Roadway Express, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roadway Express, Inc. and Joseph L. Houston Teamsters Union Local #5 and Joseph L. Houston. Cases 15-CA-6974 and 15-CB-2057 January 26, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On July 31, 1980, Administrative Law Judge Robert G. Romano issued the attached Decision in this proceeding. Thereafter, Respondent Employer filed exceptions and a supporting brief, and the General Counsel refiled with the Board its brief to the Administrative Law Judge, in support of the Administrative Law Judge's Decision. 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 briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge to the extent consistent herewith, and to adopt his recommended Order, as modified herein. Respondent Roadway in its exceptions contends, inter alia, that the Administrative Law Judge's findings of violation vis-a-vis Respondent Roadway are not supported by substantial evidence, that tes- timony of the Charging Party is neither credible nor plausible as it impacts on Respondent Road- way, and that the complaint against Respondent Roadway should in any event be dismissed in light of a settlement agreement entered into by all par- ties treating, inter alia, Respondent Roadway's al- leged violations. We find merit in Respondent Roadway's exceptions. On August 10, 1978, the Acting Regional Direc- tor for Region 15 issued a consolidated complaint with respect to the charges herein. The record dis- closes and the parties have stipulated that Respon- dent Roadway thereafter, at the urging of counsel for the General Counsel, entered into a settlement agreement. All parties signed said agreement, which was approved by the Board's Acting Re- gional Director on February 7, 1979. By letter dated February 8, 1979, the Board issued notices to employees and to members for posting in appropri- ate places, and otherwise initiated compliance pro- cedures. By letter dated March 7, 1979, Respon- dent Roadway was notified by the Acting Regional Director that on February 23, 1979, Respondent Local 5 had announced its intention to the Board not to comply with the settlement agreement. Also, on March 7, 1979, the Acting Regional Director 254 NLRB No. 26 issued a new order consolidating cases and a con- solidated complaint and notice of hearing. Respon- dent Roadway at no time refused to comply with the aforesaid agreement, but was at all times ready to comply fully with its terms. The settlement agreement was set aside through no fault of Re- spondent Roadway and no subsequent unfair labor practices have been alleged. "It is well established that an unfair labor prac- tice will not be found based on presettlement con- duct unless there has been a failure to comply with the settlement agreement, or subsequent unfair labor practices have been committed."' Indeed, "[t]here is no question that a Regional Director may not set aside a settlement agreement and issue a formal complaint unless the charged party has failed to comply with its terms or committed fur- ther unfair labor practices." 2 In the instant case, the General Counsel neither contends that Respon- dent Roadway has refused to comply with the set- tlement agreement nor alleges any subsequent unfair labor practices.3 Accordingly, we shall dis- miss the complaint in Case 15-CA-6974, and rein- state the settlement agreement approved by the Acting Regional Director for Region 15 on Febru- ary 7, 1979. 4 ORDER 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, as modi- fied herein, and hereby orders that: 1. Section A of the Administrative Law Judge's recommended Order is deleted in its entirety. 2. Section B of the Administrative Law Judge's recommended Order is modified to read as follows: "B. Respondent Union, Teamsters Union Local #5, its officers, agents, and representatives shall: "1. Cease and desist from: "(a) Causing or attempting to cause Roadway Express, Inc., to discriminate against Joseph L. Houston with regard to employment at Employer's ' Interstate Paper Supply Company Inc., 251 NLRB 1423, fn. 8 (1980) 2 Bingham-Williamette Company. a Division of Guy F Atkinson Compa- ny, 199 NLRB 1280, 1281 (1972) :1 While Respondent's Motion for Summary Judgment on this ground was denied by the Board by telegraphic order dated May 23, 1979, prior to the opening of the hearing herein, it was not then known whether the complaint would be amended at hearing to allege further unfair labor practices or failure to comply with the settlement agreement 4 United Dairy Co., 146 N.RB 18R7 189 (1964). In view of this disposi- tion of Case 15 CA-6974, we find it unnecessary to reach Respondent Road way's other contentions. In the event that Respondent Roadway subsequently fails to comply with the terms of said settlement agreement, the Regional Director would. of course, he free to take further appropri- ate actilon 668 ROADWAY EXPRESS, INC Baton Rouge terminal because of his lack of mem- bership in the above Union. "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. "2. Take the following affirmative action de- signed to effectuate the policies of the Act: "(a) Notify the Employer, Roadway Express, Inc., and Joseph L. Houston, by letter, that it has no objection to the employment of Joseph L. Houston by the Employer at the latter's Baton Rouge terminal. "(b) Make Joseph L. Houston whole for any loss of pay or other benefits suffered by reason of the discrimination practiced against him, together with interest, in the manner described above in the sec- tion entitled 'The Remedy.' "(c) Post at its offices copies of the attached notice marked 'Appendix.'3 8 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an autho- rized representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. "(d) Deliver to the Regional Director for Region 15 signed copies of said notice in sufficient number to be posted by Roadway Express, Inc., at its Baton Rouge terminal, the Employer willing, in all places where notices to employees are customarily posted.' "(e) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." 38 "In the event that this Order is enforced by a Judgment of a nited States Court 4f Appeals, the ords in he notice reading 'Posted by Order of the National I.abor Relations Board' shall read 'Poted Pursuant to a Judgment of the United Staltes Courlt of Appeals Enfircing an Order of the National Labor Relations Board' IT IS FURTHER ORDERED that the settlement agreement between the parties approved by the Acting Regional Director for Region 15 on Febru- ary 7, 1979, is hereby reinstated with respect to Re- spondent Roadway Express, Inc., and the com- plaint in Case 15-CA-6974 shall be, and it hereby is, dismissed. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NOT cause or attempt to cause Roadway Express, Inc., to discriminate against Joseph L. Houston with regard to employment at Roadway Express, Inc.'s, Baton Rouge ter- minal because of lack of membership in Team- sters Union Local #5. WE WILL NOT discriminate, with regard to job referrals, against Joseph L. Houston, be- cause of his nonmembership in the Teamsters Union, Local #5. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL make Joseph L. Houston whole for any loss of pay suffered by reason of the discrimination against him, plus interest. WE WILL notify Joseph L. Houston and Roadway Express, Inc., by letter, that we have no objection to the employment of Joseph L. Houston by Roadway Express, Inc., at its Baton Rouge terminal. TEAMSTERS UNION LOCAL #5 DECISION STATEMENT OF THE CASE ROBER I G. ROMANO, Administrative Law Judge: These consolidated cases were heard in Baton Rouge, Louisiana, on May 30 and June 1, 1979. The charge in Case 15-CB-2057 was filed against General Truck Driv- ers, Warehousemen & Helpers Local Union No. 5 (herein called Teamsters Union Local #5, Local 5, or Respondent Union).' by Joseph L. Houston. an individ- ual charging party (herein called Houston), on May 24, 1978,2 and, on July 17, the charge in Case 15-CA-6974 was filed by Houston against Roadway Express, Inc. (herein called Respondent Employer). An initial order consolidating case, consolidated complaint, etc., was issued by the Acting Regional Director for Region 15 on August 10, 1978, alleging violations of Section 8(b)(1)(A) and (2) by Respondent Union and of Section 8(a)(1) and (3) by Respondent Employer. Thereupon an informal set- tlement agreement was initially reached by the parties and approved by the Acting Regional Director for Region 15 on February 7, 1979. However, as of Febru- ary 23, 1979, Respondent Union declined to comply with ' Although the charge and complaint name the Union a rTeamster, Unioln I (ocal #5, the full name of the Union appears as rc.ealed hb ad- misiol of the Union in i t ilnsser 2 All ldate, re in 1978 nless oherswise stated Certain errors il the transcript are herehb noted ad corrected 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all the terms of the aforementioned informal settlement agreement. Resultingly, on March 7, 1979, the Acting Regional Director for Region 15 vacated and set aside the above settlement agreement and reissued an order consolidating cases, consolidated complaint, and notice of hearing (herein called the complaint), alleging viola- tions of Section 8(b)(l)(A) and (2) by Respondent Union and of Section 8(a)(l) and (3) by Respondent Employer. On March 14 and 19, 1979, Respondent Union and Re- spondent Employer, respectively, filed their timely an- swers, inter alia, denying the commission of any unfair labor practices. On May 14, 1979, Respondent Employer filed a Motion for Summary Judgment (together with a memorandum in support thereof) essentially requesting that the two cases be severed, the informal settlement agreement with Respondent Employer be reinstated, and the complaint against Respondent Employer be there- upon dismissed. The General Counsel filed an opposition thereto on May 21, 1979, and thereafter said Employer's Motion for Summary Judgment was denied by an order of the Board dated May 23, 1979, whereupon the afore- said matters came on for hearing before me as earlier noted. The primary issues appear to be whether Respon- dent Union has violated Section 8(b)(1)(A) and (2) as al- leged in the complaint by causing Respondent Employer to not hire Houston because of his lack of membership in Respondent Union, and whether Respondent Employer did, on May 23, refuse to hire Houston because of his lack of membership in Respondent Union. Assuming findings on the latter appear warranted, certain remedial issues pertaining to prospective reinstatement and back- pay are presented by contentions of Respondent Employ- er advanced on the basis of certain circumstances atten- dant to the latter's subsequent recall of Houston to an- other terminal (from which Houston had earlier been laid off) and its discharge of Houston thereafter for con- tended unrelated and unquestioned good cause. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consider- ation of the briefs filed by the General Counsel, Respon- dent Union, and Respondent Employer on July 17, 1979, I make the following: FINDINGS OF FACT I. JURISDICTION The Company, a Delaware corporation, inter alia has offices and facilities located in Baton Rouge, Louisiana, the location directly involved herein. (It additionally has certain other facilities/operations located at Birmingam, Alabama, and at Chattanooga, Tennessee.) The Company is engaged in the interstate transportation of goods and materials by truck transport. During the past 12 months, Respondent Employer derived revenues in excess of $50,000 or the shipment of goods and materials from its Baton Rouge, Louisiana, terminal directly to points lo- cated outside the State of Louisiana. The complaint al- leges and Respondent Union and Respondent Employer concede that the latter is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act and that Respondent Union is labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background I. The relevant Teamsters locals Respondent Union, Local 5, with approximately 6,000 members, has jurisdiction in Baton Rouge, Louisiana. Denis Pedescleaux is an assistant business agent of Local 5. It was stipulated by the parties that Pedescleaux was at all times material an agent of Local 5 within the mean- ing of Section 2(13) of the Act. I so find. Teamsters Local No. 270 has jurisdiction over the New Orleans, Louisiana, area and Teamsters Local 612 has jurisdiction at Birmingham, Alabama. 2. Houston's union memberships and prior employment Joseph L. Houston has been a truckdriver for many years. Houston's earliest contact with Respondent Local 5 and Pedescleaux was apparently in 1967. In any event, Houston testified without objection, or subsequent con- tradiction, that Pedescleaux was instrumental in 1967 in initially getting Houston a job working for Daniel Bat- tery Company, and that in return Pedescleaux requested that Houston support Respondent Union in an upcoming election. Houston testified further, again without objec- tion or subsequent contradiction, that some time there- after, still in 1967 he obtained regular work with Rider Truck Lines. Houston was told by the union steward that he would have to join the Union. According to Houston, after working only a couple of days, Pedes- cleaux met Houston on the road; told Houston that he had to be in the Union; and told him that he was going to let Houston work that day, but on the following day Houston would work only if he joined the Union. Hous- ton also testified that he had wanted to join the Union at the time and there was not any problem there. Houston subsequently remained a member of Local 5 during his employment at Baton Rouge from 1967 to 1971 or 1972. In 1972, Houston transferred his union membership to Local 270 in New Orleans (the place of his birth and where his parents reside).3 However, on November 9, 1972, Houston secured initial employment with Respon- dent Employer at its Birmingham, Alabama, terminal as an over-the-road driver. Houston then further transferred his union membership from Local 270 (New Orleans) to Local 612 (Birmingham). Respondent Employer changed its road operations in 1976 occasioning a large transfer of its Birmingham oper- ations to Chattanooga, Tennessee, and it offered employ- ment to its Birmingham drivers employment at Chatta- nooga (apparently without any loss of seniority). Howev- er, Houston declined to move to Chattanooga, and he was laid off on May 5, 1976, when work at Birmingham became substantially reduced. Houston thereupon se- :' It appears that a member of Local 5 is considered transferred from Local 5 upon the acceptance of his transfer card in another local. Cf. Resp Union Exh 2; bylaws. ec 19 C, a. 670 ROADWAY EXPRESS, INC. cured an honorable withdrawal card from Local 612 on May 19, 1976.4 3. The pertinent withdrawal and transfer card provision a. Houston 's Local 612 withdrawal card The General Counsel introduced in evidence Hous- ton's "Honorable Withdrawal Card," which was issued in May 1976 and in Houston's possession at all times. The withdrawal card, on its reverse side, provided Hous- ton with the following information from the (then) cur- rent International constitution: ARTICLE XVIII Sec. 5(b). This card entitles him to readmission to the Local Union from which this card was issued at any time; subject, however, to the provisions of subsection (e) of this Section. Sec. 5(c). Any member of a Local Union refusing full-time employment when offered or leaving em- ployment within the jurisdiction or going to work at another craft or occupation outside its jurisdic- tion on other than a temporary or parttime basis shall be given an honorable withdrawal card and cannot remain a member. A withdrawal card shall be issued to any member of a Local Union who has retired. Sec. 5(d). Any ex-member out on a withdrawal card, and desiring to return to membership, must first deposit his withdrawal card with the Local Union by which it was issued, and upon the withdrawal card being accepted, the member shall be subject to the rules and laws of the Local Union. Refusal of any Local Union to accept a withdrawal card shall be subject to appeal in accordance with the appeal procedure provided for by this Constitution, exclud- ing, however, any appeal to the Convention. [Em- phasis supplied.] Sec. 5(e) The Local Union must not accept a withdawal card if the ex-member has committed any offense while out on withdrawal card which would be injurious to union principles. Also, if the Local Union is paying benefits and the ex-member has fallen into bad health or is liable to become a charge against the Local Union or International Union, acceptance of the withdrawal card can be refused by the Local Union. Likewise acceptance of a withdrawal card may be refused where adverse employment condi- tions exist. [Emphasis supplied.] 4 On this record it appears the withdrawal from l.ocal 612 was fully voluntary on Houston's part. In connection therewith, it is obscrved that the present International constitution, adopted June 14-17-, 1976, pro- vides in art. XVIII, sec. 5(a) (Resp. Union Exh I), inter aiha, that hen a member becomes unemployed he shall be issued an honorable ithdrawal card upon his request, or otherwise not earlier than 2 months nor later than 6 months thereafter (ith exception not material). There was no ei- dence offered that there had been a change in that regard adopted im 1976. b. Related provisions The foregoing provisions appear to have been essen- tially carried forward in the Interantional's (current) con- stitution, article XVIII, though in renumbered section, with 6(b) further amended to add a provision that "the bearer has obtained employment at the craft." It is ob- served also that the (current) International constitution, article XVIII, governing transfer and withdrawal cards, section (a), specifically provides: It shall be compulsory for a member working under the jurisdiction of another Local Union to procure a transfer card from the Local Union of which he is a member, and to deposit the same with the Local Union under whose jurisdiction he is working. And in section 4(a) it states that: Local Unions shall have jurisdiction over the grant- ing and acceptance of all honorable withdrawal cards and shall establish rules in their Bylaws not inconsistent with this Constitution to govern the is- suance and acceptance of withdrawal cards with re- spect to members working within the various crafts and industries under their jurisdiction. However, the same said constitution makes its compul- sory for a local union to accept such transfer card of a member in good standing with any local union, provided the member has secured employment and has complied with the constitution's rules and regulations respecting transfer, and the bylaws of the local.5 4. The applicable collective-bargaining agreement The General Counsel also introduced the applicable collective-bargaining agreement. Thus, the record reveals that Respondent Employer and Respondent Union are parties to, and/or governed by, the terms of the National Master Freight Agreement and Southern Conference Area Local Freight Forewarding Pickup and Delivery Supplemental Agreement. The record reveals that said agreement was in effect from April 1, 1976, to March 31, 1979. The agreement contains provisions for union secu- rity through a described union shop and an employer hiring procedure designed to provide equal employment opportunity to its members. In pertinent part, article 3, section 1, thus provides as follows: (b) All present employees who are members of the Local Union on the effective date of this subsec- tion or on the date of execution of this Agree- ment, whichever is the later, shall remain mem- bers of the Local Union in good standing as a condition of employment. All present employees who are not members of the Local Union and all employees who are hired hereafter shall become and remain members in good standing of the Local Union as a condition of employment on and I.ocal 'S bylaws provide in sec 5 that eligibility to membership ill .ocal 5 shall hbe as set forth in the said International constitution. and that applicants are o comply therewih 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the 31st day following the beginning of their employment or on and after the 31st day follow- ing the effective date of this subsection on the date of this Agreement, whichever is the later. An employee who has failed to acquire, or thereafter maintain, membership in the Union as herein pro- vided, shall be terminated seventy-two (72) hours after his Employer has received written notice from an authorized representative of the Local Union, certifying that membership has been, and is continuing to be, offered to such employee on the same basis as all other members and, further, that the employee has had notice and opportunity to make all dues or initiation fee payments. This pro- vision shall be made and become effective as of such time as it may be made and become effective under the provisions of the National Labor Rela- tions Act, but not retroactively. (c) When the Employer needs additional men he shall give the Local Union equal opportunity with all other sources to provide suitable applicants, but the Employer shall not be required to hire those referred by the Local Union. Called as a witness by the General Counsel in regard to certain subpenaed document matters, Pedescleaux oth- erwise testified that Local 5 does not have a referral hall procedure nor does it issue permits in regard to work. However, in connection with the above, he related that Local 5 does have a procedure whereby when an indi- vidual comes to the hall he may request that his name be put on a certain list (with his phone number), which list is sent to all companies under contract. An interested company may then use the list and call the man directly. However, Pedescleaux testified that in his experience most companies usually pick up their required men off the street. 5. Houston's membership status, and casual employment with Respondent Employer in late 1976 and in early 1977 Houston testified that he did not seek to have his membership transferred back to Local 5 because he had anticipated being recalled from layoff. Houston was indeed initially recalled from layoff at the Birmingham terminal in September 1976, but this employment was short-lived, he being again laid off at the Birmingham terminal on October 18, 1976. Apparently promptly thereafter in October 1976 Houston returned to the Baton Rouge area. In 1976 Houston worked for Respon- dent Employer at its Baton Rouge terminal for some 9 days (in total). However, his employment at that termi- nal was as a casual employee. As was customary under the contract, Houston was not able to transfer his senior- ity to the Baton Rouge terminal. Nor was Houston able to secure full-time employment with Respondent Em- ployer at its Baton Rouge terminal in 1976, although he had placed an application for such employment on file with Respondent Employer during that time. The record reveals that although Houston was aware that he could not transfer his seniority with Respondent Employer at the Birmingham terminal to the Baton Rouge terminal, nonetheless, it appears that Houston had never found it fully acceptable that Respondent Employer could not have earlier selected him (e.g., above other casual em- ployees) for full-time employment at that time at Baton Rouge. Significantly, Houston testified, and without con- tradiction, that every day he had worked (as casual) David Owens, the steward for Local 5, had told him he had to join the Union. However, in 1976 Houston did not elect to seek to renew his membership with Local 612 and then transfer it to Local 5 under the provisions of the constitution of the International and bylaws of Local 5 in apparent anticipation of further recall from layoff at Birmingham, as expressed to Baton Rouge Em- ployer officials. (However, Houston was subsequently able to obtain employment with another employer in Baton Rouge, which then lasted generally from October 1976 to August 1977.) Houston testified without contradiction that in Febru- ary or March 1977 Respondent's terminal manager at Baton Rouge (at the time Ed Allen) had on one addition- al occasion called and asked Houston to come to work for him. Houston, who at the time had secured employ- ment elsewhere, at first declined. According to Houston, Allen pressed his request, telling Houston that Allen was in a spot and needed some freight moved and urged Houston to please come. As Houston had some time off at the time, he agreed to do so. Houston thus worked for two additional days as a casual driver for Respondent Employer on that occasion in early 1977. 6. The alleged conversations with Respondent's operations manager Houston also testified that a man named Danny, who had first identified himself to Houston (in 1976) as the operations manager and next in line to Terminal Man- ager Allen, also asked Houston on the latter occasion (early 1977) why did he not quit his job elsewhere and come to work for the Employer at its Baton Rouge ter- minal, asking Houston at that time to get straight with the Union and telling Houston that Respondent Employ- er could pay him as much as he was then getting from his other employer. However, the record reveals Hous- ton did not elect to do so in 1977. Thus during 1976 and 1977, Houston had worked for Respondent Employer at its Baton Rouge terminal only briefly and intermittently for some 11 days in total, at most, and all as a casual. Houston worked far more substantially for two other employers in the Baton Rouge area, viz, from approxi- mately October 1976 to August 1977 with one employer and (after a 2-month period of other employment outside the State) from October 1977 to April 1978 with a second employer in the Baton Rouge area. However, it appears that during the latter period of employment, Houston for some considerable time was dissatisfied with the money he was making, certainly prior to the time he quit (or was fired) about April 1978.6 (See Employer Exh. 1, pp. 2 and 3.) ' IThere is some esidentiary suggestion he was actually fired when his employer heard he wias going to quit (Sec Employer Exh. 3 ) 672 ROADWAY EXPRESS, INC. B. The General Counsel's Case-in-Chief 1. The circumstances of Houston's alleged nonemployment by Respondent Employer on May 23 The record reveals, with deemed essential consistency, that it was about mid-March 1978 that Houston exhibited some renewed interest in again securing employment with Respondent Employer (as a city driver) at its Baton Rouge terminal. Thus according to Houston on that oc- casion he called the Baton Rouge terminal, asking to speak to Terminal Manager Allen. At that time, Oper- ations Manager Danny told Houston that Allen was either busy or gone. However, recognizing Houston's voice, Danny inquired if the caller were Houston and as to what he was then doing. Houston identified himself and said that he was not doing much of anything and was not working. Danny then asked Huston did he want to come back and work for the Company. Houston re- plied yes. According to Houston, Danny again asked Houston had he got straight with the Union. Houston re- plied he had not but he would. Danny said that there was plenty of work (at Roadway), that Houston would be the first to get a regular job whenever one came up, and that he should get straight with the Union and then give them (Respondent Employer) a call.? 2. Subsequent inquiries There is otherwise some confusion in the record as to Houston's subsequent efforts, if not immediate continued intentions, to seek to go to work for Respondent in early 1978. Thus on one hand Houston testified that in April Boyd White, a friend, had just finished driving school at the time, and that White kept bugging Houston to go with him to Respondent Employer to see if White could get a job there. Houston relates that he at first told White that he did not want to go over there because every time he did they wanted to talk about his joining the Union. However, Houston states tht he finally let ' Respondent objected to the testimony of Houston as to what Oper- ations Manager Danny may have told Houston on this and other occ.a- sions on the basis that neither was it alleged in the complaint that Danny was a supervisor or agent of Respondent Employer nor was the matter alleged in the complaint to be an unfair labor practice, and because. al- though conceding that Operations Manager Danny was employed in that capacity earlier. Respondent was not at the time able to stipulate that Danny was there at that time since it was then known only that Danny was terminated soime time in early 1978. The General Counsel contracon- tended that Danny. identified by witnesses as the operatiols manager. was a supervisor ithin Sec 2(11) of the Act, that the General Counsel was not seeking to allege the matter as an independent unfair labor prac- tice, but that the conversation was material evidence bearing oin the cm- plaint allegations. The aforesaid remarks of Danny were taken subject to evidence pre- vailing on the General Counsel's contention in that regard that the afore said individual was a supervisor and/or agent of Respondent Employer for such purpose I am wholly convinced on this record that Danny ras employed as Respondent's Baton Rouge terminal operations manager during this material time. and further that he las Robert Wright there- after) was effectively involved in the hiring process and as a supervisor and agent of Respondent within the meaning of the Act. I further find that the evidence is material. being probative that Respondent ilnploy- er's operations manager Danny ehibited inmlediate inlcrest in Ih union status of Houston o11 the more recent and clearly mlatcrial octalion of Houston's preliminary inquiry in regard to job opportunity gain ith Respondent Employer White talk him into going with White to Respondent Employer's Baton Rouge terminal, which they did. Con- trary to Houston (and White) I find that, on the weight of the evidence, they probably did so during the week of March 20. On their arrival at the Baton Rouge terminal, Houston relates he found Danny present and another in- dividual named Larry (whom Houston alone identifies as a dispatcher). It was Houston's recollection that, al- though White attempted to express his interest in apply- ing for a job, Danny seemed much more concerned with a continued inquiry whether Houston had as yet gotten straight with the Union and specifically asked Houston if he had done so. On the other hand, seemingly inconsis- tent with that stated initial reluctance to go with White to Respondent Employer, Houston also testified that, on this same occasion, he did tell Danny that he (Houston) had already talked to the Union a couple of days earlier, although advising Danny that he had not (as yet) gone down to the union hall, but adding that he would. Boyd White confirmed that he went with Houston to Respondent Employer's Baton Rouge terminal looking for a job, that Danny told White that he (Danny) was the man to do the hiring and firing, that he (White) sub- sequently put in an application with Danny, that Danny interviewed him, and that Danny told him he would have to join the Union. White also recalled that Danny was happy to see Houston at the time and asked Houston about coming to work for them. Houston replied he would. White's version of Danny's inquiry of Houston's union status, however, is somewhat at variance with Houston's, in that White recalled that Danny on this oc- casion had asked Houston if he were in the Union; that Houston had replied no, he was on withdrawal; and that Danny then said that Houston would have to get straightened out with the Union. I am convinced that the statement by Houston that he had already talked to the Union more probably occurred in the Saturday conversa- tion with Danny after the earlier visit of Houston and White, and that White's version of Danny's initial inqui- ry more probably correctly reflects the conversation be- tween Danny and Houston that was held earlier that week while Houstion's recollection is that of a conversa- tion he had on the following Saturday" and which fol- lowed more plausibly his own inquiries made of the Union's steward, David Owens, in the interim. In any event, according to Houston, it was during the following week that he actually went down to the hall intending to talk to Pedescleaux only to find that Pedes- cleaux was not there at the time. The receptionist sug- * Although White offered testimony as to the substance of only one coln\ersatioi it is olthrwlse apparent from the record that White vlsited the terininal three times and at least twice in the accompaniimenl of Houstion T 'hus Housion testified that on their irst vlsit tof that week. Da;lnn did tell White he would have to come hack n oonthe follovlrlng Salurday to till out an application. vswhich White in the acconpalnimlent of Houstion did Although the record is clear that Houston did not fill out an applicatilon in either of these sviils, it s clear that he ;, as present hen White filled oul the latter' ;application White otherslise tesified that he had reurned to the terminal to check on lwork opporlunity. and thatl he thereafter call-:d he ternairll oaser a period if c.eral a ceks, before he- coinling hlclltirlgedl e.c r bceilg told (halt t s , d lit l r Ince a one I hus W hite after eeral is eeks sitopped callirig Rlpondeit I-nploer and as ineer hired 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gested that Houston call Pedescleaux later that day at 4 p.m., which he did. Houston asked Pedescleaux whether the latter had spoken to union steward David Owens. Pedescleaux replied that he had not. Houston then told Pedescleaux that Houston had already spoken to Owens, and Owens had told Houston that he would speak to Pe- descleaux about Houston getting back with Local 5. Pe- descleaux told Houston that he would have to transfer in and, if he wanted to transfer his membership, he would have to come in and make a request for transfer. Hous- ton acknowledged that he had made no mention to Pe- descleaux at this time about having any employment op- portunity with Respondent Employer. On Wednesday, March 29, 9 Houston again went to the Union's hall, where he was shown Pedescleaux's office by the receptionist. On seeing Houston approaching his office, Pedescleaux met Houston at his office doorway and took Houston back towards the receptionist. Enroute Pedescleaux told Houston that it would take about 3 weeks for his transfer to come through. On arrival at the receptionist's desk Pedescleaux instructed the receptionist to make up a request for transfer (of membership) for Houston. The receptionist then took Houstion's name and ledger number off his union membership identifica- tion card, and she also confirmed to Houston that it would take about 3 weeks for the transfer to arrive. The copy of said "Request for Transfer," "No. 174," dated "2-29-78," addressed to Local 612 from Local 5, and ex- ecuted (as required by the International's constitution) by Local 5's secretary-treasurer (E. G. Partin) provides:1 0 I hereby certify that Joseph Houston Social Securi- ty Number 439-60-6300 has obtained work or will be eligible for work upon issuance of a transfer card. Please reply with the cost of transfer. Re- marks ledger #18890 request transfer on w/drawal May 19, 1976. On cross-examination Houston relates that he had made no mention of employment with Respondent Employer to Pedescleaux because he just figured he (presumably Pedescleaux) knew he was seeking work, relating that a man did not come to join the Union unless he wanted a job, stating that it did not make sense to join a union if you did not have a job behind it, and stating that a union was a nuisance to him. Houston relates that he thereafter sat out the 3 weeks he had been told that he would have to wait for his transfer. Houston reports that he then began calling the hall each day to see if his transfer had come in, and each time he was told that the Union had not received any- 9 Although Houston (and White) would place earlier visits to the Baton Rouge terminal with White and his initial visit to the union hall generally in March-April, I am wholly convinced by virtue of the record of Houston's transfer request in evidence and dated March 29, and Hous- ton's firm recollection that his visit with l'edescleaux at the hall was the next business day after his phone conversation with Pedescleaux that his visit to the union hall was on March 29, and that his initial call to Pedes- cleaux was on Tuesday, March 28, wholly compatible with the earlier visits with White to the terminal during the prior week as well as the likely resulting conversation with Owens ill regard to arranging member- ship in Local 5 following renewed coniversations with Danny about his won employment. '0 The parties stipulated that the said copy was part of the transfer procedures and records thereof normally maintained by the ocal Union thing back. Houston recalls that it was during the second week of such inquiry that he decided he needed to know more about it. Houston thus finally asked the receptionist on one such call to let him talk to Pedescleaux. According to Houston, on this occasion he told Pedes- cleaux that he had then been waiting 5 weeks, and every day he had called, only to be told the transfer had not come in. (I am persuaded and I find that this conversa- tion occurred in the second week of May.) Pedescleaux told Houston at that time that it must be Local 612 that was holding up the transfer. Houston then asked Pedes- cleaux what was he supposed to do while waiting on this transfer, "to sit around and starve to death," then telling Pedescleaux, apparently (as recalled by Houston) for the first time, that he had a job with Roadway. (Houston confirmed that this conversation occurred before he ac- tually had filled out the application with Roadway.) Ac- cording to Houston, Pedescleaux responded that he did not have anything to do with Roadway putting Houston to work. Houston then told Pedescleaux that he was going to tell Roadway that Pedescleaux said it was all right for him to work. According to Houston, Pedes- cleaux told Houston that when he went to Roadway to tell Roadway to call Pedescleaux, and that Pedescleaux would let them know how Houston stood with the Union. On cross-examination Houston acknowledged sig- nificantly that after talking to Pedescleaux he at that point had the definite impression that it was okay for him to be then employed by Respondent Employer at its Baton Rouge terminal. Houston also acknowledged that he never thereafter spoke to Pedescleaux again about the matter, nor did he make any effort to inquire of Local 612 in Birmingham about any holdup on his transfer. It was a few days later, on Tuesday, May 16, that Houston called the terminal and asked to speak to Danny, but was informed that the latter no longer was with the Company. Houston was asked if he wished to speak to John Kavanaugh, the new terminal manager (a stipulated supervisor). Houston replied no, but he would come down in person to talk to Kavanaugh. On the next morning, Wednesday, May 17, Houston arrived at the terminal and asked to talk to Kavanaugh. Kavanaugh came out and after mutual introductions Ka- vanaugh asked what he could do for Houston. Houston told Kavanaugh of his former employment with Respon- dent Employer at Birmingham, and stated that he was on layoff looking for work. On direct examination (though not on cross) Houston recalled that Kavanaugh said he had work. However, Kavanaugh also told Houston that officially he could not take his application that day, and that Houston should come in on Saturday. Houston thought that the new operations manager, Bob Wright, was also present at the time. (Wright testified that he became terminal operations manager on May .) On the following Saturday, May 20, Houston returned to the Baton Rouge terminal and met with both Wright and Kavanaugh. According to Houston, Kavanaugh told Houston that he would have to fill out an application, also telling Houston that, because of being a former driver at Birmingham, they had a lot of papers on him from his Birmingham file that he would not have to fill 674 ROADWAY EXPRESS, INC. out. Houston then filled out an application and gave it to Wright. Wright looked it over as did Kavanaugh, both saying it was good, and Kavanaugh remarked that he was a qualified driver. At one point Houston recalls that Kavanaugh also told Houston at this time that Houston would have to get a new physical because his Alabama card was just about up on its 2 years, and that he was going to work Houston in the next week. Kavanaugh then asked Houston if he were in the local union. Hous- ton told Kavanaugh no, but that he had made a transfer request and, on direct (but not on cross-examination), that Pedescleaux told him it was all right for him to go to work and that Kavanaugh had said he was going to get in touch with the Local (Pedescleaux). On cross-ex- amination Houston acknowledged that Kavanaugh did not on this occasion tell Houston that they would not hire him, and that he also had told Houston that he would have to make out a motor vehicle report covering the latter's driving offenses in the past 3 years. On the following Tuesday, May 23, Houston initially called the terminal but could not get through, so he de- cided instead to again go down to the terminal. On arri- val, Houston (erroneously) recalled he met dispatcher Larry and requested to see Kavanaugh. Houston recalled that Kavanaugh was initially delayed on the phone for about 20 minutes. According to Houston when Kavan- augh came out to see Houston, he was shaking his head and said that he wished there was a way they could work this out and then told Houston that he had just got off the phone with Dennis Pedescleaux and that "it [sic] was no way that he [Pedescleaux] could sell Houston a book; asking why would they not sell Houstion a book, adding you're a qualified driver." Houston replied that he thought he was blackballed. According to Houston, Kavanaugh then told Houston that he thought the same thing, that he had told Dennis that he ought to work Houston anyway, and that he then informed Houston that Dennis Pedescleaux had told Kavanaugh that if Ka- vanaugh worked Houston anyway that he would get more than he bargained for. According to Houston, Ka- vanaugh added, "I ought to work you anyway." Hous- ton testified that he urged Kavanaugh to work him anyway, Houston telling Kavanaugh that he could handle it, but Kavanaugh then said, "[W]ell, it wouldn't hurt [sic] nobody, it [would] hurt you the most." Ac- cording to Houston, Kavanaugh then informed Houston that there were three or four other guys that he was having trouble getting into the Union, and he told Hous- ton that he and they ought to get together. Houston re- called that he said he thought he did not have proof to build a case on the Union, and Kavanaugh replied he would work with him (as did Wright) as it (the Union) was keeping Houston off the job. On cross-examination Houston testified that he had the motor vehicle report with him at this time but did not turn it in, acknowledg- ing, however, that he had not taken a new physical. As earlier noted, on the next day, May 24, Houston filed the instant charge against Respondent Union. Hous- ton also testified that he subsequently left the Baton Rouge area on June 5, arriving at Denver, Colorado, on June 6, at which location he was apparently at time of recall, infra. Cross-examination revealed that in the inter- im (before leaving for Denver) Houston had obtained other employment as a driver with Brown-Ferris Indus- tries (BFI) in Baton Rouge in the latter part of May where he worked through early June, at which time he left with a friend to go to Denver, Colorado. Houston testified that he did not stay long enough with BFI to find out if that job were full time, but clarified that he was working for BFI's chemical division, which was not under union contract. 2. The other evidence offered by the General Counsel a. The Company s admission of its refusal to hire Houston for lack of union membership in Local 5 As earlier noted, the charge against Respondent Em- ployer was filed on July 17. The said charge alleged that: On or about May 23, 1978, it, by its officers, agents and representatives refused to hire Joseph L. Hous- ton because of his lack of membership in Teamsters Local 5. The General Counsel offered in evidence a position statement on said charge, dated July 25, which provides in pertinent part:" The Company admits to the complaint's allega- tion as set forth in the narrative account of the filed charge. However, the Company respectfully sub- mits that governing provisions of the applicable col- lective bargaining agreement prohibit the complain- ant's employment for part-time dock work or as a full-time city driver until such time as he becomes a member of Teamsters' Local No. 5. By way of explanation, please be advised that during the months of September and October, 176. the complainant was employed by the Company on part-time basis for a total of six (6) days at its Baton Rouge Terminal. Pursuant to Article 3, Section (b) of the governing collective agreement, the com- plainant was required to become a member of Teamsters' Local No. 5 within 30 calendar days from his date of initial employment. Until the com- plainant attains union membership, the Company is precluded from considering him for further employ- ment at its Baton Rouge facility. I am in the process of securing record confirma- tion of the complainant's previous employment at the Baton Rouge Terminal. Just as soon as this doc- umentation is received by this office, photocopies will be forwarded for the Board's review and reten- tion. I Respondent FITploer (and Unionl hjected il the haisi that the position statement as prepared early ill the inestigation Vielrlg he parties' objection addressed to the weight to t e .Itt.lched thereto alld it appearing that the documenlt as l offered and rl ahle for conlentctld adniissions against intercst, tlit docu rinit u5 ;l rCcclcCd iIl Cildc'cct ,hich ruling is reaffirnlcd 675 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The Union's continued requirement that casuals be members of the Union Terminal Operations Manager Robert Wright, called as a witness by the General Counsel, testified that he had a conversation with Doug Partin, who the parties have stipulated is an assistant business manager of Local 5 and, at all material times herein, was an agent of Respondent Union within the meaning of Section 2(13) of the Act. Thus Wright testified that on January 8, 1979, union steward Owens contacted Partin over the circumstance that Wright was then working nonunion casuals on the dock. Wright got on the phone with Partin. Mentioning the Houston case (and settlement notice) Wright told Partin that the Company was not required to have casu- als immediately join the Union, and that under the con- tract a casual had been required to join the Union upon his 31st day. Partin told Wright this was wrong, that any casual they had working was to be in the Union, and that if it were not done he would shut the terminal down. Wright at the hearing could not recall if there was mention of pickets. However, the General Counsel also offered in evidence the record of the Company- Union conversation made by Wright as part of his regu- lar business procedure. The same reflects there was a threat of picketing to commence the next day, and it was acknowledged by Wright. c. The Company's record of the Wright-Partin conversation The said record thus provides: 1/8/79 Phone conversations with Doug Partin Re: Working non union men. I told him Re Joe Houston case I did not have to require initally [sic] people be in union in order to put them to work. He told me I was crazy and he was going to shut this damn Roadway terminal down-threaten [sic] to bring in the pickets 1/9/79. And said he had a ruling from the committee [sic] that if we didn't follow the contract he could shut this place down. Threatened to put us on the hiring hall. I told him that would be fine I would work with him anyway I could. He said that if I didn't run people thru the hall he would shut this place down. He said the contract was in effect B-4 [sic] the law took place and therefore it was the rule. I keep telling him I wasn't talking about the right to work law-I was talking about the notice that was to be posted concerning the fact that a person did not have to belong to the union B-4 [sic] I put them to work. I invited them to come down-Tues [sic] AM and discuss it and he said he would after a meeting he had to attend at 10 am and if I had any non union people working when he got here he would shut this damn place down. C. Respondent Union's Case-in-Chief Pedescleaux testified that he has been an assistant busi- ness agent of Local 5 for over 25 years. Pedescleaux could not recall, but did not deny, having a prior con- versation with Houston at the time he was an employee of Ryder Truck Lines, Inc., about joining the Union, though Pedescleaux did specifically deny telling Houston on that occasion that Houston would have to join the Union before his 30 days of employment. Pedescleaux otherwise testified and I find that in material times his re- sponsibilities included, inter alia, supervising union mat- ters relating to Respondent Roadway Express. Pedescleaux confirms that in 1978 he had received a call from Houston in which Houston, after inquiring whether steward Owens had earlier spoken to Pedes- cleaux, then made request for a transfer to Local 5, and that Pedescleaux had thereupon told Houston to come by the hall to supply the information necessary for the transfer. He also essentially confirmed Houston's subse- quent visit with him at the hall1 2 and told Houston the secretary would handle it, and that he then brought Houston to the secretary and requested the secretary to record the information to transfer Houston. Although Pedescleaux did not specifically deny he told Houston that a transfer usually takes 3 weeks, and otherwise re- lates that he did not know all the mechanics of transfers as he was not regularly involved with transfers, rather that the secretary and Local 5's secretary-treasurer (E. G. Partin) were, he nonetheless also testified in a manner that would depict knowledge that there was no set time within which such a transfer regularly came through.' 3 However Pedescleaux testified that Houston had never previously mentioned to him that Houston at that time had an honorable withdrawal card from Local 612 or any other local and testified that he was not present when the secretary actually had taken down the informa- tion from Houston. Pedescleaux testified also that Hous- ton had not told him at that time that Houston had possi- ble employment with Roadway Express or any other employer. According to Pedescleaux, it was 3 or 4 weeks later'4 that Houston did come back and inquire about the status of his transfer. Pedescleaux at the time did not know if Houston's transfer had come in, but did promptly check up on it for Houston with the secretary who handles the transfers. In the presence of Houston, the secretary told Pedescleaux that the transfer had not come in. Accord- ing to Pedescleaux, Houston still did not mention any- thing to him about having a withdrawal card from Local 12 Pedescleaux's recollection was that it seemed there were 2 or 3 days intervening between Houston's initial call and the latter's visit to the hall, but Pedescleaux was not sure. Houston. on the other hand, was firm, his visit to the hall was on the next business day I credit Houston's recollec- tion of that sequence. ": Pedescleaux relates that the power was not in the requesting local, but rather the requested local sends the transfer when it wants (which may apparently be after it is first sent what money the man may owe), though also testifying the latter local always responds, one way or an- other See also Union Exh. 1, art XVIII, sec l(c) 14 Pedescleaux did not recall Houston remarking to him (e g. in a phonle conversation as reported by Houston) that he as tired of waiting for the transfer, and I'edescleaux denied that Houston spoke to him about starving i the interim 676 ROADWAY EXPRESS. INC7 612, and testified that he (Pedescleaux) had not in the in- terim looked at the transfer slip (record) to see what the secretary had put on Houston's transfer request. Pedes- cleaux testified (on cross-examination) more pointedly that he did not become aware that Houston had shown a withdrawal card to the secretary until after the charges were brought against the Union. He also testified that he had never had prior occasion to check on anyone's trans- fer, as he did not handle them. According to Pedes- cleaux, he did tell Houston at that point that, since Hous- ton had (first) transferred to New Orleans (Local 270), maybe New Orleans had not transferred Houston to Bir- mingham (Local 612) and that Houston had then replied he was going to check with New Orleans. Pedescleuax testified that was all there was to their conversation, that he has not seen Houston since, and that Houston had not at that time mentioned anything about possible employ- ment with Roadway Express or any other employer. '5 (On rebuttal Houston testified that he did not tell Pedes- cleaux that he was going to check with New Orleans, as- serting that New Orleans had nothing to do with his transfer and pointing out that his Teamsters card showed he was transferred to Local 612 Birmingham (a fact I note clearly appearing of record, see G.C. Exh. 5). Pedscleaux has otherwise categorically denied ever having a conversation with Kavanaugh, Wright, or anyone from Roadway Express about Houston. Pedes- cleaux also specifically denied that he ever indicated to Houston or anyone else that Houston could not go to work for Roadway Express because he did not have union affiliation. Pedescleaux also testified at one point (contrary to Houston's report of what Kavanaugh said) that Houston could have bought a book or joined the Union as a new member, paying initiation fees, etc., but that Houston had not asked for that, rather, that all Houston had asked for was a transfer. In that connec- tion, Pedescleaux testified also, that, if Houston were paid up at another Local (e.g., 612), all Houston would have had to pay to transfer to Local 5 would be a small fee of 25 to 50 cents.' 6 It is observed that it was Pedes- cleaux's testimony that Houston, if on withdrawal from Local 612 (as he was), should have put his withdrawal card on file with Local 5, but that he did not. As earlier noted there is documentary compelling direction (in the constitution, see Union Exh. , art. XVIII, sec. 6(d), and available to Houston on his withdrawal card), that the withdrawal card is to be deposited with the Local Union ' However, Pedescleaux testified that Houston may have inquired about a (work) permit, and that he told Houston that they did not have permits. Furthermore, subsequent testimony of Pedescleaux does reveal that Pedescleaux did acknowledge receiving a call from Houston 16 It would appear, however, that, if on withdrawal as he was. Hous- ton would have had to also pay the current month's dues to l..ocal 612 on deposit of withdrawal card, see Union Exh. I. art. XVIII, sec 5(h); that a return to membership appears only to be provided for by redeposit. id.., sec. 6(d); and that a local is prohibited from charging an initiation fee on deposit ofa withdrawal card, id., Sec. 5(f) In the latter connection I note that Pedescleaux was emphatic that he did not talk to Houston about buying a new book, Houston agreed and there is no evidence to the con- trary. I credit Pedescleaux on the latter point Finally, I observe that his testimony on redirect appeared to rectify ay earlier misindication that such was possible, in that he testified n redirect that it was illegal under the constitution to be on withdrawal for one union and to buy a hook out of another local. "by which it was issued .. .," thus seemingly I.ocal 612 in Houston's case, and that regulations governing transfer compatibly refer to transfer of membership from one local to another. See article XVIII, section (a). The record is not definitive whether Pedescleaux's testimony in regard to a deposit of Houston's withdrawal card with Local 5 was actually only to be a preliminary act to that Local's (service of) forewarding of same to the issuing local along with the appropriate request for transfer of membership and certification of work availability as oth- erwise clearly provided for. If not misunderstanding by Pedescleaux, but otherwise as above last indicated it is clear, in any event, that such was not done by Local 5. Pedescleaux aside, there is no question that those directly involved in processing Houston's request were aware of his current withdrawal, as the Union's approved copy of the transfer request records the fact that Houston was on withdrawal. The record is equally clear that Local 5 did not make an attempt to forward Houston's withdrawal card as a service. It would follow from Pedescleaux's as- serted lack of knowledge that Houston was on av ith- drawal that he did not instruct Houston to do so, nor is there any evidence that anyone else with Local 5 did so. Pedescleaux testified otherwise that to his knowledge there was nothing in the contract, the International's constitution, or the Local's bylaws that would prevent Houston from going to work with Roadway Express. though adding, other than that Houston or anyone else, who is on withdrawal, is supposed to put his withdrawal card on file with the local. Pedescleaux also testified that Local 5 does not keep a list of employees available for referral and seldom re- ceives calls from employers in regard to the hiring of people on referral. Pedescleaux did testify that the lllion does make up a list of individuals (e.g., after lavoff), whether union or nonunion, together with phone num- bers, for prospective casual or full-time employment. The list is then sent out to all freight companies under con- tract. However, the individual company does the select- ing of the individual on the list. Pedescleaux testified that Houston never requested to be put on such a list. Final- ly, Pedescleaux denied that Houston ever asked him to take any action to see that he got employment with Roadway Express or any other employer in 1978. 7 Douglas W. Partin, assistant business manager, has been employed by Local 5 off and on for the last 20 years, and for the last 3 years as an assistant business agent. Partin confirmed having a conversation with Wright in January 1979, and that it was possible he spoke to Wright after first speaking to steward Owens. Partin testified that he had sent Wright a list of approxi- mately 70 casual employees who either were on layoff from other terminals or were working as casuals. A Roadway ad appeared in the paper which he assumed Wright had run. Partin told Wright that they had a list of casual employees, who were good employees that had worked for other freight lines, naming Red Ball and Ryder Truck Lines, and told Wright that he felt that Wright should give them a chance. According to Partin, '' In cornmpalris,n, Houston teslfied talt I'dcs,:laux lnecer told him about such :I list from sill he coulld he hired h Roadv ay h77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wright replied that he did not have to use the list that Partin had sent him because the Louisiana right-to-work law was in effect now, and that he could hire anybody he wanted to at any time. Partin denied that he told Wright that any employee, whether casual or full time, had to be a union member before he or she could he hired at all. He recalled that Wright said they did not have to join the Union after they had been there 30 days. Partin responded that they did, because the contract was in effect before the right-to-work law was passed. Wright asked for a copy of the law and Partin mailed one to him. Partin denied that there was any mention of pickets or that he threatened to shut the place down and he denied anything was said by Wright or him about Houston in that conversation, adding that he never heard of Joseph Houston until the occasion when Pedescleaux (who shares an office with him) was interviewed by a Board agent on the matter. Partin denied there was any such thing as a committee in the Local that could authorize pickets if the contract is not followed. On cross-examination he candidly ac- knowledged that it was his view that a union's strength is weakened by someone working at a company prior to being a union member and that it was his view it was to employees' advantage to join the Union even before the 30 days was up. Respondent Union also called Wright as its witness. Wright testified that on the occasion when Houston came to the Baton Rouge terminal to fill out an applica- tion the only conversation he heard involving Houston was to the effect that Houston said he had worked at the Birmingham terminal as a line haul driver. Wright reaf- firmed that the reason that Houston was not hired was that: He did not properly complete his application, in that he was supposed to obtain: (a) the DOT physical, (b) a driving record from the Department of Public Safety, and (c) a statement from the Criminal Records Department of Baton Rouge stating whether or not he had any type of criminal record. Wright also testified that Houston went to work for BFI shortly after he had filled out an initial job seeker and application and that he did not renew the job seeker as required. Wright stated that the fact he might not have had union membership, or not have good standing with the Union, did not enter in any way into the decision. Steward Owens, who Wright testified earlier was on the phone line with him and Partin (in January 1979), did not testify. Wright confirmed that at the time Houston presented his initial application Wright reviewed it, said good, and then thought Houston was a good prospect. However, Wright did not recall any mention of Houston not having to fill out any other paperwork by virtue of having worked for the Company before. To the con- trary, Wright testified that, when a man comes from one terminal to another in a different capacity (e.g., as Hous- ton from Birmingham line haul to a Baton Rouge local pickup and delivery operation), the applicant must sign an employment register and fill out a new application and a job seeker whether they are on layoff status (which they may retain) or otherwise, and the applicant must resign. Wright testified that a physical is good for 2 years and that, if the employee worked for Roadway previously, the driver would not be required to take a new physical while the prior one is current. However, Wright thought Houston's was very close to being ex- pired. Significantly, Wright testified, however, that if his physical had been good and he had the other required documents it would have been very possible that Hous- ton would have been put to work if he had good refer- ences on his previous job. Wright found out about Hous- ton's employment by BFI around the end of May and, in any event, after May 23. D. Respondent Employer's Case-in-Chief William R. King, employed by Respondent Employer for 10 years, became Baton Rouge terminal manager in December. Prior to that time, King was Respondent's terminal manager at Hattiesburg, Mississippi, for 13 months and prior thereto Respondent's terminal manager at Jackson, Mississippi, for 14 months. King testified as to the existence of a company policy (effective every- where) of having certain open application and hiring hours, notice of which is posted at the given terminal as well as contained in a certain job seeker ledger book maintained to conform to affirmative action EEOC stan- dards. According to King, after having signed the given terminal ledger book, an individual prospective applicant must then fill out a certain job seeker form which re- cords the individual's interest in employment. If the in- formation supplied by the individual on the job seeker form appears to be satisfactory, the individual then may fill out an application form, and is asked to sign a PR-15 (reference) release. The applicant must also supply the Employer with a physical examination and a traffic report and criminal check (with costs to be borne by ap- plicant). At time of initial filling out of the job seeker form, the individual is also informed (both orally and by the form) that the job seeker form must itself be renewed within 15 days to be kept active. According to King, if an individual fails to renew a job seeker form, without additional notice beyond that initially given, the form is sent to central filing in Respondent's Akron, Ohio, gen- eral office, and the applicant is disqualified from further consideration for the positions for which he had previ- ously applied. King also testified that, since he has been manager of Respondent Employer's Baton Rouge termi- nal, the Company has never required individuals to be members of the Union in order to be hired. Of course, since King arrived in December, it is immediately evi- dent that King was neither present nor in charge of the Baton Rouge terminal at the time of Respondent Em- ployer's alleged refusal to employ Houston for discrimi- natory reasons on May 23. The present operations man- ager, Robert Wright, was. Wright testified that before becoming operations man- ager at Respondent Employer's Baton Rouge terminal on May I he had worked for the Employer for 2 years at its New Orleans terminal as a dock foreman. He testified that since becoming operations manager at Baton Rouge on May I he was in charge of and ran the complete op- eration, including the dock operations (but excluding sales), and was in charge of employment (including hiring and firing), though doing so under the supervision 678 ROADWAY EXPRESS, INC. of Terminal Manager Kavanaugh. There is no question that during material times Wright was a supervisor and agent of Respondent under the applicable provisions of the Act, and I have no doubt, on the facts as consistently revealed in this record, that Danny, who had occupied the same position of operations manager under Kavan- augh earlier, was such before him. At time of Wright's arrival, as noted, John Kavanaugh was the Baton Rouge terminal manager. At hearing, Wright testified that Kavanaugh was no longer em- ployed by the Company, that he had been terminated, and that Kavanaugh was presently employed by another freight company in Dayton, Ohio. Kavanaugh did not testify in this proceeding. However, Respondent estab- lished that it had subpenaed and affected a domiciliary service of Kavanaugh at his home in Baton Rouge, but that it subsequently learned that Kavanaugh was in Dayton, Ohio, and it represented at the time of the hear- ing that Kavanaugh was in Portland, Oregon, and very reluctant to come to the hearing because of problems with his present employer. Respondent Employer stated it would proceed without him rather than seek to en- force the subpena to compel attendance. However, Re- spondent has requested that an adverse inference not be drawn in this proceeding from Kavanaugh's nonappear- ance as its witness. The General Counsel at hearing and in brief affirmatively calls for such an adverse inference in view of the Employer's failure to call Kavanaugh as its witness to refute Houston's testimony in regard to ma- terial conversations had with Kavanaugh while the latter was employed as Respondent's Baton Rouge terminal manager. Respondent elected to rely on the law in sup- port of its position that an adverse inference should not be drawn in this instance. Respondent Union, in contrast, has urged an adverse inference should be drawn, but fa- vorable to Respondent Union's position; that is, that in the light of Pedescleaux's categorical denial of having had any conversation with Kavanaugh in regard to Houston's employment it should be inferred from the nonappearance of Kavanaugh as a witness that there was none between Pedescleaux and him. Wright confirmed that in material times Roadway did its hiring on Saturdays between 8 a.m. and noon only. Wright further confirmed that within the Roadway orga- nization, when an individual comes to apply for a job they are hired initially as a casual on a part-time basis, testifying that casuals have no guaranteed amount of pay or certain hours, and that employment may be for I day or 5, depending on the workload. Wright relates that when a need develops for a regular employee, the Com- pany will hire the best from the casuals who have been working for them, regardless of how long the selected casual may have been in service. According to Wright, seniority is acquired only when and if the casual be- comes regular. 18 i' The contract provides in art. 3. sec 2, in seemingly corroborative parts as follows: A new employee shall work under the provisions of this Agree- ment but shall be employed only on a thirty-day trial basis, during which period he may he discharged without further recourse: pro- vided, however, that the Employer may not discharge or discipline for the purpose of evading this Agreement or discriminating against Wright also testified that there is transfer of drivers between terminals with seniority only if there is a compa- ny change of operations, at which time employment with seniority is offered to a particular locality, either a new terminal, or one where they are opening up new operat- ing rights. If there has been no company transfer of op- erations, and an employee desires to transfer from one terminal to another, he must fill out a new application and begin work at the latter as a casual. Wright (cor- roborated by King and otherwise by the record) testified that the individual does not carry his prior seniority to that new terminal.' 9 Wright testified that it does not make any difference to Roadway whether an applicant for casual employment is union or nonunion, confirming, however, that under the old contract the casual employee (also) had to join the Union on or before his 31st day. (Wright testified addi- tionally that following the termination of the old agree- ment on March 31, 1979, the latter requirement no longer applies because of the then applicability of the current Louisiana right-to-work law.) Wright relates that any applicant must first fill out a job seeker form which Houston did on May 20. He con- firmed the individual applicant is also promptly advised of related job application expenses which he must under- take, said expenses being approximately $55 to $60 in total ($50 of which is for a required physical). The job seeker form's purpose (according to Wright) is to advise the Company of an applicant's interest in employment, the position sought by the individual, and certain person- al matters, such as whether the applicant is working, has been previously discharged, has a felony conviction, etc. (Houston's job seeker reflects that Houston was seeking part-time work in the city driver and dock positions.) The form itself otherwise provides that it will be kept on file for the stated positions for 15 days subject to interim renewal. Wright testified (without contradiction) that Houston did not seek to renew his job seeker. (However, I credit Houston that he did not subsequently tell any Roadway officials that he was going to go to work for BFI.) 20 Union members. After thirty days, the employee shall be placed on the regular seniority list. Any employee hired as a casual or part-time worker shall not become a seniority employee under these provisions where it has been agreed by Employer and Union that he was hired for casual or part-time work The words "casual" or "part-time" as used herein are meant to cover situations such as replacement for absenteeism and vacations. Any employee hired as a casual or part-time worker shall not become a seniority employee until he meets the requirements of the appropriate Supplemental Agreement under which he is employed O1 Wright also testified that the Company does not transfer a line haul application to another terminal for a casual application, and further that since Houston was still in layoff status at Birmingham the latter would not have sent his application to Baton Rouge However Wright ac- knowledged that he did still have Houston's prior employment file from 1976 Wright otherwise testified that once a man quits the old application is no good, though conceding a DOT physical contained in the file would remain good 2 Wright testified (generally) that he became aware that Houston had subsequently obtained employment at BFI by word of mouth and that he (onrinued 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wright testified that he took Houston's application on May 20, as well as obtaining on that day a (reference) release, and that he followed a checklist of things which Houston had to have covering essentially the matters identified by King, supra, viz, a physical, a traffic record release from the Department of Public Safety, and a police record check from the sheriff. (On rebuttal Hous- ton denied that Wright, or Kavanaugh, had visibly con- sulted any check list.) Wright further testified that to the best of his knowl- edge existing company policy was that it did not make any difference whether applicants or casuals were in the Union or not, but revealingly that Kavanaugh did not tell him why he (Kavanaugh) did not hire Houston, though also testifying that he (Wright) did not tell Hous- ton that Respondent Employer would not hire Houston unless he had a union card or book from Local 5, nor did Kavanaugh to his knowledge. Rather Wright testi- fied that Houston was not hired by Respondent Employ- er because Houston did not complete his application by obtaining the DOT physical nor provide the required driving (traffic) record from the Department of Public Safety or the statement from the Criminal Records De- partment of Baton Rouge (police check), and because Houston did not renew his job seeker form.2 ' In regard to the requirement of having a new physical, in comparison with Houston's initial testimony that Ka- vanaugh told him on this occasion that he would have to get a new physical because his Alabama card was just about up on its 2 years, significantly Wright as well testi- fied, initially, that his recollection was that Houston's physical (with Roadway) was close to being expired at the time he applied, and subsequently that he had told Houston he would have to get a physical as soon as the one that he had expired, and that if Houston had pro- vided the other records and his references were good it is very possible Houston would have been put to work. On questioning, Wright subsequently acknowledged that Houston's application reflects, under date of last phys- ical, an entry of "5-8-76." As it is unquestioned that all were aware the DOT physicals were good for 2 years (and Wright so testified) such entry would have consti- tuted immediate notification that that physical had al- ready expired, a fact then readily acknowledged by Wright. Wright otherwise testified that the physical that they require is one to be performed by Respondent Em- ployer's doctor. Preliminary Related Evidence Considerations On rebuttal Houston denied that he was told that he needed a new physical before he could be considered for had no recollection of Hlouslon ever seeking to renew his job seeker. As to the former Wright ackinowledged that he had become aware of Hous- ton's BFI employment after May 23, but in earlier testimony he had also seemed to recall Houston visiting the terminal oil the Saturday following Wright's application filing. thus May 27, and at one point indicated Hous- toll had stated he was employed by BFI, later suggesting it might have been said to Kavanaugh. On rebuttal Houston testified that he had not told anyone at Roadway that he was going to go work at BFI I credit Houston on this point 21 A driver applicant is required to take a DOT driving examination, as well as a conipan) road test later; neither of which is urged by anty part) as being a material factor bearing on the issue herein. employment, testifying that Kavanaugh had told him he thought he could work Houston under his old physical and would get him in as soon as possible. Houston also testified, I find credibly, that he had initially made a mis- take on his application, that he had at the time actually taken a more recent DOT physical on May 8, 1978, though for another employer, and that he had (later) told Kavanaugh that he had recently been cleared by another company. However, Houston acknowledged that Kavan- augh told Houston that he would (still) have to take an- other physical for Roadway later on, and that he would get him in to take a physical if he needed it as quickly as he could. On rebuttal Wright recalled that when he told Houston that he had to get a physical Houston had men- tioned to him that he had a physical but did not mention the date, and as far as Wright knew it was the one Hous- ton had shown issued in 1976. However, Wright further testified that it was the Company's policy that if a driver applicant came in with a DOT physical from another company and was one which was not given by Respon- dent Employer's doctor the physical was good for 15 days, at which point the individual had to get a new physical given by Respondent Employer's doctor. I am wholly persuaded by the weight of the evidence bearing on this matter of the physical, and I conclude and find that the immediate securing of a Roadway physical was not a condition precedent to Houston's employment as of May 20 nor more pointedly was its absence a reason (contributing or otherwise) for his nonemployment as of May 23. However, Wright testified that the first casual hired after Houston's application was employee Louis Briggs who was not hired until the second week of June. (It is, however, additionally observed, in passing, that Briggs appeared on a list of names supplied by the Union, dated April 26, and that Wright understood Briggs was a member of the Union at the time of em- ployment.) Houston also testified on rebuttal that he had already obtained his driver's (traffic) record and had it in his pocket when he returned on Tuesday, May 23, in pursuit of employment. However, when Kavanaugh did not hire him (under the alleged discriminatory circumstances Houston relates above) he just kept it in his pocket. Simi- larly, while acknowledging he was aware of the need to renew his job seeker form with Employer, having filled out one on two earlier occasions (and been promptly em- ployed), Houston testified that after the May 23 conver- sation with Kavanaugh (and his own filing of the instant charge against the Union on May 24) he did not think he was going to be hired and did not thereafter think about renewing his job seeker. However, according to Hous- ton, neither Kavanaugh nor Wright had told him he had to also get a criminal record check. It was Houston's un- derstanding having previously worked regularly for Roadway and passed security (and being on layoff and last worked for Respondent-Employer in February- March 1977) that it was not necessary. Houston testified that all Kavanaugh had told him (on May 20) was to get the driver's form, and that if he needed a physical Ka- vanaugh would get Houston in to take the physical. Any further consideration of the evidence in regard to job 680 ROADWAY EXPRESS, INC. seeker renewal or in regard to possible misunderstanding in regard to an actual necessity of an update on criminal record clearance, I conclude and find, is obviated by virtue of the effect of Wright's additional and candid tes- timony of his procedure (I find a practice) at the Baton Rouge terminal that, if an individual applicant fails to renew his job seeker, either he or Kavanaugh would call the applicant on the phone and inquire if the applicant wanted his job seeker renewed, and as well request any necessary but unsupplied material, provided the applicant has not been earlier disqualified. Although Wright testi- fied he did not call Houston and did not know whether Kavanaugh had, Houston testified credibly that neither had called him about such matters. Wright could offer no reason why Houston was not called in this instance. Wright's further relation that Houston's lack of union membership in Local 5 was not a factor in Houston's nonemployment was not without its own contraindica- tion in certain testimony of Wright. Thus, Wright testi- fied that Kavanaugh had told him that Pedescleaux would not give Houston a book, though not during con- versation with Houston on May 23, but, as recalled by Wright, some time later with Houston not present. Wright also confirmed Houston to the extent that Wright testified that during the Kavanaugh-Houston conversa- tion he had heard Houston say to Kavanaugh that he (Houston) felt like he had been blackballed by the Union. While I credit Wright's testimony that on that occasion he personally did not offer any reply, I further find that his nonrecollection as to Kavanaugh's reply was simply less than convincing. Nor is Wright's nonrecollection of any Kavanaugh remarks in regard to prospective difficul- ties with the Union if he hired Houston significant in the light of his other testimony that he was in and out of that conversation, with possible exception of his testimo- ny that Kavanaugh did not say to Houston that he (Ka- vanaugh) or the Company would try to work with Houston to prove a case against the Union in his pres- ence. I do note that otherwise Houston's testimony as to the remarks of Kavanaugh stand, on this record, essen- tially uncontradicted and are clearly plausible in total context. Finally Wright testified that the Company did not feel that they had to hire only individuals who were in the Union as casuals and that a second casual hired by Re- spondent was an individual who had applied before Houston and was an individual not on the Union's list and as to whose union affiliation Wright was unaware at the time of hire (date unspecified). In that connection King testified that under the contract, unless a referral or hiring hall is in effect, the Company gives the Union equal opportunity to provide referrals for employment. Wright testified that his procedure in hiring casuals was that he checks out the individuals on the Union's sup- plied list and inquires of the given individual's availabil- ity and willingness to come in and file an application with Respondent Employer, and that he did the same with people who come in off the street as well as con- tacting local minority agencies and state employment of- fices and placing ads in newspapers for applicants. How- ever Wright also testified candidly that there were nu- merous calls received in 1978 from the Union relative to the Company's employment of people that were not in the Union, and that his reply on such occasions to the Union was that they (casuals) had not gone past their 31- day working span. Wright testified that he did not know' if the total number of days that Houston had worked as a casual at Baton Rouge was under 31 as there were no records dating back to 1976 on Houston that he saw. Houston testified on rebuttal affirmatively that he had not worked 31 days as a casual at Baton Rouge and as noted this record reveals he had worked but II days with his last period of employment only for 2 days in February-March 1977, thus over a year prior. I note that even King who arrived later in December 1978 con- firmed that he was aware the Union was pressing the Company to hire only individuals that were union mem- bers as casuals and other employees and confirmed as well that the institution of a hiring hall at Baton Rouge was threatened by the Union on one occasion. Analysis, Conclusions, and Findings I find that the weight of the credible evidence present- ed by the General Counsel has wholly convinced me to the latter's contention that commencing May 23 Respon- dent Employer discriminatorily refused employment to Joseph L. Houston because of Houston's lack of mem- bership in Local 5. The unrefuted facts marshaled above compellingly speak to that conclusion. Thus, the record has revealed that Houston was un- questionably a qualified driver who had performed years of prior and proven satisfactory service as a regular full- time line haul driver while employed at Respondent Em- ployer's Birmingham, Alabama, terminal before his layoff in 1976, and that he had thereafter performed satisfacto- rily similarly for Respondent Employer at its Baton Rouge terminal as a casual employee in 1976 and again in early 1977 though only for a brief 2-day period, while at that time extending himself to assist Respondent Em- ployer's (then) Terminal Manager Allen at the latter's re- quest during a problem time. In 1977, and more pointedly and significantly in early 1978, Respondent Employer's Baton Rouge Terminal Operations Manager Danny revealed Respondent's con- tinued interest in the reemployment of Houston as a casual, and eventually as a full-time employee, clearly conditioned, however, on Houston's first getting straight- ened out with the Union. The latter condition meant to Houston his becoming a member of Local 5, an act that Houston clearly was initially reluctant to do. However, when work (or money) at his current employer became apparently less desirable in 1978, Houston again became interested in pursuing work opportunity with Respon- dent Employer. By that time or in assisting a friend to make application, Houston had become more amenable to taking the conditional steps made necessary by Re- spondent's urging of his first getting straightened out with the Union, which in Houston's circumstances was to effect transfer of his membership to Local 5. On this record I thus have no doubt or hesitancy in concluding that it was at the initial urgings of officials of Respon- dent that Houston first embarked on his effort to secure a transfer of his (withdrawn) membership from Local DECISIONS OF NATIONAL LABOR RELATIONS BOARD 612 to Local 5. This is not only evidenced in Respondent Employer's operations manager's first urging in Febru- ary-March 1977 but also is evidenced in the two such continued urgings in the material period of March 1978, as to which factual account Houston is both essentially corroborated by White and has been otherwise unrefuted by any management officials of Respondent. I am thus persuaded and I find that by the end of March Houston on two occasions had actively sought employment with Respondent Employer; that Respon- dent Employer's official on both occasions desired to employ him, but on each occasion conditioned same on Houston's first getting straightened out with Local 5; and that Houston thereafter actively engaged in a 5-6 week effort to get straightened out with the Union by attempt- ing to have a membership transfer to Local 5, a result that he had been informed at the time (I find), by both Pedescleaux and the union secretary handling the trans- fer, would take but 3 weeks. I am as well convinced and find that the same antecedent requirements continued to exist as between Respondent Employer's new terminal officials (Kavanaugh and Wright) and Houston on Satur- day, May 20, when Houston finally filed a formal appli- cation for employment and was then both regarded as a good prospect and told (promised) he would be em- ployed the following week after Kavanaugh checked out his report that the Union had said his employment was okay. Houston was not offered any such employment when he later returned to Respondent Employer's terminal seeking the employment on the following Tuesday, May 23. Instead Houston's uncontradicted testimony has re- vealed that he was told on that occasion by Terminal Manager Kavanaugh that Kavanaugh had been in com- munication with the Union and that the Union (Pedes- cleaux) would not sell or give him a book, that Terminal Manager Kavanaugh had then agreed with Houston's own assessment that Houston was being blackballed by Local 5, and that he was further informed by Kavanaugh that, when Kavanaugh had stated to the Union that he ought to hire Houston anyway, Kavanaugh was threat- ened that if he did so he would get more than he bar- gained for, and subsequently Kavanaugh did not hire him. Respondent argues that Houston should not be cred- ited. I do not agree. Wholly aside from any consideration of the propriety of drawing an adverse inference against Respondent Employer from Kavanaugh's nonappearance as a witness, that Kavanaugh's testimony would not have been supportive of Respondent's position, Houston's tes- timony in the above respects is observed to be not only plausible in context, credibly given, and essentially not shaken in these matters on cross-examination; but also stands, with close analysis of the testimony of Wright as to his limited awareness of the entire Kavanaugh-Hous- ton conversation, essentially uncontradicted in the above particulars, and thus unrefuted by anyone in the above respects. I credit Houston. This is not, however, to say that the drawing of an in- ference in the above circumstances, as urged by the Gen- eral Counsel, is not also warranted and further support- ive of the factual conclusions reached therein. To the contrary, I additionally do conclude, particularly in the light of Respondent Employer's witness Wright's limited participation in such critical conversation, that an ad- verse inference does lie from Respondent Employer's failure to produce Kavanaugh, who was at the time its agent and the main conversant, viz, that Kavanaugh's tes- timony would not have been favorable to or supportive of its position. I thus draw the inference and find it but further supportive of Houston's otherwise credible ac- count of being denied employment because of his lack of membership in Local 5.22 Contrary to Respondent Em- ployer's further urging that it had never actually refused Houston employment, I find the fact that Houston was to be denied employment by Respondent Employer's ter- minal manager, Kavanaugh, thereafter while that unful- filled condition (nonmembership in Local 5) existed, is convincingly made clear from Kavanaugh's suggestion, but then avoidance and rejection of Houston's urging, that Kavanaugh indeed employ Houston anyway. Respondent Employer had advanced at the hearing that the real reason Houston was not employed by Re- spondent was because he failed to complete his applica- tion by failing to obtain a physical, a traffic record, and a police check. Respondent Employer argues for discredit of Houston in part of the required physical. However I have concluded on close analysis that there is no more confusion or inconsistency in this record on that particu- lar matter on Houston's part than on Wright's part which, in my view, is not only to be explained in terms of acceptable clarifications by both these witnesses on that matter in the light of other record evidence, but also even more significantly lends only further support that that particular item was not indeed an original reason for Houston's nonemployment anymore than Houston's fail- ure to present to Respondent the traffic record that was obtained and was in Houston's pocket at the time was. The short of it is that, contrary to urging of Respondent, I am fully convinced and satisfied that there was an ex- isting practice of a followup on applications which was not made in Houston's case by Wright or Kavanaugh without any convincing reason therefor being offered, which itself is but an additional circumstance eloquently 22 "The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse." Interstate Circuit, Inc., el al. v. United States, 306 U.S. 208, 220 (1939). For related applications see Keller Manufacturing Company. Inc., 237 NLRB 712, 717, 719, and 727 (1978). Even if the witness who is material to Respondent's defense is no longer subject to company control, the wit- ness is subject to equivalent subpena process, and in law within the power of the company to produce, L. B. Foster Company, 168 NLRB 83, 86 (1967). Kavanaugh was hardly a disinterested witness whom the Gen- eral Counsel might be viewed as having wrongfully failed to call. See and compare NL.R.B. v. Ford Radio & Mica Corporation, 258 F2d 457, 463 (2d Cir. 1958). Rather with the General Counsel's prima facie show- ing the burden of producing evidence had shifted, raising an unfavorable inference from Respondent Employer's nonproduction of the superior evidence (Kavanaugh). Insufficient justification for refusing to draw such inference is presented, even assuming Respondent Employer (as asserted in brief) did not learn of Kavanaugh's intent not to honor the subpena process until the evening before the hearing, where the matter had long been scheduled for hearing, it had known that Kavanaugh would be a likely material witness in defense, and no continuance was in fact sought. See Wodville Plant, Industrial Products Division. Division of Livingston Shipbuilding Company, a Delaware Corporation, 244 NLRB 119, fn. I (1979) (where no continuance was requested). 682 ROADWAY EXPRESS, INC speaking to the presence of the other operative reason for Houston's nonemployment at the time, an unlawful reason all too clear on this record. Finally, the urged admission in the Employer's stated position of July 25, 1978, in initial response to the charge brought against it by Houston, as well as the expressed understanding of Wright of that case's major element as expressed by Wright to Partin in January 1979, not only acknowledges, but also confirms beyond the real ques- tioning that lack of membership in Local 5 was the reason, indeed the only reason, for Houston's nonem- ployment and that Respondent Employer's present urg- ings are but afterthoughts which reveal additional uncon- vincing vacillation of a stated reason for its earlier action. 23 I am thus convinced and I find that, commenc- ing May 23, Respondent Employer refused to employ Joseph L. Houston because of his lack of membership in Local 5, and that by such conduct Respondent Employer has violated Section 8(a)(1) and (3) of the Act. Chapin & Chapin, Inc., 213 NLRB 250 (1974). The complaint alleges and the General Counsel argues that Respondent Union has also violated Section 8(b)(l)(A) and (2) in that on or about May 23, 1978, Re- spondent Union by its officer and agent Dennis Pedes- cleaux attempted to cause and did cause Respondent Em- ployer to deny employment to Houston because of Hous- ton's lack of membership in Respondent Union. Respon- dent Union has contracontended that the complaint should be dismissed because the Union never communi- cated to Houston or Respondent Employer that Houston could not be hired because of his nonmembership or lack of good standing in the Union and because Houston was not hired by Respondent Employer because of Houston's own failure to comply with Respondent Employer's pre- hiring requisites. For reasons earlier related I find the latter defense is without merit. As to the former, Respon- dent Union relies on Local Union 481, International Brotherhood of Electrical Workers, AFL-CIO (Amick Elec- tric Company), 196 NLRB 104 (1972); Yellow Freight System, Inc., 197 NLRB 979 (1972); and General Drivers, Warehousemen and Helpers Local Union No. 968, etc. (M. W Kellogg Construction Company), 196 NLRB 817 (1972). Essentially it is Respondent Union's contention that the only reason Houston's membership was not trans- ferred was the failure of Local 612 to supply Local 5 with the required information, and that there is simply no clear and convincing evidence of record that Local 5 did anything to prevent Respondent Employer from hiring Houston. In that connection Respondent Union relies heavily, in contrast with Houston's testimony as to the remarks of Kavanaugh, on Pedescleaux's denial of 23 The reason advanced originally in Respondent's position paper (but not herein) is clearly without merit. Houston's last period of employment with Respondent Employer had ended after only 2 days of casual em- ployment over a year earlier and during which time Houston was em- ployed full time elsewhere and, prior to which time (in 1976). Houston had effected a voluntary withdrawal from Local 612 "in goodstanding." Thus the contention based on contract would be without merit. Yello, Cab Company, 148 NLRB 620, 624 (1964); and see Furniture and Pano Moving. Furniture Store Drivers, Helpers. Warehousemen and Packers Local #82. etc. (Arlington Storage, Inc.. and Henr, F Owens. Inc.). 210 NLRH 838, 841 (1974) ever having had a conversation with Kavanaugh about Houston and Wright's claimed support that nonmember- ship in Local 5 was not a factor in Houston's failure to be employed by Respondent Employer. As earlier found however, for reasons previously stated, I have not found Wright's assertions as to the latter persuasive, but rather have found that Respondent Employer did refuse em- ployment to Houston because of his lack of membership in Local 5. Nonetheless, the allegations of violation of Section 8(b)(1)(A) and (2) by Local 5 rests on their own elements of proof and require somewhat different factual pattern analysis. Before passing on to a consideration of same, I do note that the General Counsel has made an additional contention in the brief that assuming arguendo that the finding is not made that Kavanaugh was actually illegally restrained by the Union from employing Hous- ton that it be alternatively found that Respondent Union has violated Section 8(b)(1)(A) and (2) of the Act by op- erating an exclusive hiring arrangement in a discrimina- tory manner. However, operation of a discriminatory ex- clusive hiring arrangement was not an allegation of the complaint. Neither was it, in my view, a theory of viola- tion adequately advanced by the General Counsel at the hearing nor one deemed fully litigated at the hearing. Accordingly I reject such contention and the arguments based thereon and shall provide them no further consid- eration in reaching a decision herein. I shall consider fully all evidence advanced which is probative of the violation alleged. Initial consideration is made of the General Counsel's offered evidence that sometime in 1967 after Houston was recently employed by Ryder Truck Lines, Inc., Pe- descleaux told him that he would have to join the Union before 30 days of employment (denied by Pedescleaux at least as to the latter particular). However, I need not re- solve any conflict therein as in my view even if consid- ered as the General Counsel presents as (remotely) rel- evant it is so stale as to provide little if any probative persuasion on the material issue before me which has oc- curred over 10 years later. Considerably more signifi- cant, however, is the undenied testimony of Houston that, on the occasions of working as a casual for Respon- dent Employer at its Baton Rouge terminal in late 1976, Local 5's union steward repeatedly told Houston that he would have to join Local 5. However, there is no show- ing made on this record that anything came of Houston's failure to act on steward Owen's urgings at the time. The case comes down to the required analysis of the conflict in the testimony between Houston and Pedes- cleaux and, ultimately, determinations of which accounts are more plausible and credible. Houston testified that he was told by Pedescleaux that he would have to transfer his membership to Local 5, which transfer would take 3 weeks. After waiting the 3 weeks and then calling daily on the transfer for about 2 weeks more, he finally spoke to Pedescleaux about the delay, then informing Pedes- cleaux (essentially) that he needed work and had a job opportunity at Roadway; that Pedescleaux told him that it must be Local 612 holding the transfer up (impliedly not Local 5); and that, when Houston said he was going to tell Roadway that Local 5 did not object to his em- 683 IF CISI()NS ()F NATIONAL I.AB()R RELATIONS BOARD ployment, I'edescleaux then told Houston he should have Kavanaugh call Pedescleaux when Houston approached Respondent Employer about work and Pedescleaux would let them know how Houston stood with the Union. Pedescleaux has Houston coming to the hall to check on the transfer and Pedescleaux serving Houston by checking on the transfer and determining that it was not in. In stark contrast, Pedescleaux's version also has Pedescleaux suggesting that the outcome of that visit was his suggestion that the problem may be that Local 270 (New Orleans) may not have transferred Houston to Local 612 (Birmingham) with Houston then leaving the hall planning to check further with the New Orleans local. Pedescleaux otherwise denied that Houston had asked him to do anything with regard to Roadway Ex- press. I do not credit Pedescleaux that their conversation which unquestionably raised inquiry as to the cause of the transfer delay led into further inquiry to be made by Houston of Local 270 (New Orleans). Rather I find this assertion is simply incredulous. This is deemed so be- cause Houston had his membership card from irming- ham right in his pocket. That membership card was issued by Local 612, and it shows on its face that Hous- ton's transfer from Local 270 to Local 612 had been ef- fected to Local 612's satisfaction and recorded approval. Had Pedescleaux actually raised such an issue with Houston, I am totally convinced that Houston would have had but to immediately display his membership card to resolve any continued consideration on Pedes- cleaux's part of that failure as a viable explanation for the transfer delay. I thus credit Houston that such a conver- sation simply never occurred. Assuming that Local 5 had actively forwarded the transfer request, nonetheless upon this review and analy- sis, I find it nothing short of further revealing of another motive that Pedescleaux, at least by the time of the last inquiry of Houston, never called or offered to call ocal 612 to determine what the holdup was. Pedescleaux's further assertion that the call was not made because he did not think it was his responsibility is wholly uncon- vincing. Seemingly far more plausible in explanation for Pedescleaux's noncontact of Local 612 would be a con- sideration that Local 5 had never forwarded the transfer request or had knowingly forwarded it without making provision for the deposit of the withdrawal card. What- ever may be said of plausibility of some fluctuation of time in the Local's service of effecting a transfer of membership from one Local to another, e.g., beyond 3 weeks to 5 weeks or more, I find it still further revealing that no evidence was ever offered by Respondent Union as to receipt of an ultimate response or reply from Local 612 although Pedescleaux himself has testified that the (requested) local always responds eventually one way or another. The record reveals Houston had withdrawn from Local 612 in good standing. The inference is war- ranted and I draw it that the explanation for the failure to effect Houston's transfer lay not at Local 612's end but with Local 5, and in the latter connection I find most revealing of the real reason for nontransfer was Pedes- cleaux's explanation that the individual requesting trans- fer had to deposit his withdrawal card with Local 5, a condition concerning which Houston was not assisted. (I have earlier noted the withdrawal card had to be ulti- mately deposited with the issuing local, and conclude that, if it here was to be deposited with Local 5 as Pe- descleaux has testified, such was with reasonable purpose for Local 5 to refer same to Local 612 along with re- quest for transfer.) It is also Pedescleaux's account that he never had discovered that Houston had shown the secretary a withdrawal card from Local 612 until after charges were brought. It seems to me there are a con- vincing number of implausibilities that flow from such assertion that effectively prohibit credit of it. First, Pe- descleaux is a longtime, experienced business agent. Al- though Pedescleaux disclaimed intimate knowledge of transfers, he has nonetheless testified in another fashion in many aspects of same. Second, Pedescleaux at least ac- knowledges that he knew of the withdrawal circum- stance after the charges were filed. Yet, despite aware- ness then, no inquiry was then made nor transfer still ever effected. It is to be noted that the local to whom transfer is to be made (Local 5) must constitutionally accept a transferred membership (with exception not argued or shown herein by Local 5), and it is clear that Houston withdrew from Local 612 while his membership was in good standing. Third, in view of Pedescleaux's experience, it is simply inconceivable to me that with a transfer overdue by several weeks, Pedescleaux's review of the circumstances would not at least then include a check of the paperwork involved in the transfer in his raised claim of otherwise offering service to Houston at the time. In that connection the record reveals beyond the question that by this time Houston was actually with- out work and actively pursuing employment opportunity with Respondent Employer. It is far more plausible than not that Houston would have brought those conditions to the immediate attention of Pedescleaux in the context of his overdue transfer. I credit Houston that he did so, and Pedescleaux's version that Houston did not do so is again rejected as being simply implausible. I thus further find that an added urgency for inquiry was presented to Pedescleaux on that occasion that was not plausibly re- sponded to by the (discredited) offering that Houston should simply check with Local 270. Rather I conclude and find it is again more plausible, as Houston has also testified, that, when Pedescleaux confirmed the transfer still was not in and offered a suggestion that it must be Local 612 at least implying that it was not Local 5 and that Local 5 did not have anything to do with Houston's initial employment by Roadway, Houston seized upon such assertions as a basis to state that he then was going to inform the Employer (Roadway) that Local 5 had no objection to his employment and that Pedescleaux did in fact (only) then tell Houston to have the Employer call him and he would explain Houston's status with Local 5. I credit Houston's account in the above particulars. I do not overlook the effect of Houston's frank testimony that after the latter conversation with Pedescleaux that he at that time thought it was going to be all right for him to be then employed by Roadway. However, neither do I overlook (the finding earlier made) that at that time Pe- descleaux was aware of Houston's claimed employment opportunity with Roadway, and that Pedescleaux could 684 ROADWAY EXPRESS. INC have advised Houston that Houston could have had his name added to the list on this record composed of union and nonunion individuals that is regularly sent out by the Union to Roadway (and other companies) but did not as- sertedly because Houston did not ask to be put on it. I thus have no hesitation in concluding that neither Re- spondent Union nor its agent Pedescleaux has adequately or fairly represented Houston in regard to his requested transfer of union membership from Local 612 to Local 5 or to effect employment with Roadway as seemingly re- quired by Section 8(b)(l)(A). The question remaining is did it thereby cause or at- tempt to cause Respondent Employer to discriminate against Houston in employment. I find that the evidence offered by the General Counsel predominates that it did so as well. I have earlier found above that Houston's tes- timony that Pedescleaux told Houston to have Roadway call him is to be credited over Pedescleaux's denial for reasons stated. I have also earlier found that Houston passed that information on to Kavanaugh on May 20, that Kavanaugh on that day told Houston he was going to do so, and that Houston's testimony was that Kavan- augh thereafter on May 23 informed Houston that he had done so and had been informed by the Union that it would not sell, or give, Houston a book. Pedescleaux denied that he ever actually spoke to Kavanaugh about Houston's employment. In that connection while an ad- verse inference is deemed to lie in the failure of Respon- dent Employer to call Kavanaugh to refute Houston's as- sertion of the remarks attributed to its agent Kavanaugh, the Respondent Union has called for a similar adverse in- ference, presumably against General Counsel, for the lat- ter's failure to call Kavanaugh in the face of Pedes- cleaux's denial of having any conversation with Kavan- augh about Houston. For reasons earlier stated, I have found much of Pedescleaux's version of that earlier con- versation with Houston to be implausible and incredu- lous. In that circumstance I am constrained to place much less reliance on Pedescleaux's categorical denial of the ultimate fact of having had communication with Ka- vanaugh nor, in my view, do the circumstances warrant adverse inference being drawn from General Counsel's failure to call Kavanaugh, viz, that if called his testimony would not support the General Counsel's case. To the contrary in the face of surrounding circumstantial evi- dence I have otherwise and independently concluded that Houston's testimony as to the remarks he attributes to Kavanaugh is not only both credible and uncontra- dicted but partially corroborated by Wright's overhear- ing of Houston's assertion on learning of the Union's po- sition from Kavanaugh that he was blackballed by Local 5 and confirmation (admission) that Kavanaugh had later told Wright that the Union (Pedescleaux) would not give Houston a book. Were the latter all there was to the case against the Union's causation that ambiguous fact, viz, re- fusal to sell or give Houston a book, in contemplation of the International's proscription against offer of new union membership by a local to a member on withdrawal from another local (as Houston was) would present a closer question of any unlawful causation by the Union. But that is not all that was presented in this case for Houston credibly relates that Kavanaugh informed him as well that he was also told by the Union that if he (Ka- vanaugh) were to do as he first indicated, viz, hire Hous- ton anyway, Respondent Employer would get more than it bargained for, a threat of a labor dispute certainly plausible in context and sufficiently serious to cause Ka- vanaugh's subsequent declination to hire Houston. Nor need the Union's motive be inferred solely from Kavan- augh's remarks. This record reveals a continuing context, stretching from steward Owens urgings in 1976 that Houston had to join Local 5 (albeit unheeded by Hous- ton at the time) and Operations Manager Danny's urg- ings in February-March 1977 to the latter's material re- quirement in March 1978 that Houston this time had to first get straight with the Union before he was to be em- ployed. The more convincing urging was prior union membership established as an operative hiring condition in May 1978 by Wright's credited testimony that (later) in early 1979 when Local 5's steward Owens again had questioned Employer's action of hiring nonunion casuals and on the occasion when Wright had explained to assis- tant business agent Doug Partin that as in the (settling) Houston case Respondent Employer did not have to re- quire that an individual be in the Union to initially put him to work. Partin had told Wright he was crazy, threatened to shut down the Baton Rouge terminal with pickets the next day, and threatened institution of a hiring hall at Baton Rouge. (Contrary to the General Counsel I am convinced that Doug Partin did make ref- erence to the right-to-work statute The point is, howev- er, his threats were more inclusive.) I am thus wholly persuaded and I find that on or about May 23 Respon- dent Union by its action and/or inaction on Houston's transfer and by warnings to Manager Kavanaugh has caused or attempted to cause Respondent Employer to refuse employment to Houston at Respondent's Baton Rouge terminal because of Houston's lack of membership in Local 5 under circumstances constituting a violation of Section 8(b)(1)(A) and (2) of the Act.24 The Remedial Reinstatement and 3ackpay Issues I have earlier specifically found that discriminatee Joseph I.. Houston had been told by Respondent Em- ployer's operations manager that if he met the (illegal) condition of first getting straight with the Union he would not only be immediately employed as a casual em- plovee but he would also receive the first regular job to z4 It i 1 he thus hs-crsed that this is notl te caser o a irfertnice of UIInlica salltill resling slciy lpoil an adverse infterce from Kan- augh' filult ,. tcIfy Ratlcr It is readil' observed to he Iht conitrar). fi*r il at olsx.d .a ot nlulri hrals from1 a series of priha{tli e t sac , all itcndling to sixn ulltlt1 .ilt s atior [huLs lhelre ia ih pilsiblc aiil redi hie Iestc ninll, l- loustion, inirr iaa , that In ltoulstoll's effort to ,.ec lre ctirllploTlitlt at Roaduo P'cedescleaux told tiousllol to halc Kavanaugh a;1l h}iLt. thait 1}otinhr did st. andi that Karanaugih later told ltiousitml that h had,1 iol tlC s- aitd. tiJ titlifnl if the particulatirs f that coiilersl.a - Iioin, thercbh stahlishing ill enmployer admissiion of iin causation in his noneniphlymnen t hb Fmpl pytr erl ol the nimre s then huttressed hb cotn- side atli l ti th obscrscd mplausiblllties ii I e lactuill vlersio if ll'dcs- clcaux il dctisal. hich ihorahly taxed crcdulht i llalor respects lioriet\ir tL JtI,,I,.I', ;l ,tlit.l sIs ;A -s ',holl ti(1 ,1stel'1 t \,i11 tthr at- tct.Iillt ill.tlllt ,t.ll x I'c( i record further Ill Jtlt'ellillJ stlpptrltis alnd corroh rl c 0I . irllir L Lillt atlti1l it)1 lo)usi s, I tin nipll tp ncl tfor lack t nileihtrshtip iI I til ilte COtIrCLILsi.it rachetd is thius ltarls it, the inilLeriisshh lc t' / I Illfei It t' uilt s.cl it inhterclIce 685 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be thereafter offered by Respondent Employer at its Baton Rouge terminal. I have further specifically found that Houston was later told by Respondent Employer's terminal manager, Kavanaugh, that Houston was in fact to be employed the following week, but that when Hous- ton subsequently appeared at the terminal on May 23, 1978, as directed by Kavanaugh, Houston was discrimina- torily denied employment at Respondent's Baton Rouge terminal because of Houston's lack of membership in Local 5. This denial of employment by Respondent Em- ployer has been found to be in violation of Section 8(a)(1) and (3) of the Act, and to have been caused, or attempted to be caused, by Respondent Union in viola- tion of Section 8(b)(l)(A) and (2). The General Counsel essentially has requested, inter alia, the usual remedy of an ordered reinstatement and a make-whole backpay provision for Houston. Respondent Employer, however, has contended that its reinstatement of Houston should not be ordered; and further that the period of backpay award to Houston should itself be limited to August 21, 1978, at which time Houston was recalled to employment at Respondent Employer's Bir- mingham, Alabama, terminal or, at the latest, to March 23, 1979, at which time Houston was discharged from its Birmingham, Alabama, terminal for cause. The Additional Facts Bearing on Remedial Reinstatement and Backpay Issues It will be recalled that, after working at the Birming- ham terminal from 1972 to 1976, Houston was laid off in May 1976, initially recalled for a brief period, and laid off again in October 1976. Houston was next recalled from layoff on August 21, 1978, for regular work at the Birmingham terminal in accordance with his seniority as provided for under the existing contract. 25 It is observed that this second recall on August 23, 1978, was some year and 10 months from his last brief recall, and more pointedly, over 2 years since the initial layoff and his last physical obtained from the Company's doctor. When Houston reported for work he was unable to pass the normally required preliminary physical because of a high blood pressure infirmity that was evidenced at that time. Respondent Employer notified Houston of the result, also advising Houston that as of such time as he could pass the required physical he should at that time again contact the Employer. Houston took another physical examination in January 1979, in which he again failed to pass when the same high blood pressure infirmity was still evidenced. Re- spondent Employer notified Houston of this result also, but continued to advise Houston that as such time as he could pass the required physical he should contact the Employer. In February 1979, Houston took two or three additional physical examinations, the last of which, pre- sumably, finally showed that his blood pressure was down to within normal range. At that point, Respondent Employer put Houston on active duty at its Birmingham terminal, with the starting date unspecified in the record, 25 It appears that under the applicable contract's provisions Houston's seniority right of recall at that terminal was for 3 years. G C Exh. (Na- tional Master Freight Agreement), art. 5, sec. 1, and see also art. 8, sec. 6. but notably some 6-7 months after his initial recall by Respondent Employer in August 1978, which delay (I find) was solely due to Houston's personal inability to pass the Company's normally required physical in the in- terim .2 Houston further relates that it had been his under- standing that he was to be recalled for regular employ- ment, but, when he finally reported for work at Birming- ham, he was then told that he would be employed only 2-3 days a week. 27 Houston was terminated on March 23, 1979, for refus- ing on several occasions to report for his job. In that connection, Wright, corroborated by King, testified cre- dibly that it is the Company's policy not to hire someone at one terminal who has been previously fired from an- other terminal. 28 The record reveals otherwise that an employee who resigns, with a good record, may be reemployed, but only with the approval of a vice presi- dent (district). Houston's initial explanation for his absence was that he was sick. Although he acknowledged that he had been sent a letter by Respondent Employer advising him that he had to either make himself available for work with Respondent Employer or consider himself terminat- ed, Houston testified that the letter was sent to an ad- dress at which he was not staying, and that consequently he had not received that letter in time to respond. Hous- ton volunteered in that respect, however, that he did not get the message timely or he would have responded to Employer at the time that he had quit, asserting further that this was what his intent was to do all along, after he had first made certain other efforts to obtain what he be- lieved was due him.2 9 Nonetheless, the record reveals 2B Houston filed certain unfair labor practice charges respecting his failures to pass the Company's physical examinations, which charges were subsequently withdrawn. The General Counsel has not urged herein that there was any unlawful discrimination in connection therewith. On the basis of the record before me, I find there was not. 27 It was Houston's understanding of the contract that he could re- quire a layoff where work or pay was irregular. Respondent sought to establish that Houston had filed a grievance seeking to be laid off. On objection of the General Counsel the matter was ruled irrelevant on the open issues of required reinstatement and whether backpay should be limited to the recall date of August 21, 1978, or the discharge date of March 23. 1979; any further relevance relating to the amount of backpay due was relegated to the compliance proceeding. 28 It was uncontested by the General Counsel that the policy is a writ- ten one and is contained in the industrial relations section of the Road- way manual given to all supervisors with one copy maintained at each terminal. 29 Respondent initially sought to introduce evidence by way of elicit- ing further acknowledgments from Houston that during this period he had filed numerous grievances requesting not only sick pay benefits, but essentially all contractual benefits that had been applicable to workers during his own 2-year layoff period (which Respondent has candidly ex- pressed it viewed as unreasonable), and had also filed various EEOC and unfair labor practice charges, all of which were subsequently withdrawn. Ruling was made on objection of the General Counsel that the substance of such matters was also essentially a collateral matter not bearing materi- ally on the material issues of whether there was a prior reinstatement or forfeiture of right of reinstatement by prior discharge for cause. It would appear in passing that the justification (or lack of same) involved in the act of filing grievances (or other charges) is not a relevant consideration to the above issue of reinstatement (or backpay award). Notably a claim of malice was neither raised nor proven herein. As earlier noted to the extent any of such subjects may ultimately prove relevant to any compli- Continued 686 ROADWAY EXPRESS, INC. that Houston filed a grievance on his termination. (In passing, I observe that it appears from the record that about this time Houston had returned to Baton Rouge and secured other employment.) Houston's grievance was subsequently heard in Biloxi, Mississippi, pursuant to the contract's provision, with Houston (apparently vol- untarily) not participating. The hearing resulted in a denial of Houston's grievance. Respondent has argued that it does not seek to (now) relitigate that that dis- charge was for cause, but to the contrary argues it now should be regarded (by the Board) as a historical fact that Houston was discharged from its Birmingham, Ala- bama, terminal for just cause under the contract, and not for any unlawful reason. It does not appear that the Gen- eral Counsel has sought to contend to the contrary. In any event, I conclude and find on this record that Hous- ton was terminated (for his absences) under the contract. Thus, any further consideration of Houston's reemploya- bility under Respondent Employer's policy applicable to an employee who resigned is unwarranted. The Employ- er's further contention in regard to Houston's exhibited intent to quit is considered infra. On the basis of the above facts, Respondent Employer essentially contends there was an effective reinstatement of Houston and consequent tolling of backpay on August 21, 1978, on the occasion when Respondent Employer recalled Houston to full employment at its Birmingham terminal as a truckdriver, with full seniority and security, since thereby it has provided Houston with a better job opportunity than the casual employment at Baton Rouge terminal would have offered, which included dock work as well as driving, and was without guaranteed hours, se- niority, or security. Respondent Employer argues that the Board has not precluded an offer of a better job from qualification as equivalent employment to a job previous- ly offered a discriminatee, relying on Pinkertons National Detective Agency, Inc., 90 NLRB 205, 208 (1950); Wheel- ing Pipe Line, Inc., 111 NLRB 244, 260-261 (1955); and further argues in that respect that its job offer of employ- ment at the Birmingham terminal may be likened to an offer of employment in the construction industry at a dis- tant jobsite, which did not disqualify as a valid reinstate- ment, L & L Painting Co., Inc., 174 NLRB 911 (1969). (However it is observed in passing that these cases are distinguishable from that herein either on point of com- parison of former position, or nonavailability of same as precondition, respectively.) Respondent Employer has further contended that when a job is offered and accept- ed by a discriminatee the issue of the validity of the offer of reinstatement is rendered moot, Panscape Corporation, 231 NLRB 693 (1977). (However, apart from other con- siderations the latter case appears inapposite on facts in light of the recall circumstances attendant to the Bir- mingham employment discussed infra.) Alternatively and in any event, Respondent Employer contends that a re- sponsibility to offer reinstatement (or to provide further backpay) ended for Respondent Employer on March 23, 1979, when Houston was independently discharged at Birmingham for cause, and because the record reveals ance computation otherwisc, they also may aait the inestigatilll of the compliance proceedings that it was Houston's intention at that time to quit anyway. Bankers Club, Inc., 218 NLRB 22, 26 (1975); Locke Insulators, Inc., 218 NLRB 653 (1975); and Lacka- wanna Leather Company, 221 NLRB 355 (1975). The General Counsel contracontends that the remedial law of the Board requires that an offer of reinstatement be made to Houston in the remedy of Respondent's un- lawful refusal of employment at Baton Rouge, and that it must be specific, unequivocal, and unconditional. Stan- dard Aggregate Corp., 213 NLRB 154 (1974); Jimmy Dean Meat Company, Inc. of Texas, 227 NLRB 1012, 1034 (1977). The General Counsel further contends that the offer of a truck job at the Birmingham, Alabama, termi- nal, over 750 miles distant from the Baton Rouge termi- nal at which the discriminations occurred, simply is not an equivalent job offer, and, moreover, that due account should be given of factors of the nearness of the Baton Rouge terminal to Houston's familial home and as well as of the effect the now determined discriminatory refus- al of employment to Houston by Respondent Employer and at Respondent Union's insistence has had on other employees at Baton Rouge. I conclude that the General Counsel's position prevails on both fact and law applica- tions herein. Analysis I have no quarrel generally with the authorities cited by counsel for Respondent, but as noted am not persuad- ed with their specific application to the precise facts of this case. Preliminarily it may be observed that the usual remedy to be provided to a discriminatee is one designed and tailored to restore the individual discriminatee to the status quo ante, i.e., to the employment position that he would have enjoyed, but for the wrongful discrimina- tions, and to do so initially to the extent that it is possi- ble. The full remedy is not only to be provided to the discriminatee, but also appropriate notice of the remedy provided him is to be also provided to other directly af- fected fellow employees. Respondent Employer is called upon to fully remedy the past discrimination and its reasonable employment ef- fects to date of actual remedy. This is accomplished by an (usual) order that it make an immediate and full rein- statement of the discriminatee (first) to his former posi- tion if that position exists, or if not (then) to a substan- tially equivalent position, and further that this be done without prejudice to his seniority or other rights and privileges. In the case where an individual has been re- fused employment as a job applicant, as in Houston's case, the above full reinstatement order to his former po- sition without prejudice to his seniority and other rights and privileges includes an offer of any further job oppor- tunity he would have had, e.g., of regular employment that Houston would have subsequently enjoyed, had he not been discriminated against at the time of his employ- ment application rejection for discriminatory reasons. Cf. George Webel d/b/a Webel Feed Mills & Pike Transit Company, 236 NLRB 1192, 1193 (1978). The record does not reveal whether subsequent in time to the refusal of casual employment to Houston on May 23 that Respon- dent Employer has had occasion to employ or reassign 687 I)l :CISI()NS ()t; NA I()NAL LABOR RELATIONS BOARD any casual employee to full-time or regular employment status, a not unusual record condition, inasmuch as such refinements of full reinstatement without prejudice nor- mally involve issues left to the compliance investigation stage. The latter is, however, a material factor not to be overlooked in the consideration of what properly has constituted claimed reinstatement in this matter. I begin with the observation that neither in origin nor expressed intent nor in fact was the offer of employment at the Birmingham terminal made to Houston on August 21, 1978, an offer of full reinstatement to former or sub- stantially equivalent position. Rather it was clearly of record a recall from layoff, pursuant to contractual pro- visions and accomplished in accordance with tHouston's independent seniority rights, earned by him for years of prior service at that terminal and still active and in effect. Obviously the Birmingham terminal employment was not an offer to the former position occupied at the time of the discrimination, viz, job applicant for work at the Baton Rouge terminal as casual, but with prospective opportunity for first full-time job opportunity thereafter to be offered. Factors of part-time work versus full-time work are not insignificant distinctions affecting issue of full reinstatement, f. East Belden C(orporation, 239 NLRB 776 (1978), and only the more so where addition- ally to be taken into account is a promise of first oppor- tunity for prospective regular work. ()ther factors of dis- tance between the terminals and relative closeness to fa- milial home are also valid contraindicators that an offer is made of even substantial equivalent nature. I thus con- clude and find that Respondent's recall of Houston for work at its Birmingham, Alabama, terminal did not con- stitute an offer of full reinstatement to former, or suh- stantially equivalent position, without prejudice to se- niority or other rights and privileges, and that according- ly Respondent's obligations in that respect and for hack- pay were not extinguished and/or tolled. I have earlier found that Houston was terminated while employed at Respondent Employer's Birmingham terminal. However, even assuming that Houston had in- tended to quit his employment there, at some prospective time, it is observed that it does not necessarily follow from Houston's indicated dissatisfaction with working only 2-3 days a week at Employer's Birmingham, Ala- bama, terminal over 750 miles from familial home and native community that Houston had abandoned interest in working for Respondent Employer at the earlier de- sired but discriminatorily denied location, viz, its Baton Rouge, Louisiana, terminal to which area Houston had returned and secured other employment. 0 In any event, the requirement that an offer of reinstatement be made is not one readily obviated, e.g., not by circumstance that the discriminatee, in the interim prior to offer of rein- statement, is working elsewhere for another employer or himself or for the employer, but in another position nor solely because of expression of past or present intent to .:1 huis .ackawantna Leather (oitpuarn. cupra. on ,r1 hich lI 1pl over would rely appears distinguishable in hat there he elilplocc hadli gien iotice of intent to quit while still emiploNed and prior to (ie dichrinliina tion Similarly, ill L.i , Irnlatorn. Inc iupra, nlin eplli)oe althougL tli criminated agalinsl was not discriminalrily terminated hefirre a; disllhargc for another niondise riminalorn reason occurred quit where no offer of reinstatement, as is required, has in fact ever been made. The discriminatee is entitled to have the valid offer of reinstatement before him prior to making an unequivocal election as to whether to return to work for the Employer or work elsewhere. Nor, con- sequently, has Respondent Employer's backpay obliga- tion ended, cf. Central Cartage, Inc., 236 NLRB 1232, 1243, 1260 (1978); Medline Industries, Inc., 233 NLRB 627, 653 (1977), modified in nonrelevant part 593 F.2d 788 (7th Cir. 1979); Dobbs Houses, a Division of Squibb- Beechnut, Inc., 182 NLRB 675, 682 (1970); Heinrich Motors, Inc., 166 NLRB 783, 785-786 (1967), enfd. 403 F.2d 145, 150 (2d Cir. 1968). Moreover, the General Counsel has correctly observed that an important consideration in the requirement that an offer of reinstatement be made, as is required, is for the purpose of the Act that other employees at the Baton Rouge terminal be made aware that involved and guar- anteed Section 7 rights are protected through an eventu- al ordered offer of the return of the discriminatee to former position, and that the discriminatee is to be made whole as well, Valmac Industries, Inc., 229 NLRB 310 (1977); M Restaurants, Incorporated, d/b/a The Mandarin, 228 NLRB 930 (1977). There thus remains but to consider Respondent Em- ployer's final contention that, in view of its interim dis- charge of Houston at Birmingham and its established uni- versal policy against the rehire of a former discharged employee, the Board should decide not to order the rein- statement of Houston in this case and should rather con- elude the backpay obligation tolled as well as of date of discharge on March 23. 1979. It appears, however, that the test in similar such circumstances has been not whether the employer has a preexisting rule that a discri- minatee may subsequently have violated,3 ' but rather whether the subsequent conduct of the discriminatee was, or was not. so egregious as to render the employee not reemployable. Such has clearly been the test where the discernible wrongful conduct was provoked or gen- erally contemporaneous with the prior discrimination, Baker Machine & Gear, Inc., 220 NLRB 194, 208, fn. 1 (1975). It appears to have been the test employed in LudwHig Fish & Produce, Inc., 221 NLRB 1306 (1975), where reinstatement was not ordered in that case where the discriminatee was subsequently convicted for a theft of the employer's property (though it is observed the actual underlying wrongful conduct had occurred even prior to discrimination). But here we do not have on the one hand a discharge with subsequent conduct recently provoked nor on the other hand conduct equal to a theft but rather a postdiscrimination discharge at a distant ter- minal for absences from the work assignment of but 2-3 days a week without an offer of prior required reinstate- ment ever having been made. The offer of reinstatement in a discriminatory discharge or refusal of employment case is the conventional remedy because it is basic to the Board's remedial scheme, Heinrich Motors, Inc., supra at 785. After full reflection on and balancing of the above I [hlls ilso dtlrsilgush.ablth aIr tholse casles here the employer had actlually decided It) discharge the ctiployee hefoire the discrimination was connnitd1111 1 (t I JaA(r (uh. I , 218 NlRB 22. 26 (1975) 688 ROADWAY EXPRESS, INC factors I find myself persuaded by the General Counsel's contention that Houston's absences at Birmingham, ob- jectively viewed, while they may have been lawful cause for discharge under the contract's provisions nonetheless did not involve such egregious conduct on Houston's part at the time as to render Houston unfit for reinstate- ment which all through that very period has been wrongfully denied him by Respondent Employer's con- tinuing discriminatory refusal to employ Houston at Baton Rouge. As Respondent Employer has failed to offer Houston the usual and required reinstatement to date, I shall recommend that Respondent Employer be ordered to reinstate Joseph L. Houston now. 3 2 In my view, to conclude otherwise and to order less would leave the spectre of discernible consequences of the prior discriminatory conduct at the Baton Rouge terminal left inadequately remedied. I observe application of the wholesome principle that any doubt therein must be re- solved in the victim's favor, not in benefit of the trans- gressor. CONCI USIONS OF LAW 1. Respondent Employer, Roadway Express, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union, General Truck Drivers, Ware- housemen & Helpers Local Union No. 5, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. On May 23, 1978, Respondent Employer denied em- ployment to Joseph L. Houston, as a casual employee (with promise of first regular employment thereafter), be- cause of his lack of membership in Respondent Union, in violation of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 4. On May 23, 1978, Respondent Union attempted to cause and did cause Respondent Employer to deny the aforesaid employment to Joseph L. Houston, because of the latter's lack of membership in Respondent Union, in violation of Section 8(b)(l)(A) and (2) and Section 2(6) and (7) of the Act. THE REMFDI) Having found that Respondent Employer and Respon- dent Union have engaged in certain unfair labor prac- tices, I find it necessary to order Respondent Employer and Respondent Union to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including the posting of the at- tached notices deemed adequate to remedy the violations found. 33 a2 Cf. O' Danrwl Oldsmobile, Inc., 17' NLRH 38 at 4)05 ( 9h)I I.f R, raurants, Incorporated. d/b/a The Mandarin. rupra at 130. 912 (1977) Contrary to Respondent's urgings It is obhserrsd that I h co urt ill ,.L.R.B. v 7homuvr .4ywk. Jr. d/h.u h i.ra ita ds !77 F 2d l1 5thl Cir 1967), recognized the coiltlinuatioln of the backpa i ohligatil l l.ir reinstatement has not been effected Other considerations of ci ef I rl the amount f backpa due ttouston i certain periods heC;il-N. sit U I Il loss of earnings. or its equivaleln mal y i til hrt c, nmpliallie proceedlinLs 3" The General CouLisl has further requested lthi Rcspolrldcri lt lll be ordered to ease discrimirnaitig against Ittrllsiot itoh regard it! jo re ferrals because of his Inonmembership in (he L till, L d a pol n it a;l Ippriprli- ate notice to that effect As such mnillter as s riot ai illegitioll of lile irlH I have found that Respondent Employer discriminator- ily refused employment to Joseph L. Houston on May 23, 1978, because of his lack of membership in Teamsters Local Union No. 5; and that Respondent Union caused or attempted to cause the Employer to do so. I find it necessary to order that Respondent Employer offer Joseph L. Houston full reinstatement to his former posi- tion, or, if that position no longer exists, to a substantial- ly equivalent position, without prejudice to his senior- ity 3 4 and other rights and privileges. I further find it necessary to order that Respondent Employer and Re- spondent Union, jointly and severally, make Joseph L. Houston whole for any loss of pay or other benefits, suf- fered by reason of the previous discriminations practiced against him. ackpay will be computed in accord with the Board's decision in F ' W' Woolworth Conpanl, 90 NI.RB 289 (1950), and -lorida Steel Corporation, 231 NIRB 651 (1977)."3 ' Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: OR DER:a6 A The Respondent Employer. Roadway Express. Inc., its officers. agents. successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against Joseph L. Houston with regard to employment at its Baton Rouge terminal be- cause of his lack of membership in Respondent Union. (b) In any like or related manner interfering with, re- straining, or coercinig employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) ()ffer to Joseph 1. Houiston immediate nemploymellnt at the same or substanrtially equilvalent position at ',hich he would have been employed had he nrot been previous- ly discriminated against without prejudice to his seniority or other rights and privileges, and jointly and severally with Respondent Union, General Truck Drivers, Ware- housemen & Helpers l.ocal Union No. 5, make him whole for any loss of pay or other benefits, suffered by reason of the previous discrimination practiced against him, together with iterest. in the manner described above i the section entitled '"Ihe Remedy." (b) P'reserve and, upoII request, make available to the Board or its agelits. for examination ad copying, all payroll records, social security paymctrt records, tinme- plali. , 1lr ill it[ labor pra ti-.ll fil d.Ii ril . hllia tlC ioll , for reasonls stated earlitr, rel te'ilaJ irter thtretiis o t Ili et reCni, ; :rr:illl dh : Smiriits lerr [cteiirfd tr. I% ri, it { if' .l ; rbepic ls h s ~Irtilt t th rilledtlS f it tlt ill",s hllg h e lled ill tilpl l -nlt pportill,s it R- spretRlrli H1t1oI e t ir;illtlt RoIg I, tlrrt i1. i \,r lilig rlitre In ll tic l l . alti lireh l ll p ih H litloIstoni' [etc riilrl.r vll IN4Olill hto 1t1 I cli l er .i1 Itls l llifrro.i;tm %r llr i St.t, gciI-lrI i, /y I i/1v-Irrwlr/ I f/o[tr ( 1 8 NI Ri 711, (I'Hhr2 IL Ill li'e .rin ltl l MI itpt -im tile l 1 ,I .r r tl . lt d Sr. 1i 0 4{ tl IIIt Ruier, il]d R'grr]itir% o Ihe Ni.i~ir I ibi R ti,, ii I lie 1- i L I I I L I1 ,l, II I l /, It' iI I ' I) I . I Il tl l %}/,tl Ilb I IIt IJdt'I ill St. Ill' 4S I ItI- Rills 111 RtL'giLilllI ' . rr .id,1 ittl It I fll , ll dl let ' O lnL Il, I u l, . l., lllJrJI JrS . ilnI ()il'il ,l il l I hletluIr letI-I .11..lJI 1 }be , Ir'i, .t.lXid t,1][ I LO ,ISrC> 689 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at Respondent Employer's Baton Rouge ter- minal copies of the attached notice marked "Appendix A."3 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent Employer's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent Employer for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent Employer has taken to comply here- with. B. Respondent Union, General Truck Drivers, Ware- housemen & Helpers Local Union No. 5, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Respondent Em- ployer, Roadway Express, Inc., to discriminate against Joseph L. Houston with regard to employment at Re- spondent Employer's Baton Rouge terminal because of his lack of membership in the above Union. :'7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National labor Relations Board" shall read "Posted Pursu- ant to a Judgmenl of the United States Court of Appeals Enfifrcing an Order of the National L.abor Relations Board," (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Notify Respondent Employer, Roadway Express, Inc. and Joseph L. Houston, by letter, that it has no ob- jection to the employment of Joseph L. Houston by Re- spondent Employer at the latter's Baton Rouge terminal. (b) Jointly and severally with Respondent Employer, Roadway Express, Inc., make Joseph L. Houston whole for any loss of pay or other benefits suffered by reason of the discrimination practiced against him, together with interest, in the manner described above in the section en- titled "The Remedy." (c) Post at its offices copies of the attached notice marked "Appendix B."3 8 Copies of said notice on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (d) Deliver to the Regional Director for Region 15 signed copies of said notice in sufficient number to be posted by Roadway Express, Inc., at its Baton Rouge terminal, Respondent Employer willing, in all places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. :d See fri 37, upru. 690