Roadway Express, Inc.

I)E('ISIONS OF NATIONAl, IABOR RELATIONS BOARD Roadway Express, Inc. and Michael Ronald Hays. Case 15 ('A 6939 July 20, 1979 DECISION AND ORDER BY CHAIRMAN FAN NING ANI) MEMBERS JENKINS ANI) MURI'ItY On April 11, 1979, Administrative Law Judge Rob- ert C. Batson issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting briefl and Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National abor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusi,ns of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders the complaint be, and it hereby is. dismissed in its entirety. I We agree with the Administrative Law Judge that Cates' statement to Hays was toio ambiguous to support a finding that he refused to hire Hays for unlawful reasons. In reaching this result, we do not rely on the Adminis- trative Law Judge's further conclusion that the statement also was too mini- mal or isolated to support a violation. DECISION SIAIEMENI OF THE CASE ROBERI C. BArSON, Administrative Law Judge: This proceeding, under the National Labor Relations Act. as amended, 29 U.S. Sec. 151, e seq. (herein the Act), was heard before me is Shreveport, Louisiana, on November 14. 1978.' based upon a complaint and notice of hearing issued by the Acting Regional Director for Region 15 (New Or- leans, Louisiana). on July 18. growing out of a charge filed by Michael Ronald Hays, an individual, on June 15. alleg- ing that Roadway Express, Inc., herein Respondent. had violated Section 8(a)( 1 ) of the Act by informing the Charg- ing Party on two separate occasions. December 15. 1977. and May 22, 1978, that he would not be considered for I All months and dates hereafter are in 1978 unless otherwise indicated. employment because he had worked as a business agent fr Teamsters Local 568. All parties participated throughout by counsel and were afforded ull opportunity to present evidence and argu- ments, and to file briefs. Briefs have been received from the counsel foir the General Counsel and Respondent. I. tilt BI SINtISS ()IF RKSP)NI)IN1 Roadway Express. Inc., is. and has been at all times ma- terial herein, a corporation engaged in shipping and trans- porting general freight and cargo in interstate commerce. and maintains a terminal in Shreveport, Louisiana. During the 12-month period preceding the issuance of' the com- plaint herein, which is a representative period. Respondent in the course and conduct of its business operations trans- ported and delivered commodities to its freight terminal in Shreveport. Louisiana, from points located outside the State of Louisiana for which services Re'.pondent received in excess of $50,(00. The complaint alleges. Respondent admits. and I find. that at all times material herein. Respondent was. and is. an employer as defined in Section 2(2) of' the Act. engaged in commerce and in operations aRlecting commerce as defined in Section 2(6) and (7) of the Act. 1I. I I t.AB)R ()R(;,ANIZAI)N INV()II:I) The complaint alleges. Respondent admits. and I find. that at all times material herein Teamsters I.ocal 568 is, and has been, a labor organization within the meaning of' Sec- tion 25) of the Act. 111. 1ill AI I (;1) l NI-IR I A1O()R PRA\(I( IS Facts as Found Michael Ronald Ilays. the Charging Party herein, was employed as a business agent by leamsters Local 568 from September 1976 to December 31, 1977. Hays was ap- pointed to this position by his father. William M. Hays. who was secretary-treasurer and business manager of the local at that time. Among other things, Hays' duty as husi- ness agent of the local was to service the collective-bargain- ing agreement in existence between the local and Roadway Express, Inc., with respect to the dock employees. William M. Has was defeated in his bid lfor reelection as secretary- treasurer of the local in the December II11. 1977, election. Michael Hays was relieved of his duties by the new secre- tary-treasurer, effective December 31. During Hays' tenure as business agent of the local he visited the Roadwa terminal approximately once a week. Apparently Hays also filed a number of grievances, evi- dently the most significant being a grievance filed on March 29. contending that Respondent had violated the so-called 30/60 rule. It appears that under this rule when a casual, or extra, dock employee works a minimum of 6 hours during 30 days out of 60 consecutive days Respondent is required to add one employee to regular status. The grievance con- tended that Respondent should be required to add 20 addi- tional regular employees immediately. According to Hays. the grievance was withdrawn when Respondent agreed to 243 NLRB No. 97 592 ROAI)WAY EXPRESS. IN(t. comply. According to Charles M. ('ates. the terminal man- ager. Respondent agreed to place nine employees on regu- lar status and the grievance was thereupon withdrawn. Ac- cording to ('ates grievances otf this nature and the resolutions thereoft are not uncommon in the industry. It appears further from the testimon, of (ates. which is not denied b Ha's, that during Hayls' term as business agent. Cates and Hays had a number of disagreements. A specific one. which is not denied by Hays. involves his com- ing on the dock and gathering employees into groups to talk with them, thus interfering with their work.2 C(ates dis- cussed this matter with Hays and exacted a promise from Hays that when he came to the terminal he would advise either himself or the operations manager of his purpose there and of the employees that he wished to see. ('ales also made available to Hays an office in which he could talk with these employees and promised him privacy in the breakroom for such purpose. According to Cates. which is not denied by Hays. Hays failed to abide by his promise and continued his practice of gathering employees around him on the dock when he made his weekly visits. Cates also testified without contradiction that on a num- ber of occasions the senior Hays would telephone him con- cerning reports made to him by Michael Hays with respect to something that had been said to him by Cates or of other conditions of employment at the terminal, which were com- pletely false. As a result of this, Cates contends that he concluded that Michael Hays was an untrustworthy indi- vidual. The foregoing relationship between Hays and Re- spondent, particularly Terminal Manager Cates, during Hays' term as business agent for the local is urged by both the General Counsel and Respondent to be relevant to a disposition of the issues raised by the pleadings. The Cien- eral Counsel urges that it was Hays' stringent enforcement of the contract as evidenced by the March 29 grievance, protected concerted activity, that motivated Cates to tell Hays that Hays would not be considered for employment by the Company because of his former employment. On the other hand, Respondent urges that it was Cates' conviction. based upon his relationship with Hays during Hays' tenure as business agent that Hays was untrustworthy, which mo- tivated Cates' telling Hays that he would not consider him for hire because of his previous association with him. Although I dismissed paragraph 6(a) of the complaint at the trial as being barred by Section 10(bh) of the Act, in view of the General Counsel's contention that the evidence pre- sented with respect to that allegation be considered as back- ground, I shall set it forth here. Hays testified that the week of December 12. 1978. following the election in which his father was defeated as secretary-treasurer of the local, he went to the Roadway terminal and talked with Cates. Cates told Hays, in effect, that he was sorry that his father had lost the election. particularly in view of the fact that he would lose his health benefits. According to Hays, he then Art XXIV provides In relevant part: Authorized agents o1 he tinlon shall have iac ce1 t he rEmploer's eslablishmenl during orking hours r he purpose of adjusting dis- putes. investigating working onditlllions. ollectioln of due,. and ascer- laining that the agreement is being adhered to. pro, ded. however. there is no interruptlon o1 the irn's ,working ,shedule asked (Cates if ('ates ould consider him tor p;lrt-tilme ,aork on the dock. (ates replied. "I here's no as because otl sout prior employment as a business agent ('ates adilnits hats- ing a conversation with lass somlletilnle during Ithat eck wherein he expressed smpath5 to him or his ttther's loss of the election but does not recall whether the con . crsaltil was in person or on the telephone. (tcs deities WhaI llt 11 made any inquiry to him at that time concernllg poslsilble employment with Roadway and consequently deniles Ilti he told las that he would not consider his applicilion tor employ ment because of his pre ils emplo meit iAs bhusi- ness agent. lays testified that after his dismissal ais business agent lon December 31. 1977. he did not thereatiter seek emplo ment until May. during which time he drew ulilelplo, menli cn- pensation. In May he applied for emploment t at o othier freight terminals which he had ser\ iced during his tenltre als business agent bhut was apparently unsuccessful in ob ltiinng employ ment there. In the early afternoon ot M1iax 22. lass. who was at his father's home, and his tther. decided that he should call Cates and inquire as to whether r not (ates would consider him for employ ment. The elder I lays as to listen in on the conversation from the kitchen phone. e- dently to witness any comment that (ates might rmake to Hays. According to Hays, when he got ('ates on the tele- phone they exchanged salutations and lays stated thatii the reason he was calling was "I wanted to see if mahbe I could come out and fill out a job seeker for dock ork." ates replied. "Well, it's not going to do any good because oft your prior employment." Hays testified thaii he thereafter assured Cates that he could not cause an, trouble since he was no longer an authorized business agent of the I nilon and he would have no authority to act in that capacity. Cates stated that he felt that H as knew too much about union business and would just cause trouble. lass accused Cates of discriminating against him and ('atles replied that he did not want to he guilty of' discrimination and told Hays to come on and fill out a job seeker application, but again assured him that it would not do him any good. Ac- cording to the elder Hays (ates told Hays that there was no way that he would work him because of' his previous employment as a business agent and because he would cre- ate problems on the dock. Cates admits the May 22 telephone call from lass and that Hass asked if Cates would hire him if he ca;me out and filled out a job seeker application. Cates asked ,khat tpe work lHays was applying for and Hays replied that he wanted to work on the dock. Cates told Hays. "No. I wluld not hire him." Hays aksed why and ('ates replied because of "problems that existed in our previous relationship." Hlays continued that he had freight experience and was qualified to do the work. at which time Cates told him that Roadway did not only consider those people w ho were qualified to do the work, but would hire those who ould be in the best interest of the Company to hire. ('ites also admits that HIays accused him of discrimintating against him and ('ates told him that he was welcome to come out at ans time and fill out a job seeker application on Wednesdas from 1 to 5 p.m.. which are the only hours job seeker appli- cations could be filed. ~93 I)I(FISIONS OF) NATIONAL L.ABOR RE.ATIONS BOARDI Two or three weeks later Hays went to Roadway and completed a job seeker application and was subsequently invited to come to the terminal for an interview but did not do so. At the time of the trial Hays testified that he had kept his application current. In my opinion Hays was not a reliable witness. As noted by counsel for Respondent in its brief,: ays' testimony at the hearing comported much more with the language of the complaint than did the statements he made in his original affidavit upon which the complaint was based. First, with respect to the December 15 allegations, which I dismissed at the trial but which are urged here by the General Coun- sel to be used as background I am inclined to think that at that point Hays was not interested in. or thinking of, em- ployment and thus did not inquire of Cates as to whether or not he would hire him. It should be noted that Hays did not, apparently, seek any employment between his termina- tion as the union business agent in December of 1977 and May of 1978. With respect to the May 22 conversation I credit Cates' version of the conversation. Thus, I find that Cates told Hays that he would not consider him for em- ployment because of their previous relationship. I am not persuaded by the testimony of Ronald Hays or his father. William. that Cates was any more specific than that. How- ever, I am certain that Cates' use of the term "previous relationship" was interpreted by the Hayes' to mean that Cates would not hire him because of his prior employment as the Teamster business agent, which is the only relation- ship that Cates had with Hays. Analysis and Conclusions Counsel for the General C'ounsel contends that even as- suming that Cates' version of the May 22 conversation is credited, Respondent still violated the Act since the only relationship that had existed between Cates and Hays was during the period that Hays had served as a business agent of the Teamsters, and thus the relationship was a product of Hays' protected activities in that capacity. On the other hand, Respondent argues that Cates was merely being tactful in not telling Hays that he would not hire him because he knew him to be a liar. Respondent appears to argue that the fact that Cates had reason to believe that Hays was untrustworthy because of their rela- tionship as management and union representatives, Cates' statement that he would not consider him for employment because of their previous relationship does not violate the Act. I. As heretofore noted, at the trial upon motion by Re- spondent. I dismissed paragraph 6(a) of the complaint. which alleged a violation of the Act occurring on or about December 15. 1977. The evidence established that the events relied upon occurred more than 6 months prior to the filing of the charge and service thereof upon the person charged pursuant to Section 10(b) of the Act, which pro- vides in relevant part, "that no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made." Hays testified that the alleged De- cember conversation with Cates occurred on either 'lues- day. December 13. or Thursday,. December 15. he charge herein was docketed by the Regional Office on June 15, and a copy thereof was served by registered mail upon Respon- dent on that date. The return receipt for service of the charge indicates that Respondent received a copy of the charge as served by the Regional Office on December 16. Accordingly, no finding of a violation on or before D)ecem- ber 16 may be made upon the basis of this charge. 2. Paragraph 6(b), the May 22 conversation credited above. poses a difficult issue. Based upon the uncontra- dicted testimony of (' Cates. I have no doubt that in the course of servicing the collective-bargaining agreement with ('ates. Hays conducted himself in a manner, at least in Cares' view, that demonstrated a degree of' untrustworthi- ness. Hays did not deny that he had broken his promise to advise Cates or the operations manager of his arrival at the terminal. Nor did Hays, or his father. who was also present during the trial, take issue with Cates' testimony concerning the alleged falsehoods which Hays communicated to his father involving Cates or the terminal operations. Counsel for the General Counsel urges that even if (ates' version of the May 22, conversation is credited, i.e., that Cates told Hays he would not consider him for employment because of the problems they had in their "previous rela- tionship." a per se violation has been established since the only relationship between the two men had been exclusively that of a union representative and a management official. Thus, he argues that this case is analogous to those cases involving discrimination against, or interference with, union stewards who displease employers by their methods of administering collective-bargaining agreements, even in contravention of such agreements.' Respondent's argument that the law does not require an employer to abandon all tact in dealing with employees, and Cates should not have been expected to say here, and his statement "I won't hire you because I have learned that you are a liar and that you can't be expected to live up to your agreements," has some appeal. However, since this was not ates' response to Hays' inquiry about employ- ment. I need not decide whether under all the circum- stances here, such response would not have violated Section 8(a)(I) of the Act. as Respondent presumes. As noted above. I find that the "previous relationship" between Cates and Hays was such that Cates was justified in his opinion that Hays was not the type of employee Respondent sought. It should be remembered that there is no allegation of a refusal to hire for discriminatory reasons, but merely a threat not to hire because of a prior relationship which was exclusively that of union representative and management. It is, of course, well settled that an employer interferes with, restrains, and coerces employees in violation of Sec- tion 8(a)( ) of the Act when it threatens not to consider them for employment because they have engaged in union or protected concerted activities. The issue here is whether the words used by (Cates amounted to such threat. In my opinion, this issue should be resolved by assessing the im- port of Cates' words in the context of the entire relationship 3 Counsel for the General (oiunsel cites. nter aa, Drawo (Corpoeraion, 228 NL.RB 872 (1977). and Shiavone (Contructiln ('nCmparnv, 229 Nt.RB 515 ( 1977) 594 ROK[)DA\ XPRIFSS. I1N between the two men, and not the mechanistic assessmell urged bh the counsel ftr the (ieneral (ounsel. I anm not persuaded that an employer is precluded ronl considerilng any knowledge it maa have of character or other traits of a applicant for employment even i it ohtained that knoul- edge of the applicant from dealing ith himi as a union representative. While the distinction between a threat not to hire because such emplosment, per w, and a threat not to hire because of character traits disclosed hb that emplo,- ment, is a fine one, it is, nonetheless, a valid ne. I am convinced that Hays was aware of Cates' opinion of him and that that opinion was well founded. Haxs did not denN Cates' accusations at the hearing concerning his conduct as the local's business agent. This conclusion is bolstered bh the fact that Ha ys approached ('ates outside the regular hiring procedure. which Hays knew, and attempted to get a commitment from him in advance. Ilays knew that ('ates was alluding to the problems that had arisen because he failed to keep his word to (ates and made at least distorted reports back to his father. Under all the circumstances of here. I am of the opinion. in the absence of any other indication of animus or e i- dence that the reason offered bh (ates fr not considering Hays for hire was heard hb other employees. that the state- mlent Xwa t ambligtLu a, scll as s oo isoliated an11 1111111- mnal to warrant a finding that it iolated the Act. A\ccordingl\ I find that the ( eneral (ounscl has tfaled to estahlish hb a preponderallce of thie c.ldeccl that Respon- Licillt i;olated Section 8(a)( I of the Actl ((1o I S()\ ()I [ \\ I. Jurisdiction Is properl1 asserted in this ce 2. Respondent has not \iolated the Act in ai!t\ anice alleged in the coilplainit. UL pon the oregoing tindins ot fact. conchsions of l. and the entire record, and pursuallt I to Sciorl I() ot the \ct. I issue l tihe tollolig: ()Rl)IR4 It is hcreh! ordered that the complailnt he, and it herebh IS. dismiMssed nll its entiretv. Irl Ih centl no C xcptllll .Are filed ., prlovided hb Sct 111i 41 he Rules nd Regula.on.s ot the N.miorlal l.abor Rel.iloln oalrd,. rhc tidlngs. concllllwls,. aid re0llruerldCRd Order herein h.l is prw'.Mded in Se 112 48 ,,t the Rule, nd Regullllion', h adopted h\ he H Blrd and hceile it, ttill ICUllI. L .1J()JI .id Order ill oitirllons therCIo hill Icierlied A.ai'ed tr all prp-se