Conley v. N.L.R.B.
| Decision Date | 31 March 2008 |
| Docket Number | No. 07-1529.,No. 07-1399.,07-1399.,07-1529. |
| Citation | 520 F.3d 629 |
| Parties | Delmas CONLEY, doing business as Conley Trucking, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: R. Alan Lemons, Miller, Searl & Fitch, Portsmouth, Ohio, for Petitioner. Jeffrey Horowitz, National Labor Relations Board, Washington, D.C., for Respondent. ON BRIEF: R. Alan Lemons, Miller, Searl & Fitch, Portsmouth, Ohio, for Petitioner. Jeffrey Horowitz, Linda Dreeben, Meredith L. Jason, National Labor Relations Board, Washington, D.C., for Respondent.
Before: DAUGHTREY and McKEAGUE, Circuit Judges; GWIN, District Judge.*
Delmas Conley, doing business as Conley Trucking, petitions for review of a decision of the National Labor Relations Board (NLRB) that affirmed an administrative law judge's ruling that the petitioner had engaged in various unfair labor practices. The Board has also filed an application with the court seeking enforcement of that decision.
In an opinion that was adopted in all substantive respects by the NLRB, the administrative law judge concluded that Conley Trucking violated provisions of the National Labor Relations Act, 29 U.S.C. §§ 151-169. Specifically, the administrative law judge determined that the company violated the Act by discharging an employee who supported unionization, by creating the impression that employees' union activities were being monitored, and by threatening various adverse consequences if unionization of the company were to occur. Before this court, Conley Trucking asserts that two of the five unfair labor practices found by the Board cannot be sustained because the administrative law judge improperly relied upon hearsay evidence in reaching those conclusions and that, without consideration of the hearsay, substantial evidence does not exist in the record to support the Board's decision. For the reasons discussed below, however, we conclude that there is substantial evidence to support the Board's decision and, therefore, grant the request for enforcement of its administrative order against Conley Trucking and deny the company's petition for review.
This appellate proceeding has its genesis in an unsuccessful effort by the General Truck Drivers and Helpers Union Local # 92, International Brotherhood of Teamsters, to organize drivers at Conley Trucking, a sole proprietorship in Portsmouth, Ohio, owned by Delmas Conley and run primarily by Conley's sons, R.J. and Rodney. Conley Trucking does not dispute that its drivers "haul and deliver gravel, sand, salt, and stone in dump trucks for customers" and that the company is subject to the requirements of the National Labor Relations Act.
Some time during the summer months of 2005, R.J. Conley observed union pamphlets in the company parking lot and informed his father of that fact. Additionally, R.J. "heard employees talking about a Union around the workplace" and "probably" disclosed that information to his father as well. Nevertheless, no overt efforts at unionization of the Conley Trucking drivers occurred until October 2005, when Teamsters organizer Rick Kepler met at an area restaurant with drivers Jeremy Thompson, Ata Thunderdance, Roger Rosenogle, and Dan Gulliver. A second meeting organized by Kepler convened at a Lucasville fast-food establishment on Sunday, October 23, 2005, and was attended by Thompson, Thunderdance, Rosenogle, Gulliver, Tim Gilbert, and Steve Delabar. At that second meeting, each of the Conley Trucking employees present signed a union card indicating a desire to be represented by the Teamsters in workplace negotiations.
Jeremy Thompson subsequently signed two different affidavits that were prepared by an NLRB agent. In a November 16, 2005, affidavit, Thompson claimed:
The following Wednesday [after the October 23 meeting with Kepler] I was at the office at Conley. There were 3 or 4 other drivers standing around that I don't normally talk to. I don't know their names. It was about 4:30 or 5:00 p.m. R.J. Conley came over. We talked about everyday business. Conley then said[,] "I heard something today." I said[,] "What's that?" He said[,] "I heard you, Tim Gilbert, and Steve Del[a]bar were trying to get a union in here." I said Del[a]bar and Gilbert had nothing to do with it. That was the end of the conversation.
The day after Thompson's exchange with R.J. Conley, Tim Gilbert was informed that his wife had suffered a possible stroke and had been transported to the emergency room, although she was subsequently discharged after refusing recommended procedures. Consequently, Gilbert informed Rodney Holden, a dispatcher and scheduler for Conley Trucking, that he would not be able to work the following day because of the need to take his wife to the family doctor for a follow-up visit. On that Friday, October 28, 2005, Gilbert drove his wife to her physician, who, after examining test results, commented that Gilbert's wife should be taken immediately to the emergency room for a spinal tap and additional care that could not be provided in an office setting. Once Gilbert's wife was readmitted to the hospital, Gilbert and his daughter drove to Conley Trucking so that Gilbert could receive his weekly paycheck. Gilbert was handed an envelope by Holden, an envelope that Gilbert discovered contained not only his paycheck but also a notice that he had been terminated from his employment due to his "Absenteeism/Tardiness."
According to one of the affidavits provided by Thompson, anti-union comments continued to be made by Conley Trucking management officials after Gilbert's termination. For example, Thompson stated in one affidavit:
About 1 week to 1.5 weeks after Gilbert was fired I was at the shop. About 4 or 5 other drivers were there. Roger Rosenogle was there. Dave Jordan, a mechanic was there. The others I am not sure of. It was after work at 5 or 5:30 p.m. R.J. Conley told us he couldn't talk about it but he can legally say that he can sell his trucks if he so chooses. He said he can't afford to pay the big wage that the Union was promising us. He said his company didn't generate that kind of money. He said if they could get a union in there and it would benefit the guys they would gladly do it, but they couldn't afford it. I think R.J. started talking after one of the employees asked him about it. He said if we wanted a union, it would be our choice and we could vote on it and he didn't have any say in it. We didn't reply to this. I recall that R.J. said we would make $7-8 per hour if the union came in because they went in the hole last year with fuel costs being high. Furthermore, Thompson later claimed in another affidavit:
About late October or early November 2005, I was loading my work truck at the dock when Delmas Conley approached me. It was about 8:30 or 9:00 a.m. No one else was present, but Dan Conley was getting loaded in the general area. Conley told me that he wanted to have an "off the record" conversation about the Union. I told him that it would be off the record. Delmas asked me if I had a tape recorder on me and I opened my coat to show him that I did not. Delmas said that he would fight the Union and would shut the company down. He said that if we stopped right now, no one would lose their jobs, but if it didn't stop right now, we would all lose our jobs. Delmas said that he would shut the company down if we unionized. He said he would use scab labor.... Delmas said that the Union was good years ago, but was not worth a fuck now. Delmas said that he would fire anyone he wanted and that he owned the company and could do anything he wanted anytime and that no one short of the President of the United States could tell him otherwise. Delmas said that if the Union won, he would bargain us down to minimum wage and lock us out and use scab labor. Delmas said that the Union had hurt Conley and had set him back 10 years.
Other testimony damaging to Conley Trucking came from R.J. Conley, who admitted to numerous other comments made by him or by his father in the weeks after the news of potential unionization of the company's drivers came to light. For example, R.J. testified that he remembered telling Ata Thunderdance and other drivers "that if a Union comes in, `we start from zero and have to bargain everything.'" He further admitted that, at a December 23, 2005, meeting, Delmas Conley expressed his desire that the company stay non-union, "that he would not like outside people telling him how to run his business," "that if employees want to work for a Union trucking company ... they [could] go somewhere else rather than Unionize his facility," "that if employees wanted more control over the business that they could buy and drive their own trucks rather than Unionize," and that he would sell them a truck, or even the entire business, rather than have them vote for union representation.
Having been informed of these comments and events, the Board's general counsel filed charges, and eventually a complaint, against Conley Trucking, alleging the unlawful termination of Tim Gilbert in retaliation for his union activity, the unlawful creation of an impression of surveillance of employees' union activities, and improper efforts to coerce the workers not to vote for the union. Although Conley Trucking officials admitted to making many of the statements that the general counsel alleged were in violation of the Act, they countered the allegation of retaliatory termination of Gilbert with testimony indicating that Gilbert was far from a model employee and that he was fired, not for union activities, but for numerous transgressions of workplace rules, for excessive absenteeism, and for substandard work performance.
In particular, R.J. Conley testified that Gilbert had shown up for work on March 9, 2005, too intoxicated to drive...
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