
concerted activities.
Without discussing all of the testimony regarding the back-
ground of employee Anderson, it’s undisputed that Anderson
was a five year employee of the Company, that he was a dock
worker, and that he had an excellent work record. His evalua-
tions bear out that he was an excellent worker and, in fact, ter-
minal manager Atchley testified that he was an excellent
worker, except for an attendance problem that he had.
Anderson worked along with approximately five or six other
employees under the supervision of Barnhill at applicable times
herein.
It’s undisputed that the Union commenced an organizing
campaign at the Company here in the summer of 1999 and that
Anderson was involved in that Union activity. In fact, Ander-
son
483
testified that in early July, 1999 talk around the Company be-
gan to center on a Union organizing campaign, that Union lit-
erature was circulated in the parking lot, and that a dinner was
held at the Skyline Restaurant, a local trucker hangout, in July
of 1999.
Rumors and actual reports of that restaurant meeting made
their way back to terminal manager Atchley, as well as foreman
Barnhill.
Atchley acknowledged that he was told it involved the morn-
ing dock workers and, perhaps, a couple of city drivers. Fore-
man Barnhill testified he learned of Union activity and of
SAIA MOTOR FREIGHT, INC. 987
Anderson’s specific involvement with it. Anderson testified he
told terminal manager Atchley of Union activity rumors and
that the rumors involved him and Atchley, according to Ander-
son, told Anderson that, if the rumors kept up, he, Atchley,
might have to address them.
Anderson testified that the Union came up in his July evalua-
tion with Atchley. In fact, employee Anderson testified that
Atchley told him at that meeting that the Union didn’t tell the
employees everything, that the Company was the one that paid
for retirement, and that the Union was not good for the employ-
ees.
Anderson testified he signed a Union card to seek more in-
formation from the Union and that he attended a Union meeting
held in the first week in August at the Union hall, along with
484
18 to 20 other employees.
Employee Anderson was given an evaluation or given an an-
nual review in, perhaps, the middle of July, 1999 or, specifi-
cally, perhaps, on July the 21st, 1999, and in the evaluation he
was rated in an acceptable manner, except for a comment that
he had accumulated eight points under the attendance policy at
the Company and, under the attendance policy at the Company,
12 points would result in a termination.
The critical facts and, perhaps, the most essential facts of this
case start coming into play on or about August the 13th, 1999,
which was on a Friday.
Thursday and Friday of that week, which would have been
August the 12th and August the 13th, 1999, Anderson had been
scheduled to be on vacation during those two days, but it ap-
pears an employee by the name of Hawkins was either sick or
injured, and it doesn’t make any difference for the outcome of
this case. Whatever Hawkins’ reasons were for being absent
from work, foreman Barnhill solicited and obtained Anderson’s
consent to forego his vacation on Thursday, August 12th, and
Friday, August 13, 1999 and work in the place of the sick or
injured employee.
Anderson testified he had hoped to be out of the city on
Thursday, August 13, Friday—correction—Thursday, august
12, Friday, August 13, Saturday, August 14, Sunday, August
15, and return to work at his normally scheduled time on Mon-
day,
485
August the 16th, 1999.
He, however, returned to work on August 12 and August 13
and, during the work day of August, foreman Barnhill notified
the dock employees that he was going to need employees to
work on Saturday, August the 14th, 1999.
Barnhill was seeking volunteers, as was his normal proce-
dure. When work was performed on a Saturday, the foreman
would attempt to have employees volunteer to work, but, if
volunteer employees, to include city drivers, did not provide
enough employees to perform the necessary work, then the
employees were drafted or it was mandatory that they work.
On Friday, August the 13th, foreman Barnhill was having
some difficulty obtaining any city drivers to assist and/or
enough of the dock workers themselves to volunteer so that he
called a meeting of his employees and told them that there was
work on Saturday that would have to be performed and that he
needed volunteers, and, eventually, volunteers came forward,
either freely or not so freely. At least one employee testified he
felt like he was going to have to work anyway, so he went
ahead and volunteered, which may not have been as freely as
one would want a volunteer. And it came down to two em-
ployees from which Barnhill needed, at least, one volunteer.
One of those two employees was Anderson and the other was
an employee, Dubois.
Anderson protested at the meetings that were held with
486
foreman Barnhill and the other employees that he had worked
previous Saturdays, that he had already given up two days of
vacation, and that he was not going to work on Saturday. Du-
bois, either in jest or with true meaning, started saying that he
was not going to work, either.
So foreman Barnhill told them to work it out among them-
selves, go to the restroom, clean up, work it out among them-
selves, and, if no one volunteered sufficient to supply the last
individual that he needed on the job on Saturday, August the
14, 1999, he would make work mandatory and everyone would
be required to report.
Anderson still did not want to report to work on Saturday
and did not, in fact, report for work on Saturday.
But on Friday, August the 13th, 1999, Dubois asked foreman
Barnhill to speak with Anderson again about coming in to work
on Saturday, August the 14th, because Anderson was not taking
him seriously. Dubois testified that he went to foreman Barn-
hill and told him, “Dale, tell Anderson to come into work, he’s
not taking you seriously.” Dubois testified that Barnhill
shrugged his shoulders.
Barnhill testified that he made it clear that, if there were no
volunteers, that everyone would report to work on Saturday,
August the 14th, 1999.
All did report to work except Anderson and Anderson, it is
admitted, did not call in nor show up.
487
Terminal manager Atchley testified that on Saturday, August
the 14th, he received a telephone call from a customer that the
customer needed an extra trailer on which to place freight.
Terminal manager Atchley testified he called the terminal to
inquire of whether there was a trailer that could be taken to the
customer and that was the purpose of his telephone call.
While he was making that telephone call, foreman Barnhill
told him that he had a little situation there, that everyone was to
report to work, mandatory on the Saturday work, because he
couldn’t get a sufficient number of volunteers, and that Ander-
son had not reported for work, nor had he called in. Terminal
manager Atchley wanted to know if it had been conveyed to
Anderson that he was to report to work.
Terminal manager Atchley testified, as did other employees
who testified, that he asked each of those employees who re-
ported for work that day if they understood that they had to
come to work on Saturday and each said they did.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
Specifically, employee Dubois was asked if he understood he
had to report to work, that it was mandatory, and he said yes.
He also was asked did Anderson understand that work was
mandatory and Dubois replied yes.
Terminal manager Atchley testified that he then investigated
the matter and determined that, with Anderson’s previous eight
accumulated points on attendance under the
488
attendance policy of the Company and an award of four points
for a no call/no show, that Anderson then accumulated 12
points and, as such, under the attendance policy, it called for
the termination of Anderson.
Terminal manager Atchley testified he discussed the
matter with the Vice President of Human Resources in At-
lanta, Mr. Gegenheimer, that a careful review was made of
Anderson’s attendance record, and that he was terminated on
August the 17th, 1999 as a result of having accumulated twelve
points under the attendance policy.
Those are essentially the facts that we must now decide the
case on.
The legal standards regarding the termination of Anderson
are as follows. In Wright Line, W-r-i-g-h-t, L-i-n-e, 251 NLRB
1083 (1980) enfd. 662 F2d 899 (1st Cir. 1981) cert denied 455
U. S. 989 (1982); approved in NLRB v. Transportation Man-
agement Corp. 462 U. S. 393 (1983), the Board set forth its
causation test for cases alleging violations of the Act that turn,
as does the case herein, on employer motivation.
First, the government must persuade the Board that anti-
union sentiment was a substantial or motivating factor in the
challenged employer conduct or decision. Once this is estab-
lished, the burden then shifts to the employer to prove its af-
firmative defense that it would have taken the same action even
if its employee had not engaged in protected activity.
489
(See Manno Electric, Inc. 321 NLRB 278 fn. 12 (1996))
How does the government establish its burden? Counsel for
the General Counsel must demonstrate by a preponderance of
the evidence: 1. that the employee was engaged in protected
activity; 2. that the employer was aware of the activity; 3. that
the activity or the worker’s union affiliation was a substantial
or motivating reason for the employer’s action; and 4. there was
a causal connection between the employer’s animus and its
discharge decision.
The government may meet its Wright Line burden with evi-
dence short of direct evidence of motivation. That is, inferen-
tial evidence rising from a variety of circumstances, such as
union animus, timing, or pretext may sustain the government’s
burden. Furthermore, it may be found that where an em-
ployer’s proffered non-discriminatory motivational explanation
is false, even in the absence of direct evidence of motivation,
the tryer of fact may infer unlawful motivation. Shattuck, S-h-
a-t-t-u-c-k, [Denn] Deen, D-e-e-n, Mining Corp. v. NLRB 362
F2d 466, at 46 (9th Cir. 1996); Flour Daniel, Inc., 304 NLRB
970 (1991).
Motivation of union animus may be inferred from the record
as a whole where an employer’s proffered explanation is im-
plausible or a combination of factors circumstantially support
such an inference. Direct evidence of union animus is not re-
quired to support such an inference.
In the present case did Anderson engage in protected
490
activity? Yes, he did. He engaged in union activities. The
company knew or, at least, perceived that he was involved in
those activities.
How did the company know that he was involved in these
activities? Well, a number of ways. First, foreman Barnhill
testified that the rumors that came back to him about the union
meeting at the Skyline Restaurant in Oklahoma City, Oklahoma
involved dock workers, including Anderson. Anderson spoke
with both foreman Barnhill and terminal manager Atchley
about his union activities. So there is no question that Ander-
son and others had union activity and that the company was
aware of it.
Does the company have anti-union animus? Or, stated dif-
ferently, has the government demonstrated anti-union animus in
this case?
Anti-union animus has been demonstrated by foreman Barn-
hill’s interrogation, impression of surveillance, and of the threat
of discharge. Animus on the company’s part is also demon-
strated by the testimony of employee Mosley when he testified
regarding attempts to help an individual from his church with
employment with the company. Mosley testified that terminal
manager Atchley told him the company wouldn’t have anything
to do with an employee with a union background. Employee
Gray testified that, when he was interview for a job in 1995,
terminal manager Atchley told him he didn’t like unions and
didn’t want anyone associated with a union.
491
I’m persuaded that animus has been demonstrated.
Is there a causal connection sufficient to find that the gov-
ernment established a prima facie case. I’m persuaded that the
government has established a prima facie case.
In addition to the matters I have just discussed, the timing of
the discharge of Anderson in that it followed shortly after the
August 3, 1999 demand of the Union that the Company recog-
nize them and one day after a second demand was made by the
Union in writing that the Company recognize the Union as their
bargaining representative.
So I am persuaded the government made a prima facie show-
ing in this case.
Has the Company demonstrated that it would have taken the
same action even if Anderson had not engaged in any concerted
protected activity?
I’m persuaded the Company has made such a showing.
The Company discharged Anderson pursuant to its atten-
dance policy, which was established in writing and which the
employees were fully aware of, including employee Anderson.
Anderson, I am persuaded, knew that he was to report for work
on Saturday or that work was mandatory on Saturday and that
he elected, for whatever reasons, not to report. I am persuaded
that Anderson and Dubois were strong-willed employees and
that Dubois, as was testified to by a witness herein, indicated
SAIA MOTOR FREIGHT, INC. 989
that he was not going to volunteer simply because Anderson
had said he was not
492
going to work on Saturday.
Now the fact that Anderson had given up his vacation on
Thursday and Friday and worked for the Company is com-
mendable. Did the Company cut him any slack because he had
done so? No. Would a more humane policy have been to cut
him some? Perhaps. But that’s not my job to address whether
the Company acts in any particular manner as long as it does
not act unlawful under the National Labor Relations Act.
The indication that the timing was critical in this case is
greatly diminished by the following factors. Anderson had
accumulated eight attendance points before the union activity
took place. To establish some sort of conspiracy on the part of
the Company to rid itself of Anderson by giving him four
points for not showing on Saturday as a result of the Union
making a demand that they recognize them is too far-fetched
for me to buy. The Company would, to have been engaged in
some sort of conspiracy to get rid of Anderson in the manner
that it did, would have had to schedule work on Saturday know-
ing that Anderson would reject the work and knowing that
Anderson would not call in and knowing that he would be
awarded points for that.
I don’t know if terminal manager Atchley would have been
informed of Anderson’s absence had terminal manager Atchley
not called in on Saturday regarding a trailer to be delivered to
some other customer. There simply are too many circum-
stances here
493
that would have to all fall in place for the Company to have
some anti-union motive to have discharged Anderson on the
17th.
The Company established that no other employee who hada
no call/no show that had not been awarded four points. Stated
differently, every employee that there is any record of that gave
a no call/no show was awarded four points.
Anderson knew that he had an attendance problem because
he had been warned in writing on March 1, 1999 that he had
eight points and that it was critical. He was also notified again
in writing on May 14, 1999 that, as of May 10, 1999, he had
accumulated eight points and an employee receiving twelve
points would be subject to termination. His attendance at his
evaluation on or about July the 21st was discussed and he was
again reminded that he had eight points. And there’s no ques-
tion that Anderson knew that, if you had a no call/no show, that
you would be subject to a four point assessment and that the
original eight he had accumulated with the four would warrant
his discharge, and he was discharged.
I’m persuaded that there’s no showing of disparate treatment
here. The individuals that the government would attempt to
show were treated differently the evidence does not bear her
out.
Ashlock was discharged for a no call/no show. Although the
Company attempted to locate him to find out his status, it was
because he continued in successive days not to call or show.
494
I find that distinguishable from the case herein. And it’s clear
that employees Brandon Jackson and Eric Hawkins were given
four point assessments for no call and no show.
Accordingly, I find that the Company has established t hat it
would have discharged Anderson even in the absence of any
protected or union conduct on his part and I shall dismiss the
Complaint with respect to Paragraph 6(a) and (b).
I shall certify my bench decision to the parties on receipt of
the transcript and it’s my understanding the court reporter will
provide me the transcript within ten days of the close of the
trial. At that time, I will certify those pages of the transcript
that constitute my decision and serve it on the parties and the
Board.
It is my understanding that any appeal period or any taking
of exceptions to my decision runs from that time period, but,
please, follow the Board’s Rules and Regulations rather than
relying on my understanding of the Rules and Regulations.
When I certify my decision to the Board, I will attach thereto
a Notice to remedy the interrogation, impression of surveil-
lance, and threat of discharge that I found in the case herein and
I shall order that the Company post that notice for a period of
60 days. I shall attach that Notice to my certification of the
decision.
Again, I thank each of you for your presentation and this
hearing is closed.