Delmas Conley v. NLRB

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0130p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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DELMAS CONLEY, doing business as Conley

Petitioner/Cross-Respondent, -

Trucking,

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Nos. 07-1399/1529

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v. >

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Respondent/Cross-Petitioner. -

NATIONAL LABOR RELATIONS BOARD,

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On Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board.

Nos. 9-CA-42562; 9-CA-42437.

Argued: January 31, 2008

Decided and Filed: March 31, 2008

Before: DAUGHTREY and McKEAGUE, Circuit Judges; GWIN, District Judge.*

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COUNSEL

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.

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OPINION

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PER CURIAM. 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,

*

The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by

designation.

1

Nos. 07-1399/1529 Conley v. NLRB Page 2

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.

FACTUAL AND PROCEDURAL BACKGROUND

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

Nos. 07-1399/1529 Conley v. NLRB Page 3

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

Nos. 07-1399/1529 Conley v. NLRB Page 4

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 after being found asleep in his own car in the company parking lot with a beer

can between his legs. Even so, on that occasion, Gilbert was not suspended by his employers and

received only a written warning. Additionally, the company asserted that Gilbert was the only driver

who had been involved in multiple accidents during the relevant time period, jackknifing a company

truck on July 11, 2005, causing approximately $1000 in damage, backing his truck into the truck of

Steve Delabar in September 2005, causing another $1,200 - $1,300 in damage, and backing his truck

into another truck driven by Charlie Floyd. Also, R.J. Conley testified that Gilbert was once seen

parked in a rest area for an extended period of time with other Conley Trucking drivers, rather than

returning with an additional load prior to quitting work for the day. Conley Trucking management

also alleged before the administrative law judge that Gilbert had more missed loads than any other

driver for the period between November 1, 2004, and December 31, 2005, and that Gilbert was

chronically late for work and missed more days of work than the number to which he was entitled.

Finally, the company contends that Gilbert failed to show up for work on Saturday, October 15,

2005, a designated mandatory workday, instead opting to remain home to cut firewood for the

winter.

In response to the company’s arguments that Gilbert was terminated solely for his

substandard work record, the Board’s general counsel adduced testimony that the company failed

to discipline Gilbert for any of the alleged workplace infractions at the time they were committed,

other than the one occasion on which he reported for work while intoxicated. Furthermore,

testimony established that even though many other drivers had less-than-stellar attendance records,

that even though other drivers also missed an inordinate number of work loads, and that even though

other drivers were involved in accidents resulting in greater vehicle repair costs to the company, no

other driver had been terminated by the management of the company before Gilbert’s dismissal.

The general counsel also attempted to introduce testimony from Jeremy Thompson to

substantiate that the Conleys were aware of Gilbert’s pro-union activities shortly before the

termination decision was made. In contravention of the information Thompson had previously

provided in affidavits, however, once he was sworn at the administrative hearing, he denied that

anybody from Conley management ever said anything to him about the union. When confronted

with his prior affidavit clearly stating that R.J. Conley had indeed mentioned that he knew that

“[Thompson,] Tim Gilbert and Steve Delabar were trying to bring a Union into his workplace,”

Thompson acknowledged the inconsistency but explained that when offering information for the

affidavit, he “was upset, . . . under the influence also and . . . was angry, so [he] may have

exaggerated the points a little bit.”

At the close of the hearing, the administrative law judge recognized that the Thompson

affidavits offered by the Board’s general counsel constituted hearsay to the extent that the

information contained in those affidavits was offered to prove the truth of the matters asserted and

not merely to impeach the credibility of the witness’s testimony. Nevertheless, because “hearsay

evidence is admissible [at Board proceedings] if ‘rationally probative in force and if corroborated

by something more than the slightest amount of other evidence,’” the administrative law judge

determined that the affidavits should be admitted as substantive evidence to be evaluated and

weighed in the same manner as other non-hearsay testimony. Delmas Conley d/b/a Conley

Nos. 07-1399/1529 Conley v. NLRB Page 5

Trucking, 349 NLRB No. 30, 2007 WL 324557, at *5 (Jan. 31, 2007) (quoting Dauman Pallet, Inc.,

314 NLRB 185, 186 (1994)). In so ruling, the administrative law judge explained the rationale for

his decision as follows:

[W]hile mindful that Board proceedings are to follow the F[ederal] R[ules of]

E[vidence] “so far as practical,” in my view federal labor policy concerns would

render decidedly impractical adherence to an evidentiary rule that precluded the

administrative law judge from having discretion to substantively consider these

pretrial affidavits.

One of the chief concerns that motivated the modern trend to allow the substantive

use of some prior witness statements, as reflected in FRE 801(d), was concern about

witness intimidation – i.e., witnesses who could be intimidated or were otherwise

vulnerable to pressure with the result that their prior statements were a more reliable

guide to the fact finder than their testimony in the courtroom. According to the

Congressional subcommittee considering enactment of the rules of evidence

proposed by the Supreme Court, support for the Supreme Court’s proposal to permit

an even broader substantive use of prior inconsistent statements than Congress

ultimately adopted in the FRE was “based largely on the need to counteract the effect

of witness intimidation.” The Notes of the Advisory Committee reviewing the rules

of evidence proposed by the Supreme Court opined that the Court’s proposed Rule

801(d)(1)(A) “provides a party with desirable protection against the ‘turncoat’

witness who changes his story on the stand and deprives the party calling him of

evidence essential to his case.”

* * * * *

[T]he concern with witness intimidation that prompted the modern movement toward

permitting the substantive use of some prior inconsistent statements in federal court

is even more acute in the arena of Board litigation. It is precisely because of the

“peculiar character of labor litigation” with its reliance on witnesses “especially

likely to be inhibited by fear” that, as a matter of effectuating federal labor policy,

administrative law judges should have the discretion to consider sworn pretrial

affidavits as substantive evidence. For when a witness testifies in marked

contradiction to his pretrial statement, and particularly where in the opinion of the

administrative law judge that testimony reeks of untruthfulness, and further, where,

as here, the employer has met with and discussed the contents of the employee’s

pretrial statements with the employee, the ability of the judge to consider

substantively the witnesses pretrial statements becomes an important tool in the

search for truth and an antidote to the threat to Board enforcement proceedings posed

by witness intimidation.

Id. at **6-8 (some citations, some internal quotation marks, and footnotes omitted).

Even though the administrative law judge ultimately accepted Thompson’s affidavits as

substantive evidence, he also made clear that such admission “is not tantamount to crediting the

claims in the affidavits over all other evidence. Rather, . . . the assertions in the affidavits must be

considered with and against the record evidence as a whole, including, . . . the denial of the

allegations by witnesses aligned with Conley Trucking.” Id. at *9. In doing so, the administrative

law judge concluded that “Thompson’s testimony at the hearing was thoroughly untruthful.” Id. at

*4. Nevertheless, he refused to view all contrary evidence as necessarily credible and worthy of

belief; instead, the administrative law judge required corroboration of the allegations made in

Nos. 07-1399/1529 Conley v. NLRB Page 6

Thompson’s affidavits before allowing those statements to serve as substantive evidence made

against Conley Trucking.

As a result, the administrative law judge recommended dismissal of some charges brought

against the trucking company and found violations of the Act in other circumstances. On one hand,

the administrative law judge concluded that Conley Trucking violated the Act in the following

instances:

1) by creating the impression that the company was conducting surveillance of the

employees’ union activity;

2) by threatening the employees on or about November 3, 2005, that any bargaining

with the union would “start from zero”;

3) by encouraging union supporters on December 23, 2005, to leave their

employment with Conley Trucking;

4) by threatening on December 23, 2005, to sell the company’s trucks, and even the

company itself, if the employees voted for the union; and

5) by discharging Tim Gilbert in retaliation for his support of the union.

On the other hand, however, the administrative law judge dismissed charges against Conley

Trucking that:

1) R.J. Conley stated in early November 2005 that the company could sell its trucks

if the workers unionized;

2) R.J. Conley told the employees that he would change their method of pay should

they vote for a union;

3) Delmas Conley threatened on October 25, 2005, that he would sell his trucks

and/or his business in case of a pro-union vote; and

4) Delmas Conley stated in late October or early November 2005 that he would close

his business before allowing unionization, that employees would lose their jobs

unless they ceased unionization efforts, and that unionization would result in a pay

decrease.

A three-member panel of the Board adopted the administrative law judge’s recommended

order with only two minor, non-substantive modifications. Conley Trucking then petitioned this

court for review of that administrative decision and the NLRB filed a cross-application for

enforcement of the Board’s order.

DISCUSSION

Pursuant to the express language of section 7 of the National Labor Relations Act, 29 U.S.C.

§ 157, employees are guaranteed the right to organize and to bargain collectively for their mutual

aid or protection. Moreover, section 8 of the Act makes it an unfair labor practice for an employer

to interfere with those rights or to discourage membership in any labor organization “by

discrimination in regard to hire or tenure of employment or any term or condition of employment.”

29 U.S.C. §§ 158(a)(1) and (3). See also Opportunity Homes, Inc. v. NLRB, 101 F.3d 1515, 1518

(6th Cir. 1996), overruled on other grounds as recognized in NLRB v. Webcor Packaging, Inc., 118

F.3d 1115 (6th Cir. 1997).

Nos. 07-1399/1529 Conley v. NLRB Page 7

The threshold test for determining whether an employment decision constitutes an unfair

labor practice is whether the decision at issue was motivated by anti-union animus. See NLRB v.

Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir. 1995). The Board bears the initial burden of

showing, by a preponderance of the evidence, that the employer’s decision was motivated by the

employee’s exercise of rights protected by the Act. See NLRB v. Transp. Mgmt. Corp., 462 U.S.

393, 401 (1983), overruled on other grounds, Dir., Office of Workers’ Comp. Programs v.

Greenwich Collieries, 512 U.S. 267 (1994); Cook Family Foods, Ltd., 47 F.3d at 816. If such a

showing is made, the burden of persuasion “shifts to the employer to demonstrate by a

preponderance of the evidence that it would have made the same decision regardless of the fact that

the employees engaged in protected activity.” Ishikawa Gasket Am., Inc. v. NLRB, 354 F.3d 534,

537 (6th Cir. 2004) (citing NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 226 (6th Cir. 2000)).

This court then reviews de novo any legal conclusions made by the Board. See 3750 Orange

Place Ltd. P’ship v. NLRB, 333 F.3d 646, 654 (6th Cir. 2003). We will uphold the Board’s findings

of fact, however, if supported by substantial evidence on the record. See 29 U.S.C. §§ 160(e) and

(f). “Substantial evidence” has been defined as such evidence as is “adequate, in a reasonable mind,

to uphold the [Board’s] decision.” Gen. Fabrications Corp., 222 F.3d at 225. “Deference to the

Board’s factual findings is particularly appropriate where the ‘record is fraught with conflicting

testimony and essential credibility determinations have been made.’” Tony Scott Trucking, Inc. v.

NLRB, 821 F.2d 312, 315 (6th Cir. 1987) (quoting NLRB v. Nueva Eng’g, Inc., 761 F.2d 961, 965

(4th Cir. 1985)).

In its request for relief, Conley Trucking asks “that the Board’s decision be vacated in its

entirety and the complaint of the General Counsel be dismissed.” As noted by the Board and by

general counsel, however, Conley Trucking failed to present proper objections before the Board to

some of the administrative law judge’s conclusions and recommendations. Indeed, the company’s

exceptions to the administrative law judge’s finding “that [it] violated Sec. 8(a)(1) of the Act by

threatening employees that bargaining with the Union would start from zero” fail “to allege with any

degree of particularity . . . the error it contends the judge committed, or on what grounds it believes

the judge’s decision as to this violation should be overturned.” Delmas Conley d/b/a Conley

Trucking, 2007 WL 324557, at *1 n. 2. Consequently, absent “extraordinary circumstances,” which

are not present in this matter, such an objection that is not properly “urged before the1Board, its

member, agent, or agency, shall [not] be considered by the court.” 29 U.S.C. § 160(e).

Furthermore, Conley Trucking does not argue in its appellate brief against the validity of the

Board’s rulings regarding two other findings by the administrative law judge that were affirmed by

the Board. Any challenges to those rulings have thus been waived. See McPherson v. Kelsey, 125

F.3d 989, 995 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.”) Moreover, Conley Trucking,

through its agents, conceded at the administrative hearing that those offending, anti-union comments

had indeed been made.

Specifically, R.J. Conley admitted during his hearing testimony that his father “invited union

supporters to leave their employment with Conley Trucking” by stating “that if employees want to

work for a Union trucking company that he preferred that they go work somewhere else rather than

Unionize his facility.” As noted by the administrative law judge:

1

The Board’s general counsel also filed “no exceptions to the judge’s dismissal of allegations that the

Respondent violated Sec. 8(a)(1) by threatening to sell its trucks and to reduce its employees’ pay, and by threatening

job loss and plant closure in late October and early November 2005.” Delmas Conley d/b/a Conley Trucking, 2007 WL

324557, at *1 n.2.

Nos. 07-1399/1529 Conley v. NLRB Page 8

It is well settled that an employer’s invitation to an employee to quit in response to

their exercise of protected concerted activity is coercive, because it conveys to

employees that support for their union or engaging in other concerted activities and

their continued employment are not compatible, and implicitly threaten discharge of

the employees involved.

Delmas Conley d/b/a Conley Trucking, 2007 WL 324557, at *18 (quoting McDaniel Ford, Inc., 322

NLRB 956, 956 n.1, 962 (1997)).

R.J. Conley also confirmed during his testimony that his father told company employees that

if they “wanted more control over the business . . . they could buy and drive their own trucks instead

of Unionize,” and “added that he would sell them a truck and would, in fact, sell them his entire

business.” In addition, Delmas Conley himself admitted at the administrative hearing that he made

comments to the employees about “outsiders running [the] company” and that he would sell his

trucks and his business to the workers if they desired. As the administrative law judge and Board

concluded, “This was not a business offer. Conley was telling employees that in retaliation for their

desire to unionize he was willing to radically alter the employer-employee relationship. . . . The

threat of reprisal for union activity in the comment is manifest and violative of Section 8(a)(1) [of

the Act].”

As a result of admissions by Conley Trucking of various anti-union comments, the failure

of the company to argue in its brief that certain conclusions made by the administrative law judge

were erroneous, and the decisions of Conley Trucking and the Board’s general counsel not to file

proper exceptions to other determinations made by the administrative law judge, only two rulings

by the Board remain for our review. Both of those holdings – that Conley Trucking improperly

created the impression of surveillance of employees’ union activity and that Conley Trucking

improperly discharged Timothy Gilbert for engaging in activities in support of union representation

– rely upon information contained in affidavits executed by Jeremy Thompson, affidavits that

Thompson later repudiated in large part during his hearing testimony. Thus, the administrative law

judge’s and Board’s resolution of those questions may be upheld only if we determine that the

admission of the recanted affidavits as substantive evidence was indeed proper.

Before this court, both parties apparently concede that the information contained in

Thompson’s two affidavits, if offered to prove the truth of the matters asserted therein, constituted

hearsay evidence. Conley Trucking and the Board’s general counsel disagree, however, over

whether such hearsay should be admissible as substantive evidence to be evaluated by the

administrative law judge and the Board itself.

Pursuant to the Federal Rules of Evidence, “hearsay,” defined as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted,” Fed. R. Evid. 801(c), is not generally admissible in federal courts. See Fed.

R. Evid. 802. Nevertheless, administrative hearings, like the proceeding before the administrative

law judge in this labor dispute, are not necessarily bound by the same evidentiary strictures as are

federal district courts. Indeed, the express language of 29 U.S.C. § 160(b) provides that such agency

proceedings shall, only “so far as practicable, be conducted in accordance with the rules of evidence

applicable in the district courts of the United States . . . .” (Emphasis added.)

In this case, the only direct evidence of Conley Trucking’s knowledge of Timothy Gilbert’s

association with the union organizing effort came from Jeremy Thompson’s affidavits discussing

Thompson’s conversations with R.J. Conley only days after a union organizing meeting and only

shortly before Conley terminated Gilbert’s employment with the company. Because admission of

those affidavits as substantive evidence, especially in the face of Thompson’s later disavowal of

statements made within the affidavits, would give the impression that the company was tracking its

Nos. 07-1399/1529 Conley v. NLRB Page 9

employees’ union activities and that the company fired Gilbert because of his perceived leadership

role in the organizing effort, Conley Trucking now urges us to hold that strict adherence to federal

evidentiary rules is required in all but the most limited circumstances.

The decision of the administrative law judge, however, relied upon numerous federal court

decisions and prior Board rulings that, in turn, cited other decisions that have permitted admission

of hearsay as substantive evidence of violations of federal labor laws. In doing so, the

administrative law judge emphasized that Congress’s insertion of the language “so far as

practicable” into the National Labor Relations Act demonstrated that some deviation from the

Federal Rules of Evidence was envisioned and was deemed necessary by the legislative drafters in

order to effectuate federal labor policy. In its appellate brief, however, Conley Trucking argues that

the precedents upon which the administrative law judge relied are extremely limited in their

application. Consequently, argues Conley Trucking, hearsay has been admitted as substantive

evidence of labor law violations only in instances involving: (1) application of state evidentiary

rules rather than the Federal Rules of Evidence, see, e.g., Starlite Mfg. Co., 172 NLRB 68 (1968);

(2) stipulations by the parties that the hearsay evidence is admissible, see, e.g., In re El Mirador, 340

NLRB 715 (2003); (3) a failure by a party to object to the admissibility of the evidence, see, e.g.,

Alvin J. Bart and Co., 236 NLRB 242 (1978), enforcement denied, NLRB v. Alvin J. Bart and Co.,

598 F.2d 1267 (2d Cir. 1979); Bay Refrigeration Corp., 322 NLRB 1045 (1997); (4) affidavits

prepared by agents of the subject companies such that the evidence is considered an admission of

the party pursuant to Rule 801(d)(2)(A) of the Federal Rules of Evidence, see, e.g., Alvin J. Bart and

Co.; Bay Refrigeration Corp.; or (5) testimony that was subject to cross-examination in a prior trial

or that was sworn to before a grand jury, see, e.g., DeSisto v. United States, 329 F.2d 929 (2d Cir.

1964).

Conley Trucking’s argument in this regard is, however, unpersuasive. The fact that prior

decisions allowing hearsay testimony as substantive evidence have, to-date, fallen into neat

pigeonholes does not mean that other scenarios are not possible or legally supportable. This court,

for instance, has stated broadly that administrative law judges are “not obliged to strictly adhere to

the Federal Rules of Evidence.” 3750 Orange Place Ltd. P’ship, 333 F.3d at 666. Similarly, the

Seventh Circuit, discussing the relevant provision of 29 U.S.C. § 160(b), recognized that “[t]he

Board is not bound absolutely to apply the Federal Rules of Evidence under this provision, and it

may, where appropriate, fashion its own particular rule of evidence – for example, where a rule will

facilitate the bargaining process.” NLRB v. Augusta Bakery Corp., 957 F.2d 1467, 1479 (7th Cir.

1992).

Whether the scenario presented in this appeal tracks exactly the factual and legal patterns of

prior cases in which the admission of hearsay evidence has been allowed is thus of little import.

Instead, the more germane inquiry is whether the relaxation of the Federal Rules of Evidence by the

administrative law judge was reasonable under the circumstances and limited in its application to

the practicalities of this situation. Here, the administrative law judge’s first-hand observations of

Jeremy Thompson’s demeanor raised a concern that the company, wielding superior economic

power, had intimidated Thompson at a time when, as an employee, he was still dependent upon the

company for his livelihood. The judge clearly found that, without adoption of a relaxed evidentiary

rule to permit a more complete picture of the situation faced by Conley Trucking’s workers, there

was a distinct possibility that company officials would succeed in suppressing evidence otherwise

available for consideration in determining whether an unfair labor practice had occurred.

To counteract that undesirable possibility, the administrative law judge fashioned a workable

rule permitted by the governing statutes that met the challenge presented to him. He noted that

Thompson, at the time he gave the statements contained in his affidavits, was given the opportunity

to review those comments for accuracy and was asked to vouch for their truthfulness. Nevertheless,

even though the statements were given by Thompson in relaxed, non-coercive atmospheres, the

Nos. 07-1399/1529 Conley v. NLRB Page 10

administrative law judge refused to accept uncritically every statement made in the affidavits. To

the contrary, the fact-finder scoured the administrative record for testimony that supported and

contradicted the affiant’s assertions and required some corroboration, however slight, for the out-of-

court statements before crediting their substance.

We conclude that the compromise reached by the administrative law judge represents an

exemplary application of – and respect for – the federal rules of evidence “so far as practicable.”

The administrative law judge’s evidentiary ruling in this matter clearly does not signal a rejection

of traditional evidentiary guidelines and an era of carte blanche admission of heretofore

inadmissible testimony. Rather, in line with the principles espoused in section 160(b) of title 29 of

the United States Code, the decision recognizes the need to examine the unique circumstances of

each dispute before the administrative body to determine whether some flexibility in the standards

governing admissibility of evidence would enhance or upset the delicate balance to be struck

between furtherance of general guiding principles and maintenance of recognizable, applicable rules.

Section 160(b) vests within the Board the authority to deviate from the Federal Rules of

Evidence when the agency believes it is not practicable both to adhere to such rules and to protect

workers’ rights. Thus, even without citation to another court ruling or administrative decision whose

factual scenario approximates that found in this proceeding, the administrative law judge’s concern

for protection of witnesses from employer intimidation justified the admission as substantive

evidence of those portions of Thompson’s affidavits for which some additional corroboration could

be found in the administrative record. The administrative law judge summarized it best in

explaining:

Where an allegation in the complaint is supported solely by a statement in

Thompson’s affidavit, and the record is devoid of any corroboration that supports the

likelihood of the truth of the statement, then I have determined that allegation fails

due to a lack of sufficient evidence, without regard to credibility resolutions. Where

there is some form of corroboration then I will consider whether to credit or discredit

the various competing testimony as is the traditional practice. Although the extra

“burden” this places on the General Counsel may not be warranted in every case

where pretrial statements are considered substantively, in this case I believe that it

provides an important brake on the use of Thompson’s pretrial statements as a sole

source of support for a finding of a violation of the Act by [Conley Trucking].

Delmas Conley d/b/a Conley Trucking, 2007 WL 324557, at *10 (citations and footnote omitted).

We reject the evidentiary challenge to the administrative law judge’s hearsay ruling and turn to the

merits of his decision.

As noted above, two of the administrative law judge’s findings now at issue relied upon

evidence contained in the two affidavits executed by Thompson but later repudiated by him when

testifying at the hearing. In the first such finding, the administrative law judge concluded that

Conley Trucking improperly “created the impression of surveillance of employees’ union activities”

when R.J. Conley informed Thompson that he was aware that Thompson, Gilbert, and Steve Delabar

“were trying to get a union in here.” Because Thompson was not aware of the identity of any other

individuals who might have heard R.J. Conley’s comment, the suspect affidavit testimony provides

the most substantial evidence in support of the unfair labor practice charge, even though Teamster

organizer Rick Kepler corroborated the claim by stating that Thompson related that same story to

him even before Gilbert was fired by the company. When R.J. Conley himself denied that he ever

initiated any conversation with employees about unions, however, the administrative law judge was

faced with conflicting testimony that he was charged with reconciling or discrediting in part.

Because the administrative law judge was in a much better position to evaluate the credibility of the

Nos. 07-1399/1529 Conley v. NLRB Page 11

contradictory witnesses than we are, “[d]eference to the Board’s factual findings is particularly

appropriate.” Tony Scott Trucking, Inc., 821 F.2d at 315.

In this instance, the administrative law judge credited the testimony in Thompson’s affidavits

and in Kepler’s hearing testimony that R.J. Conley did indeed give Thompson the impression that

the company’s management was conducting surveillance on the employees interested in

unionization. Even though another fact-finder might well have concluded otherwise by giving

greater credence to the testimony of other witnesses, substantial evidence still exists in the record

as a whole to support the Board’s resolution of this issue. See 29 U.S.C. §§ 160(e) and (f).

Conley Trucking also challenges the Board’s conclusion that Timothy Gilbert was

discharged for his union support rather than for his suspect work record. Again, however,

substantial evidence adduced before the administrative law judge supports that decision, especially

once R.J. Conley’s knowledge of Gilbert’s union sympathies can be established through admission

of Thompson’s affidavits.

“Firing an employee because he has engaged in union activity is an unfair labor practice

under sections 8(a)(1) and 8(a)(3) of the [Act].” Ctr. Constr. Co. v. NLRB, 482 F.3d 425, 435 (6th

Cir. 2007). Again, in order to establish such an unfair labor practice, the Board’s general counsel

must first prove a prima facie case of discrimination by showing that: “(1) the employee was

engaged in protected activity; (2) the employer knew of the protected activity; and (3) the

employee’s protected activity motivated the adverse treatment.” Id. (citing Temp-Masters, Inc. v.

NLRB, 460 F.3d 684, 689 (6th Cir. 2006)). Upon establishment of that prima facie case as

enunciated in Wright Line, 251 NLRB 1083 (1980), and approved in Transportation Management

Corp., “the burden of persuasion switches to the employer to prove that it would have made the

same employment decision regardless of the employee’s union activity,” unless the employer’s

proffered justification for the employment decision is determined to be pretextual. Ctr. Constr. Co.,

482 F.3d at 435. In such a situation, “the Board is not obligated to consider whether the employer

would have taken the same decision regardless of the employee’s union activity.” Id. at 436.

In this case, Conley Trucking asserts, as documented by its own “Termination Report,” that

Gilbert was fired for “Absenteeism/Tardiness.” After examining all testimony and documentary

evidence, however, the administrative law judge concluded that such a justification was merely a

thinly-veiled pretext for prohibited discrimination. As explained by the administrative law judge

in his written decision:

Had Respondent terminated Gilbert, as reflected in the termination report, simply for

absenteeism, it would have had the virtue of being consistent with Respondent’s

demonstrated apathy towards other aspects of Gilbert’s performance for months

before the discharge. But it would have had the vice (in addition to being

inconsistent with Respondent’s position at trial) of being a particularly unconvincing

explanation of Respondent’s decision to take action against Gilbert. [N]umerous

other employees had absenteeism records worse than Gilbert’s and yet were not

discharged. Absenteeism was rife among employees. Indeed, Gilbert was not even

among the employees to receive the attendance warning letter developed by

Respondent to encourage employees prone to absenteeism “to do a little better.”

Attendance was not a plausible reason for Gilbert’s discharge. That is why as part

of the investigation and in preparation for trial in this case Respondent culled its

managers’ memory for incidents and shortcomings that could offer a post hoc and

legitimate rationale for Gilbert’s discharge. In short, Respondent developed a

pretext. And even these incidents are suspect. . . . I do not accept the claim that

Gilbert did not work the mandatory Saturday. That R.J. Conley would claim that this

Nos. 07-1399/1529 Conley v. NLRB Page 12

was a basis for Gilbert’s discharge when the evidence showed that he actually did not

know whether Gilbert worked that day speaks volumes about the validity of

Respondent’s explanation for the discharge offered at trial. I also do not accept that

Gilbert had a truck accident with an employee named Floyd, or if he did that it had

anything to do with Gilbert’s discharge. It is true that Gilbert missed more loads

than any other employee, but Respondent did not have documentation developed at

the time of Gilbert’s discharge to know this with any precision. I recognize that

Respondent’s managers would have a good feel for which employees miss a lot of

loads and no doubt were aware of Gilbert's failings in that regard. But I don’t see

how they could readily distinguish Gilbert in this regard from, for instance,

Thompson, who in fact missed only three less loads than Gilbert. As far as the

record reveals, Thompson was never disciplined or threatened with discharge due to

missed loads and neither was Gilbert.

What we are left with is that Gilbert was not a stellar employee, who, with his

drinking incident, two driving mishaps, poor (but not as bad as many others)

attendance, and an abysmal record of missed loads worked steadily without incident

until the employer learned (and unlawful[ly] discussed with Thompson) that Gilbert

was involved with union activities. Only then was he fired, ostensibly for

absenteeism, later expanded to encompass any and all other shortcomings, real or

invented for litigation. The Act protects both stellar and poor employees, and those

in between, from unlawfully motivated discharge. The salient truth is that Gilbert’s

many failings as an employee did not endanger his job until the employer discovered

Gilbert’s union activity. Then he was quickly fired on specious grounds.

I find that Respondent’s stated reasons at the hearing for discharging Gilbert are

pretextual and an attempt to disguise the fact that antiunion animus was the true

motivation for the discharge. This conclusion not only adds further weight to

General Counsel’s case but pretermits the need to perform the second part of the

Wright Line analysis. Respondent’s discharge of Gilbert violated the Act as alleged.

Delmas Conley d/b/a Conley Trucking, 2007 WL 324557, at **26-27. Again, because the

administrative law judge was able to point to and credit substantial evidence in the record that

supported the conclusion that Gilbert was terminated as a result of his perceived union sympathies,

Conley Trucking’s challenge to this ruling is also without merit.

CONCLUSION

For the reasons set out above, we DENY the petition for review filed by Delmas Conley,

d/b/a/ Conley Trucking, and GRANT the Board’s application for enforcement of its decision.