E & L Transport Co.

303 315 NLRB No. 43 E & L TRANSPORT CO. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of the evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We note that the judge incorrectly stated that the Respondent’s ter- minal manager, Al Schaeffer, asked Nancy Norton during her inter- view for the confidential secretary position why she was not a union member; rather, the Respondent’s management representative, Terry Hoeft, asked Norton this question. We also note that contrary to the judge, there is no evidence that the Respondent interviewed anyone for the data entry clerk positions in July 1990. We further note that the judge incorrectly stated that Kathleen Williams, whom the Re- spondent hired as a dispatch supervisor on July 25, 1990, did not receive her job description for that position until 1 week before testi- fying in this case; rather, the record indicates that she received her job description before she began working for the Respondent. We also find it unnecessary to rely on the judge’s characterization of employees James Houseman and Lisa Buschman as clerical employ- ees. 2 In adopting the judge’s finding that Dispatch Supervisor Vern Joyner is not a statutory supervisor within the meaning of Sec. 2(11) of the Act, we note that although Joyner initally approves or dis- approves drivers’ pay requests, the requests then must be reviewed and signed by the Respondent’s terminal manager or assistant termi- nal manager. Further, to the extent that Joyner has occasionally issued warnings which are not automatic pursuant to regulations or the contract, such incidents have been isolated and sporadic and are insufficient to indicate that Joyner is a supervisor within the meaning of Sec. 2(11). 3 The judge failed, however, to make a specific finding regarding whether this position was actually a confidential position under the Board’s ‘‘labor nexus’’ test, under which only those employees who act in a confidential capacity to persons exercising managerial func- tions in labor relations matters are confidential employees. NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170, 189 (1981); Crest Mark Packing Co., 283 NLRB 999 (1987). 4 Peerless of America v. NLRB, 484 F.2d 1108 (7th Cir. 1973). 5 NLRB v. Wheeling Electric Co., 444 F.2d 783 (4th Cir. 1971). 6 Sec. 2(3) of the Act specifically excludes ‘‘supervisors,’’ as de- fined in Sec. 2(11), from the definition of ‘‘employee.’’ 7 The Board in Pacific American, supra, drew a distinction, how- ever, between nonemployee applicants and present employees of an employer who are seeking a promotion to a supervisory position, stating that a refusal to accord an actual employee the normal con- sideration for promotion to a supervisory position based on protected concerted activity during such employment would clearly be a viola- tion of the rights of nonsupervisory employees. See Pacific Amer- ican, above at 597. E & L Transport Company and Local 710, High- way Drivers, Dockmen, Spotters, Rampmen, Meat Packing House and Allied Products Driv- ers and Helpers, Office Workers and Mis- cellaneous Employees, Chicago/Vicinity, Illi- nois. Case 13–CA–29431 October 18, 1994 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND DEVANEY On December 16, 1992, Administrative Law Judge Russell M. King Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply brief to the Re- spondent’s exceptions. The Respondent also filed a brief in reply to the General Counsel’s reply brief to the Respondent’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions2 and to adopt the recommended Order. One of the positions for which the judge found that the four discriminatees here should have been consid- ered was that of confidential secretary.3 The judge re- jected the Respondent’s argument that because a con- fidential employee position is outside the bargaining unit and arguably not protected by the Act, none of the discriminatees could have been considered for the con- fidential secretary position because of their union membership. Rather, the judge found that the fact that an individual is a union member should not preclude him or her from being considered and possibly hired for a confidential position where that person could not be a union member, because to so preclude that person would unlawfully discriminate against that individual because of his or her union membership. The judge noted that even if a position requires exclusion from the Union, the individual being considered can deter- mine for himself or herself if it is worth giving up union membership for the position. The Respondent argues that the Board should adopt the approach of the Seventh Circuit4 and the Fourth Circuit5 and find that confidentials should be excluded from the protection of the Act because they should be viewed as ‘‘supervisors’’ within the meaning of Sec- tion 2(3) of the Act.6 The Respondent further notes that current Board law holds that when Congress amended the Act to exclude supervisors from the defi- nition of the term ‘‘employee,’’ it denied to those seeking as well as to those holding supervisory jobs the protection of Section 8(a)(3) of the Act. Pacific American Shipowners Assn., 98 NLRB 582, 596–597 (1952); Ace Machine Co., 249 NLRB 623, 624 (1980); St. Anne’s Hospital, 245 NLRB 1009, 1009–1010 (1979).7 The Respondent contends that the Board should apply the same reasoning to applicants for con- fidential positions, and that thus the discriminatees here should not be entitled to the Act’s protection in applying for the confidential secretary position. Assuming arguendo that the confidential secretary position here would be a confidential position under the Board’s labor nexus test, we find nevertheless that applicants for confidential positions are within the 304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 In this regard, the Court stated that this construction of the Act expressed the conviction of Congress ‘‘that disputes may arise re- gardless of whether the disputants stand in the proximate relation of employer and employee, and that self-organization of employees may extend beyond a single plant or employer,’’ citing H.R. Rep. No. 1147, 74th Cong., 1st Sess., p. 9. 313 U.S. at 192. 9 Briggs Mfg. Co., 75 NLRB 569, 570 (1947). Cf. Star Tribune, 295 NLRB 543, 546 fn. 10 (1989). Note that while the Eighth Circuit denied enforcement on other grounds in Town & Country v. NLRB, above, the court stated that, ‘‘[a]pplicants for employment, however, have long been considered to be employees under the Act,’’ citing Phelps Dodge Corp., above. 10 Thus, an employer would have to show more than mere mem- bership in a union or past union activities in order to disqualify an applicant for being considered for a confidential position; rather, the employer would have to prove by objective evidence that it has rea- sonable grounds for believing that an applicant will be disloyal or will impair business operations. 11 In view of our disposition of this case, we find it unnecessary to pass on the continuing viability of Pacific American’s majority holding that nonemployee applicants for a supervisory position are not protected by the Act. Also, in view of our disposition of this case, we find it unneces- sary to consider the issue of whether the Act’s protections extend to confidential employees. Emanuel Hospital, 268 NLRB 1344 fn. 1 (1984). 1 The term ‘‘General Counsel,’’ when used herein, will normally refer to the attorney in the case acting on behalf of the General Counsel of the Board through the Regional Director of Region 13 of the Board. 2 Unless otherwise noted the occurrences herein occurred in 1990. 3 The Charging Party, on August 7, 1991, filed a motion to correct the transcript, agreed to by the General Counsel and not opposed by Respondent. The motion is granted and received in evidence as ALJ Exh. 1. These errors in the transcript have been noted and corrected. Act’s definition of ‘‘employee’’ under Section 2(3) and are entitled to the Act’s protection against a dis- criminatory denial of employment based on their past protected concerted activities. In Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 182–187 (1941), the Supreme Court broadly interpreted the Act to include applicants for work as well as actual hires within its protections, noting that, ‘‘[d]iscrimination against union labor in the hiring of men is a dam to self-organization at the source of supply. The effect of such discrimination is not confined to the actual denial of employment; it in- evitably operates against the whole idea of the legit- imacy of organization.’’ 313 U.S. at 185. The Court also noted that an embargo against employment of union labor was one of the chief obstructions to collec- tive bargaining through self-organization, and thus the prohibition in Section 8(a)(3) of the Act against ‘‘dis- crimination in regard to hire’’ must be applied as a means toward the Act’s object of removing such ob- structions. 313 U.S. at 186. The Court further noted that Section 2(3) of the Act encompassed a ‘‘broad’’ definition of ‘‘employee,’’ and excluded from that def- inition only those explicitly so excluded in the Act.8 313 U.S. at 192. Similarly, as discussed in Town & Country Electric, 309 NLRB 1250, 1255 (1992), enf. denied on other grounds docket No. 92–391 (8th Cir. 1994), the Board has interpreted the term ‘‘employee’’ broadly to ‘‘include members of the working class generally,’’ and has found that Section 2(3) includes applicants for employment.9 Assuming arguendo that an employer were able to require that an employee give up his or her union membership once the em- ployee assumes a confidential position, an employer cannot refuse to hire an applicant for a confidential po- sition because of past union membership or activi- ties.10 Thus, contrary to the Respondent’s argument, we decline to apply Pacific American to applicants for a confidential position.11 In this regard, we note that unlike supervisors, confidentials are not expressly ex- empted from coverage under Section 2(3) of the Act. Accordingly, we agree with the judge that the Re- spondent violated Section 8(a)(3) and (1) of the Act by refusing to consider for hire and refusing to hire any of the four discriminatees for the confidential secretary position. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, E & L Transport Com- pany, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Scott A. Gore, Esq., for the General Counsel.1 R. Ian Hunter, Esq. (Dean & Fulkerson), of Troy, Michigan, for the Respondent. Susan Brannigan, Esq. (Asher, Gittler, Greenfield, Cohn & D’Alba, Ltd.), of Chicago, Illinois, for the Charging Party Union. DECISION STATEMENT OF THE CASE RUSSELL M. KING JR., Administrative Law Judge. This case was tried in Chicago, Illinois, on April 8, 9, and 10 and June 11 and 12, 1991.2 Local 710, Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House and Al- lied Products Drivers and Helpers, Office Workers and Mis- cellaneous Employees Chicago/Vicinity, Illinois (the Union or Charging Party) filed the charge in this case on April 27 and the complaint was issued on June 29, amended on De- cember 7, and further amended during the trial of this case. The issue in this case is whether E & L Transport Com- pany (E & L, the Company, or the Respondent) refused to consider Dawn Szczepaniak, Kathleen Parker, Rebecca Pyka, and Kathy Williams for employment because they were members of the Union. On the entire record3 in this case including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by all parties, I make the following 305 E & L TRANSPORT CO. FINDINGS OF FACT I. JURISDICTION The Respondent is a Michigan corporation with terminals in various States, including the Chicago, Illinois terminal which is the site of the allegations in this matter. Respondent is engaged in the business of interstate and intrastate trans- portation of motor vehicles and annually derives gross reve- nues in excess of $50,000 for the transportation of such freight in interstate commerce pursuant to its arrangements with Ford Motor Company and other automobile shippers. As admitted, I find that the Respondent is engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act (the Act), and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background Prior to April, Nu-Car Carriers was the principal interstate carrier for Ford products at its Chicago terminal and em- ployed drivers, mechanics, and an office force of six clericals including the four alleged discriminatees. Respondent was a secondary carrier for Ford in Chicago and employed some drivers, a terminal manager and two clericals. A new contract was awarded to E & L in the beginning of 1990 and it was scheduled to take over as the principal carrier in February or March. It was unable to do so at that time and Nu-Car con- tinued in operation through the end of March. Both Nu-Car and E & L had contracts with the Union, E & L only for its drivers, while Nu-Car had a contract for the drivers, me- chanics, and for its office personnel. With the change in the contract a grievance meeting was scheduled and held in Arlington, Virginia, to discuss and reach a decision on the liability of E & L with regards to those being displaced by the new contract. At the March 7 and 8 meetings E & L agreed with the Union to hire, as needed, the drivers from Nu-Car providing that they made an application within a 1-week period. It also agreed to hire me- chanics from Nu-Car’s group of employees as needed, and both parties agreed that the two units would be covered by their overall contract. The National Master Automobile Transport Agreement, which covered both Nu-Car and E & L, provided that where two companies shared traffic from a shipper and one of the companies was canceled, such as happened to Nu-Car here, and assigned to the other, that the seniority list for both was to be dovetailed from the loser into the new assignee. It was on that basis that the decision was made at Arlington con- cerning the dovetailing of employees’ by seniority. The Union sought to have E & L hire the clerical employ- ees who were covered by the contract but E & L refused. During the arbitration proceeding which followed this agree- ment, the agreement was confirmed and the arbitration panel stated that it was not under contractual obligation to hire the clerical employees since it did not have a union office. E & L maintained that it had a sophisticated computer system which would enable it to operate the terminal with no in- crease in the number of clericals it then had. E & L said it would reassess the office situation later. E & L hired a number of drivers and mechanics and basi- cally moved into the terminal area being vacated by Nu-Car and began operations around April 1. At that time its termi- nal was being run by Al Schaeffer, with the assistance of clerical employees James Houseman and Lisa Buschman. Wade, who was the union business agent, in conversations with the E & L in Arlington tried to persuade them of the abilities of the Nu-Car staff and that they would be of great help to E & L in taking over the business. B. Specific Violations On March 29, Union Representative Wade, with driver and Shop Steward Bob Brown met with E & L Terminal Manager Al Schaeffer to determine how many drivers the Company would be hiring. Schaeffer said he did not know and thought it would be about 50 and that they would be fix- ing and cleaning up the garage before they called the me- chanics. Wade asked about their hiring the office personnel. Schaeffer said they were fully automated and did not need the office people. Wade replied that was ridiculous since they had three people to handle the small volume they had before and with the huge increase in volume they would cer- tainly need more people. He went on to say that the Nu-Car people were qualified and knew the work and the customers. Schaeffer replied that we may hire some of the office people but we will not hire the union office people. Wade asked what he said and Schaeffer repeated it. Brown corroborated this testimony. Prior to this time Schaeffer had instructed James House- man, a clerical employee called a check-in supervisor, to de- termine which of the clerical employees at Nu-Car were Union and which were not. Houseman testified that he went to the Nu-Car terminal quite frequently concerning making up loads and knew their clericals. He said he thought that all of them were union, but at Schaeffer’s instruction asked Pat Garcia about it and she said that she and Nancy Norton were the only nonunion clericals. He asked why and she said that in her position as a confidential secretary she could not be. He returned to Schaeffer and repeated this and told him that only Norton and Garcia were not union and the rest were. Schaeffer then told him to go back to Nu-Car and very dis- cretely get resumes from Norton and Garcia. He returned and got them to fill out resumes which he took back to Schaeffer. Houseman testified that during March he heard Schaeffer say that when they got all the clerical employees they needed it was going to be a nonunion office. Fellow employee Lisa Buschman testified that during March she heard E & L’s vice president, Aikens, conversing with Schaeffer and they said it would be a nonunion office that would not have any union employees. I find that the statement by Terminal Manager Al Schaef- fer, which was not denied, violated Section 8(a)(1) of the Act as alleged in paragraph V of the complaint, in stating before employee Brown that the Company would not hire any union office clerical employees. E & L Terminal Manager Schaef- fer testified that he did know which of the Nu-Car employees were Union and which were not, which in essence confirms the testimony of Houseman, and that employees Norton and Garcia had been asked to submit resumes. Garcia was interviewed by Schaeffer and E & L Vice President Aikens and was asked why she was not in the 306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union. She replied that she had access to personnel files and was therefore not allowed to be in the Union. She was told to fill out an application and take a physical. She was later told that the job that she had been applying for was filled by Norton. Norton testified that she was interviewed and was asked by Schaeffer why she was not a member of the Union. She told him that she was not interested in the Union. She was then invited to fill out an application and sent for a physical and hired. Although she was told she was going to be a con- fidential secretary, during the week that she worked for the Company she did dispatch work, computer entries, and phone work and did only two short memos for Schaeffer. She was terminated at the end of the week and was told that she did not have the requisite skills the Company wanted. Her termination is not in issue in this case. During the second week of April, Al Schaeffer was re- placed by Ronald O’Reilly as the terminal manager and Bill Schaeffer was brought in as the assistant terminal manager, with Al Schaeffer being transferred elsewhere. At the same time an order was placed by E & L to Kelly Temporaries for clerical employees. On April 6, E & L placed an order with Kelly Temporary Services for data entry clerks and two persons were sent on April 9 and were replaced on April 10 by Janice Burks and Judy Nelson. After she had worked there for a week or more, Nelson was interviewed by Respondent for a job on a perma- nent basis and was hired as a confidential secretary. From April through September Kelly Temporary Services provided at least two data entry clerks and Manager O’Reilly did not interview any persons for those positions until July. The records from Kelly Services show that during the period from April through August that at least 10 different individ- uals were sent to work at E & L to perform various services. The four alleged discriminatees prepared resumes at Union Representative Wade’s urging and presented them to E & L where they were on file from late March or early April. In April O’Reilly met with Wade and Union Steward Bob Brown, who was an E & L driver, to discuss the discharge of a driver. Following the discussion Wade asked O’Reilly if he would hire some of the four clericals who had not been interviewed or hired by E & L. O’Reilly said that if he hired them, they would be nonunion. In late May two of the four clericals, together with the wives of some of the drivers who had not been hired, put up a picket line outside of E & L. O’Reilly called for Wade to see if the Union sanctioned the picketing. Wade was in Michigan engaged in business and was reached at a plant. A telephone conversation took place with Union Steward Brown present in the office, with O’Reilly using a speakerphone, and Wade in Michigan. Wade was informed of the picketing and said that he knew nothing about it. The picketing to some extent had apparently been caused by the Company’s placing an ad in a local paper seeking dispatch supervisors, which was the generic term for work that some of these clericals had done for Nu-Car. During the phone conversation Wade again asked O’Reilly to hire some of these clerical employees because they knew the job and were well qualified. O’Reilly said he had placed an ad in the newspaper for office people and Wade could tell the former Nu-Car people to put in their resumes but if they were hired they would not be union. I find that O’Reilly’s two undenied statements to Wade, in front of employee Brown, that if any of the four discriminatees was hired, they would be nonunion, was a threat to deny employees their rights under Section 4 of the Act, and thus violative of Section 8(a)(1) of the Act, as al- leged in paragraph VI of the complaint. In June E & L began interviewing to fill some positions. Among those interviewed were Vern Joyner and Kathleen Williams (one of the four alleged discriminatees). Neither Kathy Parker nor Rebecca Pyka was interviewed by E & L. Pyka had an interview scheduled but it was canceled by the Company. She later complained that she had not heard from E & L. O’Reilly told her they had tried to contact her five or six times but that she never returned their calls. Pyka tes- tified that she had an answering machine which was in work- ing order, that she tried it from the office and it was still working, denied that she had ever had any messages from E & L, and so informed E & L by a letter stating she was still interested in working for them. She still did not hear from E & L, who offered no explanation for not interviewing Parker or Pyka. Dawn Szczepaniak had given a resume to E & L in mid- March and was not called until she was asked to come in for an interview on June 20. O’Reilly interviewed her about her job skills, work history, attendance, and computer skills. She told him she was completing computer school and was asked to come back for a second interview but then was not hired. O’Reilly admitted that he did not look at the resumes for any of the four discriminatees back during the days when he was using Kelly Temporaries for data entry and other work. He knew that the resumes were there and equivocated some- what in regard to whether there was work that needed to be done. He finally admitted that he had two temporary employ- ees doing data entry work into August and September. De- spite having the resumes of people who had done the work before, he said he put ads in the newspaper because he want- ed to see what was available. Kathleen Williams, whose resume had been with the Com- pany since mid-March, was interviewed around June 20 on several occasions and was hired on July 25. She testified she received her job description 1 week before testifying in this matter. She was offered a position called dispatch supervisor and was told that as such she would not receive overtime. O’Reilly maintained that there was no distinction between the jobs of Joyner and Williams. Williams testified that 95 percent of her work was entry of plant and rail inventory into the computer system, making of loads, checking logs, and doing some check-in, and that she learned the computer system in 1 day. She testified that Joyner spent most of his time at the check-in window check- ing in drivers and dispatching loads and that although sup- posedly they had the same job description they did basically different things. She said that he did not do inventory or load makeup and was only a two-finger typist and did not do much work on the computer. At the beginning she corrected some of the entries he made in the computer system but he became more skilled since that time. Williams distinguished the job description prepared by E & L from what she actu- ally did, by stating that she had no supervision over drivers and that there was no judgment called for in issuing rep- rimands to drivers who were driving over the limit of hours 307 E & L TRANSPORT CO. prescribed by the Department of Transportation (DOT). The Company has a list of 11 things that must be completed when a driver checks in, and in going over these items the dispatch supervisor checks the logs to make sure the em- ployee has not driven more than the prescribed 70 hours in 8 days and that there is sufficient time left, according to his logs, to pull another run. There was a considerable difference in the testimony of Joyner and Williams. Joyner’s testimony contained a lot of judgmental words wherein he described himself as giving or- ders, using his judgment, reprimanding employees, and issuing reprimands and generally being a ‘‘supervisor.’’ Wil- liams’ testimony made it clear that although they did some- what distinct jobs, basically there was no judgmental leeway available to either of them. The contract between the Company and the Union lays out the various requirements drivers must meet to be assigned loads, the many types of problems such as overtime, delay time, and other areas, and prescribes various solutions and rules. Williams testified that she had no authority to suspend or give a driver time off or to fire or hire or to make any change in employees’ permanent pay. Once the puffing is removed from Joyner’s testimony, it is clear that he has no independent judgment to use in writ- ing up drivers’ various offenses. They are basically automatic and he must merely follow the Company’s rules in what he does. There appeared to be an attempt to bolster Joyner’s au- thority by having him write some disciplinary warnings fol- lowing the beginning of the trial in this matter, in an attempt to bolster his supervisory status. Looking at the testimony as a whole, it is clear that Joyner has no true supervisory pow- ers as Williams testified neither of them had. It is clear that any decisions made by them in regard to minor matters of pay are still reviewed by the assistant terminal manager or the terminal manager for approval. C. Concluding Findings A review of the testimony makes it evident that Respond- ent here sought to keep its office personnel nonunion. Re- spondent’s plan starts when Wade asked if Respondent would hire the clerical employees from Nu-Car. Respondent apparently was under the impression that since it had no con- tractual duty to hire these employees, that it could (and would) keep them at arm’s length because they were union employees. Respondent apparently confused a contractual question with discrimination and here discriminated against employees because they were union members. Respondent’s determination to keep its office personnel nonunion is evident from the manner in which Respondent went about determining which of the employees were union and which were nonunion, soliciting resumes only from the nonunion employees, and making it clear in front of other employees that its goal was to have only nonunion employ- ees in its office. When Terminal Manager Al Schaeffer left, O’Reilly, as the new terminal manager, continued the pattern. Respondent hired temporary employees when it knew that it had long-range needs for other employees. It solicited in the paper rather than review the resumes until action by these employees in a form of a picket line in front of the plant dramatized their complaint that they wanted to be considered. Respondent did not truly consider any of these employees until after a charge had been filed against it and the May picketing took place. When Respondent finally hired Wil- liams it sought to ensure that she would not be an employee but a supervisor by building up asserted duties she was to perform to make it appear that her’s and Joyner’s positions were supervisory. It is clear from the description of what they actually did, these were not supervisory positions, but were created to avoid the possibility that the employees put in them could become union employees. Similarly, Respondent’s position that none of the four discriminatees could have been considered for the confiden- tial secretary’s job is fallacious. Whether the confidential secretary could be a union member or not has nothing to do with interviewing and possibly hiring a person who was a union member at a previous location. Respondent, in taking this position, is making a qualification for that position that a person who had ever been a union member could not be considered for the job. The fact that a person was once a union member and would be hired for a position of confiden- tiality where they could not become a union member does not preclude all previous union members being considered, and to do so is to discriminate against that person because of their union membership in violation of the Act. Respondent, by its use of various stratagems such as using the temporary employees, refusing to consider the resumes of any of these employees until it was forced to do so, and by its establishing positions in such a way as to try to avoid the question of whether they might be employees who could be- come union members, clearly was building a situation where it felt it would insulate itself from having any of its clerical employees as union members and would thus keep out the Union. I find that Respondent, beginning with the first cleri- cal hire and the use of Kelly Temporary employees and its subsequent hirings, and by not considering any of the discriminatees, discriminated against all of them. Basically, Respondent confused its lack of obligation to take the unit of office employees with permission to dis- criminate against the individuals who occupied those posi- tions because they were union members. In essence, the bar- gaining unit is not the same as the individuals who are in that unit. The people who were members of that unit wanted to be employed by E & L and made that known to E & L by filing resumes. Respondent sought to fend off union cleri- cal employees by first using Kelly Temporaries and saying it was not going to hire any more permanent employees. Next it took the position it could not consider union mem- bers for confidential positions and later sought to make its clerical positions into supervisory positions to say that per- sons in those positions could not be union members. Being in a bargaining unit has never disqualified employ- ees from transferring to nonunit jobs or supervisory positions and such could have happened here. If a confidential em- ployee is excluded from protection of the Act due to the na- ture of the person’s job, that does not forbid a company from offering such a job to an employee who is a member of the union and clearly this is no reason for precluding consider- ation of such a person from such a position. A company can establish that the position requires exclusion from the union and the individual can determine if the position offered is worth the loss of protection of not being a union member. The fact that a position may be outside of the bargaining unit is no defense to refusing to consider an employee or a unit member for that position. To do so is to say that a per- 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. son who is in a bargaining unit is barred from taking a con- fidential secretarial position or a supervisory position because the person is or was a union member, which is simply an- other way of saying we will discriminate against them be- cause of their union membership. In this case the Respondent took this position when it sent its employee James Houseman to determine which of the of- fice workers were union and nonunion and securing resumes only from those who were nonunion. This was further drummed in by the statements recited above that it would not hire union personnel in its office and it continued this cam- paign even when it changed terminal managers, by refusing to even consider the union persons who had filed resumes. It was not until after charges were filed and it was picketed that it even interviewed some of the discriminatees. The ex- cuses given for not considering some of them are not credi- ble. That is not balanced by its hiring Kathy Williams whom it found to be sufficiently talented for them. It sought to keep her from becoming a union member again by stating that this position was a supervisory position and attempting to give it trappings of such. Clearly, the testimony provided by Joyner in his blowing out of proportion his responsibilities was an attempt to establish that Williams’ held a supervisory posi- tion. I conclude and find that Respondent refused to consider the four named employees seriously for employment by it until it hired Kathy Williams. The reasons given for not hir- ing the other employees are found to be specious. I conclude and find that Respondent had a duty to consider these em- ployees on an equal basis with all other persons and by not doing so violated Section 8(a)(1) and (3) of the Act as al- leged in paragraph VII of the complaint. The use of the Kelly Temporary employees which Re- spondent testified was done because it was not sure whether it would need employees or for how long and that it was ‘‘cheaper’’ to hire temporaries and that it was not hiring per- manent employees is a mere facade. It could have hired or offered to hire any of the employees as the predecessor and if it really believed it was hiring only temporary employees it could have made such offers to them as temporaries but chose not to do so. The basis for Respondent’s actions again was its attempt to avoid hiring union members in an office unit. Respondent states that antiunion animus cannot be imputed to it because it has contracts with unions at other locations. The Board has held on many occasions that because an em- ployer has some union employees does not prevent it from having animus against having more employees as union members. In the situation in which Respondent found itself, it did not have much choice in the Chicago area in hiring the driv- ers or the mechanics since the contract was explicit and it was subject to the ruling of the joint arbitration board which found that it must do so. I conclude and find that Respondent violated Section 8(a)(1) and (3) of the Act by not hiring these four employees from the date it hired employee Norton (March 31), and sub- sequently hired temporary employees, until each of these discriminatees are offered employment with Respondent. Respondent’s reliance on Master Housekeepers, 287 NLRB 908 (1987), is misplaced. In the instant case we have both stealthy interrogation of employees to determine union membership and violative threats not to hire union members, followed by stratagems to achieve that purpose. Such ele- ments were not found in Master Housekeepers. CONCLUSION OF LAW By the acts described above, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act, and thereby has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act, as alleged in the complaint. REMEDY Respondent, having discriminatorily refused to consider for employment four persons, must offer Kathy Parker, Rebecca Pyka, and Dawn Szczepaniak positions and make them and Kathleen Williams whole for any loss of earnings and other benefits they have suffered, computed on a quarterly basis from the date of the refusal to consider them to a date when they are offered positions, less any net interim earnings as prescribed in the F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and the entire record, I issue the following recommended4 ORDER The Respondent, E & L Transport Company, Chicago, Illi- nois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening not to hire persons because they are mem- bers of the Union. (b) Refusing to consider and not hiring persons because they are union members or because they support the Union. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer Kathy Parker, Rebecca Pzka, and Dawn Szczepaniak positions in Respondent’s Chicago office which were offered to other persons because these employees were union members and not considered for employment because of their union membership, and make them and Kathleen Williams whole for any loss of pay or other rights and privi- leges they would have had if they had been hired at such time other persons were hired or employed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 309 E & L TRANSPORT CO. 5 If 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ (c) Post at its Chicago facility copies of the attached notice marked ‘‘Appendix.’’5 Copies of this notice on forms pro- vided by the Regional Director for Region 13 after being signed by the Respondent’s authorized representative shall be posted by Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten to not hire persons because they are members of the Union. WE WILL NOT refuse to consider and hire persons because they are members of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL offer Kathy Parker, Rebecca Pyka, and Dawn Szczepaniak positions in our Chicago office which were of- fered to other persons because these employees were union members and not considered for employment because of their union membership, and make them and Kathleen Wil- liams whole for any loss of earnings and other benefits suf- fered as a result of the discrimination against them. E & L TRANSPORT