Howard Sober, Inc.

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard Sober, Inc. and William J. Hlay Local 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and William J. Hlay. Cases 4-CA-4209 and 4-CB-1320 November 29, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On August 30, 1967, Trial Examiner Arthur E. Reyman issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the com- plaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed ex- ceptions, and the Respondents filed answering memoranda to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 exceptions, the an- swering memoranda, 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 Recom- mended Order of the Trial Examiner and hereby or- ders that the complaint herein be, and it hereby is, dismissed in its entirety. General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for Re- gion 4 issued an Order Consolidating Cases and a Con- solidated Complaint and Notice of Hearing. The con- solidated complaint alleges that the Respondent Union did engage in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act; and that the Respondent Company did engage in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act. Each Respond- ent filed timely answer to the consolidated complaint, effectively denying the alleged violations of the Act. Pursuant to notice, the consolidated cases came on to be heard before me at Easton, Pennsylvania, on June 27, 1967, the hearing being closed on the same day. At the hearing the General Counsel and each of the Respond- ents were represented by counsel. Hlay, the Charging Party, appeared as a witness on his own behalf and for the General Counsel. Each party was afforded full opportuni- ty to call, examine, and cross-examine witnesses, to present evidence relevant to the issues, to argue orally upon the record, and to file briefs. Briefs filed on behalf of the General Counsel and the Respondents have been carefully considered. Upon the record as a whole, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT COMPANY AND THE RESPONDENT UNION a. Respondent Company is, and at all time material herein has been, a Michigan corporation engaged in the business of transportation of motor vehicles, including trucks, both by truckaway and driveaway movements. It maintains its principal place of business in Lansing, Michigan, and has terminals in various States, including one located in Allentown, Pennsylvania, this terminal being the only terminal involved in this proceeding. It an- nually performs more than $50,000 worth of services in States outside Pennsylvania. This Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. b. Respondent Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. TRIAL EXAMINER'S DECISION ARTHUR E. REYMAN, Trial Examiner: This is a proceeding under Section 10(b).of the National Labor Relations Act, as amended, 29 U.S.C. Section 151, et seq., herein called the Act. On November 22, 1966, William J. Hlay, an individual, filed a charge against Howard Sober, Inc., herein some- times called the Company. The same individual on February 21, 1967, filed a charge against Local 773, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein sometimes called Local 773 or the Union. Each charge asserted that the Company (Case 4-CA-4209) and the Union (Case 4-CB-1320) "have engaged in, and are engaging in, cer- tain unfair labor practices affecting commerce" as set forth and defined in the Act. On May 10, 1967, the H. THE ALLEGED UNFAIR LABOR PRACTICES The consolidated complaint alleges, and the respective answers of the Respondents admit, that James Long has been Allentown Terminal Manager of Respondent Com- pany at all times material herein, and has been an agent of this Respondent, acting on its behalf, and a supervisor within the meaning of Section 2(11) of the Act; and that during all such times John Wursta has been president of Respondent Union and has been an agent of Respondent Union, acting on its behalf and an agent within the mean- ing of Section 2(13) of the Act. The consolidated complaint alleges, and the respective answers of the Respondents deny, that on or about Sep- tember 15, 1966, Respondent Union, by its agent, Wursta, caused Respondent Company to refuse to hire William Hlay, and the Respondent Employer since that time has refused and continues to refuse to hire Hlay 168 NLRB No. 77 HOWARD SOBER, INC. because Respondent Union, by its agent, Wursta, caused Respondent Company to refuse to hire Hlay because Hlay engaged in certain intraunion activities within Respondent Union; and that the Respondent Company has refused and continues to refuse to hire Hay for this reason. The activities of Wursta, and the refusal of the Respondent Company to hire Hlay are alleged to be violations of Section 8(a)(1) and (3) on the part of the Company, and violations of Section 8(a)(1) and 8(b)(1)(A) and (2) on the part of the Union, all such viola- tions alleged to be in contravention of Section 2(6) and (7) of the Act. As an affirmative defense, the Respondent Union in its answer denies that it at any time caused the Respondent Company to refuse to hire William J. Hlay or that it took any action whatsoever at any time in regard to the em- ployment of Hlay by the Company or any other em- ployer; that the Union has no control over the hiring of employees by the Company and has never sought to establish or create such control or to influence the Com- pany in any way whatsoever in regard to the hiring of em- ployees; and there is no warrant or justification for any al- legation that the Union caused the Company to refuse to hire Hlay for any reason whatsoever - that the hiring of employees is a matter for the decision of the Company and the Union has no part therein. Counsel for the General Counsel, in her opening state- ment, clearly and succinctly stated the case: Miss Eames: Mr. Examiner, this case concerns a refusal to hire. It is the position of the government that the Employer had made a commitment to hire the charging party, that because of the charging par- ty's opposition activities within the local Union, the local Union asked or demanded that the Employer not hire the charging party; that the Employer thereupon reneged upon his commitment to hire the charging party; and that the reasons for this reversal of position was the request or demand of the Union, and the reason for the Union's request or demand was the charging party's intra-union opposition ac- tivities. A. The Intraunion Activities of Hlay William J. Hlay is employed by Penn Dispatch, Inc., an Allentown trucking firm, and, in his words, ". . and leased, along with the truck I drive, to Trexler Lumber Company, 430 North 16th Street, Allentown, Pennsyl- vania." He is a member of Respondent Union, Local 773, and has been for approximately 3-1/2 years. He related some union activities engaged in by him. He testified that approximately 3 years ago, in December 1964, after he had been in the organization for about 9 months, he was very active in campaigning for members who were running for office. He supported a slate of can- didates who were running against the incumbent officers, and, during the course of his campaigning , distributed literature for his candidates, called at barns where em- I In connection with the letter of May 16, 1965, directed to the secre- tary-treasurer, there is in evidence a document headed "Charges are based on the proceedings from May 9, 1965," which reads as follows: At approximately 9:10, our president stated that in view of the fact that there were not enough members present to conduct the meeting, he would entertain a motion to adjourn Under the question, it was asked if the meetings over the summer months would be adjourned until September also, and the reply was yes. The motion was passed with only one vote opposing it. The meeting was adjourned along with 583 ployees who were also in Local 773 and members thereof were located, talked to the opposition slate "and natu- rally, I done the best I could for the opposition." Twelve members of the Union on February 17, 1966, preferred charges against John Wursta, president of the Union, "in accordance with the Constitution and By-laws of Local Union No. 773," the first count of the charge al- leging that Wursta had intentionally misled the member- ship of the Local for his own personal gain and others similarly situated in connection with paying $50 per week to each person entitled to an automobile from the Local in order to maintain the car rather than have the Local continue to rent the cars as had been the practice; and a second count, concerning a violation of proper procedure under the constitution and bylaws of Local 773 in the conduct of a meeting of members of the Local. Hlay was one of the 12 men who signed the charges and the one who presented them at a hearing before the local union executive board acting as the governing board to deter- mine whether or not there was merit to the charges as preferred. Wursta, as president and exofficio member of the executive board, did not sit at the hearing, another member being appointed in his place. Eventually, the charges against Wursta were dismissed. Hlay proposed an amendment to the bylaws of the Local Union dated September 12, 1964, submitted over the signature of Hlay and some 30-odd other members of the Local to amend the local union bylaws to provide that no person would be entitled to vote unless a member in good standing of the Local Union for at least 3 months prior to day of voting and to provide that a member should not be entitled to vote had he been on a withdrawal card and had not presented it to the Local Union and been reinstated at least 3 months "prior to the day of voting." According to Hlay, and his testimony is not disputed, the amendment was presented at one of the regular meetings and read. He said that the constitution also stipulates that such an amendment should be read at two meetings and at the second meeting be voted on; that the amendment was read at the first meeting after its sub- mission but at the second meeting ". . it was just discussed and there was no vote taken on it by the mem- bership at that time." Hlay was not sure of the date of the second meeting because, he said, meetings were held on the second Sunday of each month and he could not recall whether the amendment was presented the first time at the September meeting or the October meeting. In any event, it was presented to the membership prior to the 1964 election. The purpose of the introduction of the proposed amendment, according to Hlay, was to give the opposing candidates an equal opportunity to be elected to office. Subsequent thereto, a letter dated May 16, 1965, directed to the secretary-treasurer of Local Union 773 and signed by some 20 members of the Local, including Hlay, protested action taken by Wursta at a meeting of the membership held on Sunday, May 9, 1965.1 Under date of June 15, 1965, Paul M. Barnard, secretary-treas- the other meetings for the summer months. Several violations have occurred in the above proceedings that are outlined in the charges en- closed. It is understood the president had every right to start the meeting as early as he did because the starting time is set at 9:00. Ordinarily they never start until much before 9:30 and by then, enough members are present to conduct the meeting. Sunday being a religious day, members have services to attend. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD urer, addressed a letter to Hlay, referring to the protest "we received on May 17, 1965, and you signed, in re- gards to the action taken by our president John Wursta, at the time a regular monthly meeting was scheduled, but was called off, was read at our executive board meeting on Friday, June 11, 1965." This letter went on to state the circumstances of the protest. A section of the bylaws regarding a quorum and another section regarding regular meetings were mentioned, and the letter concluded by ad- vising Hlay that ". . . at our regular monthly meeting on Sunday, May 10, 1964, [sic] a motion was made and second. `That all future regular meetings, be suspended for June, July, and August."' Under the date of June 21, 1965, a letter signed by 13 members of the Union was sent to Barnard acknowledging receipt of his letter of June 15, commenting on it, and concluding: "Finally, because the Local Union Executive Board did not take action within the time limit prescribed in Section 18:03 of our by-laws, this matter has been forwarded on to the Joint Council and also to our General President so that this matter may be cleared up without delay." The incidents related above constitute the full extent of Hlay's activities in connection with intraunion affairs as involved herein. Obviously, he was politically opposed to President Wursta and the Wursta administration. B. Hlay's Efforts to Obtain Employment with the Company Hlay, as an employee of Penn Dispatch , Inc., for the approximately 3-1/2 years prior to the hearing herein, delivered lumber for Trexler Lumber Company (Trexler) to the Respondent Company's terminal in Allentown, such deliveries being made two or three times a week. During October 1965 , he became desirous of changing jobs and several times thereafter asked James Long, Al- lentown terminal manager of the Company , for employ- ment. His reason for wanting to change his job was because he had learned that he could make from $20 to $25 more per week working for the Respondent than he was making as an employee of Penn Dispatch. On the first several occasions when he asked Long for a job, Long at least twice answered facetiously that the only job open was his, to which Hlay replied in kind , saying he would take it. More seriously , Hlay testified that Long told him that he had a waiting list, but suggested that Hlay renew his request from time to time and he would keep Hlay in mind. Hlay followed this suggestion and did frequently request Long for employment. Hlay said that sometime in July 1966 , Long hired a person known to Hlay only as "Skeeter," and that , when he again ap- proached Long, he was told by the latter that he had promised the man a job and could not put Hlay on ahead of him . About a month later it appears that Long hired one Tom Wolfinger ; that he again approached Long and told him that he thought he was going to get the job, that he was on the list; Long replied that he was on the list and and that he had not forgotten about Hlay. Hlay related that shortly thereafter on a day when he was unloading a truck Long came out of his office and asked Hlay how old he was, that he replied that he was 38, and that Long said nothing more but returned to his office. On this occasion , Hlay said he spoke to several members of Local 773, who remarked to him that it looked like he (Long) was going to put him on , and Hlay replied that he certainly hoped so. Hlay then approached a friend of his in charge of ordering lumber for the Com- pany, Russell Santee, and asked him if he could help him out, "... if he would not go to Mr. Long and ask Mr. Long if he would give me a job there. Mr. Santee said, yes, he would." Hay said that Santee took him into the of- fice, told Long that he was looking for a job and that Long replied that he knew it, had him on the list, had him in mind, ". . . and I will do what I can for him." Russell Santee, called as a witness by counsel for the General Counsel, testified that he had been employed at the Allentown terminal of the Company for about 22 years and that he presently is yardman, responsible for getting the equipment ready for the men working on the line and checking in the equipment as it comes in on trucks. He said that he came to know Hlay during the times the latter was delivering lumber to the terminal and that, as a member of Local 773, was acquainted with its president, Wursta. He confirmed the fact that Hlay had asked him to speak to Long and that he remembered a conversation he had with Long concerning Hlay in Long's office. He said "Jokingly, I went up to Mr. Long at the window and I said, how about hiring this man? So, in turn, Mr. Long and Mr. Hlay were talking together, and I left the room." He said that sometime around the middle of September he asked Hlay for his name and ad- dress in the event that Long should ask for his name and sometime after that Long came from the driver's room and asked him the name of the man delivering lumber and that he gave Long Hlay's name and address. Santee does not hold a supervisory position with the Company and, although a member of the Union, does not act as a stew- ard or in any other representative capacity. He said he became friendly with Hlay during the times lumber was being delivered, but he was not a personal friend in the so- cial sense. He knew that Wursta came to the terminal frequently on union business, talked to the men while there, and handled grievances or complaints on behalf of union members. He said that he had not seen Wursta with Long on the day Long asked him for Hlay's name, nor had he seen Wursta with Long at any time during the day prior to the time Long asked him for Hlay's name and ad- dress. He could only say that he knew that Hlay had at times spoken to Long and that Hlay had reported to him what Long had said. In Santee's opinion, Hlay was well liked by company drivers. Hlay testified further: Well, on September 2, 1 think it was on Friday, I just finished unloading a truck and Mr. Long ap- proached me, and he says to me, he says, how much time, or how much notice, do you have to give your employer to change jobs. I told him well, I didn't have to give any notice, because Penn Dispatch was a labor pool, and if I didn't show up for work the next morning or the next week, they would just put another man from the pool on my job. So he says, well, as you probably know, he says, we are going to have an opening at Howard Sober, and I am thinking of putting you on, he says. The only thing is, he says, I have to post this job and if nobody bids on it, he says, the job is yours.... Well, I was very happy to hear about this. And he also says to me, he says, you will have to work in the shop. And, he says, you will also have to work nights. I says, I don't really care where I work as long as I get the job. Hlay said that Long had told him that they would say nothing about the job until it was definite and that, when Santee asked him what Long had said, he told Santee "he HOWARD SOBER, INC. 585 promised to give me a job if nobody bids on it."2 It seems that it was after this conversation that Hlay gave Santee the slip of paper showing his name and address. Over ob- jection of counsel for each Respondent, I permitted Hlay to testify that, on September 16, he was approached by Santee who told him that he did not want to upset him but that Wursta was there. Long came out of the office and asked Santee for Hlay's name, that he gave Long the piece of paper showing Hlay's name and telephone number, and Long took it with him and went back into the office. Hlay testified that on September 22, while he was making delivery, Santee told him the boss wanted to see him, and that Santee took him to Long's office and then left and that a conversation then took place between him (Hlay) and Long, in which Long said, in part: he says, understand, I don't have anything against you personally. He says, I don't even know your name, other than you coming in with deliveries. But he says, I just can't put you on at this time. He says, I have been hearing unfavorable reports about you. And I says to him, what kind of reports and from whom? He says, well, from different people and employers. And I says to him, well, I says what could my employers tell about me? I says, I have no accident record. And, I says, as far as I know, my work record is good. He says, I've been hearing un- favorable reports and the Company doesn't think it would be a good idea to put you on at this time. I says to him, the Company? What do you mean? I says, I thought you done the hiring and the firing. Mr. Long says to me, I only do what I am told. He says, un- derstand, we are not closing the door permanently. He says, this doesn't mean we will not put you on at a later date. But, he says, we cannot do it just at this time. He says, don't depend on it. I says, well, I was depending on it. I says, I was looking forward to it. That was the end of the conversation. Hlay testified that on the following day he said that he asked Harry Bogh, the president of Trexler, if anyone had come to him within the last 90 days concerning him as a job applicant for any place of employment and Bogh replied no, that no one had ever asked about Hlay since Hlay had been with them. Hlay testified that he then spoke to Alan Minnig, supervisor at Penn Dispatch, and was informed by Minnig that no one had asked him anything concerning his ability on the job.3 In what apparently was a final effort to obtain employ- ment with the Company, Hlay called Union President Wursta on the telephone. In answer to a question as to whether, after the conversation reported above, he had any conversation with Wursta he replied: Yes, I did. As a matter of fact, September 27, I called Mr. Wursta at his home about 7 o'clock, ap- proximately 7 o'clock in the evening, and I had a conversation with him, and I did not let Mr. Wursta know that Mr. Long had already refused to hire me. . I said to Mr. Wursta, I said, I have been thinking I have been wanting to change jobs. I says, I would like to get a job at your old barn, Howard Sober's. I said, is there anything you can do for me? Mr. Wursta says, no. I believe I said, huh, or what? He says to me, no, he says, I don't want to go over there. He says, I don't want to intercede for anybody, because, he says, I don't want to be obligated to any- body. He says, that was my former place of employ- ment. I says, I was hoping you would. Plus the fact, he says, Bill, he says other things in my behalf. I says, what do you mean? He says, you know the way you conduct yourself at union meetings and you sub- mitted the charges against me for the automobile. He says, these things I don't forget. He says, after all, take these things into consideration. I says, I was only one of 12 that signed those charges. He says, yes, but take those things into consideration. He says, after all, he says, there was nothing to it with the new cars. He says, that was not my doings; that was the Executive Board's doings. I was the fall guy, he says. He says, there was nothing to it. I was ex- onerated. Which he was. He says, I was exonerated and all that. He says, if I went to bat for somebody, he says, yes, I could. He says, I could. I said, I was hoping you would. He says, well, let me talk to you another time. I says, okay, I am glad you talked to me. I says, I was hoping there was something you could do for me. He says, well, you take a lot of stuff into consideration. He says, now, there is another man; there is Johnny Zeigler. He says, I went to bat for Johnny Zeigler and things didn't go his way and he blames me for that and I didn't have anything to do with it. He says, take this stuff into consideration. I says, well, I was hoping you would help me out. He says, call me another time. I says, all right, I will. That was the end of the conversation with Mr. Wursta. On cross-examination, Hlay said that the only dif- ference of opinion he had had with Wursta, other than what otherwise had been mentioned, was the way Wursta conducted union meetings, "which I often told him." He said that as president of the Union, Wursta acted as chair- man and "I did disagree with him and I did discuss several things from the floor with him at union meetings. But other than a union meeting I don't think so," from which it may be inferred that the conflict existing between the two men, if it did exist, arose solely out of the way Wursta and the executive board administered union af- fairs. As an estimate of the number of times he had talked to Long, Hlay thought it would be about 50 times within a 6- month period. From my observation of Hlay as a witness both on direct examination and on lengthy cross-examination, I am of the opinion that he really believed that Long had 2 Another conversation between Hlay and Long in the presence of San- tee, to which I do not attach much significance, was related by Hlay. Approximately a week later, September 9, I was unloading the truck in front of the office. As a matter of fact, there is a small door that leads into the office, and it was approximately 4 o'clock in the af- ternoon and the shop was working overtime and Mr. Santee had to come out of the wash room and he was going home , and Mr. Long come out of the office behind him and says, aren't you working tonight , Russ? Russ says, no. He says , aren't you working tomorrow? And Russ says, no And Mr Long says, boy, I wish I was rich. So I says to Mr. Long, I says, I can work tomorrow, Mr Long. And he points Ins finger at me and he says , I might tap you sooner than you think. It was a short conversation. Regarding the conversation of September 9, reported by Hlay, he said that several people were there and heard the conversation , including one Steve Kirtz and one Bob McLafferty, who were assisting in unloading the truck. Neither of these two men were called as witnesses. Hlay said that he had talked to McLafferty and Kirtz and they told him that they had heard Long tell him "that he was going to tap me sooner than I thought," but when he asked them if they would be willing to sign a statement to that effect they refused, saying they did not want to get involved in the matter. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promised him a job, and, on the basis of strong suspicion, concluded that Wursta had prevented his employment by the Respondent Company. On October 13, 1966, he par- ticularly noted the employment of Clifford Treece. The suspicion in his mind was confirmed, I think, after Long had told him that he had no idea when the Company would again hire a man and "just politely told me to forget about it." To him, it appears Long's statement to him meant that he had no chance of employment with the Company. C. Wursta's Version of His Position in Regard to Hlay The recollection of John Wursta in connection with the telephone call received by him from Hlay was related by him on direct examination- ... approximately 7:25 p.m. I received a telephone call. The reason I say 7:25 is that I had an important meeting at 7:30 and I was running late. ][ looked at my watch and I got a telephone call and Mr. Bill Hlay called. He said, this is Bill Hlay. I said, how are you, Bill, what's up. He said, will you do me a favor. I said, sure, Bill, what can I do. He says, put in a good word for me at Howard Sober's. I said, Jeez, Bill I can't do that. I said, I don't recommend or in- tercede for anybody, not even for my own borther. I said , I will do anything else for you but I just don't recommend anybody because there are 150 or 200 people looking for certain job openings and, I said, I do not intercede. I said, Look, Bill, why don't you call me another time. I said, I have an important meeting. With that, he said, so long, John, and I said, so long, Bill, and I hung up. In response to a question as to whether in the course of the conversation he remembered saying anything to Hlay about his having filed charges against him, Wursta testified: Yes, I do. He said, I guess you're going to get me because I appeared. I said, Look, Bill, you are one of twelve. What difference does that make? You are a good union man and you acted good. I felt we needed more men like that. Anybody active and interested in the organization, and the Union, I certainly ap- preciate it. More than that, I haven't said a word to him. I said, Bill, look, you are only one of twelve. I said, you took an active part in it. I hold no malice or animosity for that. We have been the best of friends ever since. Wursta testified further that he did not say anything to Hlay about the way he conducted himself at meetings, did not particularly recall that he had said anything about Zei- gler although he said he might have said "that Johnny Zei- gler is after me for a job over there, too. I don't recall." On cross-examination by counsel for the Union, Wursta recalled that 2 or 3 years ago Zeigler, a member of Local 773, had asked him for assistance in getting a job with the Company and that he had told Zeigler that he would not intercede for anyone. He denied telling Hlay that he would not recommend him because of the way he con- ducted himself at union meetings ; he said that Hlay did not conduct himself at union meetings in any way dif- ferent from anyone else, that he was "good" at a union meeting; and denied that he had ever told Long not to hire Hlay or had ever said anything to Long concerning Hlay. On cross-examination by counsel for the Company, Wursta did not recall asking Long whether or not he knew Hlay and had "no idea of the relationship or what goes on between Bill and Mr. Long." Without the knowledge of Wursta, Mrs. William J. (Rosalie G.) Hlay monitored, overheard, and recorded by tape the telephone conversation between her husband and Wursta. Over objection by counsel for the Respond- ents, I received in evidence, and heard a playback of, the tape recording. The tape, together with a typewritten, ink- corrected transcript, is in evidence herein (G.C. Exhs. SA, SB). I listened to the recording at the hearing and at this writing have had the tape played back to me.4 The recollection of Hlay and the recollection of Wursta as to the content of their conversation, as can be ob- served, are more or less in accord, but different import is taken by each. (I assume without knowing that Hlay be- fore testifying had read the transcript of the conversa- tion.) Wursta obviously was surprised that the call had been monitored. After hearing and observing each wit- ness, and hearing the tape (which is not garbled) and read- ing the transcript, I believe that Hlay reached Wursta at an inconvenient time for Wursta; that Wursta was not inclined to assist Hlay in any way because for one reason he did not want to be obligated to the Company, and for another he harbored some resentment against Hlay because of Hlay's activities affecting local union affairs. It is clearly apparent that Wursta's refusal to intercede on Hlay's behalf was because of his desire not to become obligated to the Company - that 'was his main thought; his personal reason I believe to have been secondary. Neither reason, nor the combined reasons, could without more support a finding of an obligation on the part of Wursta to assist Hlay in his efforts to obtain employment with the Company. Obviously, in the face of the denial of Wursta that he had talked to Long concerning the ambition of Hlay to be employed by the Company, proof of animus on the part of Wursta against Hlay must be proved by strong circum- stantial evidence. D. Long's Version of Hlay's Efforts to Obtain Employ- ment With the Company Company Terminal Manager James Long testified that he was responsible for the hiring of employees for the Company at the Allentown Terminal, that the Company within recent times had hired very few men, and that, as a general rule, the last few employees hired were through recommendations of previous employees or relatives of regular employees . He said that , after it had been decided to hire a particular man, he was brought in and required to fill out an application for employment and then sent for a physical examination . He explained that the Company 4 At the hearing, the introduction of the tape and the playback were ob- jected to by counsel for the Respondents, the objections raising the question of whether the tape recording of the telephone conversation between the business agent of the Union and the Charging Party without the knowledge of the business agent who received the call is a violation of the Federal Communications Act (Communications Act of 1934, Sec 605, 47 U.S C.A 605). While evidence which is obtained by means which violate provisions of the Federal Communications Act is not admissible, in a court of the United States (e g , wiretapping), the recording of a telephone conversation with the consent of one of the parties to it does not constitute an interception in violation of the provisions of the Communi- cations Act prohibiting interception of communications. United States v Lewis, 87 F. Supp 970 (D.C D.C 1950), reversed on other grounds 184 F.2d 394 (C.A D.C) Accord - Battaglia v. United States, 349 F.2d 556, 559 (C.A 9 1965) cert. denied 382 U.S 1021, and cases cited HOWARD SOBER, INC. 587 does not take applications in advance of employment; that, after an applicant was informed that he was about to be hired, he then was required to fill out an application form and considered to be on the payroll. He explained further that the Interstate Commerce Commission requires a physical examination every 3 years for drivers and, insofar as the Company is concerned, all shop em- ployees. The record of the result of the examination of a man by the Interstate Commerce Commission, together with a report of the doctor, is kept on file by the Company and the man is given a card indicating the date on which the examination was given and approved. Long testified that a new employee does not start on the job until after a physical examination although possibly there had been exceptions to the rule. Long testified that Hlay had asked him "any number of times" if there was a possibility of work with the Com- pany, and that he had replied that there was that possibili- ty; that he had asked Santee whether he had Hlay's name and telephone number, or name and address; that he did not recall that Wursta was present at that time. In connec- tion with a conversation he had with Hlay, at the time he told Hlay that he would not hire him at that time, Long testified: Mr. Hlay asked me why. The best I could answer him or that I could answer you would be that I told him from remarks that I had heard, overheard in the shop, I decided to hire the other man, another man. The only thing that I can recall saying is that I had decided to hire the other man as the better of the two, of the choice that I had of the two. I do not recall that I gave any specific reason. He said that he heard through the men in the shop that Hlay was "happy-go-lucky"; that he made no effort to check on Hlay with any other employers. Clifford Treece was hired by Long on October 13, 1966. It appears from the testimony of Long that approxi- mately 2 years before this he had received a telegram from Bruce King, an official attached to the executive of- fices of the Mack Company at Munfield, New Jersey, recommending Treece to Long as a fine driver, and sug- gesting that, if it was possible at any time, for Long to give Treece consideration for a job. Long at that time recorded the name of Treece and kept a memorandum in his desk drawer for future reference. Subsequently, Long talked to Treece several times, and, when the job opening arose in the fall of 1966 and the job had been posted according to the requirements of the labor agreement between the Company and the Union, Treece was put on the payroll, qualified according to the requirements of the Interstate Commerce Commission, and passed his physical ex- amination. Long did not recall having any conversation with Hlay in which he mentioned the fact that a job would have to be posted for bids, saying that he did not know why he would discuss something like that with Hlay.5 At the time King communicated with Long, King was in charge of a training program for the sales department for the Mack Company. It seems too obvious to mention that the recommendation of King made to Long on Treece's behalf would carry great weight, especially if Treece was found to be a qualified, competent driver. Between April 1965 and June 1967, Long hired four men: one Flippovits in April 1965; one Wolfinger in February 1966; Warren Ritter ("Skeeter") in July 1966; and Clifford Treece in October 1966. Long denied that he ever had made a commitment to Hlay that he was hired, or that he had a job with the Company or that he had ever intended to make any positive commitment to Hlay that the job was his. In connection with the hiring of Treece rather than Hlay, Long was emphatic in stating that he felt that in Treece he had picked the one of the two who he thought was best qualified for the job. Long said that he had never discussed the hiring of Hlay or Treece with Wursta, that Wursta had never told him not to hire May or not to hire anyone else. Long said he had no knowledge of Hlay's activities within the Union, and that the first time he was aware of any activity on the part of Hlay within the Union was at the time he received the notice of hearing in this case.6 In connection with the employment of Treece, Long said he had talked to him several times, in person and on the telephone, between the time King had recommended him and the day Treece was hired. It appears that Hlay, among other applicants, was not the only qualified driver or shopman available to the Company for many months prior to the employment of Treece on October 13, 1966. Treece, as a witness called by the General Counsel, testified to the following effect: He was hired by Long on October 13, 1966, took a physical examination and met the requirements of the In- terstate Commerce Commission on that day, after having talked to Long in either late September or early October and given his then employer a 2 weeks' notice of his in- tention to leave to accept the job with the Respondent Company. In the Autumn of 1964 he had frequently, through telephone calls and personal talks with Long, suggested that he might be employed by the Company, some of these times being when he was making deliveries to the Company for, his employer, Roadway Express Company. It was his recollection that, about 2 months be- fore he was hired or in the middle or latter part of the month of August, he spoke to Long concerning possible employment, and that it was either in late September or early October that Long spoke to him over the telephone, Long having called him, and inquired as to his availability for work. Before going to work for Roadway Express, Treece had worked as a driver for Burro Bus Company in California. He said that up until the time of his employ- ment by the Company, he had not known Wursta. Burro Bus Company, a charter and tour company, had assigned Treece as driver on chartered bus tours;' in early 1964, Mack Truck Company had organized a training program for employees in their sales department and Burro furnished Mack with busses for a period of about 2 years, taking Mack personnel over the country on seminars over a period covering that time. During this time, Treece drove about I week out of every month for the 12 months of each year and during that time became well acquainted with King. It was because of the favorable impression King formed concerning Treece that King recommended 5 At the time of the hearing, the Company employed 43 men at its Al- 6 Long said that neither King nor anyone else from Mack Truck Com- lentown Terminal. Fourteen of these men were working in the shop, six pany had recommended Ritter, Wolfinger, or Flippovits, but that each of men were on layoff status, and the others worked as drivers Approxi- them was recommended to him by employees. mately 95 percent of the business of the Company at its Allentown Ter- Treece testified that he had worked for that Company for 11 years. minal is for Mack Truck Company. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Treece to Long. The recommendation of King to Long was made at the request of Treece. An incident bearing only on the question of credibility as between Treece and Hlay, according to Treece, oc- curred at a time when Hlay, whose name was then un- known to Treece, said to Treece, while making delivery of lumber, "enjoy it now . . . because it won't last much longer." Treece said he was disturbed by this, asked Long about it, and Long told him he had nothing to worry about in connection with the loss of his job. Hlay was recalled to testify, and did, that the only thing he had ever discussed with Treece was the unloading of lumber when he might have exchanged a casual word or two, or a joke or two with Treece and to specifically deny that he had mentioned Treece's job. I feel it unnecessary to decide the question of relative credibility between the testimony of these two men, since it could in no sense affect the ulti- mate result I shall reach. Long did not impress me as a person who readily would accede to a demand or request or suggestion from a union official that he either hire or refuse to hire any individual. Wursta, I believe, is one who would not recommend or would independently interfere in his official capacity with the employment practices of the Company unless he felt a union-management question was involved. No such problem is apparent here. That scintilla of evidence in support of interference by Wursta with Hlay's opportuni- ty for employment by the Company is absent here. It is true that an inference may be drawn that Wursta might have harbored personal animus against Hlay (although Wursta has denied this), but there is no substantial proof that Wursta warned Long not to hire Hlay. I have weighed the evidence; the testimony of Santee, Wursta, and Long in respect to Wursta's visits to the Company's terminal, perhaps one on the day or within a day when Long in effect informed Hlay that the latter would not be hired at that time, cannot justify another inference that Wursta must have informed Long that he was opposed to the employment of Hlay by Long. The facts do not establish that the Respondent Company had knowledge of Hlay's intraunion activities prior to the hiring of Treece - an element I consider essential to support an 8(a)(3) violation. The time sequence involved here has been considered, and found not to be helpful in the resolution of the questions involved in this case. The proposed amendment to the bylaws of Local 773 was made September 12, 1964; the protest against Wursta's conduct of the meeting on May 9, 1965, was made on May 16 of that year, and the subsequent letter of union members to the secretary- treasurer of Local 773 was under date of June 21, 1965; the charges preferred against Wursta concerning the use of cars for officers and business agents of the Union were preferred on February 17, 1966. It was during the middle of September 1966 that Hlay was informed by Long not to depend on getting a job with the Company; and Treece was hired on October 13, 1966, after the previous em- ployment of three other men. Long said he hired Treece instead of Hlay because he considered Treece to be the more reliable of the two. It is contended on behalf of the Respondent Company that the hiring to fill a job vacancy was solely within the discretion of the Company, absent the showing by positive proof that the Union interfered with the hiring of Hlay. Neither of the Respondents called a witness, and de- pend on their respective motions to dismiss the complaint as not supported by the preponderance of the evidence. I shall grant the motions. In weighing the value of the evidence in this case, I have tried to avoid specious inference, and at the same time allow proper weight to legitimate inference. Since no direct evidence has been proffered to establish company knowledge of union antagonism against the employment of Hlay, the General Counsel is necessarily relying on in- direct or circumstantial evidence to establish unlawful motivation. The same standard applies to findings based on indirect proof; i.e., they must be supported by substan- tial evidence. In Appalachian Electric Power Co. v. N.L.R.B., 93 F.2d 985, 989 (C.A. 4), substantial evidence was defined as "evidence furnishing a substan- tial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences." The structure of em- ployer discrimination erected by the General Counsel in this case rests on too weak a foundation to support the substantial evidence test. See also Riggs Distler & Co., Inc. v. N.L.R.B., 327 F.2d 575, 580 (C.A. 4), and N.L.R.B. v. Shen-Valley Meat Packers, Inc., andAmal- gamated Meat Cutters and Butcher Workmen of North America, Local 393, AFL, 211 F.2d 289, 293 (C.A. 4). Concluding Findings Although my sympathy might lie with Hlay, it could just as well lie with Treece had he been passed over for employment and Hlay had been successful in his desire to obtain work with the Respondent Company. This com- ment has no import; the fact is, and I find, that Long hired Treece because he believed Treece to be better qualified for the job. I find that the allegations of violations of the Act, as al- leged in the complaint, are not supported by the prepon- derance of the evidence; and that the motion of the Respondents to dismiss the complaint should be granted. Upon the foregoing findings of fact, I make the follow- ing: CONCLUSIONS OF LAW 1. The Respondent Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondents have not, nor has either of them, engaged in or is engaged in unfair labor practices as al- leged in the consolidated complaint. 4. The consolidated complaint herein should be dismissed in its entirety. RECOMMENDED ORDER It is recommended that the Board enter an order herein dismissing the consolidated complaint.