Ryder Truck Lines

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ryder Truck Lines and Roy Dean Kennedy. Case 16- CA-6418 February 8, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On October 20, 1976, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions I and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her 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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. ' The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the Act. Based on charges filed on January 26, 1976, a complaint was issued on February 24, 1976, presenting allegations that Ryder Truck Lines, hereinafter referred to as the Respondent, committed unfair labor practices within the meaning of Sections 8(axl) and (3) and 2(6) and (7) of the Act. The Respondent filed an answer denying that it committed the violations of the Act as alleged. Upon due notice, the case was heard before me at Dallas, Texas, on April23, and May 19, 1976. Represen- tatives of all parties entered appearances and had an opportunity to participate in the proceeding. Based on the entire record, including my observation of the witnesses, and after due consideration of briefs and argument, I make the following: 228 NLRB No. 11 FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent, a Florida corporation with an office and place of business at 6102 Maple Avenue, Dallas, Texas, the facility involved herein, is engaged as a freight carrier. During the year preceding issuance of the complaint, a representative period, Respondent, in the course and conduct of its business operations, purchased and received goods and materials valued in excess of $50,000 from suppliers located outside the State of Texas. During the same period Respondent's volume of business exceeded $500,000. Respondent admits and I find that it is now, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Dallas General Drivers, Warehousemen, and Helpers, Local 745, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, is now, and has been during all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Whether Respondent denied Roy Dean Kennedy em- ployment in a nonsupervisory job for reasons related to union membership. B. Operative Facts and Conclusions As a matter of context for the events herein, it is undisputed that Respondent was expanding its work force at a newly acquired terminal in Dallas, Texas, and, as relevant herein, had immediate need to employ one additional dock supervisor as well as several regular drivers and a weekly ongoing requirement for casual weekend drivers and dockworkers. It further appears, as a matter of background, that Kennedy, an experienced supervisor, with his union membership in "hold" while he was working as a supervisor, was denied reactivation of such membership on the basis of a protest thereto and charges brought by a former supervisee. Kennedy then resumed employment in a supervisory capacity. Kennedy completed an application for employment with Respondent dated August 29, 1975. He was interviewed for the supervisory position on August 28 or 29 and again on September 3, but was advised by terminal manager, Preston Burge, on September 5, 1975, that the supervisory position available at that time was being filled by another applicant. The conversation which followed is crucial to the allegation of the complaint herein. It is Kennedy's initial testimony that when he went to Respondent's terminal and was told by Burge that the position was awarded to another applicant because of more RYDER TRUCK LINES specific pertinent experience, Burge remarked that he was very impressed with Kennedy's qualifications and would like to keep his application. Burge stated he thought he had enough freight activity at the terminal to justify adding another supervisory position but that this would require the approval of the Respondent's regional office. Burge in- quired whether Kennedy would be interested in working as a "city driver" until there was another supervisory opemng. Kennedy responded by telling Burge of his union situation and of his inability to obtain a union card. Burge then told Kennedy, that if Kennedy could get his union problems straightened out, to come back and see Burge for a job. Burge concluded the conversation by telling Kennedy that he was still impressed with Kennedy's qualifications and that he would show Kennedy's application to other terminal employers who may be looking for a dock supervisor. According to Kennedy, his last question to Burge was "If I get my union problem straightened out and get my union card back will you try me in the City?" and Burge replied, "Yes; if you get your union problem straightened out, I'll try you in the City." Later Kennedy admitted, "I can't exactly remember him saying union card . . . . He didn't say that I would have to have a union card ...." Still later in the hearing Kennedy testified that when Burge offered him the opportunity to work in a city job until another supervisory position opened up and he told Burge about his union problems, Burge "said something about getting my union card back." Kennedy admitted that Burge did not ask him about the Union - but he told Burge about his union problems, and that he assumed that he would not be hired unless he had a union card. Kennedy explained that he had been "in freight" long enough to know he would not be hired without a union card, adding: I didn't want - why should I go to work for Mr. Burge and two days later a union steward come up there and say he doesn't have a union card. I guarantee you I'd be cut off. Q. (By Mr. Schoolfield) All of this was an assump- tion on your part with Mr. Burge, wasn't it? A. Yes, sir . . . . Neither one of them hired me. It was not an assumption. They both denied to hire me. That's not an assumption; that's a fact. s s • • s The last thing he said - I asked him, since he couldn't use me in the city because I didn't have a union card, if he knew of anybody that was looking for a supervisor's job [sic] because I did need a job, and he said he'd keep my application on file and anybody that needed a supervisor, he'd turn the application over and they would get in touch with me . '.. I told him I was going to see if I couldn't get my union problems straightened out. He said, "fine; get them straightened out, get your union card back; we'll talk about a job." .. . According to Burge he informed Kennedy on September 5 that Respondent had selected the other applicant for the position because of his experience as a terminal manager and not because of any deficiency in Kennedy's qualifica- 43 tions. He told Kennedy he would keep Kennedy's applica- tion in an open file and, with Kennedy's permission, would give Kennedy's name to employers who may call seeking to hire a supervisor. Burge asserts this conversation was in a telephone call placed by Kennedy and that he did not see Kennedy at his terminal office that day. Burge denied that mention was made of a job on the dock or in the city, or of Kennedy's union status or problems. Other credible evidence supports Kennedy's testimony that he did go to the terminal on September 5 and speak with Burge. My evaluation of Burge's testimony vis-a-vis related matters mentioned by Kennedy convinces me that even though it may have been a company practice to keep for future reference applications of well qualified persons who had not been selected there would be no occasion for him to tell Kennedy his was being held in an "open" file unless there had been some communication of the possibili- ty of an additional supervisory position. I find Kennedy's testimony in this regard partially and inferentially corrobo- rated by Burge. Further, unless Kennedy had spoken of his need for immediate employment and had communicated to Burge a reason why employment within the scope of his experience other than supervisory was not feasible, there would appear no basis in the normal course of events for Burge to volunteer to act as a supervisory referral conduit to other employers on Kennedy's behalf, using his applica- tion for this purpose, particularly when Burge hoped to employ Kennedy in this capacity himself. As presented by Burge this statement, in the context of an ordinary hiring procedure, stands as a non sequitur. However, the insertion of a conversation concerning the possibility of Kennedy accepting interim work on the dock or in city driving, together with a discussion relating to why Kennedy's union problems did not make this feasible, presents a perfect context for the sympathetic and humane offer to foster Kennedy's securing other supervisory employment. However, this does not require a conclusion that Respon- dent refused to employ Kennedy for dockwork or city driving because of his union status. Analysis of Kennedy's own testimony makes this conclusion questionable. It was Kennedy who advanced his union status as the reason for his rejection of Burge's suggestion of a city job. Kennedy admitted that Burge did not say Kennedy would have to have a union card. Kennedy could not "exactly remember" Burge mentioning "union card." Further, Kennedy admit- ted that it was an assumption on his part, that he would be unemployable on a city job, premised on his experience "on both sides of the fence," and his consequent postulation that if he accepted such a job "two days later a union steward [would] come up there and say he doesn't have a union card" and he would "be cut off." Kennedy's comment "I didn't want - why should I go to work for Mr. Burge and" have this happen, reveals that it was Kennedy who removed himself from consideration for employment as a city driver or dockworker because of his problems with the Union. In such circumstances I do not find that his stated reason for declining the nonsupervisory work can be attributed to Respondent as the reason for its failure to hire Kennedy. Burge's acquiescence in Kennedy's decision not to confront the Union with still another incident does not rise to the stature of a refusal to employ. I reach this 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusion despite the testimony that in response to Kennedy's declared intent to try to get his "Union problems straightened out," Burge said, "fine; get them straightened out and . . . I'd be interested in trying you in the city." Burge had no obligation to enter into or to try to influence Kennedy in his relationship with the Union. Kennedy had already indicated his preference. According- ly, I fmd that Respondent did not unlawfully fail and refuse to hire Kennedy on September 5, 1975. Testimony was presented covering certain subsequent developments relating to the allegation of a continuing refusal by Respondent to hire Kennedy. The evidence indicates that Kennedy did make an effort to rectify his status with the local union and when this was unsuccessful he attempted to obtain membership in a sister local. It is Kennedy's testimony that when he obtained money receipts for membership in the sister local he called Burge seeking employment in the city and Burge told him to come in the following morning for a driver's test. Kennedy then again contacted the sister local to verify acceptance of his membership and was told it was being denied after a reference check with his former local. Kennedy then called Burge the following morning before his scheduled drivers test. According to Kennedy he told Burge he was sorry but something had come up and his union problems were not solved; he did not get a card and he did not "see any use of me coming by to take a driving test." Burge replied, "No, there's not, not at this time." Kennedy repeated he was sorry and stated he was still working on the problem; then added, "If I can get it worked out, I'll get back in touch with you" to which Burge responded, "Be sure to do that." Burge denies that this conversation ever took place or that Kennedy was ever scheduled for a driving test. Burge asserts he never heard from Kennedy after advising him of Respondent's choice of the other supervisory applicant until the charge herein was filed. Considering this incident as testified to by Kennedy, but in the light of the preceding incident, I am inclined to the conclusion that there was no withholding of employment by Respondent but rather a withdrawal from employment consideration by applicant Kennedy. However, I do not rest my conclusion on this consideration alone, as other evidence convinces me that Burge testified truthfully that the driving test incident never happened. Thus, documentary evidence and credible testimony establishes that in hiring drivers Respondent accepts for employment those who can demonstrate their qualifica- tions by presentation of a "DOT" or Department of Transportation card which may have been obtained while working for other transportation employers . However, Respondent gives its own test , which encompasses but is more comprehensive than the DOT test , as well as a physical examination before a new employee finishes his probationary period and before a casual employee changes to regular status. Respondent has an official, Safety Supervisor James Timmons, with his headquarters in Birmingham, Alabama, who is authorized to give qualifying tests for a DOT card, and who in limited situations may designate a terminal driver to act for him in giving a road test. The terminal involved herein was acquired by Respon- dent in July 1975, and Timmons had not yet come to the terminal to administer the Respondent's test, which consist- ed of both road demonstration and written examinations, to any of the employees, nor had he designated a terminal driver to give the road test. By a memorandum dated September 9, Burge issued notification to drivers employed with the acquisition of the terminal as well as those employed on September 8 and 9 to present themselves for such testing by Timmons as scheduled therein for Saturday and Sunday, September 13 and 14. Such notice was acknowledged in writing by each driver named therein. Kennedy's name is not listed thereon. Kennedy obtained the receipt for the dues to the sister local on September 8 and claims to have spoken with Burge on September 9 and to have been scheduled for a test on September 10 which he canceled that morning. Clearly no tests were ever scheduled for September 10, and it would be most unlikely that any conversation concerning the un- availability of a supervisor to administer that test on September 9 would have taken place since no local terminal employee, supervisor or driver, had yet been designated by Respondent to administer such test , and Burge, as terminal manager, was not unaware of this as evidenced by his September 9 memorandum to the drivers concerning Timmons' ensuing mission. Moreover, Kennedy was an experienced driver as well as a supervisor and presumably could have been presented a DOT card under which he could have been hired under Respondent's policy either as a regular probationary driver or as a casual driver as were the two employed by Respondent on September 8 and 9, subject to a later test. Considering all the circumstances, including many other details all having some bearing on the possibilities, and probabilities of what actually occurred, I conclude that the evidence as a whole fails to establish that Respondent has withheld employment from Roy Dean Kennedy based upon its consideration of his union status. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. It has not been established by a preponderance of the credible evidence that the Respondent engaged in unlawful conduct as alleged in the complaint. 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: ORDER1 It is hereby ordered that the complaint herein be, and the same hereby is, dismissed in its entirety. ' In the event no exceptions are filed as provided by Sec. 10246 of the of the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board , the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec. 102.48 waived for all purposes.