NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Rock Valley Trucking Co., Inc. and James W. Teed. Case 30–CA–16997
June 25, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and
Kirsanow
On September 25, 2006, Administrative Law Judge Earl E. Shamwell Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified and to adopt the recommended Order as modified and set forth in full below.2
The judge found that the Respondent violated Section 8(a)(1) by permanently laying off employee James Teed. We agree with the judge, for the reasons set forth in his decision, that Teed engaged in the protected concerted activity of talking with his fellow employees and the Respondent’s general manager about Teed’s view that some drivers were given preferential treatment in their driving assignments. We also agree that the Respondent had knowledge of that activity, and that these conversations were a motivating factor in the Respondent’s decision to permanently lay off Teed.
We also agree with the judge’s finding that the Respondent bore animus toward the protected concerted activity. However, we do not adopt the judge’s analysis to the extent that his finding relied on a telephone conversation in July or August 2004 between the Respondent’s general manager, Gerald (Jake) Saladis and Teed. Instead, we rely on other factors, as explained below, to establish that animus.
The credited facts are as follows. Teed telephoned Saladis and told him that he had learned from another employee that driver Bill Vick had 18,000 more miles on his truck than Teed did. Teed and Vick had been assigned their trucks on the same day, and Teed was concerned because the drivers’ compensation was primarily based on the total miles driven per run, taking into account a $15-per-hour rate for downtime. Saladis responded that he would like to know who told Teed this because he would fire that employee on the spot. When Teed asked Saladis why he would do this, Saladis explained that for a driver to learn another driver’s mileage, he would have to have gone into either the other driver’s assigned vehicle or his personal mailbox to see his payroll records. Saladis told Teed that either of these trangressions was a fireable offense.
We agree with the judge that Saladis’ comments to Teed did not constitute a threat in violation of Section 8(a)(1) for the reasons in the judge’s decision. Thus, the judge found that Saladis was legitimately reacting to what he saw as a breach of company policy regarding employee privacy rights and that Saladis explained this to Teed.3 The judge concluded that under these circumstances Saladis’ statement did not violate Section 8(a)(1).4
However, in considering the allegation that the Respondent’s permanent layoff of Teed was unlawful, the judge nonetheless relied on Saladis’ comments in this telephone conversation to find evidence of the Respondent’s animus towards Teed’s protected concerted activity. We do not agree. Because Saladis’ statement to Teed included an explanation of company policy and his valid concern in protecting employees’ privacy, it cannot properly be interpreted to reflect animus against Teed’s protected concerted activity.
Nevertheless, we find other indicia of animus by the Respondent against Teed’s protected concerted activity. First, on about September 2, 2004, Teed found a message on his home telephone answering machine from Saladis asking Teed to meet him to discuss “a lot of talk lately . . . revolving around seniority and miles and things like that.” This meeting turned out to be the September 4, 2004 meeting at which Teed was permanently laid off.
Second, at the September 4 meeting in Saladis’ office, Saladis told Teed he had been selected for permanent layoff because Saladis had looked “over all the performance from every direction.” In response to Teed’s question, Saladis clarified this to mean “[a]ttitude . . . that’s probably the biggest one.” Saladis further clarified, “[A]nd this is part of the attitude you’ve accuse [sic] me of playing favorites as far as certain people go.” Teed responded to this as referring to the mileage issue. This interchange, as well as the answering machine message, was recorded.5
These two recordings demonstrate that the Respondent harbored animus against Teed for his protected concerted activity. Thus, in both of these instances, Saladis’ statements linked Teed’s protected concerted activity of speaking up about the mileage issue with the Respondent’s decision to permanently lay off Teed.6
Indeed, these recordings establish that the basis for the Respondent’s selection of Teed for permanent layoff was his protected concerted activity. Saladis’ statement to Teed in his September 2 telephone message telling Teed to meet him for what turned out to be a termination meeting first linked Teed’s protected concerted activity to his layoff. Saladis’ statements during the September 4 termination meeting further demonstrated that Teed’s protected concerted activity not only was linked to, but, in Saladis’ own words, played the “biggest” role in, the Respondent’s decision to permanently lay off Teed.7
Given these statements by Saladis showing that the Respondent’s basis for deciding to lay off Teed was Teed’s protected concerted activity, we find that the Respondent has not met its burden of showing that it would have permanently laid off Teed absent his protected concerted activity.8
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and set forth in full below
and orders that the Respondent, Rock Valley Trucking Co., Inc.,
1. Cease and desist from
(a) Permanently or indefinitely laying off employees because they engage in protected concerted activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take
the following affirmative action necessary to effectuate the policies of the
Act.
(a) Within 14 days from the date of this Order, offer James W. Teed full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make James W. Teed whole, with interest, for any loss of earnings and other benefits he may have suffered from his unlawful layoff, in the manner set forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoff, and within 3 days thereafter, notify James W. Teed in writing that this has been done and that the layoff will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Robert J. Battista, Chairman
Peter C. Schaumber, Member
Peter N. Kirsanow Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not permanently or indefinitely lay off employees because they engage in protected concerted activities.
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by the Act.
We will, within 14 days from the date of the Board’s Order, offer James W. Teed full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
We will make James W. Teed whole, with interest, for any loss of earnings and other benefits he may have suffered from his unlawful layoff.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful layoff of James W. Teed, and we will, within 3 days thereafter, notify him in writing that this has been done and that the layoff will not be used against him in any way.
Rock Valley Trucking Co., Inc.
Ryan Connolly, Esq., for the General Counsel.
Jonathan
O. Levine, Esq. and Lucas J. Thomas,
Esq. (Michael Best & Friedrich LLP), of
James W.
Teed, pro se, of
DECISION
Statement of the Case
Earl E. Shamwell Jr., Administrative Law Judge. This case was heard by me on April 24–25 and
May 24, 2006, in
On December 22,
2004, the Acting Regional Director for Region 30 of the National Labor Relations
Board (the Board) issued a complaint against the Respondent alleging that it violated
Section 8(a)(1) of the National Labor Relations Act (the Act). On January 5, 2005, the Respondent timely
filed its answer to the complaint essentially denying the commission of any
unfair labor practices and asserting certain affirmative defenses.
At the hearing,
the parties were represented by counsel and were afforded full opportunity to
be heard, examine and cross-examine witnesses, and introduce evidence. On the entire record, including my
observation of the demeanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the following
Findings of Fact
i. jurisdiction—the business of the respondent
The Respondent
maintains an office and place of business located in
ii. background and other preliminary matters
undisputed on the record
As noted, the
Respondent engages in the trucking business, mainly interstate or over-the-road
shipment of products produced and distributed by its parent company, Hufcor,
which manufactures accordion-type, paneled room dividers, called operable
partition walls, for schools, hotels, casinos, and other concerns and institutions. The Respondent hauls freight solely for
Hufcor, and as such is
On about
November 18, 2002, Gerald (Jake) Saladis was hired as the company’s general
manager; he was promoted to vice president in the fall of 2005. As general manager, Saladis’ responsibilities
including hiring of drivers and other company staff, dispatching truck
deliveries, procuring and maintaining vehicles, coordinating freight tariffs,
negotiating freight tariffs with vendors, freight forwarders and outside
freight carriers, and overseeing freight-related claims; Saladis also served as
the transportation manager/facilitator for Hufcor.[1]
It is undisputed
that the Respondent’s business was changed operationally in significant and
fundamental ways by Saladis who found the trucking concern in serious trouble
and, in his words, “bar none the worse trucking company [he] had ever seen.”[2]
Since at least
January 2003, the Respondent has employed a complement of over-the-road
truckdrivers who delivered Hufcor panels along the east coast as far south as
the Florida Keys and as far west as the Rocky Mountains. From January 2003 through August 2004, the
Respondent had an average of six full-time drivers and one part-time (casual)
driver. In August 2004, however, the
Respondent’s full-time drivers complement increased to eight with two casual
drivers.[3]
The Respondent’s
drivers are compensated primarily based on the number of total miles driven
(around 38 cents per mile) per run, taking into account a $15-per-hour rate for
downtime. The Respondent’s drivers are
also subject to Federal and State laws and regulations governing, among other
things, the number of hours they are permitted to drive during a given
period. As noted, during the relevant
period, Saladis made all assignments of the Respondent’s drivers.
During late
summer 2004, Hufcor’s management predicted that its business was going to
suffer a serious downturn for the last quarter of that year. By August 2004, Hufcor’s sales were down some
10–15 percent as compared to 2003.
Hufcor reckoned that its financial position was worsening and pointing
to one of the Company’s worse years since 1999 for incoming sales, securements,[4] in
company parlance. Hufcor’s national
commercial accounts manager, Scott Staedter,[5] informed
Saladis around this time—August 2004—that Hufcor could expect a continuing
downturn in sales for the balance of 2004 based on the current market trends,
and that Hufcor would be embarking on a defensive business plan called “Fill
the Funnel” which essentially entailed selling partitions at a break-even point
so as to maintain sales volumes.
On September 4,
2004, the Respondent permanently laid off Teed, effective that date.
iii. the unfair labor practices allegations
The complaint
alleges in essence that in late July or August 2004, Saladis, in a telephone
conversation with Teed, stated that employees would be terminated for engaging
in protected concerted activities in violation of Section 8(a)(1) of the Act.
The complaint
also essentially alleges that during the summer of 2004, the Respondent’s
truckdrivers, including Teed, engaged in concerted activities for purposes of
their mutual aid and protection by discussing the distribution of mileage among
the Respondent’s driver complement and that Teed was permanently laid off
because of his involvement in these discussions, also in violation of Section
8(a)(1).
Teed testified
at the hearing.
Teed stated that
he worked for the Respondent for about 7 years as an over-the-road driver whose
primary duties included delivering Hufcor panels to various commercial distributors
as well as churches, schools, casinos, and hotels throughout primarily the
eastern half of the United States.
Teed said that
he was paid by the mile at the rate of 38 cents per mile and received $15 per
hour for “downtime” incurred on the road because of delays by installers, breakdowns,
or bad weather. Teed stated that mileage
was significant and important to the drivers because their main income derived
from hauling the Respondent’s goods to various destinations.
Teed said that
his employment with the Company ended on September 3, 2004; his supervisor at
the time of his layoff was Jake Saladis for whom he had worked about 3 years
and who made the decision to lay him off.
Teed related an
incident that occurred during the week of April 18, 2004, in a conversation
with fellow employee and driver Bill Vick at a truckstop located between New
York City and Philadelphia, Pennsylvania; he and Vick were hauling two trailer
loads to the same jobsite in New York at the time. According to Teed, the conversation turned to
the topic of mileage, a frequent discussion point among the drivers, and Vick
happened to mention the current mileage on his vehicle. Teed said that Vick’s mileage was quite a bit
higher than his,[6] which
struck Teed as out of line since both he and Vick had been assigned new trucks
on the same day. Teed said he asked Vick
whether he charged the Company for downtime while on a run, and Vick said that
he did not. Teed said that this conversation
ended on this note.
Teed said that
about a week later, he telephoned Saladis from the road while on a run and
asked Saladis if he (Teed) would not charge the Company for downtime, would he
be able to get some of the miles Vick was evidently receiving. According to Teed, Saladis asked him what he
meant by the question. Teed explained
that he had spoken with Vick who said that he did not charge for downtime, and
that was the basis for his (Teed’s) question.
According to Teed, Saladis did not further respond to his query.
Teed said that a
short time later—he was not certain about the dates—he spoke to fellow drivers
Dave Olson, Dick Brown, Robert Pergande, and Robert Kross about Vick’s mileage
because he was generally concerned about all of the drivers getting their
miles.[7]
Teed said that
he spoke with Olson in the Hufcor parking lot about Vick’s not charging the company
downtime and that he and Vick had been assigned their vehicles on the same day;[8]
that he (Teed) had about 100 original miles more than Vick on his odometer; yet
Vick currently had about 16,000 more miles than he.
Teed also
related another subsequent conversation with Olson, who on this occasion called
him at home. In this conversation, Teed
said that Olson told him that he (Olson) had been speaking with fellow driver
Pergande in the Hufcor parking lot and there was told that Vick had 18,000 more
miles than Teed; and Olson asked him whether he (Teed) was aware of this. Teed believed this conversation occurred in
July or August 2004.
Teed related
that his conversations with Kross and Brown also took place in the Hufcor
parking lot in July or August 2004. Teed
said that Kross approached him and started talking about mileage. Teed stated that he told Kross that Vick was
getting more miles (around 18,000) than he in this conversation.
Teed stated that
on another occasion in July or August, Dick Brown and he conversed in the same
parking lot, and Brown brought up the subject of his not having enough
miles. Teed said that he told Brown
about the difference in miles between himself and Vick. According to Teed, even before being told about
the mileage difference, Brown told him that he (Brown) had previously spoken to
Saladis about mileage. According to
Teed, Brown told him that Saladis had said that all the drivers were within
2500 miles of each other. Teed said that
he told Brown that Saladis was lying because at that time Vick had 18,000 more
miles than he. According to Teed, both
he and Brown were perplexed over Saladis’ remarks.
Teed said that
he also had a conversation with Pergande in July or August at a truck stop
where they stopped for a meal and discussed mileage, presumably in general
terms.[9]
Teed stated that
at some point—again, he was not sure of the date—he had another occasion to
speak to Saladis about Vick’s mileage.[10] According to Teed, while on the road, he
called Saladis on his cell phone and informed him that a couple of drivers had
called him (Teed) at home and said that Vick had 18,000 more miles on his truck
than he.
According to
Teed, Saladis said he would like to know who the drivers were, that he would
fire them on the spot. Teed said that he
responded, telling Saladis that he would not divulge the drivers’ identities
because he was not going to be responsible for their losing their jobs. According to Teed, Saladis persisted,
repeating that he would like to know who the drivers were, because he would
fire them on the spot. Teed said the
conversation basically ended without further discussion of the mileage issue.
Teed related the
circumstances leading to his being laid off by Saladis on September 4, 2004.
According to
Teed, he received a message from Saladis on his telephone answering machine on
about September 2, 2004, asking him to come to work and discuss “a lot of talk
lately . . . revolving around seniority and miles and things like that.”[11] Acting on this request, Teed said that he
called Saladis that afternoon of September 2 and arranged to meet with him on
Friday, September 4, at around 9 a.m.
Teed said that
on that Friday, he met with Saladis and Hufcor’s human relations director, Pat
Whitmore, in Saladis’ office; Teed said that he recorded this meeting on his
digital recorder. Teed stated that he was informed at this meeting that he was
being laid off, ostensibly in his view because Hufcor was experiencing a
business slowdown and Rock Valley had too many drivers for the workload.[12]
Teed said that
at this meeting he did not challenge Saladis’ claim that there were too many
drivers for the available work because the drivers had discussed among
themselves that they were not getting enough miles.[13] Teed said at the conclusion of the meeting,
he was informed of the indefinite nature of his layoff, and he went home to get
his car so that he could retrieve his personal belongings from his truck.
Teed volunteered
that he came to the exit meeting fully expecting to be fired because of the
mileage issues and came to the meeting armed with his recorder. Teed admitted that he raised his voice at the
meeting, but not out of anger. Rather,
he attributed his behavior to built-up frustration and his tendency to become
loud when he gets excited.[14]
Driver Robert
Kross testified at the hearing at the instance of the General Counsel.
Kross stated
that he worked for Rock Valley Trucking for about 16-1/2 years as a driver; he
terminated his employment in September 2004 because of a lack of work.[15] Kross stated that his supervisor at the time
of his leaving the Company was Saladis.
By way of
background, Kross stated that he had a break in his employment with
Kross said that
upon his return, he determined that the miles he was being given were only
sufficient to meet his basic personal expenses, he was just able to make enough
to pay his insurance copays and clear about $100 per week which was not
satisfactory. Kross said he complained
to Saladis about this on almost a weekly basis.
Kross said the
drivers talked among themselves about the way things were going and that he and
Teed spoke with the other drivers frequently during the summer of 2004.
Kross related a
conversation with Teed in the company parking lot. According to Kross, he was on his way to
speak to Frank Scot, a Hufcor officer,[16]
about “the way things were going” and Teed asked him to discuss the matter
involving Bill Vick’s mileage. Kross
said that Teed told him that he (Teed) and Vick had been assigned their
respective trucks on the same day, with only about 100 miles difference in
their odometers; but now there was a difference of around 17,000 miles between
the vehicles.
Kross said that
he was concerned about mileage and had spoken to Saladis about the methodology
he employed for assigning runs about 2 weeks before he spoke to Scot, as he had
been given to understand that Saladis was telling the drivers that only about
2500 miles separated the highest from the lowest driver. More importantly, he was concerned that
Saladis did not honor driver seniority in the assignment of the more lucrative
runs and had abandoned the old company practice of assigning drivers a long
run, then a short run in an alternating pattern. Kross admitted that he (and the other more
senior drivers) favored the seniority system and did not like the newer drivers
being assigned the better (higher mileage) runs. Furthermore, Kross said that he and Teed in
their discussions were united in their belief that the runs were not being assigned
equally.[17]
Kross noted that
during one of these discussions, there were three or four drivers standing
about, and Teed said that Saladis was claiming that there were only 2500 miles
separating the highest and lowest drivers, but that Vick’s truck had 17,000
more miles on his truck which was assigned the same day as Teed.
After speaking
with Teed, Kross met with Scot in his office.
Kross recorded the meeting at which he discussed with Scot his concerns
about the Company’s operation under Saladis.[18] Kross said that after this meeting he left
the facility and did not speak to any manager regarding the issues covered in
the meeting that day. However, Kross
said that a day or 2 later, he spoke to Saladis alone in Saladis’ office, as
Scot had suggested.
According to
Kross, he told Saladis that he was unhappy about the way things were going,
that he (Kross) was only receiving short runs, and while the better (longer)
runs had been cancelled for one reason or another, leaving him in a position
where he could not support himself.[19] According to Kross, Saladis misinterpreted
the nature of his complaint and said that he (Saladis) could not out of
fairness to the other drivers assign Kross all the good runs. Kross testified that he was arguing for the
old system of drivers being assigned long and short runs alternately, as
opposed to his getting only short mileage runs.
Kross noted that
when Saladis was first hired, he followed the old assignment practice but then
evidently had instituted a change in the policy by the time he returned from
medical leave. Kross said he was really
concerned about mileage or lack thereof and in the end decided to quit because
of lack of work.
The Respondent
called Saladis who testified to the circumstances that led to his layoff of
Teed.
Saladis stated
that when he was hired in November 2002 and encountered the operational
disarray of the Company, he instituted many changes to the way the business was
being run. Saladis conceded that there
was a fairly negative reaction to the changes by the drivers who not only
complained to his supervisor, Frank Scot, but asked for a meeting with him out
of their concerns about his management style.
Saladis said that Scot informed him that a driver, Dick Brown, had asked
for a meeting to discuss the changes being implemented. Scot said that he (Saladis) should be in
attendance.
Saladis said the
meeting was held in the spring of 2003 around March and several drivers,
including Teed, Brown, and Kross attended, along with Scot and himself.
At this meeting,
Teed complained of being offended because he (Saladis) had used one of his runs
as an example of a driver’s taking an inefficient route back to the facility.[20] Saladis said that he admitted that he had
done this and apologized to Teed.
Saladis explained that other issues were covered, including his changed
route assignment procedure whereby he attempted to “even out” the miles the
drivers were receiving by assigning drivers with the least amount of miles
longer trips, and giving all drivers some choice about available assignments.
Saladis admitted
that initially he was angry over being called to the meeting by his boss
because he was busy trying to get the Company on a good footing and felt that
the drivers were talking behind his back.
However, he came to the realization that in his zeal to improve the
Company’s operations, he had had overlooked the possibly legitimate concerns of
the drivers. So he listened to their
complaints and concerns, including unequal treatment and being given different
information, and promised them at the first meeting that he would issue an
employee handbook to regularize the Company’s procedures.
Saladis conceded
that mileage—the amount a driver receives—is important to the drivers as they
are paid by the mile, and it is “extremely” common for him to be part of discussions
with the drivers regarding the assignment of mileage pay. (Tr. 299.)[21] Saladis could not, however, recall whether
the mileage issue came up in this first meeting in 2003.
Saladis said the
first meeting prompted a second meeting a few months later with the drivers and
at which the promised handbook was made available. Saladis explained that the handbook covered
certain key points as determined from comments made by the drivers in a survey
he circulated to them about 2 weeks before the second meeting; the results of
the survey were discussed at this meeting.[22]
According to
Saladis, when he informed the assembled drivers that falsifying downtime or
mileage would be cause for immediate termination, Teed took this as a personal
affront. Saladis said that he asked Teed
why he was reacting so strongly to this provision and Teed said that he viewed
the policy as an affront to his character, he would never do anything like
falsifying records for [downtime or mileage] or anything like that.
Saladis
explained that he got along fairly well with Teed at first and, because Teed’s
wife was employed by Hufcor as a mail clerk who delivered to the
As time went on,
Saladis said he had quite a few disagreements with Teed who, if things did not
go his way, would react with yelling and profanity, turn himself off, and be so
unreachable that he could not get through to him or reason with him. Saladis testified that to him, Teed was a
person for whom there was nothing he (Saladis) could do that was good enough;
Teed also was not willing to accommodate customers or the Company. If there were problems, Teed simply “blew up”
and became dismissive, according to Saladis.
Saladis also
testified about certain disciplinary issues he experienced with Teed. Saladis identified a written disciplinary
notice dated September 23, 2003,[23]
that he issued to Teed for damaging his truck and driving it in a damaged
condition in violation of safety rules and causing further damage to the vehicle. Teed was notified that he would not receive
his annual (for 2003) safety award/bonus because of this infraction. Saladis stated that he spoke to Teed about
the incident and Teed said that prior management told drivers to drive a damaged
truck back to the Company because it would be cheaper to repair them at
home. However, Saladis said the tie rod
on the vehicle was severely damaged and Tee’s claim that the vehicle was
damaged when he was stuck in red clay seemed implausible. Saladis conceded that at this time, his
relationship with Teed had really soured, steadily gone downhill to the extent
that they could not sit down and discuss an issue without tempers flaring.[24]
Saladis turned
to a verbal warning he issued to Teed sometime in 2003. Saladis explained that he was informed by Pat
Whitmore, director of human resources for Hufcor, that one of her employees
witnessed Teed pulling away from the loading dock with the truck’s crane arms
unsecured, posing a safety issue.
Saladis said he contacted the witnessing employee—Jamie Becker—to
confirm the incident and later confronted Teed who denied the allegations. Saladis said that he again contacted Becker
and she again reaffirmed her observation of Teed’s operation of the
vehicle. Saladis testified that he believed
her, reasoning that she had nothing to gain.
He informed Teed of his conclusion and told him not to repeat the
violation or face further discipline. He
memorialized the incident with the writeup.[25]
Saladis issued a
disciplinary warning to Teed on September 2, 2004.[26] According to Saladis, he received a call from
the company from whom
Saladis said
that around the week before this incident, he had decided to lay Teed off and
had spoken to Whitmore about his decision at that time. According to Saladis, Whitmore advised him to
make note of whatever disciplinary action he had taken with Teed, as well as
any other problems with him. Accordingly,
he wrote Teed up on September 2, about 2 days before he was let go.[27]
Saladis went on
to say that Hufcor’s business is seasonal in a sense and, in 2004,[28]
the business was declining rapidly. As a
result, drivers were concerned about there not being enough work for them. He noted that by July–August 2004, drivers
Kross and Schereck returned to duty and, in August, Hufcor’s business actually
was very good. However, by the end of August,
based on Hufcor’s forecasts, he anticipated problems and started considering laying
off one full-time driver.
At this time,
Saladis said that he employed eight full-time drivers—Brown, Kross, Pergande,
Olson, Schereck,
Saladis said
that he considered Kross for layoff “because of his hygiene, late showups, and
some customer complaints.” He considered
Olson for layoff because he tended to push the limits of his schedule and
sometimes tried to pressure customers into taking delivery of loads in advance
of their needs. According to Saladis, he
had not decided between Olson, Kross, and Teed for layoff and in this regard he
took a “pros and cons” approach.
Saladis said he
viewed Kross as a work in progress, one that he had been working on for a
number of years; he felt sorry for Kross who had just gotten back from medical
leave and was having bad luck with canceled runs. Saladis said he did not have the heart to lay
him off.
Regarding Olson,
Saladis said that he acknowledged Olson’s problems with customers, but, nonetheless,
Olson had a good safety record and never had lost his safety bonus. Saladis said that he believed he could change
Olson’s behavior.
Turning to Teed,
Saladis noted that Teed was the only driver in
Accordingly, he
consulted with the Company’s human resources officer, Pat Whitmore, and
together they devised an agenda to meet with Teed and inform him of the
decision. Saladis admitted that he
called Teed and asked him to come in but did not tell him the purpose of the
meeting because he felt that this was not the safe thing to so.[31]
Saladis,
Whitmore, and Teed met on September 4 in Saladis’ office and Saladis then
informed Teed of his being permanently laid off.[32]
Saladis
acknowledged the meeting did not go as he planned which was essentially to
avoid a discussion of specifics such as Teed’s performance issues consisting of
safety, attitude, and customer service because he felt this would escalate into
an argument. Saladis admitted that he
did not mention Teed’s safety issues at the meeting, but this was because he
was not given the chance.
Saladis conceded
that he knew Teed was unhappy about the assignment of mileage because it was an
ongoing thing along with his complaints about “everything.” Saladis also acknowledged that one of Teed’s
biggest problems seemed to revolve around Vick from the time Vick was hired,
and that Teed would constantly complain that Vick had more miles on his truck.
On this score,
Saladis recalled a telephone conversation he had with Teed in early summer
2004; Teed had called him. According to
Saladis, Teed said that another driver had told him that Vick had 18,000 more
miles on his truck than he, although both drivers had been assigned their
respective vehicles at the same time; Teed asked why this was so.
Saladis
testified that it was fairly clear to him that Teed had some ulterior motive
(an “agenda”), that he was trying to get to something. Accordingly, Saladis responded to Teed by
saying that he (Saladis) wished he knew who that driver was; Teed then asked why. Saladis said he then said, “I would fire him
on the spot.” Whereupon Teed asked why
would he do that. Saladis said he told
Teed because there were only two ways to get that information—(1) either by
going into the truck itself (without the driver’s permission), which is not
allowed and is a fireable offense; or (2) by going into the driver’s mailbox
and examining his payroll records, also a fireable offense. Saladis said that Teed in response said that
he had heard Vick does not turn in his downtime and if he (Teed) did not turn
in his downtime, could he have some of those good runs. Saladis said that he told Teed that that was
not only ridiculous but was untrue; that Teed was to be paid for his downtime
not only because he was entitled, but because he (Saladis) wanted to keep track
of driver performance as well as that of the customers who may be contributing
on their end to driver downtime and should be held to account.
Saladis defended
his layoff of Teed, saying that the layoff was for good reason although he
admitted that at the time of the layoff, he was more frustrated than angry with
three of his drivers—Teed, Olson, and Kross—whom he described as continually
changing their charges against the Company to “whatever the flavor of the day
is.” (Tr. 362.)[33] Saladis stated that he felt he was being persecuted
by the three.
Saladis said
that Kross quit after Teed was laid off, and Olson was terminated thereafter
for violating the Company’s log book rules.
At the time of the hearing;
Hufcor’s vice
president for human resources, Pat Whitmore, testified at the hearing and
confirmed that while she had no part in the decision to lay off Teed, Saladis,
around the week of August 16, 2004, informed her that because of the turndown
in Hufcor’s business prospects, he was planning to lay off one driver in a
couple of weeks. According to Whitmore,
Saladis said that he had considered Teed’s singular safety issues, as well as
Teed’s confrontational manner and the generally difficult working relationship
he had with Teed, and would probably select him for layoff. Whitmore testified that she advised Saladis
to be objective in the process and offered to meet with him to discuss the
layoff process; however, she would be on vacation until late August.[34]
Whitmore said
that she met with Saladis around August 31 and Saladis advised her that he had
indeed selected Teed for layoff.
Whitmore said that she wanted Saladis to have all the information
necessary to effectuate the layoff and advised him that one of her employees
had observed Teed operating his vehicle with the loading crane arms unsecured.[35]
Whitmore noted
that 2004 was not a good year for Hufcor’s business, that between December 2003
and February 2004 Hufcor laid off about 80 factory workers; in June 2004,
Hufcor laid off another 6–8 employees in the front office. Accordingly, Whitmore said that when Saladis
came to her office about his having considered a driver reduction, she was not
surprised. She further noted that it was
her opinion at the time that business was not going to improve for the balance
of the year and that Saladis would be overstaffed in terms of his driver complement.
Whitmore said
she met with Saladis on August 31, and at the time Saladis confirmed that Teed
was to be laid off. The meeting lasted
about 30–45 minutes and covered some of Teed’s safety issues. According to Whitmore, she then brought up
the matter of Teed’s having been observed by one of her employees, Jamie Becker,
driving his trailer with the loading crane arms unsecured and inquired of him
whether he had followed up on the matter.
Saladis said that he had checked with Becker.
Whitmore stated
that she had known Teed and Saladis did not enjoy a good working relationship,
that Teed was very confrontational and negative, and at times appeared very angry. While Teed and Saladis seemingly did not work
well with one and the other, Whitmore believed that Saladis was managing any
conflicts between them. According to Whitmore,
Saladis believed at the time that Teed also was one of his weakest performers.[36]
Whitmore said
that her procedure in a layoff scenario is to take the manager through the
process, instructing how it should be handled, and that her role also included
explaining to the employee his benefits.
Whitmore said that she encouraged Saladis not to engage in a lot of
discussion with Teed and not to explain in detail why he had been selected,
that he (Saladis) should focus on business conditions. According to Whitmore, Saladis was concerned
about Teed’s temper and they discussed various scenarios and even engaged in
role playing in anticipation of Teed’s possible negative reaction to the news.
Whitmore said
Teed’s exit meeting was scheduled for Friday, September 4, by Saladis and
herself because she was not available on Thursday.
Whitmore
testified that she attended the exit meeting.
She had also listened to Teed’s taped recording of the session and read
the transcript thereof entered into evidence at the hearing. According to Whitmore, the transcript is
fairly accurate, however, she recalled that the inaudible parts of the tape
dealt with Saladis’ attempt to tell Teed that he did not want to go into detail
regarding his decision to lay Teed off, but business conditions dictated the
move. Whitmore said that neither the
taped recording nor the transcript reflect Teed’s growing anger at the meeting
and how very angry Teed ultimately became.[37] According to Whitmore, the meeting did not proceed
in the way she would have wanted. There
was too much in the way of confrontation, and Teed was so angry in her view
that she instructed Saladis not to meet with Teed alone in the parking lot
(where Teed was to retrieve his personal items) out of her fear there would be
a physical confrontation between the two.[38]
The Respondent
also called Richard Brown and Robert Pergande, current drivers of the
Respondent, to testify on its behalf.
Brown testified
that he has been in the trucking industry for about 27 years and has worked for
Brown stated
that Saladis came on board with the Respondent in November 2002 or 2003,[39]
and immediately instituted what he (Brown) described as “standing operating
procedures” that he wanted the drivers to follow. Basically, according to Brown, Saladis wanted
things to be done by the book and sought to impose discipline in the system and
on the drivers.
Brown explained
that prior to Saladis, the drivers generally did what they wanted. However, Saladis demanded that the drivers “run
legal,” required that they keep accurate driver log books, loads had to be
delivered on time, and driver time and loads had to be accounted for. Saladis also changed the way mileage was
distributed among the drivers, including spreading the routes—the good and bad
ones—around,[40] in
effect taking the choice of routes from the drivers. Saladis assigned routes based on driver
availability, including a consideration of whether the driver was legally able
to drive; that is, whether, under the hours of service regulations, a driver
could go back on the road. According to
Brown, he rebelled initially against Saladis’ management style, which he
admitted required him to adjust from a lax system to one requiring that
everything be done by the book. Brown
also stated that other drivers, including Olson, Kross, and Teed, rebelled
similarly. Teed, in particular, did not
like the way runs were being distributed and did not like Saladis’ rules. Brown admitted that he did not like the way
runs were distributed, or Saladis’ rules either.
Brown said that
under Saladis’ system, sometimes he would receive a long run, then a short run,
and then a long run. However, during
some weeks, he would get only short runs. Brown says his runs would often be
dependent on when he returned from a run.
Brown was not sure but thought that Saladis was attempting to assign
drivers long and short runs alternately, or even giving drivers a couple of
weeks with long runs back-to-back. Brown
conceded that Saladis spoke of trying to make the runs equal for all drivers so
that everyone would receive equal mileage.
Nevertheless,
the drivers complained and Brown said he tried to talk with Saladis about these
matters. Eventually, within a few months
of Saladis’ start with the Company and with the drivers rebelling against him,
Teed, and Kross, and he met with Frank Scot and Saladis to discuss their
concerns. Brown said that he, Teed, and
Kross addressed their concerns abut safety bonuses (Teed thought he was not
going to receive his), the vehicles they were driving, and general concerns about
the way they felt they were being treated.
According to Brown, management was not apparently hostile and seemed to
listen sincerely to their grievances.
Moreover, no adverse actions, to his knowledge, were taken against any
of them. Brown said that Teed was
outspoken at the meeting as was he.
Kross also addressed matters of concern to him at this meeting.
Brown said that about 3–5 months after this initial meeting (in the fall), management called a second meeting with all of the drivers,