Transport America

National Labor Relations Board - Board Decisions

Feb 29, 1996

320 N.L.R.B. 882 (N.L.R.B. 1996)

882
320 NLRB No. 88
TRANSPORT AMERICA, INC.
1 In the third paragraph of his decision, the judge inadvertently
stated that Paul Helsley, the charging party, participated in protected
concerted activities on ‘‘August 12’’ rather than ‘‘January 12,’’
which is the correct date. In the last sentence of the last paragraph
of the portion of his decision entitled ‘‘The Termination of Employ-
ment,’’ the judge erroneously referred to ‘‘Spegal’s’’ conduct in con-
nection with the purported profanity attributed to Helsley. It is clear
from the context of this portion of the judge’s decision that the cor-
rect reference is to Paul Helsley’s conduct. We also hereby modify
Conclusion of Law 3 to reflect the judge’s 8(a)(3) findings.
2 We shall modify the judge’s recommended Order to correct an
inadvertent error in par. 2(b) by adding the standard expunction pro-
vision that the Board includes in cases of unlawful discipline. See
Sterling Sugars, 261 NLRB 472 (1982). We shall also substitute a
new notice so that it conforms to the Order as modified.
Transport America, Inc. and Paul Helsley. Case 25–
CA–23179
February 29, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On November 3, 1995, Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
General Counsel filed limited exceptions, a brief in
support of the judge’s decision, and a motion to cor-
rect typographical errors.1
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 limited exceptions and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Trans-
port America, Inc., Shirley, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Remove from its files any reference to the dis-
charge of Paul Helsley and notify him in writing that
this has been done and that the discharge will not be
used against him in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten our employees with closure
of our operations because of their support for Team-
sters Local Union No. 135.
WE WILL NOT discharge our employees because of
their concerted activities protected by the National
Labor Relations Act, or because of their sympathies
for and activities on behalf of Teamsters Local Union
No. 135 or any other union.
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 Act.
WE WILL offer to our employee, Paul Helsley,
whom we unlawfully discharged on January 13, 1994,
immediate and full reinstatement to his former position
or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole
for any loss of earnings suffered as a result of our un-
lawful conduct, less any net interim earnings, plus in-
terest.
WE WILL remove from our files any reference to the
discharge of Paul Helsley, and WE WILL notify him in
writing that this has been done and that the discharge
will not be used against him in any way.
TRANSPORT AMERICA, INC.
Steve Robles, Esq., for the General Counsel.
James H. Hanson, Esq., of Indianapolis, Indiana, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE AND ISSUES RAISED
THOMAS R. WILKS, Administrative Law Judge. The unfair
labor practice charge in this case was filed by Paul Helsley,
an individual, against Transport America Inc., the Respond-
ent, on April 28, 1994. After investigation of that charge, the
Regional Director issued a complaint against the Respondent
on June 24, 1994. The complaint alleges that Respondent
violated Section 8(a)(1) and (3) of the Act by the discharge
of Paul Helsley on January 13, 1994, because he had, or Re-
spondent suspected that he had, joined, supported, and/or as-
sisted Chauffeurs, Teamsters, Warehousemen and Helpers
883TRANSPORT AMERICA, INC.
1 Northern California District Council of Hodcarriers (Joseph’s
Landscaping Service), 154 NLRB 1384 (1965); Copper State Rubber
of Arizona, Inc., 301 NLRB 138 (1991).
Local Union No. 135, a/w International Brotherhood of
Teamsters, AFL–CIO, the Union, and also because he had
engaged in concerted activities protected by the Act. The
complaint, but not the original charge, also alleges that Re-
spondent’s supervisory agent, dispatcher William Spegal, in
November or December 1993, threatened its employees with
plant closure because they had engaged in union or other
concerted activities protected by the Act. Respondent’s time-
ly filed answer, as amended at trial, and its position, as ex-
plicated at trial, admits the relevant jurisdictional, agency,
and supervisory allegations but Respondent denies the com-
mission of any unfair labor practice, denies awareness of any
union activity by any of its employees in late 1993 or early
1994 and asserts that Paul Helsley voluntarily terminated his
employment on January 12, 1994, at the end of a quarterly
safety meeting held between it and its drivers. The Respond-
ent asserts that it concluded that day shift driver Helsley in-
tended to quit because of the manner in which he protested
and profanely characterized Respondent’s response to the
complaints of several day shift drivers at the meeting regard-
ing their perceived pay disadvantage as compared to the
night-shift drivers. Respondent’s position, as testified to by
its chief operating manager, Daniel White, is that it had
never formulated a decision to discharge Helsley because he
had quit but, that had he not quit, Respondent would have
‘‘very seriously considered’’ discharging him.
The General Counsel takes the position that Helsley did
not quit and that his conduct cannot reasonably be construed
as effectuating a voluntary termination and, moreover, that
credible evidence reveals that he was told he was discharged
on January 13, 1994, the day after the safety meeting inci-
dent. The General Counsel argues that Respondent had en-
gaged in an unlawful threat of closure during a futile union
organizing campaign in 1991, of which Helsley’s leading
role was admittedly known by Respondent. An unfair labor
practice charge involving the 1991 events resulted in a Board
settlement agreement, a posted notice and a letter of apology
to employees also posted by Respondent’s own volition. The
General Counsel did not seek to overturn that settlement, but
rather he adduced evidence of the admitted 1991 threat of
closure as background evidence.1 Respondent admits the
1991 threat of closure but denies the 1994 allegation. Fur-
ther, it argues that the threat allegation is barred by Section
10(b) of the Act as it was untimely raised in the complaint
but not in the unfair labor practice charge.
The General Counsel also argues that Paul Helsley en-
gaged in concerted protected activities on August 12 in the
course of the concerted complaint of day shift drivers regard-
ing their pay and that he did not lose that protection because
of his language or his conduct and that Respondent also dis-
charged him because of that protected activity which signifi-
cantly occurred during the course of renewed union activity.
The foregoing issues were litigated before me at trial on
August 24, 1995, at Indianapolis, Indiana, at which all par-
ties were given full opportunity to examine witnesses and to
introduce relevant documentary evidence. The parties de-
clined to argue orally and instead filed posttrial written briefs
on September 29, 1995.
On the entire record of this case, including my evaluation
of witnesses’ demeanor, I make the following findings.
I. JURISDICTION AND LABOR ORGANIZATION
Based on the admissions and the record evidence, I find
that Respondent’s business activities meet the required Board
jurisdictional criteria and that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. I further find that the Union is and has been a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Since 1987, Respondent has been a corporation which op-
erated out of a comparatively small four-room headquarters
facility in Shirley, Indiana, from which it maintained a fleet
of about 10 trucks driven by 20–25 drivers who pick up from
refineries gasoline, fuel oil, and ethanol fuel which they de-
liver to retail gasoline stations by means of tractor-tanker
trailer vehicles. Respondent maintains a 24-hour day, 7-day
week operation which, because of a 4-day on and 4-day off
scheduling for its drivers, in effect constitutes an 8-day week.
The owner and president is Phil White. The general man-
ager is his brother, Daniel A. White. A third brother operates
Gas America Co., Respondent’s chief customer. The White
family has operated predecessor and related businesses for
many years. Some of Respondent’s employees had been em-
ployed previously by various White family enterprises. Re-
spondent’s dispatcher, William (Bill) Spegal, had been em-
ployed by the White family for 25 years. Spegal dispatches
the drivers during the day shift and partially into the night
shift and is on call 24 hours a day. One of the drivers, Ron
White, a witness for the General Counsel, is unrelated to
Daniel White.
Jeffrey Helsley is Paul’s brother and was in part respon-
sible, with Paul’s assistance, for the late 1991 organizing ef-
fort of the Union. Their 1991 activities were admittedly
known to Respondent. Jeffrey Helsley was hired as a driver
in April 1990 and discharged on January 20, 1992, allegedly
because he negligently blew up an engine. Prior to January
13, 1994, he was the only driver to have ever been dis-
charged by Respondent for any reason. As Daniel White tes-
tified, there is a historical, ongoing, extreme shortage of driv-
ers, whom he characterizes were as hard to hire as ‘‘pulling
teeth.’’ Rodney Helsley was hired in May 1988 and contin-
ues in the employ of Respondent as a driver. Upon the rec-
ommendation of his brother Rodney, Paul Helsley was hired
by Spegal in November 1988 and worked as a night-shift
driver for the entire period except for the 4 months preceding
January 13, 1994. In December 1993, Paul Helsley caused a
collision at Respondent’s facility which resulted in the dis-
charge of dangerously flammable materials from a tanker
trailer. Although Daniel White considered Paul to have been
responsible for what he called a ‘‘terrible’’ and ‘‘dangerous’’
accident, Paul Helsley was not discharged nor is there evi-
dence he was formally reprimanded. Clearly, the need for
drivers, whom Respondent admits were continually in de-
mand and for which it was understaffed even through Janu-
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ary 1994, necessitated the retention of Paul Helsley despite
his perceived culpability for that terrible accident which
White claims endangered the life of Helsley’s own brother.
Apparently, the same tolerance level was extended to Jeffrey
Helsley, at least until during 1992. It is his uncontradicted
testimony that he engaged in a heated argument with Spegal
wherein he caustically accused Spegal of failing to stand up
for drivers who were being cheated out of holiday pay. Jef-
frey Helsley, corroborated by Ron White and not effectively
or convincingly contradicted, testified that he called Spegal
a ‘‘low life son of a bll’’ to his face.
2. The 1991 union campaign
Jeffrey Helsley’s and Paul Helsley’s union organizing ef-
forts in November and December 1991 were known to Re-
spondent at the time, as admitted to by Spegal. The
uncontradicted and/or admitted testimony indicates that in
November 1991, Spegal told Paul Helsley that Daniel White
told him that if the union effort was successful, he would
close the doors and have his product hauled by a tanker op-
erator located in Indianapolis. In December 1991, Spegal re-
layed the same threat to Jeffrey Helsley and told him that he
was not worried about his own employment but feared for
the drivers who would be fired, particularly one driver who
was in poor health.
Spegal admitted making the foregoing threats of closure
but denied that Daniel White actually made the remark
quoted by him to the employees. He testified that he con-
cocted the quotation because he was particularly irritated
with Jeffrey Helsley’s prounion statements, which he per-
ceived were intended to agitate him.
As noted above, the 1991 union effort was aborted, and
no election was held despite the fact that an election petition
had been filed. Jeffrey Helsley’s unfair labor practice charge
regarding his January 1992 discharge was dismissed by the
Regional Director.
3. The 1993 union organizing effort
Paul Helsley testified that in early November 1993, he,
night driver Ron White, and day driver Rodney Helsley dis-
cussed mutual complaints about disparity of drivers’ pay and
lack of certain benefits and the need for union representation.
Paul Helsley testified that he continued discussing the need
for immediate action to obtain representation with drivers
Bruce Bilbey, and Wayne Wagner, a substitute dispatcher
and personal friend of Spegal but who is not alleged to be
a supervisor. Helsley testified that he talked to the drivers
after work in the headquarters parking lot, at the loading
racks and wherever he ran into them, wherein he urged union
representation on unspecified dates in November and Decem-
ber 1993. He is in part corroborated by Ron White and Rod-
ney Helsley. Riggs testified as a General Counsel witness but
could not recall hearing about such discussions. Wagner, a
Respondent witness, denied being aware of any union activ-
ity since 1991.
As of the trial, Ron White, Rodney Helsley, and Riggs
were current employees of Respondent who, under subpoena,
were constrained, at risk to their own interests, to testify
against their employer, and deference therefore must be made
to their credibility. See Gold Standard Enterprises, 234
NLRB 618, 619 (1978). With respect to Rodney Helsley’s
blood relationship, that possible source of bias is
counterbalanced by his testimony, corroborated by Spegal,
that he had sought out advice from Spegal as to how to
avoid testifying because he did not want to become involved
and did not want to lose the $300 in pay that it cost him
to be absent from work. Respondent had to dispatch a vehi-
cle to retrieve Rodney Helsley from an area near Cleveland,
Ohio, where he had been dispatched in order for him to com-
ply with General Counsel’s subpoena. His demeanor con-
vinced me that he was a reluctant witness for the General
Counsel. Similarly, Ron White and Riggs did not appear to
be at ease as witnesses for the General Counsel. However,
they all gave straightforward, convincing testimony. I found
all to be credible witnesses.
Ron White testified that in late November and early De-
cember 1993, at the end of his shift, he engaged in a con-
versation with Spegal regarding the 1993 union organizing
discussions among the employees. At first, Spegal testified:
‘‘No, I don’t remember unless it was back in 1991 [i.e.,
when he made a similar remark to Jeffrey Helsley].’’
It was only after further prodding by Respondent Counsel
that Spegal categorically denied the conversation. I found
him to be less spontaneous and convincing than Ron White
who was also a witness who had the least to gain by testify-
ing. I credit Ron White and find that he was told by Spegal
in that 1993 conversation in a gratuitous, unsolicited remark
that if a union came in to represent the drivers, Respondent
would close down and move to Indianapolis. To that remark,
White responded to Spegal that he was not a union sup-
porter. I conclude then that because of that threat, coming as
it did without any reference to the Union in the conversation,
Respondent was at least aware of a renewal of driver interest
in representation by the Union in late November or early De-
cember 1993. There is no direct evidence that Respondent
was directly aware or suspicious of who espoused such de-
sire. Spegal admitted, however, his prior awareness of Paul
Helsley’s 1991 union organizing involvement.
Adding to the context of Paul Helsley’s termination is
David White’s testimony that the day drivers had made to
him ongoing complaints that they often received less mone-
tarily rewarding assignments than the night drivers, many of
whom were of lesser seniority. He explained that for a vari-
ety of reasons, day drivers, who, like night drivers, were paid
a percentage of delivery receipts, did not earn as much as
many night drivers; e.g., day time traffic, day time mainte-
nance, wrecks, etc., caused lengthier and thus fewer deliv-
eries for day drivers. Apparently, the explanation failed to
satisfy the day drivers. It was one of the complaints that Paul
Helsley testified that he discussed with other high seniority
drivers in considering the need for union representation.
Thus, in the fall of 1993, Respondent was aware of ongoing
complaints of high seniority, day drivers about their pay; that
high seniority, day driver Paul Helsley had been involved in
the 1991 union effort; and that drivers were again discussing
the need to obtain union representation in December 1993.
4. The quarter annual safety meetings
Respondent conducts quarter annual ‘‘safety’’ meetings
with its drivers. The meetings are moderated by Daniel
White who is assisted by Spegal. The purposes of the meet-
ings are several. One purpose is the dissemination of infor-
mation to drivers regarding the requirements of Respondent’s
885TRANSPORT AMERICA, INC.
2 Manager White first testified, as a 611(c) adverse witness, that
he had only covered three-quarters of the agenda. Only Snider cor-
roborated him. When called as a Respondent witness, White re-
tracted his testimony to conform to everyone else’s, including
Spegal, thus leaving Snider, who purported to affect certitude in de-
meanor, as the only witness to testify that the agenda was incom-
plete.
liability insurer, changes in delivery procedure requested by
customers, and what Daniel White testified to was a ‘‘bar-
rage’’ of governmental regulations he was forced to contend
with on a daily basis. White in a resentful tone of voice and
demeanor referred to the intrusiveness of governmental agen-
cies, i.e., state inspectors who monitored the octane ratings
of gasoline delivered by the tankers, the Federal regulatory
agents who enforced the Environmental Protection Act (gaso-
line vapor emissions), the Federal Internal Revenue Service
and the Department of Transportation. Although White did
not explicitly refer to the Board, it, of course, must nec-
essarily be included since at least 1991.
In advance of the meeting, a typewritten agenda is pre-
pared and given to the drivers at the meeting. That agenda
sets forth the same material which White orally conveys to
the drivers at the meeting. The meetings up through January
1994 were held in what appears to be a small private banquet
room at a nearby restaurant. The drivers are seated at rows
of dining tables during the meeting. The meetings are held
on nonwork time in the early evening. Drivers are not paid
for attendance, which is not compulsory. They are provided,
however, with a free meal after the meeting at the same ta-
bles where they sat throughout the meeting. Respondent has
also maintained a practice of distributing some form of safety
award at the January meeting for drivers who had maintained
an accident-free and spill-free driving record for the preced-
ing year. In January 1994, the awards were in the form of
an article of clothing, i.e., jackets. The distribution of these
jackets was the last agenda item at the January 12, 1994
meeting. Drivers who are absent from these meetings are
provided with copies of the agenda and any verbal expla-
nation on an individual basis.
There is some evidence that these meetings have not al-
ways consisted of a one-way informational process, but rath-
er they involved input from and reaction of drivers to an-
nounced changes in delivery procedures that affected the cir-
cumstances of their employment. Thus dispatcher Spegal tes-
tified that at these meetings, drivers did indeed at times loud-
ly ‘‘get a point across’’ which Respondent’s managers at-
tempted to answer.
5. The January 12, 1994 safety meeting and alleged
concerted protected activity
The January 12, 1994 meeting took place at the customary
restaurant at about 5:30 p.m. between shifts in a private ban-
quet room accessible by two sliding doors, each at the end
of one wall. About 15–17 drivers attended. Daniel White
moderated. Spegal assisted. Also, part of the management
team present were Safety Director Bruce Kiser; the manifest
chief clerical, Maude Snider; and her assistant, Terri Neal.
One of the items on the agenda was an upcoming IRS audit.
It is undisputed that General Manager White told the drivers
not to respond to any questions of the visiting IRS auditors
but to refer them to management representatives for any in-
formation. Other items discussed were speed limits, the 24-
hour use of headlights, the use of the vapor recovery system
when loading and the proper preparation of forms.
The preponderance of credible and convincing testimony
reveals that after the final agenda item was reached—dis-
tribution of jackets—and when White was near the end of
distribution, several drivers addressed the subject of the day
shift drivers’ pay compensation.2 The drivers are paid at a
percentage of the charge per load delivered. The more loads
delivered, the greater is the compensation. Manager White
testified that there was a perennial complaint of day drivers
that they were paid less than night drivers, many of whom
are of lesser seniority. White testified that traffic conditions
and other factors related to day shift operations cause a
lengthier delivery time and thus fewer loads delivered than
at night. Dispatcher Spegal admitted, however, that often a
$25-commission load will take 1-hour delivery time whereas
a $106 load may take 6 hours, perhaps because of road con-
ditions in that delivery route.
Paul Helsley was present at the January 12 meeting during
his nonworking hours. He sat with or near driver Ron White.
Present also were drivers Rodney Helsley, Ronald Riggs, and
Bruce Bilby. Much of what occurred regarding the concerted
complaints as to the alleged disparity of pay between day
and night-shift driver is undisputed. As Manager White was
handing out the last of the jackets, Ron White was the first
to ask why the disparity in pay continued despite the day
drivers’ greater seniority. Bilby and Rodney Helsley also de-
manded an explanation. Ron White and Paul Helsley testified
that he did not join in at that point. As a Respondent witness,
Manager White testified (without corroboration) that he re-
sponded to what he characterized as ‘‘this group of drivers’’
who complained about the pay disparity by telling them that
night drivers will always earn more than day drivers, at
which point he heard Paul Helsley say to probably no one
in particular, ‘‘Well, I think I’ll just go back on nights
then.’’ Manager White also testified that he asked the com-
plaining group if they had any ideas but that they had noth-
ing to offer and ‘‘All they did was complain.’’ As a 611(c)
witness, Manager White identified Paul Helsley as one of the
group of complaining drivers. As a Respondent witness, dis-
patcher Spegal also identified Paul Helsley as one of the
complaining drivers. Thus, despite the testimony of Paul
Helsley that he did not as yet join in the protest, Respond-
ent’s management perceived him as having joined in with
that group complaint.
After Manager White gave his initial reaction to the day
drivers pay complaint, he turned to dispatcher Spegal and
asked him to make a more specific response. Spegal then ad-
dressed the drivers and attempted to explain the nature of
dispatching assignments. Bilby ignored him and complained
that he was not being assigned sufficient high paying loads
despite his second highest seniority ranking. Spegal testified
that Bilby had several days earlier asked him to terminate his
shift at 3 p.m. because he had to attend an Amway distribu-
tors’ meeting. Spegal, without identifying Bilby by name,
told the drivers that one driver, in effect, caused his own cur-
tailment of loads by terminating his shift early to attend an
Amway meeting. Spegal testified that some drivers, including
Paul Helsley, began to ‘‘mumble.’’ Spegal testified that Paul
Helsley also then complained about not earning as much
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Paul Helsley testified without contradiction that he had on only
one occasion asked to terminate his shift early to view an IU basket-
ball game.
4 Manager White failed to refer to Helsley’s use of the ‘‘f’’ word
in his pretrial affidavit submitted to the Board’s investigation.
5 Snider’s son also depends upon Respondent for employment, i.e.,
office cleaning.
money on the day shift as he had on nights. At that point,
Spegal told the drivers, without identifying him by name,
as an example here is a guy who is complaining about
not making money but [who] told me he would take a
load provided he could get in to watch the [televised]
IU [Indiana University] basketball game [and] he wants
to earn more money but the IU game is more important
[to him].3
It is at this point that Respondent witnesses Manager
White, Spegal, Kiser, Snider, and driver Harold Conley testi-
fied, in varying degrees of conviction, detail, spontaneity,
and corroboration or lack of it that Paul Helsley jumped up,
shoved, slid, slammed, pushed, or moved his chair back from
the table, onto which he threw down his agenda copy, shout-
ed, ‘‘I don’t have to take this flcking bull shlt,’’ ripped
open the door, slammed it, then almost ripped the door off
its tracks or threw one of the doors off its track and
‘‘stormed,’’ marched, or walked quickly out of the meeting.4
Paul Helsley testified that when he first joined the con-
versation when Spegal referred to the IU basketball incident.
He admitted that he became very upset and assumed Spegal
was referring to him because of his well-known rabid IU loy-
alty and concluded that Spegal was unfairly trying to explain
why all high seniority day drivers were paid less than night
drivers because of an isolated, unrelated incident rather than
to take responsibility for the way he dispatched loads. Ac-
cording to Helsley, his conduct was less physically abrupt,
i.e., he neither slammed the chair, threw down papers,
‘‘stormed’’ nor ran out, nor ‘‘ripped’’ open the door. He ad-
mittedly suddenly arose and, according to him, stated: ‘‘I
don’t have to listen to this bull shlt [and as he went out
the door] put me back on nights.’’
It is also Helsley’s testimony that at one point before he
arose, he also stated to Spegal: ‘‘Bill, that’s bull shlt. I’m
losing between one and two hundred dollars on this on ac-
count of these loads.’’
He is not explicitly contradicted as to this additional com-
ment and, because of Spegal’s and Dan White’s recollection
that Paul Helsley had at some prior point joined with the
complaints, I credit Helsley that he also made the other ‘‘bull
shlt’’ remark as well and did explicitly make common
cause with the other complaining drivers by disparaging
Spegal’s explanations to them. Spegal did not explicitly deny
the ‘‘put me on the night shift’’ comment. Because of Man-
ager White’s admission that such remark regarding night-
shift transfer was made albeit somewhat earlier, I credit
Helsley, whom Riggs and Ron White corroborated, that he
did make the night transfer remark to Spegal as he departed.
Moreover, other Respondent witnesses did not deny and
some admitted that they were not certain whether Paul
Helsley had said other things as he departed, e.g., Conley ad-
mitted that he may have done so.
Although General Counsel witnesses Ron White, Rodney
Helsley, and Riggs all corroborated Paul Helsley in that he
did not use the ‘‘f’’ word, they are curiously inconsistent as
to what he did say. Paul and Rodney Helsley admitted that
Paul used the phrase ‘‘I don’t have to take this bull shlt.’’
Riggs and Ron White recalled that Paul Helsley’s remark to
Spegal was: ‘‘Bill that’s a bald faced lie. I don’t have to take
this. You can go ahead and put me on nights.’’
Furthermore, Riggs and Ron White characterized Paul
Helsley’s departure as walking out, not ‘‘storming,’’
‘‘marching,’’ or running. Ron White testified that Helsley
neither threw down his papers nor did he yank the door off
its track. I found Riggs to be a convincing, honest witness.
He was subpoenaed to testify against his present employer.
His testimony that he is personally friendly with Manager
Dan White is uncontradicted. He failed to corroborate testi-
mony regarding union activities, claiming he was aware of
none. Riggs and Ron White had nothing to gain and much
to jeopardize by testifying against Respondent. The drivers
called by Respondent to testify were far less convincing.
Conley’s testimony had to be interrupted and nearly led by
Respondent’s counsel to elicit the ‘‘f’’ word recollection. He
referred to Helsley as walking out but changed his testimony
in cross-examination. He claimed to have heard what Helsley
said because he was right behind him, but admitted: ‘‘I
didn’t hear what he said real close. I wasn’t listening to what
he said real close, I guess.’’
Driver Wagner, the substitute dispatcher and admitted per-
sonal friend of Spegal, testified that at first Helsley stated
that he ‘‘didn’t have to take this crap.’’ Like Conley, he had
to be asked again by Respondent’s counsel but answered
‘‘yes’’ that these were Helsley’s ‘‘exact words.’’ Then fi-
nally, after being led by counsel, he recalled that the ‘‘f’’
word had been used.
Safety Director Kiser’s testimony was so vague, frag-
mented, cryptic, and selective as to be patently unreliable. It
was marked by an equally uncertain testimonial demeanor.
Kiser gratuitously referred to his many years of employment
by the White family, including employment by Daniel
White’s parents. His deferential tone of voice denoted a
friendship and loyalty in that relationship. Chief clerical
Snider gratuitously informed the court that she was
‘‘stunned’’ by Paul Helsley’s abrupt chair-shoving, ‘‘storm-
ing out,’’ ‘‘ripping’’ open the door and ‘‘slamming it,’’ and
his use of the ‘‘f’’ word. Though she claimed that she could
hear clearly what was said, she testified that it ‘‘seemed’’
that Helsley was ‘‘cussing’’ as he went out the door, but she
did not recall exactly what he said and did not ‘‘believe’’
that Helsley requested the nightshift transfer. She insisted
that the agenda was only three-quarters covered. She testified
in isolated, sole corroboration of Manager White’s initial, but
later retracted, testimony that the meeting continued to cover
other agenda items. She did so with seeming conviction.
Clearly, her recollection was either unreliable or contrived to
coincide with Manager White’s initial version. I have no
confidence in this witness’ testimony nor demeanor.5
6. The termination of employment
Manager White testified that he considered Paul Helsley’s
conduct on January 12 at the meeting to have been ‘‘unac-
ceptable, belligerent, aggressive, defiant’’ and ‘‘belittling to
me,’’ despite the fact that Helsley directed his remarks to
887TRANSPORT AMERICA, INC.
Spegal in a verbal exchange between Spegal and Helsley
which White admitted he did not join. Yet, White insisted
that he considered himself to be personally insulted. He also
insisted, however, that Helsley’s comments and accompany-
ing behavior clearly meant to him an intention expressed by
Paul Helsley to quit his job. Therefore, White claims he
never got to the point of deciding to discharge Helsley
which, he testified, he probably otherwise would have done.
Manager White testified that despite his tolerance of Paul
Helsley’s recent ‘‘terrible’’ and ‘‘dangerous’’ accident and
despite the extreme shortage of drivers, he did not try to dis-
courage Helsley from quitting because White felt embar-
rassed, upset, and hurt and testified, ‘‘I can’t have anybody
talk to me that way.’’ Manager White explained that the ac-
cident misbehavior was something that could be corrected
but Paul Helsley’s comments were considered by him to be
a personal insult.
After Paul Helsley left the meeting, he went to his vehicle
parked in the restaurant lot. Ron White followed and joined
him shortly thereafter. Neither of them partook of the free
meal provided by Respondent. After they left, but before the
meal service, the other day drivers continued with comments
about the alleged pay disparity. White testified, without con-
tradiction except for Snider, that the day drivers pay con-
frontation arose just as Manager White approached Ron
White to give him his safety jacket award, which was the
last jacket distributed.
Manager White and dispatcher Spegal testified that they
discussed Paul Helsley’s conduct later on January 12 after
the meeting at Respondent’s facility and both concluded that
he had quit. Neither of them had any doubt as to Helsley’s
intent and neither gave any thought of asking Helsley if his
intent was otherwise. Spegal testified that the subject of dis-
charge did not arise. Spegal testified that the next day at
about 7 to 7:30 a.m., he arrived at his office and prepared
a ‘‘letter of resignation’’ for Paul Helsley which he inter-
preted as being required by DOT rules. He also considered
the need to retrieve certain door keys, station lock keys, and
credit authorization cards from Helsley. Spegal testified that
he tried to contact Helsley at his home by telephone but ob-
tained a busy signal all that morning until he finally reached
him at 10:30 a.m. Spegal testified that when he got Helsley
on the line, he simply asked him to bring in his cards and
keys and that Helsley said he would do so when his wife re-
turned later in the afternoon with the only family vehicle, to
which Spegal said, ‘‘fine.’’ According to Spegal, Helsley at
that point stated that he had tape-recorded the meeting, to
which Spegal told him that if he had, it would only hurt him
and not the Respondent. Spegal testified Helsley said that he
had telephoned various governmental agencies, including the
Dot as well as Respondent’s insurer, with some unspecified
complaint. Spegal testified that he was already informed by
the insurer and Dot that Spegal had made some report to
them. Spegal testified that he interpreted Helsley’s statements
as an attempt ‘‘to try and get us somehow.’’ Spegal could
not offer any explanation as to just what Helsley was seeking
revenge for if he had in fact voluntarily quit his job. He ad-
mitted that he did not refer to Helsley’s resignation during
the telephone conversation. Spegal testified that that had
been his last direct communication with Helsley inasmuch as
later in the day, Helsley’s wife came in to the office and
dropped off the requested keys and cards. He had no con-
versation with her. He did not even tell her that he had pre-
pared a ‘‘resignation letter’’ to give to her husband. Nor did
he attempt to have it delivered by her nor did he mail it. In-
stead, he retained it unsigned.
What Spegal identified as a resignation letter was intro-
duced into evidence as Respondent’s Exhibit 2. Nothing
about that document, either in form or substance, resembles
a letter. Rather, the document is in fact a file memorandum
entitled ‘‘Driver’s termination.’’ It briefly summarizes Paul
Helsley’s comment at the January 12 meeting, Respondent’s
conclusion that such comment was taken by Respondent to
be resignation and that Helsley was asked by telephone on
January 13 at 11 a.m. to surrender his keys and cards. Sig-
nificantly, it does not refer to the use of the ‘‘f’’ word; it
fails to indicate that Helsley was ever told that his conduct
was construed to be a resignation and finally states that
Helsley, in the telephone conversation, did not say he had as
yet telephoned governmental agencies but rather had threat-
ened to do so. Further, the memorandum, contrary to
Spegal’s testimony, states that Helsley had refused to come
in. With respect to the January 12 episode, it quotes Paul
Helsley as saying: ‘‘I don’t have to take this bull shlt.’’
The document also contains the following inexplicable
comment: ‘‘It was not clear what he [Paul Helsley] was
upset over.’’
Spegal testified that as Helsley’s wife departed the office,
he looked out the window and saw Paul Helsley in his vehi-
cle waiting for his wife. Spegal made no effort to either go
out to speak to Helsley or to signal to him to wait. In cross-
examination, in reference to Helsley’s resort to governmental
regulatory agencies, Spegal explained that his view was that
employees who enjoy working at an employer do not call
those agencies but rather report problems such as safety
problems to the Respondent, e.g., a gasoline spill.
Even according to Spegal, not all persons universally con-
cluded that Paul Helsley’s uttered announcement that he did
not intend to remain after the ending of an optional meeting
to listen to the dispatcher’s proffered response to a non-
agenda concerted pay complaint, which he disparaged, con-
stituted an announcement of resignation from employment.
Spegal testified that in the morning of the January 13, after
driver Riggs reported for his dispatch, he asked Spegal
whether Helsley had been fired. Also, Spegal testified that he
then received a telephone call from Rodney Helsley who told
him that his brother Paul had not quit his job. To both,
Spegal claimed that he simply responded that Respondent
‘‘took it that he quit.’’ Spegal thinks these calls were re-
ceived before he talked to Paul Helsley at 10:30 a.m. Most
probably, they did occur earlier during the morning dispatch-
ing time. Clearly, Spegal was put on notice that some basis
for doubt as to Helsley’s voluntary resignation existed. Yet,
he made no attempt to clear it up when he later talked to
Helsley or when he spoke to his wife.
I consider the testimony of Manager White and dispatcher
Spegal as to their interpretation of Paul Helsley’s postformal
meeting, predinner departure as a resignation of employment
to verge upon the absurd. Such a conclusion is logically in-
supportable and suspect, particularly in light of Spegal’s in-
explicable conduct and communications or lack thereof on
January 13.
I credit the far more convincing and inherently more plau-
sible testimony of Paul and Rodney Helsley. I find that on
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the morning of January 13, Spegal did in fact have a tele-
phone conversation with Rodney Helsley wherein Spegal
stated that Paul Helsley had been discharged and that Rodney
Helsley had better not do anything ‘‘stupid’’ to jeopardize
his job. I find that on the morning of January 13, Spegal
telephoned Paul Helsley at his home and ordered him to
bring in his keys and cards and, when asked why, was ex-
plicitly told he was discharged because he ‘‘walked out of
the meeting.’’ When Helsley asked if the other guy who
walked out was also fired (i.e., Ron White), Spegal dis-
claimed awareness that anyone else had walked out.
Finally, because of the vulnerability of the credibility of
Spegal and Manager White regarding the issue of the nature
of Paul Helsley’s termination and the weaknesses of their
witnesses regarding the episode of January 12, as compared
to the greater credibility of the General Counsel’s witnesses
described above, I credit Paul and Rodney Helsley’s version
of Paul’s statement, i.e., he did not use the ‘‘f’’ word but
he did disparage Spegal’s justification for disparity of all day
driver pay as ‘‘bull shlt’’ and he did state a request to be
transferred to the night shift, as essentially corroborated by
Riggs and Ron Smith. I conclude that in this case Respond-
ent has at different times advanced different shifting and
false reasons for Paul Helsley’s termination. On the morning
of January 13, Helsley was told he was discharged because
he walked out of the meeting. This is false. The meeting had
ended as the agenda had been covered. Moreover, the meet-
ing was optional even if he had walked out. Next, Respond-
ent placed in its file a memorandum, the authenticity of
which, because of Spegal’s lack of credibility, is suspect, and
which states that Respondent demanded Helsley’s keys from
him because it considered the fact that he jumped up and
said ‘‘I don’t have to take this bull shlt’’ and storming out
of a meeting that had already formally ended to have had the
only possible interpretation as an act of resignation. Such a
proffered position is utter foolishness. Moreover, there was
no reference to any so-called profanity, i.e., the notorious
‘‘f’’ word. At trial, Helsley’s conduct was further embel-
lished so as to have been so dreadful that he would have
been discharged had he not quit. Thus the ‘‘f’’ word was
falsely attributed to Helsley’s statement and Manager White
allegedly became personally insulted. Yet, Paul Helsley did
not in fact insult White. He disparaged Spegal’s proffered re-
sponse to a concerted work complaint. He did not even dis-
parage Spegal as a person. Furthermore, the evidence of
credible witnesses reveals that Respondent’s workplace is not
the exceptional genteel place suggested by Respondent. Rath-
er, the usual vulgarity and profanity prevail, as occurs
throughout the industrial world, even onto past disputes with
Spegal himself. Further, it cannot be suggested that the pri-
vate banquet room changes the circumstances. It was private.
It had been the scene of past loud argumentation between
management and drivers regarding work conditions. Thus,
even had the ‘‘f’’ word been used, which it was not,
Spegal’s conduct, had it occurred as Respondent’s portrayed,
would not have been so shockingly deviant from past work-
er-dispatcher confrontations.
B. Analysis
Section 8(a)(1) of the Act sets forth that an employer com-
mits an unfair labor practice when it interferes with an em-
ployee’s right to engage in ‘‘concerted activities for the pur-
pose of mutual aid or protection.’’ Respondent discharged
Paul Helsley because of his conduct at the January 12 meet-
ing as found above and, as argued by the General Counsel,
because of his union organizing activities which formed the
context for that January 12 conduct. Respondent argues that
Helsley’s conduct was individual in nature, i.e., his interest
in his own pay and his pique over the IU basketball accusa-
tion. The facts demonstrate otherwise.
Paul Helsley in fact did join with other employees in a
mutual complaint, i.e., disparity in pay. Moreover, whether
or not he did or at what point he did so is irrelevant because
he was perceived by Respondent’s managers as having done
so. It is clear, however, that even if he did make an individ-
ual complaint, it necessarily constituted a continuation of his
and his coworkers’ preceding complaints made at the meet-
ing which, by its nature, constituted concerted protected ac-
tivity. Compare Consumer Power Co., 282 NLRB 130, 131–
132 (1986); see also United Enviro Systems, 301 NLRB 942
(1991), when employee complaints raised at an employer-
conducted meeting constituted protected concerted activity.
Even if Helsley had not explicitly joined the protest until he
reacted to Spegal’s IU accusation, that response constituted
disparagement of Spegal’s defense to concerted employee
complaints. That conduct alone, despite Helsley’s personal
pique, constituted a joining of causes. Furthermore, it con-
stituted at the very least an education of his coworkers as to
a condition of employment, i.e., that drivers did not cause
their own loss of earnings as claimed by Spegal. Mutual edu-
cation as to wages or salaries constitutes protected activity.
Automatic Screw Products, 306 NLRB 1072 (1992). As ob-
served by the Board in Triana Industries, 245 NLRB 1258
(1979), such discussions as to pay may be necessary as a
prerequisite to union activities and are construed to be pro-
tected activities. In this case, Helsley’s conduct occurred in
the midst of known union organizing activities and was most
likely to have been perceived by Respondent as part of that
effort. Viewed from another aspect, Helsley’s castigation of
Spegal’s proffered response to the concerted employee pay
complaint, even if done individually, may be construed as an
espousal of the other employees’ cause and thus is concerted
protected activity. Compare: Wilson Trophy Co. v. NLRB,
989 F.2d 1502 (8th Cir. 1993), citing Meyers Industries, 268
NLRB 493, 497 (1984).
Clearly, Paul Helsley was discharged for conduct that was
part of the res gestae of protected activities, i.e., the allegedly
disruptive way he responded to Spegal. In Consumers Power
Co., the Board observed:
. . . where an employee is discharged for conduct that
is part of the res gestae of protected activities, the rel-
evant question is whether the conduct is so egregious
as to take it outside the protection of the Act, or of
such character as to render the employee unfit for serv-
ice.
In Health Care & Retirement Corp., 306 NLRB 66, 65
(1992), citing, inter alia, Consumers, supra, the Board sum-
marized the state of applicable law as follows:
The Board has long held that in the context of pro-
tected concerted activity by employees, a certain degree
of leeway is allowed in terms of the manner in which
they conduct themselves. The Board and courts have
889TRANSPORT AMERICA, INC.
found, nonetheless, that an employee’s flagrant, oppro-
brious conduct, even though occurring during the
course of Section 7 activity, may sometimes lose the
protection of the Act and justify disciplinary action on
the part of an employer. Not every impropriety, how-
ever, places the employee beyond the protection of the
Act. For example, the Board and the courts have found
foul language or epithets directed to a member of man-
agement insufficient to require forfeiting employees
protection under Section 7. [Citations omitted.]
See also United Enviro Systems, supra, involving loud, pro-
fane, obscene, and angry complaints by employees at an em-
ployer-conducted meeting.
Finally, protection is not denied to an employee regardless
of the inaccuracy or lack of merit of the employee’s state-
ments absent deliberate falsity or maliciousness, even when
the accusatory language used is stinging and harsh. Delta
Health Center, 310 NLRB 43 (1993).
If the General Counsel proves by a preponderance of evi-
dence that concerted protected activity motivated even par-
tially the discharge, the burden of proof applies as set forth
in Wright Line, 251 NLRB 1083 (1980). The burden then
shifts to Respondent to prove by a preponderance of evi-
dence that it would have discharged the employees even in
the absence of the protected activities. Respondent does not
satisfy that burden merely by demonstrating the existence of
a legitimate reason for discharge. Health Care & Retirement
Corp., supra. I find that Respondent has failed to maintain
that burden. Its proffered explanation as to the nature of
Helsley’s termination was shifting, inconsistent, and demon-
strably false. Not only was there no precedent for such dis-
cipline, the credible evidence reveals a past toleration for
profanity and obscenities, even during past episodes involv-
ing employee complaints. The difference in Paul Helsley’s
conduct is that it occurred within the res gestae of concerted
protected activities which were necessarily visible as also
part of the res gestae of renewed union organizing activities,
of which Helsley had been identified with in the recent past
and to which Respondent remained hostile, as evidenced by
Spegal’s threats and Manager White’s aversion to perceived
outside intrusion in the affairs of his business.
I therefore find that Respondent violated Section 8(a)(1) of
the Act by its discharge of Paul Helsley because of his con-
certed protected activities of January 12, 1994. Furthermore,
because of the shifting and false nature of Respondent’s prof-
fered explanations concerning Paul Helsley’s termination, the
timing of such termination in confluence with renewed union
activities, of which he was recently associated, and the con-
tinuing animosity toward such activities, I must infer that Re-
spondent was aware of Paul Helsley’s continuing union ac-
tivities or that it suspected as much and was therefore moti-
vated to discharge him. Compare: Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966), which
holds that a trier of fact may justifiably infer unlawful moti-
vation when the proffered nondiscriminatory motivation is
false even in absence of direct evidence of motivation. See
also Abbey’s Transportation Services v. NLRB, 837 F.2d 575,
579 (2d Cir. 1988); Rain Ware, Inc., 735 F.2d 1349, 1354
(7th Cir. 1984).
Moreover, even if Respondent did not have direct knowl-
edge of Paul Helsley’s particular 1993 union involvement,
there is still a preponderance of evidence to mandate a con-
clusion that his discharge for protected concerted activities
within the context of union activities was motivated, at least
in part, as a general reaction to those union activities for
which ongoing and rejected employee complaints formed a
genesis. I therefore find that the General Counsel sustained
his burden of proof with respect to the 8(a)(3) allegation of
the complaint and that Respondent failed its burden as set
forth in Wright Line, supra.
With respect to the late November and December 1993
threat by Spegal of retaliatory business closure, I find that
such conduct clearly violated Section 8(a)(1) of the Act. I
further conclude that such finding is not barred by Section
10(b) of the Act inasmuch as it was conduct closely related
to and necessarily enmeshed in the litigation of allegations
set forth in the original charge, i.e., the January 1994 dis-
charge of Paul Helsley for which Respondent must nec-
essarily have had to litigate as admissible evidence of ani-
mosity and knowledge of ongoing union activity. Redd-1,
Inc., 290 NLRB 1115 (1988); Nickels Bakery of Indiana, 296
NLRB 927 (1989); Beretta U.S.A. Corp., 298 NLRB 232
(1990); FPC Holdings, Inc., 314 NLRB 1169 (1994).
CONCLUSIONS OF LAW
1. As found above, Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. As found above, Respondent violated Section 8(a)(1) of
the Act in late November or early December 1993 by threat-
ening an employee with closure of its operations in retalia-
tion for their support of Teamsters Local Union No. 135.
3. As found above, on January 13, 1994, Respondent dis-
charged its driver Paul Helsley, in part because of his con-
certed protected activities on January 12, 1994, in violation
of Section 8(a)(1) of the Act, and in part because of his ac-
tual or suspected support for Teamsters Local Union No.
135.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I recommend that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate the
purposes of the Act.
Having found that Respondent unlawfully discharged its
employee, Paul Helsley, on January 13, 1994, I recommend
that Respondent be ordered to offer him immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and
to make him whole for any loss of earnings suffered as a re-
sult of its unlawful conduct by payment to him of a sum
equal to that which he would have earned absent the dis-
crimination against him, with backpay and interest computed
in accordance with the formula set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), and with interest thereon to be
computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
I further recommend that Respondent expunge from its
files its references to the termination of Paul Helsley in Janu-
ary 1994 as a voluntary termination.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Transport America, Inc., Shirley, Indiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with closure of its oper-
ations because of their support for Teamsters Local Union
No. 135.
(b) Discharging its employees because of their concerted
activities protected by the National Labor Relations Act, or
because of their sympathies for and activities on behalf of
Teamsters Local Union No. 135 or any other union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees within the meaning of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to its employee, Paul Helsley, whom it unlaw-
fully discharged on January 13, 1994, immediate and full re-
instatement to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and
make him whole for any loss of earnings suffered as a result
of its unlawful conduct in the manner set forth in the remedy
section of this decision.
(b) Remove from Paul Helsley’s personnel file and from
any other file any reference to his January 13, 1994 termi-
nation as a voluntary quit.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Shirley, Indiana facility copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.