Von Der Ahe Van Lines, Inc.

606 DECISIONS OF NATIONAL Von Der Ahe Van Lines, Inc. and Local 13, Office and Professional Employees' International Union, AFL-CIO. Case 14-CA-3982. May 15, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On February 13, 1967, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Von Der Ahe Van Lines, Inc., Fenton, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner: Upon a charge filed May 25, 1966,i and upon an amended charge filed July 26, 1966, by Local 13, Office and Professional Employees' International Union, AFL-CIO (hereinafter referred to as the Union), a complaint was issued on July 26 against Von Der Ahe Van Lines, Inc. (hereinafter referred to as the Respondent). The complaint alleges that the Respondent violated Section 8(a)(1), (3), and (4) of the Act. The Respondent's answer admits certain allegations of the complaint, but denies the commission of any unfair labor All dates herein refer to 1966, unless otherwise indicated z At the time of the trial of the prior case, Patterson was unmarried and was known as Rosetta Whitehead LABOR RELATIONS BOARD practices. The case was heard at St. Louis, Missouri, on September 21 and 22. The General Counsel and the Respondent submitted briefs in support of their positions, and these briefs have been duly considered by me in arriving at my decision in this matter. Upon the entire record in this case, and upon my evaluation of the witnesses, based on my observation of their demeanor and on the credible evidence herein, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The Respondent, a Utah corporation, maintains its principal office and place of business in Fenton, Missouri, and is engaged in the business of storing and transporting, in interstate commerce, personal effects and household goods. During the year ending June 1, 1966, a representative period, the Respondent performed services valued in excess of $50,000 for various enterprises located in States other than the State of Missouri. On the basis of the above, I find that the Respondent is engaged in, and, at all times material herein, has been engaged in, a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 13, Office and Professional Employees' International Union, AFL-CIO, is,a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The parties in this case were involved in a prior unfair labor practice case in which the Board held that the Respondent committed certain violations of the Act. This case is reported at 155 NLRB 126. One of the discriminatees in the prior case, Rosetta Patterson 2 was found to have been unlawfully discharged by the Respondent, and her reinstatement was ordered by the Board. B. The Events Leading to the Present Allegations After her reinstatement as ordered in the prior case, Patterson worked for the Respondent until January 12. On this date she began a maternity leave of absence. Patterson's leave of absence came about in the following manner. On January 3, Patterson sent a letter to Mr. Von Der Ahe requesting a leave of absence starting January 12 because of her pregnancy. The letter stated that she would not be able to return to work until so advised by her doctor. Because she had not received a reply from Von Der Ahe, Patterson asked her supervisor, June Shoulders, if there had been any action on her request. Shoulders informed Patterson that Von Der Ahe said she could take her leave as planned. On her last day at work, Patterson was presented a gift by her coworkers. Shoulders, who was present at this gathering, told Patterson that she would be missed. She also told Patterson that the Respondent was looking forward to her return to work. 164 NLRB No. 91 VON DER AHE VAN LINES 607 Betty Trail, the other alleged discriminatee, went on maternity leave before Patterson. Sometime in November 1965, Trail informed her supervisor, Shoulders, that she was going to quit because of her pregnancy. According to Trails' undisputed testimony, Shoulders replied, "No, you aren't quitting, you are going on a leave of absence." Shortly after beginning her leave at the end of November, Trail received a letter from the Respondent containing a check in payment for a weekend that she had worked, a leave-of-absence form, and a handwritten note indicating that she was to fill out the form and return it to the Respondent. Trail did so, and the form (G.C. Exh. 4) indicates that Trail's leave of absence was approved by Shoulders on December 12, 1965.3 There is undisputed testimony in the record that the Respondent, through its Supervisor Shoulders, considered the employment of both Patterson and Trail to be temporarily interrupted by their pregnancies, and that each of these employees would eventually return to work. Employee Shirley Gortney testified that she overheard Shoulders talking to one of the Respondent's truckdrivers. The driver made an inquiry concerning Trail, and Shoulders told him that Trail was on maternity leave. Another employee, Lucille Wilson, testified that she asked Shoulders if Trail was coming back or if she had quit. In response to this question Shoulders stated that Trail had not quit , that she was on maternity leave, and that she would return. Sometime in January 1966, Wilson was engaged in a conversation with several employees and Shoulders. Someone mentioned during this conversation that a number of the "girls had left," and cited Patterson and Trail as examples . According to Wilson, Shoulders stated, "Oh, Betty [Trail] is on maternity leave the same as Rose [Patterson]. She will be back." Another employee, June Skaggs, testified that she overheard Shoulders tell an unidentified person in the drivers' room that both Patterson and Trail were on maternity leave.4 Trail's baby was born March 15, and about 6 weeks after that date Trail stopped by Respondent's office to show the infant to the employees. While there, Shoulders asked about her future plans for working. Trail indicated that she hoped she would not have to return to work, but that she might. During this same visit , Trail was standing beside the desk of employee Skaggs. Shoulders, whose office opened into the area where Skaggs' desk was located, called out to Trail and asked when was she returning to work. Trail replied, "Pretty soon." On May 9 Patterson called the Respondent's office and talked with Herman Schulte, the controller. Patterson asked Schulte about returning to work and was told that there were no openings at the moment , but that the Respondent would contact her as soon as a job was available. The following day Patterson called again and spoke to Schulte. She informed Schulte that she had talked with the Union, and the Union wanted to know when she was to return to her job. Schulte again replied that there were no vacancies in her section and that he would contact her when a vacancy occurred. On May 18 Schulte sent Patterson an application for employment with a covering letter requesting that she complete the application and return it to him. Patterson did not fill out the application as she thought it was unnecessary to do so. On May 25 Patterson filed a charge with the Regional Office. Sometime in May,5 Trail called Respondent's office and spoke to Shoulders. Trail told Shoulders that she wanted to return to work around June 1. Shoulders told Trail that she -could not take her (Trail) back until she took Patterson back. When Trail asked what Patterson's return had to do with her job, Shoulders replied that Patterson had more seniority. Shoulders then told Trail that she might be able to find something for her in the claims department under McAnally. Trail agreed to this as she had worked in various departments of the Respondent's office. She also asked Shoulders to see if the Respondent would grant her a $10-a-week pay increase .6 Several days later, Trail called Schulte and informed him that she had spoken to Shoulders and that she wished to return to work around June 1. Trail also told Schulte that she had asked Shoulders to speak to the Von Der Ahes concerning a $10-a-week pay increase. She asked him if he would also make inquiries concerning this increase . Schulte promised to discuss the matter with the Von Der Ahes, and he and Trail then talked about different jobs in various departments in order to determine Trail's preference. About a week later, Trail called Shoulders at her home to find out if she had spoken to the Von Der Ahes. Shoulders told Trail that Mr. Von Der Ahe said he did not give $10 raises, and asked if she should try for $5 or something less. Trail agreed, as she was curious to know whether the Respondent would grant her any sort of a wage increase. That same evening, Trail called Mrs. Von Der Ahe at her home and asked if Shoulders had spoken to her about Trail's return to work. Mrs. Von Der Ahe indicated that she thought she "heard someone mentioning something" about Trail's request to come back. Mrs. Von Der Ahe promised to speak to Shoulders the following morning and then contact Trail. As she had received no word from the Respondent, Trail again called Shoulders several days later. Shoulders indicated that she had not spoken to Mrs. Von Der Ahe, but she would do so and call Trail back. Shoulders did not contact Trail, but McAnally, manager of the claims department , did call her. McAnally stated that she had an opening in her department at a mail desk which she intended to fill at $55 a week. Trail became very angry and wanted to know whether McAnally had been instructed to call and tell her whether or not she was employed at the Respondent's establishment. Trail stated that she had not inquired about McAnally's office, and that the information concerning the mail job was of "no value" to her. Trail testified that McAnally never directly offered her the job at the mail desk, but that she stated, "all I know is that I was told to call you and tell you that the only opening in my office is the little mail desk." McAnally told Trail that she could not understand why there should be so much confusion ' The leave-of-absence forms were initiated by a former supervisor in October 1965, however, the forms were not uniformly used by the various departments in the Respondent's office For example, Annie McAnally, in charge of the Respondent's claims department, testified that the employees in her section made oral requests for leaves of absence directly to her, and if a requested leave presented a problem she would discuss the matter with Von Der Ahe ' Shoulders was not called as a witness in this proceeding, nor did the Respondent present any evidence to refute the remarks attributed to her by the various witnesses I therefore credit all testimony relating to conversations with or remarks made by Shoulders ' The exact date of Trail' s initial phone call to Shoulders is unclear in this record 6 At the time that she left on maternity leave, Trail was earning $75 a week 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over her returning to work and she promised to speak to Mrs. Von Der Ahe and have her contact Trail. The following day Mrs. Von Der Ahe telephoned Trail and explained that the only opening they had was the mail desk in McAnally's department, and that the Respondent intended to fill that job for $60 a week. According to Trail, after Mrs. Von Der Ahe mentioned the mail desk job she added in a very low voice, "if you want that." Trail then asked Mrs. Von Der Ahe if the mail desk job was being offered to her at $60 a week. Mrs. Von Der Ahe replied, "Oh, no, honey, I didn't say that. I just said the only thing I have opened is the little desk in Annie's [McAnally] office." Mrs. Von Der Ahe then offered to help Trail secure another job with a friend of hers.7 The evidence discloses that from May 23 to September 6, the Respondent hired 10 female clerical employees, and that during this same period 4 female clericals terminated their employment with the Respondent . There is no evidence that any of these positions-either those filled by new hires or those vacated as a result of terminations-were offered to Patterson or Trail. C. Contentions of the Parties The General Counsel contends that the Respondent's strong union animus and its clear hostility toward employee supporters of the Union , as evidenced by the extensive violations in the prior case, caused the Respondent to refuse Patterson and Trail reemployment.It is contended that the Respondent 's ire was directed specifically at Patterson , who testified in the prior case and who was found to have been unlawfully discharged. According to the General Counsel , the Respondent utilized Patterson's absence due to pregnancy to rid itself of an acknowledged supporter of the Union , and Trail was the "innocent victim " caught up in the wake of these events. Thus, Trail was offered a lesser job , which it was anticipated would be refused, in order to lend credence to the claim that there were no jobs available when Patterson asked to return to work. The Respondent, on the other hand, takes the position that there is not a scintilla of evidence to support the claim that Patterson and Trail were refused reemployment, or, for that matter, that the Respondent engaged in any unlawful conduct with respect to these two employees. D. Concluding Findings Over the Respondent 's strenuous objections, I took official notice of the Board's findings in the prior case. The Respondent argues that the record in the instant case is devoid of any evidence of unlawful motivation, and that the General Counsel cannot supply this essential ingredient by means of official notice of prior unfair labor practices . To the extent that this argument denies admissibility of evidence of prior unlawful conduct , it must be rejected. Such evidence is particularly relevant in determining motivation underlying subsequent conduct by a party. Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298 (C.A. 4); Paramount Cap Manufacturing Company v. N.L.R.B., 260 F.2d 109, 112-113 (C.A. 8). Thus, the Respondent's strong union animus and its prior discriminatory treatment of Patterson are relevant factors to be considered in determining whether the acts complained of here are unlawful. Of course, this is not to suggest that the General Counsel is relieved of the burden of establishing the current violations by a preponderance of the relevant evidence, but it does require consideration of the prior unlawful conduct in deciding whether this burden has been met. The record before me clearly indicates that the Respondent considered the absences of Patterson and Trail to be of a temporary nature, and that this view was communicated not only to the two employees involved, but to all others who inquired about their status. Supervisor Shoulders told Trail that she was not quitting as a result of her pregnancy , but that she was "going on a leave of absence." Similarly , Shoulders told Patterson when she began her leave that she (Patterson) would be missed and that the Respondent was "looking forward to her return." On at least two other occasions , Shoulders told other employees that Patterson and Trail had not quit , but were on maternity leave. Nonetheless , when Patterson indicated that she was ready to return to work, she was told that there were no positions available at that time. In addition, she was subsequently asked to fill out a new application for employment." When Trail asked to return to work, she was initially told that she could not return before Patterson because of the latter's greater seniority. There is also the strong implication that the Union required the Respondent to follow seniority in these circumstances." However, George O'Brien, business representative of the Union, credibly testified that the Union never asked or demanded that employees be recalled on the basis of seniority, or that Patterson return before Trail. But even if the above were not sufficient to raise serious doubts concerning the basis for the Respondent's actions toward Patterson and Trail, the following factors persuade me to reject the Respondent's claim to lawful conduct. Patterson was employed as a mail-and-file clerk, while Trail, a former legal secretary, had worked in various departments in the Respondent's office as a more skilled office employee. Despite this fact, obviously known to the Respondent, Patterson was told that nothing was available and Trail was offered a lesser job as a mail clerk.10 Not only was the mail job demeaning in terms of Trail's job skills, but the rate of pay was far less than she received prior to going on maternity leave. Furthermore , the record discloses that between May 23 and September 6 the Respondent hired female employees in the following positions: two stenotypists; one PBX operator; two accounting clerks; three clerk-typists; and two rate clerks. As in the case of Shoulders, Mrs Von Der Ahe did not testify, nor was any evidence presented to refute Trail's testimony in this regard Accordingly, I credit Trail's testimony concerning statements made by Mrs Von Der Ahe s Although Schulte testified that he "believed" another employee , absent from March 1963 to July 1964 due to pregnancy, did fill out a new application upon her return , there is no evidence in the record indicating such a requirement was an established part of the Respondent's policy Indeed, employee Lucille Wilson credibly testified that she had taken leaves of absence , once for a 3-week period and again for 6 weeks, and was not required to fill out a new employment application More significant, however, is the fact that no such requirement was made of Trail, who was absent for a longer period of time than Patterson 0 This is based on the unrefuted testimony of employee June Skaggs She testified that Shoulders told her that Trail could not return before Patterson "on account of the Union " 10 There is some question as to whether the job was offered to Trail or whether she was told that the job was the only one available However, this issue in no way affects my ultimate conclusions in this case VON DER AHE VAN LINES 609 Thus, it is evident that the Respondent had positions other than the mail-desk job available, and that it did not offer any of these to Trail; nor did the Respondent offer the mail-desk job to Patterson, although it was similar to the position she formerly held. It is apparent from the above that the explanations given by the Respondent in support of its conduct toward Patterson and Trail do not stand up under close scrutiny, and that the true answer lies elsewhere. When considered in the light of the Respondent's strong union animus and prior unlawful treatment of Patterson, however, a logical basis for concluding that the Respondent's present conduct was discriminatorily motivated becomes evident. i i It is in this context that I find that the Respondent did indeed seize upon Patterson's absence due to pregnancy to rid itself of an employee who actively supported the Union and who gave testimony against it in the prior unfair labor practice case. Had the Respondent reemployed Trail while denying reemployment to Patterson, the discriminatory motivation underlying its refusal to allow Patterson to return to work would have been all too obvious. Therefore, I find that Trail was in fact the "innocent victim" when the Respondent offered her a lesser job at a lower wage while other jobs were available. I find that such conduct violates Section 8(a)(1), (3), and (4) of the Act. the policies of the Act. As the nature of the Respondent's conduct goes "to the very heart of the Act," I shall recommend a broad cease-and-desist order. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). I shall recommend that the Respondent offer immediate reemployment to employees Rosetta Patterson and Betty Trail to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make these employees whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount they would have earned from the date of the discriminatory refusal to reemploy them (in the case of Patterson, from the date she was informed that no jobs were available; in the case of Trail, from the date that she was offered the lesser paying job) to the date of the offer of reemployment, and in a manner consistent with the Board policies set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Accordingly, upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend, pursuant to Section 10(c) of the Act, the following: RECOMMENDED ORDER CONCLUSIONS OF LAW 1. Von Der Ahe Van Lines, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 13, Office and Professional Employees' International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to reemploy Rosetta Patterson, an employee on maternity leave, because she was a supporter of the Union and because she gave testimony against the Respondent in a prior unfair labor practice case, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 4. By offering Betty Trail, an employee on maternity leave, a lesser position at a lower rate of pay in order to camouflage its discriminatory treatment of Rosetta Patterson, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By its unlawful conduct with respect to employees Patterson and Trail, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1), (3), and (4) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate II Cf N L B.B. v Griggs Equipment , Inc, 307 F.2d 275, 278 (C.A 5) See also The Wm. H Block Company, 153 NLRB 616, 617-618 12 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for Respondent, Von Der Ahe Van Lines, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to reemploy employees, who are on leaves of absence, because they are supporters of the Union, or because they have given testimony against the Respondent in a prior unfair labor practice case. (b) Refusing to reemploy employees, on leaves of absence, in order to camouflage discriminatory treatment of other employees who are supporters of the Union and who have given testimony against the Respondent in a prior unfair labor practice case. (c) Discouraging employees' union activities and membership by refusing to reemploy employees, on leaves of absence, because they are supporters of the Union. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Rosetta Patterson and Betty Trail immediate reemployment in their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy" for the discrimination against them. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant to a determination of the amount of backpay due under the terms of this Decision. (c) Post at its establishment in Fenton, Missouri, copies of the attached notice marked "Appendix."12 Copies of the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said notice, to be furnished by the Regional Director for Region 14, shall, after being duly signed by an authorized representative of the Respondent , be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered with any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.13 " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX discriminatory treatment of other employees who support the Union or who have testified against us in a prior unfair labor practice case. WE WILL NOT in any other manner interfere with our employees in the exercise of their right to join or assist a labor organization , to bargain collectively, or to engage in concerted activities for mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Rosetta Patterson and Betty Trail immediate reemployment to their former or substantially equivalent jobs and make them whole for any loss they may have suffered as a result of our discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining , members of any labor organization except to the extent such right may be affected by an agreement authorized in Section 8(a)(3) of the Act. NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to reemploy employees, on leaves of absence, because they are supporters of Local 13, Office and Professional Employees' International Union , AFL-CIO, or because they have given testimony against us in a prior unfair labor practice case. WE WILL NOT refuse to reemploy employees, on leaves of absence, in order to cover up our VON DER AHE VAN LINES, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4167.