United States Trucking Corp.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Trucking Corp. and General Teamsters Local Union No. 528. Case 10-CA-10828 July 23, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On March 31, 1975, Administrative Law Judge Phil Saunders issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief.' 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief, and has decided to affirm the rulings , findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER before me on this matter the Respondent and General Counsel filed briefs. Upon the entire record in this case , and from my obser- vation of the witnesses and their demeanor , I make the following:2 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with an office and place of business located at Atlanta, Georgia, where it is engaged in transporting, storing, and delivering supplies for Western Electric Company at Norcross , Georgia, on a contract basis. Western Electric Company is a corporation with an of- fice and manufacturing facility in Norcross, where it is en- gaged in the manufacture of electrical components, and during the past calendar year Western Electric Company purchased and received goods and services valued in ex- cess of $50,000 directly from points outside the State of Georgia. Respondent, commencing on or about July 1, which pe- riod is representative of all times material herein, has re- ceived in excess of $50,000 from Western Electric Compa- ny for its services described above. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, United States Trucking Corp., Atlanta, Georgia, its officers, agents, succes- sors, and assigns, shall take the action set forth in said recommended Order. ' Although Respondent's exceptions and beef do not meet the precise technical requirements of the Board's Rules and Regulations , they make clear the aspects of the Administrative Law Judge's Decision to which ex- ception is taken and the reasons therefor . Accordingly the General Counsel's motion to strike Respondent's exceptions and brief is hereby de- nied. DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Law Judge: Based on a charge filed on July 23, 1974,1 by General Teamsters Local Union No. 528, herein called Local 528 or the Union, a complaint against United States Trucking Corp., herein called the Respondent or the Company, was issued on No- vember 14 alleging violation of Section 8(axl) of the Na- tional Labor Relations Act, as amended. Respondent filed an answer to the complaint denying it had engaged in the alleged unfair labor practices . Subsequent to the hearing 1 All dates are 1974 unless stated otherwise. If. THE LABOR ORGANIZATION INVOLVED The Union named herein is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES The complaint alleges that the Respondent unlawfully refused to hire Jesse Jones, James Turner, Willie Trice, Will Thurman, Willie Couch, Melvin Flournoy, and Rob- ert Sanders as a result of their concerted and protected activity. Respondent maintains a warehouse at College Park, in Atlanta, Georgia, where it received and stores equipment, materials, and supplies, and also provides a trucking ser- vice for Western Electric. The employees at the College Park warehouse are represented by Local 528, and the Re- spondent commenced operations at the College Park ware- house as of July 1. Prior thereto, the warehousing and trucking services for Western Electric had been performed by Dealers Transit. The agreement between Western Elec- tric and Dealers Transit was to expire June 30. In early June the Respondent, among other carriers, had submitted bids for this work, and was the successful bidder.3 2 All credibility resolutions made herein are based on a composite evalua- tion of the demeanor of the witnesses and the probabilities of the evidence as a whole. 3 President of Local No. 528, Joseph Vaske, testified that on June 13 Respondent's president, Joseph Adams, told him that the Company was making a bid for the Western Electric Business , and if they got the bid Adams would send a man down to sign a contract which would be effecti ie when the Dealers Transit contract with the Union was scheduled to expire. As to the employees of Dealers , Adams said he had two problems , one was UNITED STATES TRUCKING CORP. The Union's assistant business agent, James Scott, gave credited testimony to the effect that on June 27, in the presence of Assistant Business Agent Ed Flournoy and Dealers Transit Superintendent Jack Gilman, he asked William O'Leary, general manager of Respondent's Capi- tol City Warehouse, a wholly-owned subsidiary of the Re- spondent and located in the area of Atlanta, if the Compa- ny was going to keep all of the people then working for Dealers Transit when they took over the hauling and ware- housing for Western Electric, and O'Leary replied, "Yes, we'll keep them all. I don't have anything against any of the fellows." The testimony given by Ed Flournoy corrobo- rated Scott's testimony .4 Scott explained that the purpose of his visit to Dealers Transit on June 27 was to discuss a grievance with Manag- er Gilman involving persons other than Dealers' employees backing in trailers. The General Counsel argues that the resolution of this grievance immediately before Respon- dent began operations was not unusual, in view of Adams' agreement to sign a contract with the Union when the Dealers Transit contract expired. It is further pointed out, that Gilman was scheduled to work for the Respondent as general manager at the College Park facility, and, in fact, stayed at the College Park facility for a week after the Respondent began its operations (on July 1) before taking another position elsewhere. Additional sequence of events reveal that, on the morn- ing of June 28, Dealers Transit employees Robert Sanders and Jesse Jones went into Dealers Superintendent Jack Gilman's office, and inquired if he was going to pay them a day's pay that Dealers Transit had held back from them sometime in 1973. Gilman then asked his two employees if they could show him or prove in "black and white" that he owed them the day's pay in question. About this time other employees of Dealers showed up at the office including alternate steward Melvin Flournoy, steward Hugh Sanders, Wilford Couch, and James Turner. All of these employees, except Hugh Sanders, also told Gilman that he owed them a day's pay, but Hugh Sanders stated that he could remem- ber "nothin" about a day's pay. Gilman admitted in his testimony that the discussion got "reasonably strong," and that he left his office at one time to allow the situation to cool off. William Thurman testified that he was sitting right outside Gilman's office eating lunch during the time the other employees were in the office, but when they left Gilman came out and told Thurman to tell Melvin Flour- noy to call Business Agent James Scott. Thurman complied with these instructions and both Flournoy and Gilman then called Scott about the day's pay grievance. Thurman also testified that O'Leary was at the College Park facility "absenteeism" and the other was "pilferage." Vaske then told Adams that he would get these problems straightened out About 10 days later Adams called Vaske and told him the company had received the bid and he was sending Executive Vice President Percy Marcus to Atlanta for a meeting with Vaske. On or about June 26, Vice President Marcus had William O'Leary (to be identified later) handed out and distributed Respondent's em4ployment applications to all the employees of Dealers Transit. There is no contention before me that Respondent was a successor to Dealers Transit, nor is there any contention that Respondent was bound by any collective-bargaining agreement to employ any or all the employees of Dealers Transit. 381 at the time of the incident. Willie Trice testified that on the afternoon of June 28 he went to get his check, and at the time Gilman and O'Leary were in the office. Trice com- plained to Gilman about not being paid the day's pay, and Gilman then told him that he had "just run some guys out of the office" that had asked him about the day's pay.5 O'Leary testified that on June 28 he picked up the Respondent's applications he had previously left with the employees of Dealers Transit, as aforestated, and about 5:30 that afternoon called Vice President Marcus in New York. He stated that Marcus then had him read from each employment application all the information contained thereon. O'Leary denied telling Marcus that there had been a meeting between Dealers Transit employees and Gilman concerning a day's pay, and Marcus testified that he had no knowledge of the June 28 complaint by Dealers Transit employees to Gilman when he decided not to hire the sev- en employees involved herein. Gilman stated that on one occasion prior to June 28, he had recommended to Marcus that the Respondent only hire about 50 percent of the em- ployees who had worked for Dealers Transit. On Saturday June 29, Scott called O'Leary and was then advised that the Respondent would hire all the employees of Dealers Transit except Jesse Jones, James Turner, Willie Trice, William Thurman, Willie Couch, Melvin Flournoy, and Robert Sanders 6 Final Conclusions I fully agree that Respondent's defense in its refusal to hire the seven individuals involved in this case is extremely difficult to ascertain since Vice President Marcus testified that his reasons for not hiring them were considerations such as suspicion of theft, drug use, and personal habits like drinking and temper. Marcus stated that he based his decisions not to hire the seven on information and facts disclosed on their employment applications as read to him over the phone by O'Leary and from previous discussions with Gilman and others when he visited the Atlanta area prior to June 28. As pointed out, Marcus did not have any records before him so was unable to specifically state why he made the decision not to hire any one of the discrimina- tees, and the Respondent did not produce any of the em- ployment applications or other files which Marcus alleged- 5 There is testimony in this record that the people specifically involved and named herein were not only making the pay demand for themselves, but additionally, for all of the other employees of Dealers Transit who were in a similar situation . However, there are no indications or contentions in this record that any of these remaining employees ever appeared or talked at ann time with Gilman in pressing this particular pay complaint. Willie Couch did not complain about his pay nor did he attend the meeting with Gilman and the others on June 28 , but regardless of these circumstances was not hired. However, his brother Wilford Couch, who had complained to Gilman on June 28, was hired by the Respondent, and thus it can be reasonably assumed that the Company confused the two brothers and this inference is also bolstered by the testimony of Vice President Mar- cus who stated that a "W. Couch" was hired. While William Thurman did not directly participate or complain , as aforestated, nevertheless, it can also be assumed by his inclusion with those not hired , that the Company be- lieved he was one of those in the group who had complained as Thurman was sitting immediately outside Gilman's office while the other employees were inside. Lastly, while Hugh Sanders had complained but was still hired, it would appear that he took a neutral position in the office and in effect sided with Gilman , as previously noted herein. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly considered in deciding not to hire the seven employees, and, of course, it would be highly unusual if the employ- ment applications contained or disclosed any information in respect to drug use, drinking, or any other personal hab- its, even if the applicant was so inclined' Marcus testified that from the applications he could also tell that "some of the seven" had lost their drivers license. However, on rebuttal it was established that only Willie Couch and Trice were truckdrivers, and Couch stated he had never lost his license , had no problems with drugs or drinking, had never been accused of theft, and to his knowledge Trice likewise had no such personal problems. In fact, this record shows that, other than Melvin Flour- noy, none of the other discriminatees had ever received even any warnings or reprimands while employees of Deal- ers Transit, and Flournoy had only gotten one or two while he was working for them. I further agree that the factual pattern in this case is sufficient to support the reasonable inference that the Company knew of the pay demand by the time Marcus decided not to hire the discriminatees. While the demand or complaint on the pay was made to Gilman, terminal manager of Dealers Transit, nevertheless, at the time inter- vals here in question, Gilman was scheduled to be retained by the Company as their manager at College Park and therefore had a real interest in all happenings , and shortly after the incident Gilman even complained to Business Agent Scott about the pay demand. Moreover, from this record it can also be readily inferred that Gilman immedi- ately related the pay complaint incident to O'Leary, Respondent's manager at Capital City warehouse, who was at the site on June 28 , and who was standing near Willie Trice when Trice complained to Gilman. As also pointed out, it can further be inferred that O'Leary in turn told Marcus about the pay controversy and the names of the Dealers Transit employees involved at the time O'Leary and Marcus reviewed the applications later that same eve- ning, as aforestated.8 Both Gilman and O'Leary were the Respondent's key people in setting up their new operations for Western Elec- tric, and it is obvious that Marcus continually looked to them for detailed information . In his testimony Gilman even admitted that he and O'Leary were together "an aw- ful lot," said that O'Leary had been on the scene for about a week prior to June 28, and further admitted that the names of Thurman and Flournoy were brought up and identified as two employees who had been in the office. Gilman was then specifically asked if he ever told O'Leary who was in the office on the day in question, and he re- plied, "I could have and I'm sure if he was around he would have known who it was and I probably would have told him... . Prior to the pay incident on June 28, the Company was obviously prepared to hire all of the employees who had 7 The General Counsel contends that these records would not support the position of the Company , and in conjunction therewith also points out that the Board has long recognized that an adverse inference may be raised by failure of a party to produce available evidence. 8 It appears from this record that June 28 was the last day any of the employees worked for Dealers Transit. worked for Dealers Transit and in accordance therewith had earlier passed out application forms to each one, but almost immediately after the pay incident the Company decided against the seven discriminatees named herein. In order for me to accept the defenses raised by the Respon- dent, I would have to conclude that Marcus made an inde- pendent judgment of each application as they were read to him over the phone by O'Leary, and his final judgment of denying employment to the seven in question here was merely coincidental when compared with the same em- ployees who showed up at the office and registered their pay complaint that morning or noon, and that the two groups just happened to be the same. In the final analysis, based on the circumstances and facts as outlined above, and on the demeanor of the witnesses as they testified be- fore me, I am not prepared to make such conclusions? I find that the Respondent failed and refused to hire the seven job applicants named herein because they engaged in concerted activities and, thus, violated Section 8(a)(1) of the Act. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. A broad cease- and-desist order is warranted in view of Respondent's dis- criminatory conduct. It has been found that Respondent has discriminated against Jesse Jones, James Turner, Willie Trice, Will Thur- man, Willie Couch, Melvin Flournoy, and Robert Sanders by failing to hire them as job applicants on July 1, 1974, because they engaged in concerted action for mutual aid and protection in violation of Section 8(a)(1) of the Act. It will therefore be recommended that Respondent offer them immediate and regular full-time employment, with- out prejudice to their rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment of a sum equal to that which they would normally have earned, absent the discrimination, from the date of the discrimina- tion to the date of Respondent's offer to reinstatement, with backpay and interest computed in accordance with the Board's established standards.10 It will be further re- commended that Respondent preserve and upon request, make available to the Board all payroll records, social se- 9 In separate discussions with Respondent's officials subsequent to events herein, the Union could not obtain any information either Thus, at-the July 2 meeting Marcus stated that he would not hire the seven employees in- volved herein Marcus did not give any specific reason but stated that he went through the personnel files. At the hearing before me Marcus first testified that he looked at the seven employees ' personnel files, but later testified that the personnel files of the seven employees , in themselves, were not actually presented to him . At a July 19 meeting Adams was asked by the Union what the seven employees had done for them not to be hired. Adams could give no specific reason and said Marcus had been the one to handle the situation. A meeting was also held in Atlanta on September 5 with Adams and specifically concerning the seven employees. The Union asked Adams what he had against the seven employees and Adams gave no mean- in¢ful response. ° F. W Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). UNITED STATES TRUCKING CORP. 383 curity payments records, timecards, personnel records and reports and all other records necessary and useful to de- termine the amount of backpay and the right to employ- ment under terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. By interfering with, restraining, and coercing their employees in the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practice within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire records in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 11 of this recommended Order. (c) Post at its place of business and warehouse copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places, where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the date of this Order what steps have been taken to comply herewith. 11 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 12 In the event the Board's Order is enforced by a Judgment by a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " The Respondent, United States Trucking Corp., Atlanta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing employment to employees or otherwise discriminating in regard to their hire and tenure of employment, or any terms or conditions of employment because they have engaged in concerted activities for the purpose of mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action I find will effec- tuate the policies of the Act: (a) Offer Jesse Jones, James Turner, Willie Trice, Will Thurman, Willie Couch, Melvin Flournoy, and Robert Sanders, immediate and regular full-time employment without prejudice to their seniority, or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports and all other records neces- sary to analyze the amount of backpay due under the terms APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or refuse employment to em- ployees or otherwise discriminate in regard to their hire, tenure of employment, or any terms or condi- tions of employment because they have engaged in concerted activities for the purpose of mutual aid or protection. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their rights to self-organization, to bargain collectively through a bargaining agent chosen by our employees, to engage in concerted activities for the purposes of collective-bargaining or other mutual aid or protec- tion, or to refrain from any such activities. WE WILL OFFER Jesse Jones, James Turner, Willie Trice, Will Thurman, Willie Couch, Melvin Flournoy, and Robert Sanders immediate and regular full-time employment without prejudice to their seniority or other rights and privileges, and WE WILL pay them for any loss of pay they may have suffered by reason of our discrimination against them together with interest thereon. UNITED STATES TRUCKING CORP.