McLain Trucking, Inc.

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McLain Trucking, Inc. and William Kusley. Case 25-CA-4080 November 4, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 7, 1971, Trial Examiner William W. Kapell issued the attached Decision in this proceed- ing. Thereafter, General Counsel filed exceptions and a supporting brief. Respondent filed cross-exceptions and a supporting brief as well as a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3) We have carefully examined the record and find no basis for reversing his findings. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial Examiner: This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was tried in Anderson, Indiana, on July 13, 1971, with all parties participating pursuant to due notice upon a complaint' issued by the General Counsel on April 30, 1971. The complaint, in substance, alleges that since about November 23, Respondent McLain Trucking, Inc.,2 in violation of Section 8(a)(1), (3), and (4) of the Act, has refused to hire William Kusley as a regular or trip lease driver because he (1) joined and assisted the Union and sought to bargain 1 Based upon a charge filed by William Kusley on December 29, 1970. All dates hereafter refer to the year 1970 unless otherwise noted. 2 The name of the Company as amended at the hearing collectively through representatives of his own choosing, and engaged in other concerted activities for mutual aid and protection, and (2) filed charges or gave testimony under the Act. In its answer, Respondent denied engaging in any of the alleged violations, and set forth that the reasons for refusing to hire Kusley were(1) his objectiona- ble personality traits evidenced during a job interview at Respondent's office, and (2) his filing of a charge against Respondent, subsequently dismissed, following a refusal to hire him, did not entitle him automatically to a job thereafter with the same employer. All parties were represented and were afforded opportu- nity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs have been received from the General Counsel and Respondent and have been carefully considered. Upon the entire record3 in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent, with its principal office and place of business at Anderson, Indiana, and with places of business in other cities of Indiana, Michigan, and Ohio, has been engaged at all times material herein as a common carrier in the interstate transportation of freight by truck. Annually, in the course and conduct of its business operations Respondent receives revenues in excess of $50,000 for transporting goods, and materials in interstate commerce between Indiana and other States of the United ^ States. Respondent admits, and I find, that at all times material herein it has been engaged as an employer within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For many years Kusley has been an owner-operator of a tandem tractor and trailer. During the summer of 1967 he planned the strike of the independent steel haulers. As spokesman for that group he sent out fliers and made other arrangements for the independent truckers who struck in about nine States. The Teamsters, representing the employees of many of the struck carriers, declined to help the independent haulers in their dispute. The dispute was mainly over demurrage-the uncompensated time spent by truckers while waiting to load or unload at the steel mills. In the agreement reached as a result of that strike, Kusley was the chief negotiator for the independent haulers. During the strike, which lasted about 9 weeks, Respondent's Ohio terminal and the terminal at Hammond, Indiana, where Respondent did business, were picketed. John Leatherman, Respondent's president, heard or read about Kusley's participation in that strike. 3 Respondent's unopposed motion to correct the transcript is granted as requested. 194 NLRB No. 10 McLAIN TRUCKING, INC. 17 In June or July 1969 Respondent's employees at the Hammond, Indiana, terminal,4 who were paid under a pay schedule called the Alger Formula, struck to obtain the higher pay which Respondent was paying to its employees at other terminals. The employees at this terminal, including Robert Johnson, asked and obtained Kusley's assistance in their dispute, and they began to picket the terminal with Kusley participating in the picketing . Five or six meetings were thereafter held with John Leatherman, in which Kusley acted as spokesman for the strikers. The parties reached agreement and Leatherman signed a memorandum dated July 15, 1969, setting forth some of the terms.5 It was at these meetings Leatherman first became personally acquainted with Kusley . Meantime, on January 29, 1970, Kusley filed a charge with the Board alleging that Respondent, in violation of Section 8(a)(3) of the Act, had refused to employ him until he became a member of Teamsters Local 142. After an investigation by the Regional Office, Kusley withdrew the charge on July 27 because of insufficient evidence. It was stipulated that Kulsey was hired by Respondent on a trip-lease basis on the following days during 1970: February 17, March 4, 6, 9, and 16, April 2 and 4, May 26, June 15, July 16, August 3, 4, and 5, and November 12. On November 11, 1970, Robert Johnson, an employee of Respondent for the past 5 or 6 years and currently a long- lease driver, called Bill Ward, Respondent's dispatcher at the Hammond terminal, about 2 hours before he was scheduled to pick up a load and told him he was unable to do so because his truck had broken down. Johnson then arranged with Ward's approval to have Kusley substitute for him on this scheduled trip. B. The Refusal To Employ Kusley The uncontroverted testimony of Johnson shows that on November 17, 18, and 19 he telephoned Leatherman about hiring Kusley as a driver. During the conversation on the 19th, Leatherman told him Kusley would "have to get right with the union before I can use him," and he agreed to interview him. According to Kusley, he and Johnson, while on their way on November 23 to see Leatherman at Respondent's main office in Anderson, Indiana, pursuant to Johnson's prior arrangement, first visited Teamsters Local 135 at Muncie, Indiana, where Kusley applied for membership and paid $76 in dues. They then went to Respondent's main office where Kusley was to be interviewed for a job. Upon meeting Leatherman, he asked why they had filed charges with the Board against him and persisted in discussing the matter during the beginning of their meeting. Leatherman then summoned Albert Sher- ban, Respondent's operation manager, to his office where they continued their discussion . Kusley stated that he didn't like to be forced to join the Union as a condition of employment and asked Leatherman, "Well, will you put me 4 At that time Respondent took over the terminal through a merger with Contract Carriers, the prior operator. 5 Employee Robert Johnson who had previously been laid off because he was not a union member was reinstated by the terms of the settlement. 6 Respondent hired two types of drivers. long-lease drivers who are hired for periods of 30 days or longer, and trip-lease drivers who are hired for a specific trip; i e., on a one-trip basis. Both types of drivers are responsible for their own equipment which is leased to Respondent. on as a regular driver." Leatherman replied that he would think it over and have to take it up with his labor consultant, and also stated that he (Kusle'y) would have to get straightened out with the Union, and that there was pressure being brought to bear upon him by the Union. Kusley claimed that he was a union member although they had refused to accept his dues.? The meeting ended with a statement by Leatherman that he would call Kusley to let him know whether or not he would be hired. Not hearing from Leatherman, Kusley called him on December 8 and not finding him in, he left a message to return his call. When Leatherman failed to return his call Kusley called again on December 9 and asked Leatherman whether he had decided to hire him. Leatherman stated that he didn't think he would be hired at this time because business was slow and men were being laid off. Thereafter, Kusley called the Hammond terminal on numerous occasions and was told they were not hiring or to call Leatherman about it. Between December 1, 1970, and April 2, 1971, Kusley called Respondent over 30 times without receiving a single trip-lease job or regular work. Leatherman did not materially dispute the testimony of Kusley or specifically deny the statements attributed to him by Kusley. He stated that when Kusley visited his office on November 23 he kept his hat on, looked at the wall and said very little, and at no time did he say he thought Respondent was a good company. He stated further that Johnson's recommendation was not too good because Johnson's record as an employee was not very good, that the Company had laid off four to five drivers, and that the "board" (a list of employees to whom work was assigned on the basis of seniority) was completely filled with regular employees. After the meeting on November 23 he and Sherban decided not to hire Kusley because he kept his hat on, he didn't look at Leatherman when he spoke to him, he never made any remarks about Respondent being a good company, his sponsor (Johnson) had a bad record for punctuality, and there was no work for Kusley on that day. He also called the dispatcher at the Hammond terminal and told him not to permit Kusley to establish seniority and not to use him as a trip-lease driver. Robert Rusnock, the manager of the Hammond terminal, testified that in hiring drivers preference was given to drivers who were recommended by owner-drivers who owned more than one equipment set under lease to Respondent, and that of all the drivers he hired after November 23, of whom there were a great number, only two of them were not recommended by such equipment owners, and these two were hired to haul tinplate, an item not known by Respondent to be within the trucking capability of Kusley's tandem truck because of its structure. Rusnock also claimed that on the occasions when Kusley called in for work, it was during the late afternoon after the trip schedules had already been drawn up, or that there was 7 Kusley was apparently referring to a case in which he had previously filed 8(bXl)(A) charges against Teamsters Local 142 in June alleging, inter aka, that the Union had discriminatorily refused to accept his dues because of its belief that he was going to file charges against it under the Act. The Board in dismissing this allegation held that a refusal to accept his dues while still retaining him as a member did not restrain or coerce hun in violation of the Act (190 NLRB No. 19). 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an insufficient number of trips to take care of the regular (long-lease) drivers because of strikes in the industries served by the carriers. C. Conclusions Leatherman's testimony shows that following the meeting with Kusley and Johnson on November 23 he decided not to employ Kusley and instructed the Hammond terminal not to hire him for any work. Thus, regardless of any need for drivers, Kusley was not to be hired. In this setting and in view of the fact that Respondent hired about 30 drivers during the period in question, I find it difficult to credit Respondent's evidence to the effect that there was no work available for Kusley on any of the great number of occasions he called because the work assignments had already been made and business was slow due to the strikes in the industries served by the carriers. I, therefore, conclude that during this period Respondent discriminated against Kusley in hiring drivers. However, before such discrimination can be found to be violative of the Act, it has to be established that it was due, as claimed by the General Counsel, to the fact that Kusley had filed charges against Respondent, and/or had engaged in protected concerted activities on behalf of and in concert, with Respondent's employees during the 1969 strike at the Hammond terminal. Respondent contends that, aside from a lack of work, Kusley was not hired because of the manner in which he acted when interviewed on November 23. A refusal to hire Kusley because of his personality or for any other reason would not be violative of the Act unless asserted to conceal the reasons alleged by the General Counsel. It appears that subsequent to the filing and withdrawal of Kusley's charges against Respondent, he, nevertheless, was hired on five trip-lease jobs and that Leatherman agreed to interview him for a job. I regard Leatherman's references to the filing of Kusley's charges at the November 23 meeting as nothing more than an academic postmortem discussion of that matter. These findings raise strong inferences that Respondent was not motivated to refuse to hire Kusley because he filed the charges. The undemed statement attributed to Leatherman that Kusley had to get straight- ened out with the Union, which was bringing pressure to 8 It is significant to note, as pointed out by Respondent, that although Johnson actively participated in the 1969 strike against Respondent and bear upon him, would appear to indicate that Kusley's union difficulties were, to some extent, impeding his prospective employment by Respondent. However, the record shows that although Leatherman was aware of Kusley's past difficulties with the Teamsters and his involvement in the 1969 strike, that did not deter him from consenting to interview him for a job, nor preclude him from obtaining trip-lease jobs during 1970 prior to their November 23 meeting.8 Furthermore, Kusley took the precaution of joining Teamsters Local 135 before meeting with Leatherman to forestall any objection due to his lack of membership in the Teamsters. Apparently, Kusley's abrasive personality and the manner in which he behaved at the November 23 meeting irritated and provoked Leatherman to the point of refusing to hire him. While Leatherman's objections to Kusley, whether real or imagined, may appear to lack substance or even be worthy of serious consideration, it is not for the Board to judge their gravity or significance if, in fact, they were the motivating cause for refusing to hire Kusley, and not his protected concerted activities or union difficulties. Based on all the evidence and the demeanor of the witnesses, I conclude that Leatherman was motivated to refuse to hire Kusley because of his personality. I, therefore, conclude the General Counsel has not established by the preponderance of the evidence that Respondent discriminatorily refused to employ Kusley in violation of Section 8(a)(1), (3), or (4) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not engaged in conduct constituting unfair labor practices within the meaning of Section 8(a)(1), (3), or (4) of the Act. Upon the foregoing findings of fact , conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety. also filed charges against Respondent, he continues in its employ.