Roadway Express, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roadway Express, Inc. and John Mitchell. Case 26- CA-7147 June 1, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On February 8, 1979, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Roadway Express, Inc., Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i Respondent has expected to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASIE HUTTON S. BRANDON, Administrative Law Judge: This case was heard at Memphis, Tennessee, on September I I- 12, 1978.' The charge was filed by John Mitchell, herein called Mitchell, on April 13, and the complaint was issued on May 17, alleging that Roadway Express, Inc., herein called Respondent, violated Section 8(a)(3) and (1) of the National Labor Relations Act, herein called the Act, when it refused to employ Mitchell on or about January 9 and I All dates are in 1978 unless otherwise stated. thereafter because of his union activities. The refusal to em- ploy Mitchell was the only issue presented in this case.2 Upon the entire record, including my observation of the demeanor of the witnesses, and after due con- sideration of the brief filed by Respondent, I make the following: FINDINGS OF FA(T I. JURISDICTION Respondent is a corporation doing business in the State of Tennessee with an office and place of business located at Memphis, Tennessee, where it is engaged in the transporta- tion of freight. During the past 12 months Respondent in the course and conduct of its business operations received in excess of $50,000 for the transportation of goods which originated outside the State of Tennessee, or which were designated for delivery to points outside the State of Ten- nessee. Respondent by answer admits, and I find, that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THI LABOR ORGANIZAIlON INVOI.VIDI The complaint alleges, Respondent by answer admits, and I find that Highway and Local Motor Freight, Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, herein called the Union, is and has been at all material times herein a labor organization within the meaning of Section 2(5) of the Act. 2 This case was originally consolidated by the Regional Director of Region 26 on August 25 with two other cases involving two additional Respondents. Consolidated Freightways Corporation of Delaware, Case 26-CA-7148. and Superior Forwarding Company. 26-CA-7150 At the hearing I granted the motions of all Respondents to sever and try each case separately inasmuch as the General Counsel conceded that Respondents were all different parties and that he was not espousing any theory of a conspiracy between Respon- dents in the unfair labor practices alleged against each of them. i.e., the failure to hire Mitchell, the Charging Party in all three cases. Moreover, the facts in each case were different, and a determination on anyone of the cases was not dependent on, or directly related to. disposition of either of the others. The General Counsel declined to argue orally or file a brief on the prem- ise he had never rested his case. His position in that regard was taken after I declined his request for a continuance for an unspecified time to inspect documents subponaed from Respondent. My denial of the continuance ol- lowed a grant of the General Counsel's request for a recess of several hours on the first day of hearing for the purpose of reviewing such documents. In granting the request for a recess I specifically offered the General Counsel the opportunity to request a continuance of several weeks for the same pur- pose if he chose to request one at that time but added that I would not be inclined to grant the recess in addition to a subsequent continuance. The General Counsel opted for the recess, but the next day of the hearing he nevertheless moved for a continuance. That request, opposed by Respon- dent, was denied by me based on my previously stated position. Since the General Counsel conceded that he presented all of his case except for "what- ever" might be reveaed by further examination of subpoenaed documents. I treated his refusal to rest as a device to avoid the impact of my denial of the requested continuance, and seeing no denial of due process, proceeded with the case as if the General Counsel had rested. The General Counsel contin- ued to participate in the hearing and cross-examined Respondent's witnesses. 242 NLRB No. 116 716 ROADWAY EXPRESS, INC. III. THE Al.I.EGED UNFAIR LABOR PRACTICES A. Background Mitchell, the Charging Party, worked for a number of years for Respondent at its Memphis Terminal as a truck- driver prior to March 1975, when he was granted a leave of absence following his election as president of the Union. Pursuant to article 41, section 2(b) of the collective-bargain- ing agreement between Respondent and the Union,' which represents certain of Respondent's employees including Mitchell, leaves of absences for accepting employment by the Union could be granted for up to 6 months. More spe- cifically, section 2(b) in pertinent part states: Employees who may on or after February , 1955, take a leave of absence for the purpose of accepting em- ployment with the Union or employment in a supervi- sory capacity with the Employer shall accumulate no further seniority beyond the date of taking the leave. If such employees do not return to the job classification covered under this Agreement within six (6) months from the time they take their leave, they shall forfeit all seniority. If they return to their job classification be- fore the end of the six (6) months period their seniority shall resume from the time at which it was stopped, eliminating the period of time they worked outside the classification. The Employer shall be under no obliga- tion to the employee on leave of absence under this Section except to return him to work in accordance with his agreed seniority. In mid-August 1975, Mitchell, while on leave of absence, talked to W. R. Patterson, manager of Respondent's relay terminal where Mitchell had worked, and asked Patterson to be allowed to run a trip for Respondent so that he could get a renewed leave of absence and thereby protect his original seniority.' Patterson, after checking with Joe Varble, manager for labor relations for Respondent, denied Mitchell's request. On September 9, 1975, after Mitchell failed to return to work upon expiration of his leave of absence, he was "ter- minated." Patterson marked Mitchell's employment status form (PR-3) so as to show that Mitchell was not eligible for rehire. This, according to Patterson's testimony, was in keeping with a policy in Respondent's personnel manual that "Employees who are discharged, whose resignations are submitted in lieu of discharge, or who voluntarily quit or resign without giving at least two (2) weeks advance no- tice shall not be considered eligible for rehire."6 There is no question that Mitchell did not resign nor did he ever give Respondent any 2 week notice, oral or written, that he did 4 The agreement is referred to as the National Master Freight Agreement. A copy of the agreement in evidence, G.C. xh. 4. is effective from April 1, 1976, to March 31, 1979. No party contends that the language with respect to art. 41 differed in any manner in the preceding agreement effective during 1975. 'Mitchell testified that he made this request because at the time he had not made up his mind whether he was going to complete his term as pres- ident of the Union. While Mitchell denied the intent of this action was to preserve his seniority there was no other credible basis for it. ' Respondent's personnel manual shows that the page upon which this policy is found was dated "12/l/74." Patterson's uncontradicted testimony was that the policy became effective sometime in 1974. not intend to return to work at completion of this leave of absence. Mitchell testified without contradiction he was never aware that any such notice was required for rehire eligibility. Mitchell was advised of his termination by letter from Patterson dated September 9, 1975. which recited the dates of Mitchell's leave of absence and noted his failure to return to work within 6 months from the time his leave began.7 The termination was again related to Mitchell by a second letter from Patterson dated October 3, 1975, in which he noted Mitchell's August request for a trip to retain his se- niority and stated: Your returning for one trip was not acceptable: there- fore, your employment has been terminated, since you did not return to work on a permanent basis at the expiration of your leave of absence. Mitchell replied to Patterson's October 3 letter and im- plied that while he had asked Patterson in August for a "turn" run he had made no statement that he intended to run only one trip to protect his seniority. Additionally, Mitchell protested his termination set out in Patterson's Oc- tober 3 letter. He thereafter received no response from Pat- terson and no grievance was ever filed on Mitchell's termi- nation. Mitchell continued in his position of president of the Union until he was voted out of office in a union election held in mid-December 1977. Thereafter he began his em- ployment efforts with various employers in the Memphis and other areas, including contacts with Respondent's rep- resentatives as related below. B. Mitchell's Efforts To Secure Work from Respondent Mitchell testified that on or about December 27 or 28, 1977, following his loss of the Union election but while he was still in office, he telephoned Patterson and advised Pat- terson that he would like to return to work for Roadway on January 9. Patterson, according to Mitchell, replied that he had no objections to it but would have to talk to Joe Varble about it and would have to get back with Mitchell. Patter- son in his testimony related that he told Mitchell "words to the effect" that he could not accept Mitchell's application because he had been "terminated," Mitchell then asked Patterson if Patterson minded Mitchell's "going over his head" to "alleviate the policy" Patterson was operating un- der and indicated he was going to talk to Jack Nelson, Patterson's district manager and Patterson's superior. Pat- terson apparently expressed no opposition to this. Patterson admittedly told Mitchell in the same conversation that as an employee and road driver for Respondent as well as president of the Union he and Mitchell had had a pretty "good relationship." I credit Patterson's version of his con- versation with Mitchell in late December to the extent it varies from Mitchell's. While Patterson exhibited a gener- More specifically the letter stated: You have not returned to your job classification as a road driver within six months from the time you took your original Leave of Ab- sence (March I i., 1975) in accordance with the contract. This letter is to advise you that your employment with Roadway Express, Inc., has been terminated and your name removed from the seniority list in accordance with Article 41 Section 2lb) of the Southern Conference Area Over the Road Supplemental Agreement, 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ally hazy recollection of events, he conveyed an overall im- pression of truthfulness. Moreover, his reference to Mitch- ell's statement about going over Patterson's head is entirely consistent with Mitchell's subsequent action in calling Nel- son, a call which Mitchell testified he subsequently made on the same day he talked to Patterson. Mitchell telephoned Nelson from Mitchell's office in the presence of Union Business Agent Odie Loftin who listened to the conversation on a conference telephone without Nel- son's knowledge. According to Mitchell, when he asked Nelson about coming back to work for Respondent on January 9 Nelson replied that he did not think that it would be wise in view of Mitchell's position, that Mitchell had lots of friends and they would be asking for union advice about different things. Mitchell replied that he would leave the union business up to the business agent and the steward and would just be a good employee, and reminded Nelson that Mitchell had a "reasonably safe" driving record for Respondent and had been in the top 20 percent of the wage earners for Respondent. Nelson acknowledged that but added that he still did not think it would be wise in view of the position that Mitchell held and that it could create problems for Mitchell and Respondent. Thereafter Mitchell inquired if Nelson had any objections to Mitchell's working for Respondent in Atlanta; Valdosta, Georgia: or Chatta- nooga, Tennessee. Nelson indicated Respondent was hiring in Valdosta and Atlanta and he did not have any objections to Mitchell's applying at those locations, but Mitchell would have to contact the people there. Moreover, Nelson supplied Mitchell with some names to contact there. Loftin, called as a witness by the General Counsel, sup- ported Mitchell's testimony regarding his conversation with Nelson. On cross-examination Loftin explained that his presence in Mitchell's office during the conversation with Nelson was due to their joint efforts to find employment since Loftin had also lost his bid for reelection as a union business agent. According to Loftin other telephone calls to various employers seeking employment had been made from his office with Mitchell present. Nelson's version of the conversation with Mitchell dif- fered significantly. He testified that he told Mitchell that they could not consider Mitchell for employment because he had been terminated and Respondent had a policy about not re-employing terminated employees. Mitchell, accord- ing to Nelson, claimed that he would not stir up any trouble if employed and that he "wouldn't be involved in trying to counsel drivers in union activities, or be filing a bunch of grievances, or . . . making problems." Nelson testified he replied, "I don't know about that, . . . I should imagine it would be hard having been president of a Local not to be involved, to not have people come to you, but, .... that had nothing to do with it as far as I was concerned with re- employment." "It was purely that it was company policy not t do so." Having considered the testimony of Mitchell, Loftin, and Nelson. I am persuaded that Mitchell, as corroborated by Loftin, must be credited. I was particularly impressed by I Consistent with his testimony herein Mitchell filed a grievance against Respondent on January 5 in which he alluded to the remarks he attributed to Nelson. The grievance sought Mitchell's reinstatement to "the bottom of the road board" at Respondent's Memphis terminal. The grievance was heard by the Multi-State Gnevance Committee which in March decided against Loftin's apparent sincerity in testifying. Nelson was less im- pressive and displayed a rather self-serving recollection of the conversation with an inability to recall further details. I find it significant that he did not specifically deny Mitchell's testimony about asking for employment at Respondent's terminals other than Memphis. Had Nelson been relying on the claimed policy basis for not reemploying Mitchell it would have been highly unlikely that he would have dis- cussed Mitchell's employment at other of Respondent's ter- minals for Respondent's policy was universal in application to all terminals. Mitchell continued to seek employment by Respondent in Dallas, Texas. Having heard from W. M. Gibson, a Roadway driver, in mid-February that Respondent was hir- ing at its Dallas terminal, he telephoned Loren Neal, Re- spondent's relay terminal manager in Dallas, and expressed his interest in employment. According to Mitchell, when he talked to Neal on or about February 18, he suggested Neal check with the Memphis office of Respondent to see if there would be a problem, and he assured Neal that he would give him no union problems. Neal told Mitchell he would be taking applications on February 22 and that he would see if there would be any problem. Because of a death in the family Mitchell did not go to Dallas on February 22 but did talk to Neal by phone on Monday, February 27, or the preceding Friday. According to Mitchell, Neal told him that he had talked to Patterson at the Memphis terminal and then told Mitchell to "come on out." Mitchell then proceeded to Dallas where he talked to Neal on or about March I. At that time Neal advised him that Akron (appar- ently Respondent's home office) was carrying Mitchell as terminated and that while Mitchell could put in an applica- tion it would just be a "waste of time." Neal was not called to deny Mitchell's testimony in the foregoing respects. After returning to Memphis on or about March 1, Mitch- ell went to see Patterson and complained about being car- ried by Respondent as terminated. He further complained that he had only failed to return from a leave of absence but that Respondent's carrying him as terminated pre- vented him from getting a job anywhere. The result was that he was going to lose his pension. Patterson asserted that he did not want to see Mitchell lose a pension and indicated that he would get in touch with Varble and see what could be changed with respect to the termination. A few days later, about March 6, Patterson phoned Mitchell and told him that he had talked to Joe Varble and they had changed his termination to "voluntarily quit" and read the new language to him. Subsequently, Mitchell received a let- ter from Patterson dated September 9, 1975, which ap- peared to be a restatement of the original September 9 let- ter designed to avoid the use of the word termination. Thus, the last paragraph of the letter used the following language: This letter is to advise you that your name has been removed from the seniority list in accordance with Ar- ticle 41 Section 2(b) of the Southern Conference Area Over the Road Supplemental Agreement. Mitchell on the basis, so far as this record shows, that Respondent could hire whomever it wantei to. No party herein contends that the Committee's decision was dispositive of the unfair labor practice issue in this case or that the Board's holdings in Spielberg Manufacuring Company, 112 NLRB 1080 (1955), and Denver-Chicago Trucking Company, Inc., 132 NLRB 1416 (1961), deferring to arbitration awards, are applicable to this case. 718 ROADWAY EXPRESS, INC. Finally, Mitchell testified that he had conversations with Patterson several times after he filed the charge herein and on one occasion offered to work for Roadway, at "Chatta- nooga, Atlanta, Dallas, or anywhere" they wanted him to work, but Patterson replied that it was out of his hands. C. Contentions and Conclusions The General Counsel, through statements at the hearing, appears to contend that Michell was not hired because of his former position as president of the Union and his ac- tions in connection with the performance of his duties in that position. In addition to Mitchell's and Loftin's testi- mony regarding Nelson's statements as to the refusal to rehire Mitchell, the General Counsel, in establishing the violation alleged, relies upon evidence that Mitchell, as president of the Union, had been involved in grievance matters involving Respondent's employees and on two oc- casions threatened Respondent with strikes and on one oc- casion had in fact called employees out on a strike. Thus, Respondent's employee W. M. Gibson testified without contradiction that within 90 days after he assumed office Mitchell threatened Respondent with a strike over a dispute concerning Respondent's failure to comply with a "commit- tee" decision involving movement of trucks by hostlers. A second threatened strike by Mitchell occurred in 1976 over a dispute concerning a clear passage to a safety lane from the driver's room. These matters were resolved without a strike, however. A strike did occur, according to Gibson, in January or February 1976, when Mitchell took the employ- ees of Respondent out over a dispute concerning the dis- charge of a driver. The strike lasted about 2 hours and ended on the driver's reinstatement. Gibson also testified that Mitchell was involved in the successful processing of grievances against Respondent in 1975, 1976, and 1977. As further evidence of Respondent's discrimination in re- fusing to hire Mitchell, the General Counsel introduced rec- ords from Respondent's personnel files attempting to show that Respondent was discriminatorily applying its "policy" against employing previously discharged employees, or em- ployees having quit without 2 weeks' notice. These records show that three employees9 were rehired even though their previous employment history reflected that their written resignations were submitted on the last day worked or within a day or two of the last day worked. Presumably the General Counsel would have me believe that the resigna- tion notices did not meet the requirements of Respondent's policy regarding 2-weeks' notice of a quit to insure eligibil- ity for rehire. I find this evidence unconvincing in this re- gard for Respondent made no contention that the 2-weeks' notice required under its policy had to be in writing. Ac- cordingly, and in the absence of evidence that the employ- ees had not given a timely oral notice prior to their written resignations, I do not find these records to substantiate a deviation by Respondent from its policy. Personnel records introduced in evidence by the General Counsel on three employees' 0 show that they were allowed to resign at one of Respondent's terminals for the purpose of being hired at other of Respondent's terminals. These 'James Boothe, J. D. Atkins, and James Buckner. 0O James Cooper, Oscar Adaway, and G. D. Tedford. records reflect that the employees resigned under special circumstances to effectuate a transfer specifically agreed to by Respondent's management. In my opinion, they may not be equated to a "quitting" without notice and do not establish a breach of Respondent's policy. I do not. there- fobre, consider them as evidence of discrimination against Mitchell. The General Counsel submitted the personnel record of only one employee" originally marked terminated by Re- spondent (quit without notice), who had been rehired by Respondent in apparent contradiction of its stated policy against such a rehire. However, that rehire was effected in February 1968, at a time before the "policy" had been ini- tiated according to Patterson's uncontradicted and credited testimony. Accordingly. I do not regard it as reflecting a breach of the "policy" supporting a conclusion of discrimi- nation against Mitchell. The Respondent in its brief insisted that its refusal to rehire Mitchell was solely due to the application of its pol- icy against rehiring those employees who had been previ- ously terminated." Mitchell was "terminated" for overstay- ing his leave of absence. Respondent conceded that the language of its policy speaks in terms of "discharge" rather than termination, but argued that termination was tanta- mount to discharge. Respondent also argued in its brief that there was no evidence of animus on the part of Respondent shown against Mitchell because of his position as union president. In claiming an absence of evidence of animus against Mitchell, Respondent cited the fact that in Novem- ber 1975, it rehired Billy Joe Moffitt, a former business agent of the Union, following the completion of his term of office. Finally, Respondent characterized Mitchell's griev- ance and strike activity with respect to Respondent's em- ployees while union president as "nothing extraordinary" and espoused the view that if "these were the most hostile occurrences between Mitchell's administration and Road- way in Memphis, it would appear that the relationship was amicable indeed." Considering all the foregoing, I concur in Respondent's position as to the absence of evidence of unlawful "animus" against Mitchell because of his past union activities vis-a-vis Respondent's employees. Respondent's initial action in "terminating" Mitchell occurred prior to the major portion of such activities on Mitchell's part while president of the Union. Hence, such activities would not appear to have been a motivating factor in accomplishing the "termina- tion" upon which the present refusal to rehire him is alleg- edly based. That termination must be considered as legiti- mate under the Act for litigation of the unlawful nature of the "termination" is precluded by operation of Section 10(b) of the Act." In addition, there is no significant evi- dence of a causal relationship between the refusal to rehire Mitchell and his previous grievance processing and strike activity. " James Seymour. 1 Respondent made no contention that it had no positions available on and after January 9. Moreover. Respondent through Counsel, stipulated at the hearing that Mitchell was "qualified" for employment. 13 Sec. 10(b) of the Act provides in pertinent part "no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made...." 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above does not preclude the existence of a violation here, however. Contrary to Respondent's argument of a to- tal absence of evidence of unlawful animus against Mitchell the credited testimony of Mitchell and Loftin establishes that Nelson was concerned, not about Mitchell's prior union activities, but about what his future presence as an employee might portend for Respondent by virtue of Mitchell's past union leadership. Nelson feared Mitchell's employment would create problems for Respondent. Nel- son's statement thus reflects an unlawful concern over Mitchell's employment and demonstrates the "animus" which tends to establish the violation of the Act alleged in the complaint. In view of Nelson's statement, the fact that Respondent may have previously rehired a former union business agent loses significance it might otherwise have had. According to Mitchell's uncontradicted and credited tes- timony, Patterson advised Mitchell that he had no objec- tion to reemploying Mitchell except for application of Re- spondent's "policy" to Mitchell, and that waiver of the policy was up to "higher-ups." Further, Respondent stipu- lated that Mitchell was otherwise "qualified" for employ- ment. Thus, absent application of the "policy," there was no other lawful basis for not rehiring Mitchell shown in the record. While Respondent could rely upon its policy in not rehiring Mitchell, Nelson's statement establishes that Re- spondent's reliance upon such policy was not total and that Respondent had an unlawful concern in applying the policy to Mitchell. It is well established that it is sufficient to find a violation of the Act if a substantial or motivating ground for the termination of an employee was for his union ac- tivity notwithstanding that another valid cause for his dis- charge may have existed. See United Aircraft Corporation v. N.L.R.B., 440 F.2d 85 (2d Cir. 1971); S. A. Healy Company and/or Tom M. Hess, Inc. v. N.L.R.B., 435 F.2d 314 (10th Cir. 1970); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (Ist Cir. 1953); KBM Electronics, Inc., ti/a Carsounds, 218 NLRB 1352 (1975). The mixed motive prin- ciple applies to refusals to hire as well as terminations. Moreover, the evidence warrants the conclusion which I hereby make that Respondent was unwilling to reconsider the application of its "policy" to Mitchell because of its unlawful concern about the effect of his reemployment and "union" problems it might create. An unbiased and lawful reexamination of Mitchell's termination may well have re- sulted in a conclusion that he was eligible for rehire. After all, contrary to Repondent's asserted claim, article 41, sec- tion 2(b) of Respondent union contract, previously recited herein, does not require termination of employees who overstay a leave of absence. It merely provides for a forfei- ture of all seniority, and possibly eliminates an obligation to rehire, but it does not preclude rehire. Furthermore, Mitch- ell wa, never advised prior to his "termination" that failure to return to work at the end of his leave of absence would result in such termination in the absence of a resignation. Nor was he ever told of Respondent's policy that an em- ployee who quit without 2-weeks' notice would be treated as "discharged" or "terminated" so as to make such em- ployee ineligible for reemployment. Certainly, Respondent recognized the inequity and basic unfairness of the applica- tion of its policy to Mitchell's situation when in March Pat- terson revised his original September 9, 1975, letter to Mitchell to eliminate reference to his "termination" so that Mitchell might more easily obtain employment elsewhere. In view of the foregoing, I conclude that Respondent's refusal to hire Mitchell on and after January 9, when he became available for employment was based, at least in part, upon Respondent's unlawful concern over hiring a past union president. It follows, and I find, that Respon- dent's refusal to reemploy Mitchell constituted a violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW I. Respondent Roadway Express, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Highway and Local Motor Freight Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. 3. By refusing to employ John Mitchell because of his former position as President of the Union, Respondent has engaged, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed violations of Section 8(a)(3) and (1) of the Act, I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Since I have found that Respondent discriminatorily re- fused to employ John Mitchell it will be recommended that Respondent be ordered to employ Mitchell at its Memphis terminal, where he initially sought employment, to the posi- tion in which he sought employment and for which he was qualified granting him the same seniority and other rights and privileges he would have enjoyed absent the discrimi- nation against him together with backpay.'4 The backpay shall be computed in accordance with the formula ap- proved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner and amount pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977).1 Inasmuch as the violations found here strike at the heart of employee rights, I shall recommend that Respondent be 14 The record does not clearly reflect any job openings at Respondent's Memphis facility after Mitchell applied. However, the presence of absence of a job opening is essentially a matter for compliance where the evidence, as here, establishes a discriminatory refusal to consider an applicant for em- ployment. See e.g., Goodwater Nursing Home., Inc., 222 NLRB 149 (1976); G. C Lingerie Corporation of Alabama, 146 NLRB 690 (1964). u5 See generally, Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962). In another decision issued by me on this date I found that Mitchell was unlawfully discriminated against by another employer during essentially the same period of Respondent's discrimination herein. See Consolidated Freightways Corporation of Delaware, 242 NLRB 770. Accordingly, this rec- ommended Order is to be construed as requinng mutual and several liability by Respondent for backpay wherever it appears during the compliance stage orf this proceeding that the actual periods of discrimination coincide. 720 ROADWAY EXPRESS, INC. ordered to cease and desist from infringing in any manner on the rights guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (4th Cir. 1941). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 6 The Respondent, Roadway Express, Inc., Memphis, Ten- nessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Highway and Local Motor Freight, Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization by discriminatorily refusing to employ employee applicants, or in any other manner discriminating against them with re- gard to their hire and tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer John Mitchell immediate employment in such position as he would have been hired absent the discrimina- tion against him with the same seniority and other rights and privileges he would have enjoyed and make him whole for his loss of earnings in the manner set forth in "The Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Memphis, Tennessee, facility copies of the attached notice marked "Appendix."' Copies of said no- " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. '" 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 Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." tice, on forms provided by the Regional Director for Re- gion 26, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by anN other material. (d) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of receipt of this Order. what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF HE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and to carry out its provisions. WE WILL NOT discourage membership in Highway and Local Motor Freight, Local 667, affiliated with International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. by discriminatorily refusing to em- ploy or re-employ any person, or in any other manner discriminating against them with regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with. restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL offer John Mitchell immediate and full re- instatement to his former job or. if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- leges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by paying him a sum equal to what he would have earned, less any net interim earnings, plus interest. ROADWAY EXPRESS, INC. 721